I. Jurisdiction of the Criminal Courts
* * * * * * *
Article 5
Jurisdiction of the People’s Court
(1) The People’s Court has jurisdiction for--
1. High treason (articles 80 through 84 of the Reich criminal code).
2. Treason (articles 89 through 92 of the Reich criminal code).
3. Attacks against the Fuehrer and Reich Chancellor (article 94, paragraph 1 of the Reich criminal (penal) code).
4. Severe cases of damaging military equipment and endangering the armed forces of friendly states (arts. 1–5 of the decree supplementing penal provisions for the protection of the defensive strength of the German people of 25 November 1939, Reichsgesetzblatt I, p. 2319).
5. Failure to report an intended crime (art. 139, par. 2 of the criminal (penal) code), insofar as this crime was intended to be high treason or treason under the jurisdiction of the People’s Court, or a severe case of damaging military equipment.
6. Crimes under article 5, paragraph 1 of the decree concerning protection of people and state, of 28 February 1933 (1933 Reichsgesetzblatt I, p. 83).
7. Crimes under article 1, paragraph 1 of the law against economic sabotage, of 1 December 1936[135] (1936 Reichsgesetzblatt, Part I, page 999).
(2) In cases of acts punishable under articles 82, 83, 90b through 90e, 92 of the criminal (penal) code, the Chief Reich Prosecutor at the People’s Court can transfer the prosecution to the attorney general at the court of appeal.
(3) In the cases described in paragraph 2, the People’s Court, in agreement with the Chief Reich Prosecutor, can transfer the trial and decision to the court of appeal, as long as the trial has not been directed to take place before the People’s Court.
(4) The Chief Reich Prosecutor can withdraw the transfer and his consent to a transfer as long as the trial has not begun before the court of appeal.
* * * * * * *
Final Regulations
Section 40
Validity in the Protectorate
This decree is also valid for the German courts in the Protectorate of Bohemia and Moravia.
Berlin, 21 February 1940
The Plenipotentiary for the Administration of the Reich FRICK
PARTIAL TRANSLATION OF DOCUMENT NG-938 PROSECUTION EXHIBIT 438
LETTER FROM THE OFFICE OF THE SUPREME CHIEF OF THE SA, SIGNED BY DEFENDANT KLEMM, 4 DECEMBER 1936, PROPOSING FIVE SA LEADERS AS ASSOCIATE JUDGES OF THE PEOPLE’S COURT
Kl/Hz
Supreme Chief of the SA Adjutant’s office of the Chief of Staff SA Liaison officer in the Reich Ministry of Justice. Correspondence Record: None
Berlin W 8 4 December 1936 Voss-strasse 1
Subject: Members of the SA as members of the People’s Court
Enclosures: [Handwritten] Proposal for supplementary appointments of the below-mentioned five nominees. W. 4 December.
To: The Reich Ministry of Justice, Section I, Special attention: Ministerial Counsellor Wanger, Berlin W, Wilhelmstrasse 65.
I understand that more honorary associate judges [ehrenamtliche Beisitzer] of the People’s Court are to be appointed. On behalf of the Chief of Staff [of SA] the following SA leaders are proposed:
Obergruppenfuehrer Arthur Boeckenhauer, Munich, Barerstrasse 11 Gruppenfuehrer von Hoerauf, Munich Brigadefuehrer Hanns Bunge, Munich Brigadefuehrer Daniel Hauer, Stuttgart, Herdweg 72 Oberfuehrer Erich Kaul, Berlin, Wilhelmstrasse 106
I should be grateful if the above-named would be included among the nominees proposed to the Fuehrer and Reich Chancellor.
Chief of the adjutant’s office
BY ORDER:
[Signed] KLEMM Obersturmbannfuehrer
PARTIAL TRANSLATION OF DOCUMENT NG-160 PROSECUTION EXHIBIT 124
LETTER FROM FREISLER, PRESIDENT OF THE PEOPLE’S COURT, TO THE REICH MINISTER OF JUSTICE, 17 JANUARY 1944, TRANSMITTING SUMMARY OF ACTIVITY OF THE PEOPLE’S COURT FROM 1 JANUARY TO 31 DECEMBER 1943
The President of the People’s Court 1440 E-1. 123g [Stamp] 01/3
Berlin W 9, 17 January 1944 Bellevuestrasse 15 Telephone 22 18 23
18 January 1944
[Stamp] Secret
To: the Reich Minister of Justice Berlin W 8 2 Enclosures
[Stamp] Reich Ministry of Justice 18 January 1943 Dept. IV [Initial] Th [Thierack]
My dear Reich Minister!
Attached please find two enclosures giving you a summary on the activity of the People’s Court from 1 January to 31 December 1943. The activity of the special senate is not contained therein as the documents were lost in the terror attack of 24 November 1943.
Heil Hitler! Obediently yours [Signed] FREISLER
[Handwritten] taken out 1 copy [signed] KLEMM
1440E-1. 116
SUMMARY ON THE ACTIVITY OF THE PEOPLE’S COURT FROM 1 JANUARY UNTIL 31 DECEMBER 1943
-------------------------------+------+------+------+------+------+------+----- | 1st | 2d | 3d | 4th | 5th | 6th | |senate|senate|senate|senate|senate|senate|Total -------------------------------+------+------+------+------+------+------+----- 1. Number of sentences | 505 | 177 | 114 | 186 | 140 | 190 |1,312 | | | | | | | 2. Number of decrees | 232 | 54 | 85 | 122 | 97 | 127 | 717 | | | | | | | 3. Number of persons sentenced |1,332 | 610 | 141 | 259 | 384 | 612 |3,338 thereof those under | | 6 | | 5 | | 1 | 12 18 years of age. | | | | | | | | | | | | | | 4. Number of days of session | 550 | 164 | 115 | 131 | 162 | 148 |1,270 thereof those outside of | 183 | 83 | | 27 | 116 | 71 | 480 Berlin. | | | | | | | | | | | | | | 5. Death sentences | 769 | 368 | 49 | 72 | 200 | 204 |1,662 | | | | | | | 6. Life terms | 8 | 2 | 4 | 2 | | 8 | 24 | | | | | | | 7. 15–10 years of hard labor | 80 | 29 | 6 | 25 | 48 | 78 | 266 | | | | | | | 8. 10–5 years of hard labor | 234 | 92 | 15 | 37 | 47 | 161 | 586 | | | | | | | 9. Less than 5 years of hard | 97 | 57 | 12 | 19 | 51 | 64 | 300 labor. | | | | | | | | | | | | | | 10. Penal camp: | | | | | | | a. 15–10 years | | | | 1 | 3 | 6 | 10 b. 10–5 years | 5 | 2 | 5 | 4 | | 5 | 21 c. less than 5 years | 1 | 1 | 5 | 2 | | 2 | 11 | | | | | | | 11. Imprisonment | 87 | 43 | 25 | 42 | 20 | 42 | 259 | | | | | | | 12. Fined: | | | | | | | a. by judgment | | | | | | | b. additional | 6 | | | | | | 6 | | | | | | | 13. Acquittals | 50 | 16 | 12 | 47 | 14 | 42 | 181 | | | | | | | 14. Procedure suspended: | | | | | | | (persons) | | | | | | | a. by judgment | 1 | | 8 | 8 | 1 | | 18 b. by decree | 20 | 4 | 1 | 1 | 28 | 6 | 60 | | | | | | | 15. Settled in other ways | 381 | 92 | 22 | 90 | 35 | 103 | 723 (persons) | | | | | | | -------------------------------+------+------+------+------+------+------+-----
[Handwritten] IV a 35. 44g
TRANSLATION OF DOCUMENT NG-186 PROSECUTION EXHIBIT 340
MEMORANDUM FROM FREISLER, PRESIDENT OF THE PEOPLE’S COURT, 1 APRIL 1944, CONCERNING ASSIGNMENT OF VARIOUS TYPES OF CASES TO THE SEVERAL SENATES OF THE PEOPLE’S COURT
[Handwritten] To the Minister 3204-1. 65
The examination of the charges filed during the first quarter of 1944 shows the necessity of a change in the procedure. For the charges coming in after 1 April 1944, I distribute our work as follows:
A
The first senate will take up--
I. a. Attacks against the Fuehrer,
b. Attacks against leading men of the State, the movement [Nazi Party] or the armed forces,
c. Attacks against Germans in foreign countries, on grounds of their German nationality to thereby hit the Reich, or against representatives of the Reich, insofar as these attacks go beyond verbal attacks; in this category also belong all crimes against section 5 of the decree of 28 February 1933.[136]
II. a. Punishable acts of Germans of the intelligentsia or of the economic leadership,
b. Acts hostile to the State based on religious convictions from the Gauen: Baden, Bayreuth, Berlin, Danzig-West Prussia, Duesseldorf, Essen, Franconia, Carinthia, Cologne, Aix-la-Chapelle, Main-Franconia, Moselland, Munich-Upper Bavaria, Lower Danube, Upper Danube, Upper Silesia, Salzburg, Swabia, Styria, Sudetenland, Tyrol-Vorarlberg, Wartheland, Westmark, Vienna, Wuerttemberg-Hohenzollern, and from the Government General, excepting both treason [Landesverrat] and Marxist high treason.
III. Punishable acts of Germans from Alsace, from Luxembourg, Lower Styria, or Upper Carinola and punishable offenses in these areas; punishable acts of Germans in Bohemia and Moravia.
IV. Marxist high treason from Berlin and the areas incorporated since the beginning of the war.
[stamp] The Minister is informed 20 April
V. Non-Marxist high treason, with the exception however of separatist (often called legitimist) high treason, insofar as it concerns the Alps and Danube and Gauen or Bavaria.
VI. Defeatism, cases of undermining of morale and intentional evasion of military service (Art. 5, KSSVO) from the Gauen Berlin, Brandenburg, Silesia, Pomerania, East Prussia, Mecklenburg, Sudetenland, Upper Silesia, and the Reich Gauen Danzig-West Prussia, and the Wartheland.
VII. Punishable offenses of foreigners [Fremdvoelkischer]--except high treason--from Bohemia, if these offenses were committed after the establishment of the protectorate.
VIII. Impeachment of non-German civilians for punishable offenses against the Reich or the occupying power in the occupied northern areas according to the special instructions for the area.
IX. Chiefly punishable acts committed abroad--with exception of high treason.
B
The second senate will take up--
I. All other cases of Marxist high treason within the borders of the Altreich [pre-1938 Reich].
II. Impeachment of non-German civilians for punishable offenses against the Reich or the occupying power in France and Belgium in accordance with the special directions pertaining thereto.
III. Acts hostile to the State based on religious convictions from the Gauen Halle-Merseburg, Hamburg, Hessen-Nassau, Kurhessen, Magdeburg-Anhalt, Mark Brandenburg, Mecklenburg, Lower Silesia, East-Hannover, East Prussia, Pomerania, Saxony, Schleswig-Holstein, South Hannover-Brunswick, Thuringia, Weser-Ems, Westphalia-North, Westphalia-South--with exception of high treason.
IV. Endangering of the armed forces of befriended states (sec. 5 of the decree of 25 November 1939).
C
The third senate will take up--
I. High treason in favor of the Soviet Union and Poland.
II. Defeatism, undermining of morale, and intentional evasion of military service (Art. 5, KSSVO) from the entire Reich, as far as these affairs are not dealt with by the first senate (A II and A VI) or the second senate (B III), excepting however the Gauen Essen, Duesseldorf, Cologne-Aix-la-Chapelle, Moselland, Westphalia-North, Westphalia-South, and Saxony.
D
The fourth senate takes up--
I. High treason in favor of all countries of the world except the Soviet Union and Poland.
II. Damaging of means of defense.
III. Punishable offenses of Germans from Lorraine and punishable offenses in Lorraine.
IV. Punishable offenses of foreigners from Moravia, in case they were committed after the establishment of the protectorate, however not high treason in favor of the Soviet Union or Poland.
E
The fifth senate takes up--
I. Punishable crimes except high treason and defeatism, undermining of morale as well as evasion of military service, in the Reich Gauen Vienna, Upper and Lower Danube.
II. Separatist high treason involving the Reich Gauen Vienna, Upper and Lower Danube, Styria, Carinthia, Salzburg, and Tyrol-Vorarlberg.
F
The sixth senate takes up--
I. Punishable offenses except treason and defeatism, undermining of morale and evasion of military service in the Reich Gauen Styria and Carinthia, Salzburg, and Tyrol-Vorarlberg.
II. Separatist high treason involving Bavaria.
III. Accusations according to the law against sabotage of the economy of 1 December 1936.
IV. Accusations according to the decree of the Fuehrer for the protection of the armament economy from 21 March 1942.
V. Defeatism, undermining of morale, intentional evasion of military service (Art. 5, KSSVO) from the Gauen Essen, Duesseldorf, Cologne-Aix-la-Chapelle, Moselland, Westphalia-North, Westphalia-South, and Saxony, insofar as these cases are not taken care of by the first (A II and A VI) or the second senate (B III).
G
Impeachment for failing to report a crime to be dealt with by the senate, competent for the crime involved.
H
If a defendant is accused of high treason or treason against his country, the assignment is to be determined by the accusation of treason, if this is not irrelevant.
Favoring the enemy by treasonous activities, defeatism, undermining of morale, or evasion of military service does not bear any influence on the assignment.
Interrelated cases may be handled by one single senate in agreement with the other senates involved. Cases of nonagreement are to be submitted to me.
J
For charges, entered before 1 April 1944 the former plan of distribution of work applies, however, I wish to be notified by 1 June whether and which of these accusations are not yet settled.
Berlin, 1 April 1944
DR. FREISLER
TRANSLATION OF DOCUMENT NG-157 PROSECUTION EXHIBIT 103
LETTER FROM THE REICH MINISTER OF JUSTICE TO THE PRESIDENT OF THE PEOPLE’S COURT, 18 OCTOBER 1944, COMMENTING UPON ITS FUNCTIONS AND THE SELECTION OF PRESIDING JUDGES “IN PARTICULARLY IMPORTANT POLITICAL CASES”
[Handwritten] MIi Berlin, 18 October 1944 [Handwritten]T 276
Copy
The Reich Minister of Justice
To: The President of the People’s Court, Dr. Freisler Berlin W 9 Bellevuestrasse 15
[Handwritten] 18 October Bz
Dear Mr. President:
The importance of the People’s Court for the maintenance of the home front has greatly increased and is bound to increase still further after carrying into effect of the Fuehrer’s decree of 20 September 1944. The functions of the People’s Court must, therefore, not be confined to meting out adequate punishment to the accused, they must moreover fulfill the specific task of political leadership.
This is inherent in the fact that the population not only recognizes the sentences of the People’s Court as right, but that, moreover, it also learns why any particular sentence has become expedient.
The President of the senate is often hampered in conducting the proceedings, because in some particularly important political cases--including cases occurring frequently--the political evaluation of the offense is not always sufficiently shown up with a view to the prevailing situation of the people and of the Reich. If it is sufficient in nonpolitical criminal cases to show up the perpetrator, the deed and the effects of both on the national community and thus to find a just sentence, this is not sufficient for cases tried in the People’s Court. With due stress for the political aspect of the case it is necessary to discuss the conditions of the Reich and of the people. When conducting proceedings the president must be able to justify why this particular offense is especially dangerous for the population and the Reich and why it is especially grave. Everybody who is taking part in the proceedings must have the inner conviction when leaving the courtroom not only that the punishment was just but also why it was just. This also and quite particularly applies to the so-called cases of defeatism which from now on will be tried in an increased measure. Likewise, utterances must not be allowed to spring up which, for instance, say that proceedings before a certain senate mean certain death, or that the term “general public” is stretched too far in its legal definition. Whenever such utterances occur they can only be parried by a manner of conducting the proceedings which is superior, calm and--if need be--stone cold. In that case the people must always understand why in these crucial months of the war the instigator deserves death--but not so the gossip monger unless it happened not to be merely silly gossip but a gossip which became dangerous because it was unscrupulous.
The above applies in corresponding measure to all other cases tried before the People’s Court.
I, therefore, would like to ask you, Mr. President, to make a special endeavor especially that only such judges will preside in particularly important political cases, who master the material involved also along political lines and who warrant that they are able not only to pass just sentences but also by their manner of conducting the proceedings to convince those present of the correctness of the sentence. If any difficulties as to personnel should occur here, please let me have your oral report.
Heil Hitler!
Yours DR. THIERACK
5. HEREDITARY HEALTH COURTS[137]
PARTIAL TRANSLATION OF DOCUMENT NG-715 PROSECUTION EXHIBIT 112
LAW OF 14 JULY 1933 FOR THE PREVENTION OF PROGENY WITH HEREDITARY DISEASES (GESETZ ZUR VERHUETUNG ERBKRANKEN NACHWUCHSES)
1933 REICHSGESETZBLATT, PART I, PAGE 529
The Reich government has enacted the following law, which is promulgated herewith:
Article 1
1. Whoever is afflicted with a hereditary disease can be sterilized by operation, if according to experience of medical science a hereditary impairment of his progeny, either physical or mental, is to be expected in all likelihood.
2. Whoever suffers from one of the following diseases is afflicted with a hereditary disease according to this law--
(1) Hereditary imbecility. (2) Schizophrenia. (3) Circular (manic-depressive) psychosis. (4) Hereditary epilepsy. (5) Hereditary St. Vitus’ dance (Huntingtonian Chorea). (6) Hereditary blindness. (7) Hereditary deafness. (8) Bad hereditary physical malformation.
3. Any person suffering from chronic alcoholism can also be sterilized.
Article 2
1. The right to file such an application rests with the person to be sterilized. If he is incompetent or has been put under tutelage because of feeble mindedness or being under 18 years of age, this right rests with the legal representative and is subject to approval by the court of guardianship. In all other cases of limited competence, the consent of the legal representative is needed for the application. In case an adult person has been under guardianship, the guardian’s consent is mandatory.
2. A certificate of a physician, approved in Germany, has to be attached to this application, stating that the person to be sterilized has been familiarized with the meaning and the consequences of a sterilization.
3. The application can be rescinded.
Article 3
Sterilization can also be proposed by--
1. A public health officer.
2. The superintendent of a hospital, sanatorium, asylum, or of a penitentiary for its inmates.
Article 4
The application is to be made in writing and is to be submitted to the attention of a hereditary health court. The facts, upon which this application is based must be corroborated by a medical expert opinion or in some other way. The office [of the hereditary health court] must inform the public health office of this application.
Article 5
The hereditary health court of the district where the person to be sterilized resides has jurisdiction over the decision.
Article 6
1. The hereditary health court is to be affiliated with a local court. It is composed of a local court judge as president, a public health officer and another physician approved in the German Reich, with expert knowledge of matters pertaining to eugenics. A deputy is to be appointed for each member.
* * * * * * *
Article 10
1. The higher hereditary health court is to be affiliated to a district court of appeal covering the same district. It consists of a member of the district court of appeal, a public health officer and another physician, approved in Germany, with expert knowledge of matters pertaining to eugenics. A deputy is to be appointed for each member. Article 6, paragraph 2 applies accordingly.
* * * * * * *
3. The decisions of the higher hereditary health courts are final.
Article 11
1. The operation necessary for the sterilization is to be performed only in a hospital and by a physician approved in Germany. He can perform this operation only after the decree for sterilization has become valid. The supreme provincial authority will appoint the hospitals and physicians authorized to perform the sterilization. The operation is not to be performed by the physician who made the application or who was a member of the board during the proceedings.
Article 12
1. Once approved by the court, this sterilization has to be performed even against the will of the person to be sterilized, unless he made the application himself. The public health officer has to arrange the necessary measures with the police. Direct force may be used if other measures do not suffice.
2. If circumstances demand a re-examination of the facts, the hereditary health court has to reopen the case and to suspend the sterilization order temporarily. In case of a rejection of the application a reopening of the case is permissible only if new facts have appeared which justify the sterilization.
* * * * * * *
Berlin, 14 July 1933
The Reich Chancellor ADOLF HITLER
The Reich Minister of the Interior FRICK
The Reich Minister of Justice DR. GUERTNER
PARTIAL TRANSLATION OF DOCUMENT NG-715 PROSECUTION EXHIBIT 112
EXTRACTS FROM DECREE OF 5 DECEMBER 1933 FOR THE EXECUTION OF THE LAW FOR THE PREVENTION OF PROGENY WITH HEREDITARY DISEASES
1933 REICHSGESETZBLATT, PART I, PAGE 1021
* * * * * * *
Section 1
(Concerning article 1, paragraphs 1 and 2 of the basic law)[138]
A condition for sterilization is that the disease, although only temporarily manifested from a latent tendency, has been established beyond any doubt by a doctor approved by the German Reich.
* * * * * * *
Section 3
(Concerning Articles 3 and 4)
* * * * * * *
If an approved doctor in the course of his official activity learns of a person suffering from a hereditary disease (art. 1, pars. 1 and 2) or from chronic alcoholism, he must report this without delay to the competent district public health officer using the form printed as supplement 3 (p. 1024). Other persons who are concerned with the treatment, examination, or advising of sick persons, have the same obligation. In the case of inmates of institutions, it is the head of the institution who has the duty to report the case.
* * * * * * *
Berlin, 5 December 1933
The Reich Minister of the Interior FRICK
The Reich Minister of Justice DR. GUERTNER
PARTIAL TRANSLATION OF DOCUMENT NG-715 PROSECUTION EXHIBIT 112
THIRD DECREE FOR THE IMPLEMENTATION OF THE LAW FOR THE PREVENTION OF PROGENY WITH HEREDITARY DISEASES, 25 FEBRUARY 1935
1935 REICHSGESETZBLATT, PART I, PAGE 289
* * * * * * *
Article 4
Authorized persons and counsel can be barred from appearance before the hereditary health courts and higher hereditary health courts for important reasons; this decision is uncontestable.
* * * * * * *
Article 12
1. The Reich Minister of Justice determines the location and the district of the court which is to render the decision, and the number of court chambers to be established. He may transfer the exercise of this authority to the presidents of the district courts of appeal.
2. The hereditary health courts are to be regarded as parts of the local courts, and higher hereditary health courts are to be regarded as parts of the district courts of appeal, with respect to administration and official supervision.
3. The president of the district court of appeal determines the number of medical members and deputies of the hereditary health courts, as needed.
* * * * * * *
Berlin, 25 February 1935
The Reich Minister of the Interior The deputy: PFUNDTNER
The Reich Minister of Justice The deputy: DR. SCHLEGELBERGER
The Reich Minister of Labor The deputy: DR. KROHN
TRANSLATION OF DOCUMENT NG-346 PROSECUTION EXHIBIT 101
CIRCULAR OF THE REICH MINISTRY OF JUSTICE TO ALL PRESIDENTS OF THE COURTS OF APPEAL, 11 MAY 1936, ANNOUNCING COURSES FOR JUDGES DEALING WITH HEREDITARY DISEASE CASES
The Reich Minister of Justice No. 6234-IV. b 472
Berlin W 8, 11 May 1936 Wilhelmstr. 65 A1 Jaeger 0044
To: All Presidents of the Courts of Appeal
Subject: Courses for judges dealing with hereditary disease cases
It is intended that during the second half of the month of June courses will be held in Berlin and Munich to train presiding judges of the courts and courts of appeal dealing with cases of hereditary diseases in matters of the marriage health law. The course in Berlin will probably take place between 15 and 17 June and the course in Munich between 22 and 24 June. In order to save expenses, only the presiding judges of the courts and courts of appeal dealing with cases of hereditary disease will be admitted to these courses, but not their deputies. The course in Berlin is intended for the judges of the district courts of appeal of Berlin, Brunswick, Breslau, Celle, Dresden, Duesseldorf, Hamburg, Hamm, Jena, Kassel, Kiel, Koenigsberg Pr., Marienwerder, Naumburga. S., Oldenburg, Rostock, and Stettin. The course in Munich is intended for the judges of the courts of appeal in Bamberg, Darmstadt, Frankfurt/Main, Karlsruhe, Munich, Nuernberg, Stuttgart, and Zweibruecken. The nonresident participants will have their traveling expenses refunded in accordance with paragraph II of the traveling expenses law. The expenses will be paid by the director of the office to which the official belongs. The amounts paid are to be recorded under chapter 4, title 25 of the budget. Please inform me of the names of the participating judges by 31 May 1936.
An opportunity for a discussion will probably be given on the last day of each course. During the course of these discussions questions may be raised concerning the marriage health law and the law on prevention of progeny with hereditary disease. In consequence of the large number of participants it is however necessary that each judge who wishes to discuss a question will submit it in triplicate directly to us (Berlin W. 9, Vosstrasse 5, Office b) not later than 31 May 1936. If several questions are submitted a separate sheet is to be used for each question. In the case of medical questions a summarized statement of the case is to be attached, if possible; in other cases it is also advisable to state briefly which particular case led to the question. The name, official position, and the court of the judges should be marked at the top of the page on the left hand side.
Enclosed are copies for the presidents of the district courts and for the presiding judges of the main hereditary health courts.
Deputy Certified [Signed] DR. VOLKMAR
[Signature illegible]
[Stamp: Reich Ministry of Justice] Clerk
TRANSLATION OF DOCUMENT NG-789 PROSECUTION EXHIBIT 432
ANNOUNCEMENT BY THE REICH MINISTER OF JUSTICE, 17 DECEMBER 1943, CONCERNING THE APPOINTMENT OF A REFERENT WITH THE DUTY OF TRAINING JUDGES AND OTHERS IN A RACIAL, HEREDITARY, AND CRIMINOLOGICAL-BIOLOGICAL LINE OF THOUGHT
[initials] KLE [Klemm]
Internal Regulation
Reference: The consideration of racial, hereditary, and criminological-biological [kriminalbiologische] viewpoints in educational questions
With regard to the necessity of putting more emphasis on the racial, hereditary, and criminological-biological viewpoints in connection with educational questions within the meaning of my internal regulation of 12 June 1943--1200 E--Ip 2 340--Oberlandesgerichtsrat Meinhof, without prejudice to his sphere of office in department VI, is also assigned to department II as Referent.
The range of his duties comprises--
The training of judges, public prosecutors, jurists, and other officials, as well as of the entire new generation in a racial, hereditary, and criminological-biological line of thought.
Berlin, 17 December 1943
DR. THIERACK
1200 E--Ip 2 383 [Handwritten] Adjutant KLEMM
TRANSLATION OF KLEMM DOCUMENT 58 KLEMM DEFENSE EXHIBIT 58
DECREE SIGNED BY DR. CONTI[139] AND DEFENDANT KLEMM, 14 NOVEMBER 1944, TEMPORARILY SUSPENDING ACTIVITIES OF HIGHER HEREDITARY HEALTH COURTS, AND AUTOMATICALLY LEGALIZING PENDING CONTESTED DECISIONS
1944 REICHSGESETZBLATT, PART I, PAGE 330
Seventh decree concerning the execution of the law for the prevention of progeny with hereditary diseases
On the basis of Article 17 of the law for the prevention of progeny with hereditary diseases of 14 July 1938 (Reich Law Gazette I p. 529) in combination with the decree of the Fuehrer concerning the total war effort of 25 July 1944 (Reich Law Gazette I p. 161) it is decreed in agreement with the Reich Minister and chief of the Reich Chancellery, the chief of the Party Chancellery and the Plenipotentiary General for the administration of the Reich:
Article 1
(1) The higher hereditary health courts discontinue their activity temporarily--for the duration of the suspension the definite decision is with the hereditary health courts.
(2) A trial pending in the higher hereditary health courts ends with the coming into effect of this decree. With the termination the contested decision becomes legal. The hereditary health court investigates officially, whether a resumption of the proceedings according to article 12, paragraph 2, of the law for prohibiting carriers of inherited diseases to reproduce is ruled in consideration of the terminated proceedings.
(3) Paragraphs 1 and 2 are not valid for cases in which the higher hereditary health court has already passed a resolution at the time when this decree came into effect and has merely not yet delivered it.
Article 2
This decree goes into effect on 1 December 1944.
Berlin, 14 November 1944.
The Reich Minister of the Interior As deputy: DR. L. CONTI
The Reich Minister for Justice As deputy: KLEMM
6. CIVILIAN COURTS MARTIAL
PARTIAL TRANSLATION OF DOCUMENT NG-715 PROSECUTION EXHIBIT 112
DECREE OF 15 FEBRUARY 1945 ON CIVILIAN COURTS MARTIAL PROCEDURE
1945 REICHSGESETZBLATT, PART I, PAGE 30
The seriousness of the fight for existence of the Reich demands of every German determination to fight to the last, and devotion to the utmost. Whoever tries to withdraw from his duties towards the common cause, especially if it is done through cowardice or for personal profit, must at once be called to account with the necessary severity, so that the State will not suffer damage through the failing of one single person. Therefore, the following has been decreed upon the order of the Fuehrer in agreement with the Reich Minister and chief of the Reich Chancellery, the Reich Minister of the Interior and the chief of the Party Chancellery:
I
Courts martial are to be established in Reich defense districts which are menaced by the approach of the enemy.
II
1. The court martial consists of a judge of a criminal court as president and a member of the Leadership Corps [of the Nazi Party], or a leader of a unit affiliated with the National Socialist Party, and of an officer of the armed forces, the Waffen SS [armed SS] or the police, as associate judges.
2. The Reich defense commissioner appoints the members of the tribunal and designates a state attorney as public prosecutor.
III
1. The courts martial have jurisdiction for all kinds of crimes endangering the German fighting power or undermining the people’s fighting strength and will to fight.
2. For these proceedings, the regulations of the code of criminal procedure will be applied.
IV
1. The sentence of the court martial will be either death, acquittal, or commitment to the regular court. The consent of the Reich defense commissioner is required. He gives orders for the time, place, and kind of execution.
2. If the Reich defense commissioner is not available, but the immediate execution is indispensable, the public prosecutor is authorized to act in his place.
V
The necessary regulations for amendment, changes and execution of this decree are issued by the Reich Minister of Justice in agreement with the Reich Minister of the Interior and the chief of the Party Chancellery.
VI
This decree goes into effect immediately upon its promulgation over the radio.
Berlin, 16 February 1945
The Reich Minister of Justice THIERACK
D. Expert Opinion by Defense Witness Professor Jahrreiss concerning the Development of German Law
EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS PROFESSOR JAHRREISS[140]
DIRECT EXAMINATION
DR. SCHILF (counsel for defendants Klemm and Mettgenberg): Professor Jahrreiss, may I ask you to tell us your name, your profession, and your residence.
WITNESS JAHRREISS: Professor at Cologne University; at present on the staff of editors of the record of IMT. Do you also wish me to name my residence, Counsel?
Q. Yes.
A. At this time, in Nuernberg. I was born at Dresden; the date of birth is 19 August 1894.
Q. So that I can afford the Court the opportunity to acquaint itself with your particular research field, may I ask you briefly to describe to us your field of research as professor of law.
A. My work since 1923 has dealt with the fields of constitutional law, international law, and the law by the League of Nations, general constitutional law, and philosophy of law.
Q. May I ask you, just by way of example, to mention your own publications--those of a scientific nature.
A. Well, that is rather a lot; but publications which concern this subject here, I could mention--Law and Calculability, on the foundations of law and state; another publication on The Relation of the Constitution of the Reich to the League of Nations; then in the textbook which Anschuetz and Thoma edited on German Constitutional Law, my work about The Equality of the Citizens before the Law; and above all, my own version of The German Constitutional System, of the year 1930.
Q. Concerning the first problem, the German constitutional law, that is the subject on which I wish to start. My first question will open the direct examination. Is it correct that Hitler in the order of the so-called Third Reich was the supreme law giver?
A. Yes, that is correct, although that was not so from the very beginning of that era. That only happened in the course of events. But at the latest, if you’d like me to mention a date, that occurred when the offices of Chancellor and Reich President were united in him; that is to say, 1 August 1934.[141] That is the latest date.
Q. It was like this then--Hitler’s authority developed gradually until it reached its final culmination?
A. Yes, that is correct. If I may add this, one must say that the development under Hitler followed a development which occurred prior to his own era.
Q. Do you mean to say by that, that 30 January 1933 did not bring about a complete break of the development prior to Hitler?
A. Yes, that is what I would say.
Q. Do you also mean to say by this that the so-called change-over, that is the seizure of power by the National Socialist Party, was legal?
A. That is a very difficult question. First of all it is difficult because one would have to say in greater detail what events represented the change-over, whether one adheres to the formation of the government on 30 January 1933, or whether one discusses the enabling act, promulgated on 24 March 1933,[142] or how far altogether one wants to extend the events of the change-over. I can only answer conditionally. If one considers only the formation of the government, that is to say the act of entrusting Hitler with the Chancellorship on 30 January 1933, and if by “legal”, one means the purely outward formality, then it cannot be denied that the operation was carried out legally, namely, under Article 53 of the Weimar constitution,[143] according to which the Reich President forms the cabinet, and the Parliament--the Reichstag--only afterwards has the opportunity to have a destructive influence on the formation of the cabinet. Under the Weimar constitution, the Reichstag does not form the cabinet alone or together with another organ, but the President does that. The other organ is immediately elected by the people of the Reich. That is why the Weimar constitution contains quite rightly article 54[144] which incorporates the parliamentary system by establishing the institution of the vote of nonconfidence and entrusts the President with the formation of the cabinet. Yes, in fact one has to say a little more. In the formation of the government, the appointment of the Reich Chancellor is the sole act of the President; side by side with, let us say, the dismissal, with which the countersignature of the Chancellor is purely formal.
In the development of the Weimar constitution, after initial wavering, there evolved the principle that the new Chancellor appointed or signed the dismissal of the old Chancellor and his own appointment, which is really illogical. I don’t think there is any need for me to explain that any further. But as the Weimar constitution in Article 50[145] provided that every provision made by the president should be countersigned by the Reich Chancellor, or one of the Reich ministers--at least one--one was compelled to have even the appointment of the new Chancellor countersigned. That means naturally for the new Chancellor that he drags himself out of the mire by his own efforts. Counsel, if your question refers to 30 January--formally the procedure was orderly; a great deal more difficult is the question concerning the Reich law of 24 March 1933, that famous law [the Enabling Act], the validity of which was doubted so much; it is much more difficult to answer if your question refers to that. That law has as its main contents--I can almost say with a little exaggeration--the elimination of the division of powers. Three provisions or groups of provisions of the Weimar constitution are excepted, but for the rest the government could now promulgate laws even if that meant changing the constitution of the Reich; for the normal life of the people, legislators, and supreme administrators are one and the same thing. That is a basic change of the entire structure of the Weimar constitution. And I can say frankly if I, during the first years of the Weimar constitution, as an expert on constitutional law, had been asked whether the Reichstag, even if there was a majority, could not change the constitution under article 76[146]--if the Reichstag would make such decisions, could pass a law which, in effect, eliminates the Reichstag,--if I had been asked such a question I would have said there is nothing about that in article 76 that restricts the passing of such laws; but there is not only legality, there is also legitimacy in every constitution; there are certain basic decisions contained in any constitution which one cannot abandon without the entire losing of his character. But I must say the German science of constitutional law, particularly in the person of the most fanatic champions of democracy, did not take that point of view. Gerhard Anschuetz, who if it is permitted to say anything like that about a republic, was the crown jurist of the Weimar republic, wrote the commentary to the constitution of the German Reich which is the authoritative commentary. Gerhard Anschuetz whose last position was that of professor at Heidelberg, was, I might say, a temple guard of the Weimar constitution, and if he only thought an attempt had been made to shake the foundations of democracy, perhaps by creating a group of judges who could have reviewed decisions by the Reichstag, he would have been furious. I must say that because only now it becomes understandable what authority Anschuetz’ opinion carried, which was concurred in by all German constitutional lawyers, that there were no limits for article 76, concerning the amendment of the constitution. Anschuetz stated repeatedly that the Reichstag, with the majority that can amend the constitution, could abolish the republic, the federal state, democracy, even basic laws. No judge was entitled to doubt the constitutional validity of such a law. If previously I said that concerning that law of 24 March, one might have legal misgivings, I had something different in mind. I believe if I had been the President of the Reich, and if I had had the knowledge of the events, I would have refused to issue that law and to promulgate it, for it is the Reich President who has to examine whether the law has come about in a constitutional manner. I am convinced, however, that on no account procedures can be constitutional when the majority present, that is, the majority which passes the resolution, did not constitute the majority of the Reichstag as elected [by the people] but constituted the majority of a Reichstag that had been curtailed by the executive. Much has been said about that, and there is something else that enters into that question, and I have to say that quite openly that has not been discussed before. At that session at which the Reichstag passed that law which changed the constitution, the Reich Chancellor felt that the Reichstag might make difficulties, and he threatened with revolutionary forces; but even that doesn’t help and, particularly, it doesn’t help according to Anschuetz. Anschuetz and [other] German experts on constitutional law consistently upheld the view that the assurance of the Reich President, given by his signature, that the law had been passed in an orderly manner excluded all scrutiny. Therefore, we have to say, under objective law there may be misgivings, serious misgivings about that procedure, but according to what at the time was the guaranteed practice of constitutional law which was upheld by the opinion of the most fanatic upholders of the Weimar constitution, the signature by the Reich President excluded any scrutiny as to whether the law came about in an orderly manner. I believe that I have now indicated that the question for the so-called legality of the change-over, even purely formal, is very difficult to answer, but for the rest it seems to me that this is only an argument about words; [actually, it was] a revolution, and it was meant to be a revolution. Hitler even thought it was the only real revolution. And according to its aim and meaning it [i.e., a revolution] cannot be legal; but in any case, if it comes off--that is how it always will be in the world of states--it provides the soil on which the new order, slowly or more quickly, evolves, according to custom, and custom after all is the source of all law.
Q. Professor, we are particularly interested to explain to the Tribunal the constitutional status of the so-called Hitler decrees. May I ask you, now that you have answered the question of legality on the one hand and theories of legitimacy on the other hand, would you now, from the developments, explain the constitutional status of the Hitler decrees within the meaning of my first question as to whether he was supreme legislator of the Reich.
A. I am afraid I shall have to go back a bit for that because that question really concerns the entire question of the so-called constitution of the Third Reich. Even for many a German, Hitler’s authority is a mystery, but it must be that for all those who are not Germans. Many misunderstandings which I encounter again and again in conversations are due to the fact that certain unavoidable factors which are involved in any ruling, are ascribed to Hitler’s regime. A further difficulty consists in the fact that the peculiar constitutional insecurity in which most of the states in Europe have lived for many years, from the point of view of their constitution, produces phenomena which do not restrict themselves to Hitler’s regime, but only appeared there particularly clearly. But above all--because otherwise I cannot provide you with the background--I should like to explain that a little further to the Tribunal--above all, there is considerable ignorance about certain peculiarities of the German situation, in particular concerning the constitution. I believe I may say without encountering any contradiction that in this courtroom jurists are fighting for clarity among themselves which belonged to various schools of legal thought. Above all, there is between the European continental states and their constitutional and legal thought on the one hand and the Anglo-Saxon legal thought, as far as I understand it, a great difference which cannot be overestimated. On the continent of Europe, in the course of four centuries, a development has taken place by which law and morality in legislative thought are separated sharply; and so as the question of morality arises, the lawyer on the continent of Europe says as a lawyer, “That has nothing to do with me. That may be regrettable, and I myself do think it is regrettable, but after all, that is the historical reality.” How far that development goes, I can show to the Tribunal by giving an example which perhaps is the most important, and again that concerns the opinion of Gerhard Anschuetz concerning article 102 of the constitution[147] as to whether the courts in Germany concerning the validity of the law passed by the Reichstag are entitled to doubt it for ethical reasons. I quote--this is in the commentary of the 14th edition, page 476--“If it cannot even be conceded that the judge is entitled to examine the law as for its being constitutional or not, so it can be conceded even less that he may refuse obedience to a law which was passed constitutionally because according to his opinion concerning certain standards which again according to his opinion are above the legislator, that is to say, morality, ethics, natural law, they contradict these points or because they cannot stand up to certain evaluations.”
I had to read this out verbatim. Therefore, it was rather difficult for the interpreter because of the position of the verbs.
The reason for that situation in Germany, which is a situation that applies to the whole of Europe, is this--and I now have to broach a subject, the effect of which did not affect England or the United States. The state of the European continent came into existence from the fragments of the Corpus Christianum of western Europe. The break of the medieval realm is the soil on which the modern sovereign states grew. These states starting with Italy believe ever more strongly in the idea that they are sufficient to themselves, that they can live by their own efforts, that they are under no obligation to the past or to the future. The state becomes a purpose to itself. That has been emphasized again and again, and that development goes on from Macchiavelli, the great Florentine; Jean Bodin, the great Frenchman; and as far as Hegel, the great German. As a result, ethical evaluations may be made by the legislator, parliament, or the monarch, but the resolution passed by the monarch or parliament deprives those who are governed by these laws of all right of objection.
May I draw the attention of the Tribunal to one event that occurred under the Weimar constitution. During the first years of the republic it became known among the public that Berlin was thinking of forbidding any revalorization [or revaluation-- Aufwertung] by law.[148] The judges of the Reich Supreme Court of Leipzig at that time formed their own association, and that association of judges, in view of that rumor, held a meeting and passed a resolution to the effect that if such a law were to be promulgated, they would refuse to apply it. That happened in 1924, and it was emphasized that such a law would run counter to morality. There was a storm of indignation among the Reich government. The Reich Minister of Justice protested using very sharp expressions, and the Reich Supreme Court did not carry out its threats. However, in 1927 the Reich Supreme Court in a decision published in volume 118 declared--“The legislator in the autocracy is not bound to any other restrictions but those which he draws for himself from the constitution or from other laws.”
Now, I ask to be permitted to speak about a second point which concerns only Germany, at least to that extent. It is easy to forget that the German people for 33 years have never had really normal conditions. If one looks at that from the human point of view, it means that about 50 age-groups of German people--that is more than two-thirds--50 age-groups of people have never seen normal conditions; that is, all the people who were born after 1914, and those who, before 1914, did not have any conscious experiences. For all these people, life--and that was the normal thing for them--was a continuous change from open to latent crisis. One was always exposed to danger and always with a longing for stable conditions. The consequence is that for most Germans, order, which deserves that name, is something hard to imagine. To the German people order has become to mean something transitory, something unstable, something upon which one cannot depend, and doubtless it did not contribute to the stabilization of legal thought that, beginning with the time of the Weimar republic the machinery of legislation was running incredibly fast. I would, indeed, desire for the judges [of this Court] to see the maze of decrees and laws published and showered upon the German people since 1919. Most of those were laws or paragraphs of short existence. We had real inflation of legislation, as far as I know, in history without example at any other period. And that was not only so during the Weimar era, it became worse indeed during the period of the Third Reich. Before Hitler came [to power] he turned with strong criticism against that positive manufacturing of laws. In his opinion, only the “sound sentiment of the people” should find its inclination in laws. But when he was in power, the machinery, if this was possible, then was in even higher gear.
I believe that I do not have to credit it to my own inefficiency but I have to believe that no German jurist can say anything else of himself, but, none of us were in a position to know all the headlines of all the laws and decrees that have been passed. With things as they were, one has to understand that a large portion of the German nation, many jurists among them, became tired and apathetic toward authority, and skeptical. And on the other hand it could not be avoided that many impulsive individuals revolted, wanted to take action, wanted to do something about it, wanted to come to a decision, to a clarification, to a simplification, to find a way to see through all that.
In our era--at least one can say that for Europe--the political disease of fanaticism and doctrinism has broken out; tolerance became more and more rare; each single technical question was tainted with the question of religious allegiance. Under these circumstances, one can easily obtain a picture of the chaotic condition of legal thinking; small wonder that a state, to see to it that laws once decreed have to be carried out by the authorities, demanded particular emphasis because otherwise not even the minimum of order could be guaranteed which was at most possible. Particularly because the entire situation, the entire atmosphere was so unstable. The essence that “an order is an order” had to become the last refuge of those actually in power.
And now, a last part of it. Inflicted against this background of all that we find in the constitution which, on paper, perhaps structurally is the most sympathetic, the most logical democratic constitution of the world, with a tremendous, carefully thought-out system of checks and balances, safety valves in order to assure that the individual citizen would be the one to have its full advantage. But that constitution was worked through elaborately, and I say openly, that my determination to study constitutional law was in part based on that constitution which enthused me as a young man; this constitution, at the same time, was very complicated in its structure, its structural power and in legislative procedure.
With the permission of the Tribunal I shall try to explain that life itself demanded to have these matters simplified--rather less artistry but more efficacy. With that I believe, in all brevity, to have said something of that which is absolutely necessary to know if one wants to understand the essence of the Weimar constitution and its development which, long before Hitler, had led to a situation which does not permit to recognize any longer the situation of 1919.
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In German we call a law which was brought about by the legislative authority, a law in the formal sense. And the basic thought for all, which is to be found in all European constitutions, is this. If the government wants to, let us say, increase taxation, then that means it wants some acts of legislation which authorize the authorities, or the various agencies, to interfere with property. The government, therefore, wants a law in the material sense; therefore it must have a law in the procedural sense or in the formal sense, through legislation. That is what we call the principle of the necessity of the law, the fact that a law is required. Where this is brought about, we have a division of power. And if it were brought about--and it has never actually been carried out--then this is the way it would have to come about. The legislative body then would have to make all substantive laws, but it would do nothing but just that.
Both these cases do not apply. Parliaments, time and again, are given the privilege or the right to come to resolutions or decisions which have different content, for example, decisions on budget. These decisions on budget are not acts of legislation in the sense of setting standards. In German constitutional law it is definitely prohibited to include into the budgets acts of legislation or standards in that sense. The Parliament has a part in the forming of the cabinet. That is one thing. The other--and this is what we need--is the following. It may happen that the government is authorized to enact legislation by virtue of the constitution itself, or by virtue of later laws passed by the parliament. In German one calls these acts of rule making [Akte der Normsetzung] of the government, that is of the executive--which have a legal maxim as content--legal decrees [Rechtsverordnungen]. “Legal” on account of their content, and “decrees” on account of the method.
This institution, which we find in every European state, was the starting-point for the further development and the paving of the way of the orders by Hitler, because in the Weimar constitution there is a law for the government to decree laws, the utilization, or I should say the exploitation of, which led to the fact that since the middle of 1930 the normal legislative body in Germany was really the government. That is the famous provision of article 48, paragraph 2. As a rule, legal decrees on the basis of this article are called dictatorial decrees, but also apart from that during the Weimar era, much authority was received for the government to issue decrees. In countless laws the Reichstag empowered the government, in order to carry out a law, or in some cases in order to amend a law or repeal a law, to issue legal decrees.
However, not only in the Reich do we find this institution or this instrument of legal decrees, but also in the German states, the German Laender. In the constitution one always finds a [provision concerning the] right to issue emergency decrees (Notverordnungsrecht) and the legislatures of the various states frequently authorize the [state] government to issue decrees in regard to substantive law.
A law of the Reichstag of 13 October 1923, which is called Enabling Law, “Ermaechtigungsgesetz”, signed by Reich President Ebert, conferred upon the Reich government the power, among other things, to issue decrees in regard to substantive law, even deviating from the legal principles of the constitution of the Reich. This law is particularly important. It was published in the first years of the Weimar constitution under Reich President Ebert, and it cleared the way for a development which the founders of this law to this day probably regret deeply.
May I refer the Tribunal to the following:
Several months ago, in Munich, a book was published, “The History of the Weimar Constitution.” The author is Professor Willibalt Apelt, now at the University of Munich. We used to be together at the University of Leipzig, and I also had the honor to lecture for him in addition to my lectures when he became the Minister of Interior in Saxony; that is, the Police Minister.
He was one of the most outspoken democrats we had in Germany. This book throughout is a [settling of an] account [Abrechung] with Hitler. It altogether lauds the Weimar constitution, and therefore it is particularly important to note that Apelt considers this law the beginning of all the evil in this development and states explicitly that this law cleared the way to that other enabling law of 24 March 1933. * * * The date of the law is 13 October 1923. It appeared in the Reichsgesetzblatt of 1923, volume I on page 943. Since the middle of 1930 one did no more work with enabling law decrees, but one used article 48, paragraph 2. Earlier already that had been applied. If I am informed correctly under Ebert alone, 136 decrees of that kind were passed, that is to say, until 1925 when Hindenburg became President. At first a little less use was made of this means. It was reactivated again when the economic crisis of 1929 was nearing Europe. Conditions in Germany deteriorated from week to week, and under Bruening whole bundles of emergency decrees, of dictatorial decrees, were passed. In 1932 we had progressed so far in that direction that the Reichstag was practically excluded as a legislative body, and the Reich President, together with the Reich government (the Reich cabinet because according to article 50 they had to work together) was really the normal source of legislation. From then on until Hitler’s acts of legislation it is indeed only a short step, and if Hitler himself would not have set out to give the whole matter a triumphant dictatorial aspect, if he had been satisfied with an enabling act like that of 1923, if he had not had laws enacted by the government but decrees, the entire enabling act would not have caused so much rumpus as it did.
Q. Professor, may I ask you to explain briefly to the Tribunal who Reich President Ebert was, because we have to assume that the name alone does not give a plain indication. * * *
A. We had two Reich Presidents. The first, Friedrich Ebert, who came from the social democratic party of Germany, not elected by the people but by the national assembly, and then the second, von Hindenburg, who was elected by the people.
Q. And my second and other request is that you quote to the Tribunal article 48, paragraph 2 of the Weimar constitution.
A. Article 48, paragraph 2. Concerning the so-called dictatorial powers of the president--and with the permission of the Tribunal, I shall formulate these sentences linguistically in a way which make them easily translatable--“The Reich President may take those measures which are necessary to reestablish public security and order if, in the area of the German Reich, public security and order are considerably disturbed or endangered. If required, he may also intervene with the aid of the armed forces. For that purpose he is authorized temporarily to invalidate in whole or in part the basic laws which are laid down in the articles 114, 115, 117, 118, 123, 124, 153.”[149] May I add, these seven basic laws are the so-called “liberal principles,” [basic liberties], the same which we find, for instance, in the Constitution of the United States, the Bill of Rights.
Q. Professor, we are now concerned with an attempt to explain the Hitler decree to the Tribunal. After all we have heard from you now, the development which has led to it that the government governed by decrees rather than by legislation, that development started already as early as 1923, and according to the information we have from you was again stipulated in 1930 at the time of a different government. I think it will be necessary to explain to the Tribunal that this development led up to the Hitler decree; went through various stages of development, and I may ask you still to describe this to us, because in the course of this case it has become necessary that this development be shown asclearly as possible.
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The cabinet assumed responsibility [for all orders and directives issued by the Reich President] to the Reichstag by countersigning them, and the Reichstag could react rather disagreeably; the cabinet, if the Reich President and the Reichstag were of different opinions, was forced to make a decision. If the cabinet took the opinion of the Reichstag, then the Reich President either had to give in or change the cabinet; if the cabinet went along with the President, then nothing else was left than to risk the vote of lack of confidence; an essential vote of the Reichstag could lead, therefore, to a struggle of that kind, and in German practice the cabinet which went with the president against the Reichstag was called a “fighting government” [Kampfregierung]; not the other way around. In the long run it showed that the Reich President, when the Chancellor went with him, was stronger than the Reichstag. That also I may be permitted to describe briefly. If the Reichstag did not agree with the president, was not satisfied with the president’s decisions, it could not, properly speaking, do anything. Even though the constitution in article 43[150] reserved to the Reichstag the right to ask the people of the Reich that they demand the resignation or the dismissal of the president. That, in practice, never occurred, and for a very simple reason. If the Reichstag would have come to a decision of that kind, and the people would not have gone along, then that president would have been automatically reelected for another 7 years, and also, the Reichstag would have been dissolved, and that would mean suicide [for the Reichstag]. However, the president is in a much better position; if he is in agreement with the Chancellor, he can dissolve the Reichstag himself. That is where the famous red folder comes in.[151] If, therefore, the president and the cabinet are in agreement, and there is a threat of censure on the part of the Reichstag, then the president can turn over to the Reich Chancellor the order for dissolution [of the Reichstag]. The Reich Chancellor is present in the session, and when it comes to the last, he just shows that red folder and that settles the entire matter. Now, the Tribunal will certainly understand why in discussing article 48, paragraph 2, I did not even read paragraph 3,[152] because there it is expressed that the Reich President has to notify the Reichstag of every dictatorial measure and if the Reichstag wants it withdrawn, and the demands are made of the president, the president has to repeal his measures. If he and the cabinet do not wish to do that, they have the possibility of dissolving the Reichstag, and that brings me back to what I pointed out before. Maybe one cannot understand why the Reichstag permitted itself to be dispossessed, as far as legislation is concerned. It would have had to be made entirely different to be in a position to oppose due to the fact that the major change could not depend upon them. The Reichstag in every demand of repeal risked its own life.
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Perhaps at this moment I can jump ahead into the Hitler era. When the Hitler government had received the right to pass laws it no longer needed the Reichstag. If one wanted to use the Reichstag at all as a legislative body, one did so to save face. But, now the government did no longer make any suggestions as was, in former times, the normal procedure. The government was the legislator itself. But that way was chosen; a way, which during the Weimar era played no part.
Under Hitler the Reichstag since November 1933, consisted only of one faction. That is just as senseless as one party. This faction introduced a bill with the name of Adolf Hitler and three others. Frick, the faction chairman accomplished this, Goering acted surprised, being the president, and then, the whole game went on as you know it. That abnormal way, therefore, was chosen in order to stage the play. Now I go back to the Weimar era. As to whether the bill was introduced this way or that way, for the Reichstag, that was only raw material. It could say, “We will not do anything.” It could say, “We will pass it.” It could say, “We will change it.” If a bill is passed, it means that the bill is accepted or amended; then the Reich President received the law which was had been passed by the Reichstag for his signature. Signing a law, that meant as to whether the law was passed in the proper way, and as to whether the text which had been submitted to the president was actually the text which was passed under the law by the Reichstag. (It did, in effect, happen that other documents were submitted to him than those passed by the Reichstag, of course, by mistake. Next, the Reichsgesetzblatt had to publish it with a special wrapper in the changed form.) And when that happened, then, the president gave the order for promulgation. In Germany we usually call it promulgation, too. So far so good.
So much so good. But, now, it could happen that the Reich council or the Reich President with the consent of the government or the government with the consent of the president or some of the members of the Reichstag, itself, were dissatisfied with the law, and, in that case, the constitution provided that those unsatisfied persons or bodies could appeal to the people. That is very complicated, Your Honors, and I do not think that we need it for our purpose here. You will find it written down but I don’t think I need to elaborate on it here.
If such an appeal would have been made to the nation--it never happened, it got stuck in the beginning--then that had to be fought out at the time between signature and promulgation. But the constitution had provided for a special procedure, an act of absolute democracy became possible--the people of the Reich, that is to say, at least one-tenth of the whole electorate,--at that time, that was at least four million voters--could join together and demand that a bill which had to be drafted up to the very last [detail], was to be submitted by the Reichstag, and, in that case, the Reichstag was not as free toward the draft as in the other case. But it was under pressure of an ultimatum. It was only left with the choice either to accept it as it was or the government had to ask the nation. That was attempted a few times but it was never carried out properly.
I should assume that those remarks were sufficient to show to the Tribunal that on the one hand the Weimar constitution was very democratic, with the intent to protect the people and its rights; but that on the other hand the constitution was so complicated in the structure of the bodies and in the legislative procedure, that one need not wonder if an ever stronger movement urged for simplification. Furthermore, the constitution in itself had something unclarified, something provisional and that in severe respects and that always happens if a dualism is created; for every dualism of power endeavors at its own dissolution. * * * We had, furthermore, the small dualism between Reich President and Reich Chancellor; and, I haven’t mentioned that yet, there was the old grave German problem of dualism between Reich and Laender; all these various problems of dualism were urging for dissolution and they were in process of dissolution prior to Hitler. Hitler then completed that development. May I explain that in a few remarks?
First of all, the dualism between Reichstag and Reich President was abolished. The Reich President is the victor. Under Hindenburg the formation of the cabinet more and more came under the power of the Reich President and that of the Reichstag decreased. The end of this development was 30 January 1933. The Reichstag was no longer asked to do any work. Purely formally, under article 53, the president appoints the new government. Article 54 was no longer considered a serious threat. The parliamentary system is dead and we have the first demoting of the Reichstag. The second had already started in the meantime, as I have shown. The Reichstag had already resigned more and more as a legislative body; it is only the culmination of the development, what we see in the law of 24 March 1933 [Enabling Act] and the aftermath, the new reconstruction law [Neuaufbaugesetz] of 30 September 1934; the division of powers is dead. The Reichstag in its original and foremost function has been dethroned. What was its purpose now? In July 1933, political parties were definitely prohibited. A genuine parliament was no longer possible. The first Reichstag elected after this July law, in November 1933, was the Reichstag of one faction only elected by voters of one party only. It has been said that it was purely an assembly of acclamation. The great dualism in the Reich ended thereby and on the grave of the Reichstag there are three crosses. The small dualism between Reich President and Reich Chancellor ended with the death of Hindenburg and is expressed in the law of 1 August 1934, concerning the head of State [Staatsoberhaupt-Gesetz]. The greatest and most serious dualism between Reich and Laender in effect was eliminated before that. Usually one says in the German constitutional science that only the reorganization law of 30 January 1934 had turned the Laender into Reich provinces but that is certainly not correct. Looking at the facts themselves, that step was already taken by the Reich governor law [Reichsstatthaltergesetz] of 7 April 1933. When one summarizes all that and looks at those results together, the final phase is this--the entire power of the State in the German Reich is combined in the hand of that one man who quite arbitrarily can use that power to decide individual cases or to set new norms. It depends only on him, from the practical point of view of power, as to how long he refrained from interfering in the field of judiciary. * * *
Q. Professor, that was the question about the development up to the point when this one man, Hitler, held everything in his hand. I would say the result of historical development. We are interested in explaining to the Tribunal, if I may say so, the dogmatical position of the Hitler decree as a legislator. Therefore, my question concerning your statements up to now concerned the development of constitutional law up to that historical point. But now, the Hitler decree and the act of lawmaking became actually one and the same. What was the effect of that on the legislative, on the executive, and on all forms of the state life after that time?
A. Perhaps I may begin with the procedure of the Hitler decrees, that is to say, with the exterior manifestations. I have shown that in German constitutional law we had the difference between statute, in the formal sense, and ordinance. The one was the act of the legislature--the other of the executive. On account of the enabling act and as a consequence of the first acts of the Hitler government, the procedure of legislation became a dual one. We still had more or less--for Sundays only, so to speak--the procedure of legislation through the Reichstag. The normal course of legislation was the statutes enacted by the Reich government, which should not have been called that way. We also had, from the imperial days, and we kept it up during the days of the president, the decree by the head of state, especially distinguished in the way of ordinance, for instance the organization act and we had the ordinance by the government. Hitler, by and by--but it happened rather quickly--emancipated himself from those regulations of the laws which were previously valid and concerning the various forms of norms, he used them arbitrarily. As to whether a statute passed by the Reichstag, as I described it, was brought in by suggestion of the National Socialist Party with Hitler as the first mover of the motion, was passed by way of acclamation, without debate; or whether the law was decided on by the government--that happened very quickly by way of circulation--or whether Hitler called it “Decree by the Fuehrer and Reich Chancellor”--later called “Fuehrer Decree” or ordinance, such as the famous ordinance on the Enforcement of the Four-Year Plan--for the legal value that did not matter at all. In all cases Hitler alone decided, whether he would take advice or not, whether there was a cosignature or not, for genuine cosignature in the constitutional meaning, of course, could not exist any more. There have been many arguments as to what the cosignatures which weren’t always affixed meant. People have tried very hard to find a meaning, but the only thing that is really certain is that these cosignatures did no longer have the meaning or significance of the proper countersignature. There was nobody toward whom one could have assumed any responsibility by countersigning. Therefore, all fixing of norm, signed by Hitler’s name alone or together with other names, is merely an act of will of that man--whether it calls itself a law or something else.
The only difficulty is represented by the so-called secret laws, although I can’t quite see where the difficulties are when you look at it properly; that a law which is kept secret before the people whom it concerns cannot bind those people is obvious. That is not because of some particular legal system but that is because of the very nature of an order. Nobody can be given an order if he doesn’t know of the order and if he is not meant to have knowledge of that order. But one must not forget that if Hitler passed a secret law, that as an official directive it was binding for those persons to whom it was made known. Then it was not just a legal norm, but it was an official instruction. As for the citizen, that amounted to the same in effect. If I may use an expression from Germanic law, these various forms by which Hitler announced his will were only different as far as the number of people in his entourage were concerned.
Much more difficult than that question about the form is the question about the restrictions on those contents to which Hitler was subject as a legislator. According to the valid order, limitations in the matter of the contents existed also for Hitler. Already last year, before the International Military Tribunal, I stated clearly that naturally for Hitler too, the limitations of ethics did apply. As to how he himself thought about such matters, I don’t know. I never met him, and I would not like to rely on hearsay; but that he knew that others believed him bound by a moral restriction, that is quite evident from the fact that again and again, be it in preambles to the law, be it by the rest of the propaganda machinery, he formulated moral justifications. Whether that was in accordance with his own real ideas, that question may be left open.
But I have already told the Tribunal that these restrictions, as moral restrictions which are no doubt for a great man the most difficult and the most important restrictions, in the conception of the European state on legal matters, are no legal restrictions. The absolute state of the continent passed on that conception to its parliamentary successor.
A little while ago, I had an occasion to show, by the example of Anschuetz, that that remained so until the latest era, until the time of the extreme democratic era of the Weimar republic. If one does regret that or not does not matter here. I simply have to describe what actually happened. If now, in the European meaning, one asks about legal restrictions--and first of all one asks about restrictions of the German law--one will have to say that restrictions under German law did not exist for Hitler. He was legibus solutus in the same meaning in which Louis XIV claimed that for himself in France. Anybody who said something different expresses a wish that does not describe the actual legal facts.
On the other hand, certainly there were legal restrictions for Hitler under international law. He, as the head of the State, was the representative of the German Reich with foreign countries. After the development of affairs, he had to represent the German Reich without the restrictions which the Reich President still had. Hitler alone concluded the treaties and terminated them. He alone concluded alliances and could renounce them. He was bound by international law. Therefore, he could commit acts violating international law. He could issue orders violating international law to the Germans.
Now we are confronted with the most difficult problem: What were the consequences of the violation of international law by an act or an instruction by Hitler? The nonjurists will probably say that the order did not exist. But every jurist knows everywhere in the world that matters for the state, for every state, are not so simple. It is not true that there is even one state in the world which would say, “Every wrong act of state is not an act of state at all,” but every government system had inherent in itself, in varying form, a second order so to speak--a kind of self-purification system--a system concerned with finding out whether faulty acts of state are void or valid or are only partly valid. Every state commits faulty acts--acts of which everybody knows that they are not in order and knows it at a certain time. Acts which all the same are maintained, merely because during a legal procedure the end has to come one day.
In the Germany of the Weimar republic, for example, this is what happened. When the Reichstag--I just showed it by the example of Anschuetz--had passed a bill pursuant to article 76, that is, with a majority which could change the constitution, that law, if it had been properly promulgated, was binding for every official agency, even, for example, if it did not comply with an obligation of the Reich under international law.
In this commentary--would you kindly wait a moment--it’s a long time since I looked at it last, but I think I can remember where it is. [Reading] Anschuetz says in his commentary on article 10, under figure 7, “International law too, places an obligation on the German judge within the meaning of article 102 and according to article 4, but only insofar as it is generally recognized; in particular, also recognized by the German Reich and does not contradict the Reich laws. Whether that is the case, that the judge has to examine but he does not have to examine Reich laws, for the fact whether they are or are not in accordance with international law, and even if they don’t pass this examination, he cannot deny their application.” That means if the Reichstag, let us say, with a majority that can change the constitution had passed a law which was contradicting international law, that law was binding for all German official agencies. The Reich had to act as a sovereign State under the international law governing offenses against international law.
I return to Hitler. What applied to the democratic set-up applied all the more to the set-up under a “leader,” and everybody knows that who knew about the conditions surrounding Hitler’s decisions. If Hitler issued an order which was faulty from the legal point of view, that did not give the German official agencies any reason to refuse obedience, for in every state there has to be an authority beyond whom there is no appeal.
In the case of Hitler something else, something special applies. He who sees things differently and believes that the German official agencies were not merely entitled but perhaps even under an obligation to examine Hitler’s orders as to their legality not from the scientific point of view, but merely with the practical purpose of possibly refusing obedience, claims no more, no less than that Germany had no dictatorship at all. Then it would not be comprehensible what was the sense of a fight of the whole world against that regime.
I believe I have now answered your question. I would like to say one more thing, so as to emphasize the gravity of the development. I had the permission to show the Tribunal the structure of the acts of the State. Naturally that structure can also be applied to Hitler’s acts, but only one of those acts lost its meaning almost completely under Hitler. If Your Honors will kindly recall chart 1 to your memories, where on the left side we had the norms and then the authorization norms, the norms which authorized interference, I had differentiated between special and general relationship or subordination--pointing to the soldier and the citizen.[153] Those differentiations under Hitler gradually lose meaning. Hitler exerted and overburdened the strength of the German people to such an extent that finally he no longer saw before him citizens and smaller groups of persons under special obligation among them, but for him the Germans, all Germans were always on duty. A private sphere of activity no longer existed for him. With him there is no meaning in the differentiation between substantive laws and official instructions. It is all the same to him. The citizen is dead, because all have become officials. That is the final point of a development which, from a complicated state of affairs, was working towards simplicity, and that is the gruesome result.
PRESIDING JUDGE BRAND: Dr. Schilf, would you pardon a question directed to the witness at this time? Dr. Jahrreiss, if this question interferes with the orderly course of your presentation, I suggest that you ignore it. But you told us in your discussion of procedure your views as to decrees signed by Hitler and one or more ministers. Would you care to specify or to indicate to us a little the view you have with reference to the justification of authority decrees not signed by Hitler, but signed by one or more of the ministers? I think we have seen a good many of those in the record. In other words, decrees executed or signed only by various of the ministers, but not by Hitler. Do you understand my question?
WITNESS JAHRREISS: Yes, thank you. I have spoken so far only about orders by Hitler, but in German constitutional law dating back to the days of the monarchy and the Weimar republic we have not only norms fixed by the Reichstag or the head of the State, but also many norms laid down by the government, in the narrower sense by the minister. The ordinance [Verordnung], of which I spoke in the beginning differentiating it from the statutes passed by legislators, is normally the ordinance of a minister, and under German constitutional law the following is valid. That was not changed in the Hitler era. Administrative ordinances, that is to say, norms which are not legal principles in the narrower meaning, are issued by every minister within the framework of his own department, without any special basis. Other ordinances, that is to say, legal ordinances, can only be issued--he can issue them, but he can only issue them if he has been authorized to do so by the constitution or by a legislative act. That was, in fact, what I described at the beginning. And so, in the Weimar era, we had many ministerial ordinances if the law empowered the minister to issue them. If I may add this, the result of that differentiation was this, if the courts had to apply an ordinance by a minister, or to be more precise, when it was doubtful whether it was to be applied, then the court had to examine whether the minister was empowered, was authorized to issue it. If the court denied that question, the ordinance did not exist. May I ask whether this was in answer to your question, Your Honor?
PRESIDING JUDGE BRAND: I was interested especially in the source of authority, of decrees signed by various ministers after Hitler came into power. Would it be accurate to say that such decrees received their validity because of a delegation of power to the minister directly from Hitler?
WITNESS JAHRREISS: Yes, for legal ordinances. Hitler was the legislator. He could issue the ordinances himself but he could also delegate authority.
DR. SCHILF: Professor, I should like to follow up your words. In the Hitler state, so to speak, all people were on duty. There were no longer any citizens. You said the citizen was dead. May I ask you, in our legal language we call an order by a phrase which is very concise and which might explain it better to the Tribunal, that the law also in the former meaning was a law that was the same as an order to a servant. May I ask you to tell me whether that general instruction to an official, a civil servant, to a servant was the same as the law which had been solemnly promulgated in the Reichsgesetzblatt?
WITNESS JAHRREISS: If I have understood your question properly, you want to know whether the obligation was the same?
Q. Yes.
A. Yes, no doubt. For those who were concerned, those to whom the order was addressed, the order issued by Hitler, whether it was concerned with an individual case or whether that was a legal norm or whether it was an official instruction, was binding.
* * * * * * *
DR. SCHILF: Now I want to ask you, what, in principle, was the relation between international law and the law of the individual state, and I would like to ask you whether that relationship was changed under the Hitler state?
WITNESS JAHRREISS: Counsel, I suppose I am right in assuming that by that question you refer mainly to Article 4[154] of the Weimar constitution?
Q. Yes, that is my intention.
A. Among the methods by which human beings are directed in social intercourse, there is, as one of several, the order [Befehl]. That in itself, unsympathetic as it appears to people everywhere as a method, has the one characteristic that it is unavoidable. Consequently, there is nowhere among human beings a sphere where there is no rule. On the other hand, all mankind in effect today stands in permanent relation of life with one another without, as a whole, being subject to one rule. Both together result in the situation which again and again worries people, which we call the situation referring to international law. Only groups of mankind, smaller groups or larger groups, are under a common rule. Therefore, if a continuous life, in spite of being divided into various units of rule, is to be made secure, and that in a proper manner, then there must be norms which hold together in an entity those various units of rules.
Or to express it in a different way, the power of authority of the various units must be brought in line in such a way that a community life is possible. That means, however, the ruling authority of the individual units must be restricted by the whole. The central point of international law is therefore constituted by those norms which lay down that limitation of the authority of the individual groups. Therefore, I suggested, and I was the first person to demonstrate that in science, that the law of an individual state, that is to say the constitutional law, should never be described without also describing the limitations under international law. If we were to achieve the situation, if I may say so here, whereby everywhere in the world all young jurists from the very beginning would be accustomed to see the constitutional questions of their own country always in connection with those of international law, then a great deal would have been done to strengthen international law.
Summarizing, that means the individual state is placed under an obligation by international law to arrange its own order by legislation in such a manner that the authorities in their decisions work in such a way as is demanded by international law. In [legal] science, that is called--the state is under an obligation to organize its law in accordance with international law. How can that be done?
There are several methods available. The legislator can, from case to case in his own system, amend those provisions which need changing so as to comply with international law. He does not need to mention international law at all in doing so. That is the way states proceed again and again. A different method is the one which is called the method of transformation. That is, the legislator does not trouble to bring into line the law of his country, word by word, and paragraph by paragraph, with international law, but he tells his official agencies, “Consider the norm of international law which in itself only binds me, as if I had cast it into a law.”
That method, which in German we also call “Recasting” [Umgiessung], can be applied specifically or generally. That is to say, the legislator, as soon as he has to consider a new treaty under international law, can recast that treaty or he gives general instructions for the application of the international law which is valid in the particular case. Both methods have been used among states.
Concerning this method of transformation, a difficult problem arises. In all states which have laws of different rank, as in the German Reich under the Weimar constitution--that is to say, either laws which have the validity of the constitutional laws, or ordinary laws--the legislator has to ask himself whether he intends to apply the recast international law to the highest group or not. Under the Weimar constitution, for example, it was indisputable that the recast international law had merely the position of an ordinary law. There might even be a state which would place the recast international law above constitutional law. What do we need that for? Every official agency in every state finds itself in the situation where it is confronted with several laws of its own state which appear to contradict one another, or in fact do contradict one another, which, however, all claim validity. I need not tell you jurists that since the days of Roman law everywhere norms have developed concerning the elimination of such conditions; where state laws have varying status, further norms of collision have been constituted. If a state would have a general norm under which international law takes precedence over all domestic law, that would be the greatest safeguard which is possible at all, that the law of the country is handled in accordance with international law. I do not know whether there is such a state. The German Reich at any rate was not one of those states. I think with this background I can now answer your question.
The relation between international law and the law of the Reich has been regulated in the Weimar constitution in article 4 and article 45, paragraph 3.[155] There have been many arguments about article 4, at the time when the national [Constituent] assembly was sitting [in 1919]. After many arguments and after sufficient attention had been paid to article 45, paragraph 3, eventually the following legal situation evolved. As far as the German Reich, by treaty, enters into obligations under international law, in such spheres of life which are subject to the legislative authority of the Reichstag, the President of the Reich may not ratify the treaty for Germany before the Reichstag has agreed by law. That is a transformation of a special nature, and anticipated transformation, for if the treaty is concluded, because the other partners ratify it also, then, at the moment the treaty becomes valid, the special recasting has already been effected. For the rest, all other international law, as far as it is generally recognized, but also acknowledged by Germany, is generally speaking recast by article 4. Both ways of recasting gave international law the status of an ordinary law of the Reich. Yesterday I had opportunity--concerning the question as to the moral limits of rule--to point out that under the Weimar constitution the courts were not authorized to examine a law as for its validity under international law, and certainly not the administrative authorities. Under Hitler that attitude was not changed. The general method of transformation of article 4 was kept on, and the specific one was needed even less frequently because the approval of the Reichstag was no longer required for the conclusion of treaties. Hitler could conclude every treaty under international law himself. As soon as the treaty had been concluded, as soon as it had come into force, it had already been recast, for Hitler’s ratification was, from the domestic point of view, a Fuehrer Order.
Q. Professor, to supplement your explanations, may I ask you to read out to the Tribunal article 4 and also article 45, paragraph 3, so that the passages you mentioned become quite clear.
A. Article 4 says: “The generally recognized rules of international law are valid as binding constituent parts of the law of the German Reich law.” Article 45 says: “Alliances and treaties with foreign states which refer to matters in which the Reich has legislative power require the consent of the Reichstag.”
Q. Another supplementary question, Professor. You told us that treaties under international law were concluded by Hitler alone. I would like to ask you to explain to us how the question can be solved concerning the person who was subject to Hitler’s order if there were contradictions?
A. I believe I understand your question to mean that among the laws or ordinances which were valid in Germany at the time, there were some which were contradictory to that which Hitler had decreed concerning the treaty. That is not a particular problem. I have already pointed out that that problem was merely the problem of collision, and if Hitler, in contradiction to the treaty he had concluded later on, issued an order in a general way or in a specific case contradicting the former order, the later order, if the contents were the same, was to apply and the old maxim applied--lex posterior derogat priori--that was so concerning the relations of the laws under the Weimar constitution, and it was the same under Hitler; but I think it will be necessary for me to say a little more on that subject. It can happen, and it does happen again and again, that a state knowingly, in its legislation, gets itself involved in a contradiction with international law. The last will of the state is decisive for the official agencies. In that case, the nation until that collision has been eliminated, lives under constitutional law which contradicts international law. The settlement, which is bound to come, is brought about by international law by the state being regarded as one which has committed an offense under international law, and entails and holds that responsibility to the provisions of international law, and as quickly as possible that inconsistency has to be removed by later legislation. As to whether further consequences arise, that we need not discuss here. In the case of every state the following applies. For the official agencies which have to apply the law to a certain specific case, there are frequently, if one proceeds logically, several laws--there are after all many situations in life which extend beyond the frontiers from the human point of view or from the material point of view.
One can bear in mind that instead of the state’s own law or side by side with the law of that state, foreign law can be applied, or it may be a case of church law possibly having to be applied. The question as to the application of international law, therefore, belongs to a wider scope of the great problem which is called the problem of the norm concerning the application of law, or in other words in every legal system there is, by the side of the system which regulates the relations between human beings as such, a system which instructs the authorities as to which law they are to apply in each case. I do not know of any state nor do I know what law could be possible which does not proceed in this way. The officials have to apply the law of the state which is in force at the time except if the legislator admits or orders another solution. Consequently, the provision of the status of recast international law is, therefore, only one possibility of the various possibilities of applying international law.
Q. Professor Jahrreiss, for the purpose of this trial we are interested in establishing whether an official himself was confronted with the question that international law deviated from the state law. If he himself was confronted with that situation, I want to ask you in what direction did he have the choice, or did he have any choice at all? Was he restricted to one norm according to the general view or to the view of the Reich constitution as far as it was still in force under the Hitler regime? Was he bound by that?
A. First of all, I have to explain the underlying facts of your question. Apparently you have in mind the case where a law or an individual decision exists which, in the view of the official, is inconsistent with international law.
Q. Inconsistent with international law, but which unilaterally is the law of his country, and this official now is confronted with the question to what norm is he to adhere?
A. I have already said that under the Weimar system which on that point was not changed under the Hitler regime the official had to apply the recast international law as an ordinary Reich law, and now he had to solve that problem of collision which you have mentioned, in the same way in which he solved the problem of collision between two ordinary Reich laws which were contradicting each other. In effect if the law under Hitler had been issued and afterwards the Reich assumed a new obligation under international law which was recast, then that had to be applied and not the former law, and vice versa. Have I answered your question?
Q. Yes, but there was one more possibility for the imaginary official. If the law of a country perhaps intentionally deviated from international law, what norm did the official then have to apply?
A. I have already said that in the Weimar era already the moral background or the background of international law of a legislative act was removed from the scrutiny of the official and even removed from the scrutiny of the judge and of the Reich Supreme Court. The background of international law could not even be examined by the Staatsgerichtshof, [supreme constitutional court]. The supreme constitutional court was only allowed to examine whether it was constitutional, but it was not allowed to examine it from the point of view of international law. To express it differently, whether the law had been passed by the State in such a way that it was inconsistent with international law on purpose or not, that could not play any part at all; and that was the legal state of affairs, regrettable as it may be.
Q. For the purpose of our trial we are particularly interested in the norm of the Hague Convention of Land Warfare. May I ask you to explain to the Tribunal with special reference to whether the principles of transformation which you have explained apply to the Hague Convention of Land Warfare as well?
A. Counsel, with that question you have approached a particularly difficult problem. You know that the validity of the Hague Convention of Land Warfare also concerning the clause of general participation has very often been doubted. The Hague Convention of Land Warfare with us was recast, and specifically--that cannot be doubted in my view--most of what is said in the Hague Convention should be considered as recast pursuant to article 4 of the constitution even if a specific recasting did not occur. That follows from the history preceding the Hague Convention of Land Warfare. When the parties to the treaty, among them the German Reich, in 1907 signed the “Convention Concerning Land Warfare,” for the most part they only laid down in law such points which in any case were already international laws by customs and, therefore, assured. It would not always be easy to say whether a provision of the Hague Convention belongs to that group in part or not or as a whole. Have I answered your question correctly?
Q. I would like you to refer to article 1 of the Hague Convention and to read it to the Tribunal.
A. Yes. You mean article 1 of the Convention, or the appendix? Article 1 of the Convention you mean. Very often when one talks of the Hague Convention of Land Warfare, one means the appendix. Article 1 is a particularly concise example for the fact that the states were conscious of the character of international law such as I described, because it places the states under an obligation to give instructions to their land armies which are in accordance with the enclosed Hague Convention. As to the methods they employ, they are left open to the various states. For example, the German Reich could without mentioning the Hague Convention have passed a German law as to the behavior of the German army in wartime. It was technically easier to give the order to pay attention to the Hague Convention in the event of war. And thus, the points laid down in the treaty as international law, and which in the proper meaning do not affect the individual human being but only bind the state as a whole, were reinterpreted by the legislative authority to mean regulations applying to the conduct of the individual.
Q. Thank you, that answers the question.
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Q. Professor, I had the opportunity to show you the book of Heinrich Triepel, International Law and State Law. I would like to submit to you pages 153 and 154 and ask you to read that part to the Tribunal and to explain whether that is in accordance with your opinion.
A. I have in front of me the book of Heinrich Triepel, International Law and State Law of 1899. This book--
Q. Excuse me, Professor. Is it the first edition? I have just been asked if there are several editions.
A. No, there are not several. It is the first edition. This book, at the time, was a sensational book for the science of international law in the whole world. It was the first book which systematically treated the questions which I am supposed to supply information about here today. And what Heinrich Triepel laid down at that time basically has been recognized in the entire science of international law and only after the First World War a certain lack of security in theory, not in practice, developed because the so-called “Vienna theory of law” [Wiener Rechtsschule] founded by Hans Kelsen, who was my predecessor in Cologne, and who is now teaching in the United States, with its so-called “pure theory of law” or “norm logic” conceived the things logically. This did not affect the practice of international law at all, and thus the sentence is applicable which Triepel formulated on page 153 of this book, “Judges and subjects are under the obligation to apply the law of the state, even if contrary to international law, and to follow it. It is not up to them, but up to the government to take into consideration the differences and the divergencies with international law which may arise out of this.”
DR. SCHILF: May it please the Tribunal, I have concluded my questions to Professor Jahrreiss.
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CROSS-EXAMINATION
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MR. LAFOLLETTE: * * * I do want to ask you, Dr. Jahrreiss, a hypothetical question. You may not agree with the hypothesis which I hypothesize or the implications perhaps inherent in them, but just for my own purpose and for orderly procedure I ask you to consider my question and answer it on the basis of the facts which I hypothesize, purely. Let us assume that I was subject to the complete power of an individual we will call “A” to force me to obey his orders implicitly; and, under those circumstances, I saw “A” procuring a strong rope, strong enough to bind a man completely and securely. Secondly, that I saw him preparing a strong wooden frame upon the ground, with iron rings through which he could pass the rope; and, so placed, that they could bind the legs and arms of a man securely. Third--a wooden block so shaped that a man’s neck could be placed on it with his head extended beyond it. And four, that I saw this man “A” sharpening an axe large enough and strong enough to cut through the neck of a man. And suppose at this same time I also saw, standing always in view, from one to six men, each of whom I know that this man “A” has a violent hatred for and has threatened to kill; and each of whom I know that this man “A” has the power to capture if he chooses. Now then, let us assume that this man “A” captures one or more of these men that he hates, and that I know he hates; and binds this man with the rope that I saw him prepare, upon the frame that I saw him build; and places his neck on the block that I saw him prepare; and that then “A” hands me the axe which I saw him sharpen and orders me to cut off the head of this captured, bound man. Would you say that under those circumstances I would be guilty or not guilty of killing the man whose head I severed at the direct order of “A” who had the full power to order me to do so.
DR. JAHRREISS: I understand it this way--that guilty or not guilty is to be considered as guilt under criminal laws.
Q. On the assumed facts, yes.
A. I just want to ask you a question. Do you mean it as a legal question or as a question of morality?
Q. As a question of law.
A. Of law, yes. And according to what criminal law, and in what state?
Q. You can name the state; I don’t care.
A. Well, is that supposed to be a question in Utopia?
Q. Let’s put it in Germany.
A. In Germany?
Q. In Germany, yes, after 1933.
A. Yes, all right. Here then, we would be faced with terrible problems with which all of us since last year have been torturing ourselves so terribly, and I confess that in spite of having thought about it a great deal, that I have not yet found my way out of the dilemma into which we have been brought. Perhaps I can answer this hypothetical question by saying, by stating first, the points of view which in a conflicting manner make the answer more difficult. Perhaps first of all I should say, so that this should be clear, Mr. Prosecutor, how I, myself would behave.--I don’t know. No matter how horrible the whole thing is, I don’t believe that I--well, the Charter of the International Military Tribunal anticipates that an appeal to higher orders should not be admissible. It is not my task to criticize those regulations. However, perhaps I may be allowed to say that this regulation, if it should really be valid law in any state whatsoever, would have very dangerous consequences for order in general. One of the four judges of the IMT, the French judge, Donnedieu De Vabres, in a lecture which he gave this last April expressly stated that this regulation brings with it many difficulties for the idea of the discipline imposed by the state. I have the text of his lecture here. It is a lecture which Professor Donnedieu De Vabres gave before the Association des Etudes Internationales Criminologiques. May I quote a short passage from it? May I read it in French?
THE INTERPRETER: Yes, you may.
WITNESS JAHRREISS: “Since the statute was interpreted this way under the rules imposed by the IMT, it has in a sense of individualism gone beyond regulations of international law and domestic law, this regulation is open to the objection that it will endanger the necessary discipline for the preservation of the state. Such a regulation can be applied in the future only with prudence and circumspection.” I am quoting this here only in order to demonstrate that if any rules exist at all, a certain harshness is absolutely necessary, unavoidably necessary. I always told my young students who started out on a study of law that they would have to devote themselves to perhaps the most bitter fact in life of man, and that is the rule, because by nature man hates the rulership, at least if he is subjected to it, but if this is the case every state basically has to require that its laws are executed, even if the person concerned, for moral or religious reasons, or other reasons, is of a different opinion. On the other hand, Mr. LaFollette, every state knows that there is some limitation somewhere. For example, the German Reich had a military penal law. In it there was the quoted article 47. In the jurisdiction of the Reich court, however, this paragraph was applied more and more in a restricting sense because discipline had to be above all.
Now, Mr. Prosecutor, before the IMT, I, in the expert opinion which I gave, which you were kind enough to quote here, stated expressly and emphatically, I believe, what the limit of humaneness or humanity is, but at the same time I pointed out that this limit is frequently not sharply drawn; and I believe, and this comes closer to your question, that perhaps after all the problem with which we are concerned here cannot quite be done justice to, if a case is described quite as drastic as you just said.
Last year during the first 4 months of the trial I experienced it, and those were the most difficult times of my entire life. I experienced and saw what terrible things happened under Hitler’s regime, and I have no way to express my horror and to describe this sufficiently in any language, but I believe that you will agree with me if I say that those are occurrences which are outside of legal discussion entirely, for, Mr. Prosecutor, even about injustice one can, if one is exact, speak with legal reasons only in cases where--excuse me--the injustice is within normal limits.
I myself was a criminal judge. One single murder frequently, in the court of assize, occupied our time for 2 to 3 weeks, and it was a terrible thing. Two murders by one person--that was horrifying. If someone had eight to ten murders on his conscience, then he was described as a mass murderer in the press of Europe, and people asked themselves whether this was something that could be handled by means of the penal code at all.
When, last year, in the courtroom of the big trial I listened to the witness, Hoess, of Auschwitz, when he answered the question of the prosecutor as to how many people he had killed, if I remember correctly, he answered he didn’t remember exactly whether two and a half or three million. At that time it was quite obvious to me that neither positively nor negatively this had anything to do anymore with legal considerations because, Mr. Prosecutor, no matter what a state regulates concerning the question of review of a law the state has to think of normal conditions. These occurrences and matters cannot be measured by any order of the world at all. Therefore, I believe that these things that happened in Germany behind a complicated system of secrecy, a system of mutual delimitation, and if then one adds the pressure of conscience of millions of people who felt themselves hemmed in between patriotism and hatred of the system, then the question which you put to me attains a very bitter human weight, and I can only say I don’t know any way out.
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PRESIDING JUDGE BRAND: In order to better understand your views which you have ably expressed, I would like to ask you a few questions. I understand your view to be that judges were obliged to obey the law of their State of Germany even though in doing so they violated a principle of international law. That is a fair brief statement, is it not, of the matter?
WITNESS JAHRREISS: Yes. During the Weimar republic this was already uncontestedly applicable, and with the permission of the Tribunal, I read the commentary of Anschuetz to article 102.
Q. And you would apply the same principle after 1933, would you not?
A. After 1933? There was much less the question whether this was different than before.
Q. What court or tribunal ordinarily enforced the rule that judges must obey the law of their State under such circumstances? I assume the answer is obvious.
A. Excuse me. I didn’t understand your question, sir.
Q. What tribunal ordinarily enforced against the judges or upon the judges this obligation to obey the law of the State even though they in doing so, violated international law?
A. I never heard that a court violated this principle so that there was no need to force the judges to conform to it. Mr. President, I never heard that a German court did not apply a Reich law because in the opinion of the court it was contrary to international law. I never heard of such a case. You see, it was entirely uncontested. The court, just in such a case, couldn’t do anything but through official channels call the attention of the government to this contradiction so that the government, in accordance with its obligation under international law, would see to it that the laws were changed. Let us assume the case that the Reich Supreme Court, for example, in deciding a case had come to the conclusion that a German Reich law was contrary to an obligation of the Reich under international law. Then the Reich Supreme Court was not able to say--the indictment is refused because the Reich law which supports the indictment is contrary to international law. The Reich Supreme Court could do nothing but either to postpone the trial and to report to the government so that perhaps changes would be made in time, but it was not even obliged to do that. It was obliged only if it did make a decision to decide in accordance with national law if it was contrary to the international law. That was the legal situation during the Weimar republic.
Q. That answers my question. * * * The Reich Supreme Court would in proper cases lay down the rule that the lower court judge should enforce the German law even though it violated some principle of international law for which Germany as a state might be diplomatically held responsible, is that true?
A. No, that is not quite correct. I said that the Reich Supreme Court, just the same as the other German courts, in regard to this question, did not have any doubts at all, and therefore, it did not make any rules with which the lower courts had to comply. That was not necessary at all.
Q. Then the lower courts themselves recognized this rule of which you speak that they must enforce the law of the State even though it violates a principle of international law?
A. Yes, and they only had to look at the Anschuetz commentary; that said so expressly.
Q. Well, at least prior to 1918, was there any tribunal other than the court of the state which could punish the public officer or a judge, for making a decision which was contrary to international law, if it was made in compliance with the law of the state?
A. No.
Q. If the principle enunciated among other bodies by the first tribunal, the IMT Tribunal, namely, the principle of the penal responsibility of an individual officer for violations of international law, should be applied, then you have, do you not, a modification of your principle which you have stated with reference to the necessity that judges must obey the law of the state. In other words, if that principle of penal responsibility of the individual has become a part of international law, then the anomalous situation would arise where the officer, perhaps the judge, may have been required by his state law to make a decision, but may, nevertheless, be responsible if any tribunal has jurisdiction to try him, for a decision contrary to international law. Isn’t that true?
A. If I understood your question correctly, Your Honor, the general validity of the principles of the charter as international law could, in regard to judges of those states which require that their officials apply the law of the state as the final will, bring about tragic conflicts of conscience, for which, in my opinion, there is no indubitable legal solution at all. But, Mr. President, I do not know whether I quite understand your question correctly.
Q. I do not think I will attempt to repeat it further. I understood your position. It is true, is it not, that there was no tribunal in Germany, perhaps anywhere else, which had statutory jurisdiction to apply international law in a penal proceeding against a public officer of the state who had complied with the state law?
A. Yes, that is correct.
Q. Then, if there were a tribunal that had jurisdiction to apply that law, might it not perhaps, arrive at a different decision, legally, from the decision which this court of the state itself, would arrive at; might not an international tribunal, having jurisdiction to pass upon the question, arrive at a different answer as to criminality of an individual officer who had violated international law, but had not violated the law of the state?
A. Yes, that would be so, but, Mr. President, if I may say so, that is the very thing which I call the tragic situation of the official concerned.
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E. General Development of the Administration of Justice under Hitler
EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[156]
DR. KUBUSCHOK (counsel for defendant Schlegelberger): Witness, what is your career, your professional career in particular?
DEFENDANT SCHLEGELBERGER: I was born in 1875. After I had finished my legal studies and had passed my doctor’s examination, I became judge in the first and second instance. In 1904 I became judge of the Lyck District Court in East Prussia. In 1909 I became assistant at the Prussian Court of Appeals, Kammergericht. In 1914 I became Kammergerichtsrat. The Kammergericht is the Court of Appeals of Berlin, the highest court in Prussia.
At the Kammergericht, I worked in several senates: in the civil senate which dealt with the ordinary cases of civil law; in the commercial senate; in the patent senate, and in the senate for voluntary jurisdiction. During that period I wrote my first scientific works in that field which dealt with the experiences I have gained in practice. In 1918, that is to say at the end of the First World War, I became assistant at the then Reich Justice Office which later on became the Reich Ministry of Justice. That agency had very little to do with administrative tasks. At that time, it only dealt with one court. It was the highest court, in fact the Reich Supreme Court in Leipzig. Apart from that, the Reich Justice Office only dealt with legislative tasks.
As an assistant, I was put in charge of legislative preparatory work in the field of commercial and economic law, and I continued to do that work when after a few months I became Geheimer Regierungsrat and Vortragsrat at the Reich Justice Office. When in 1927 I became ministerial director, I still continued to deal with the same tasks. In 1931, the only Under Secretary of the Reich Justice Office, Dr. Joel, an old gentleman--not to be confused with the defendant Joel--was appointed minister, and I took his position as Under Secretary. I retained that position when in 1932 the Bruening cabinet was replaced by the Papen cabinet, and when Guertner, who had previously been Minister of Justice of Bavaria became Reich Minister of Justice. Reich Minister Joel, as well as Reich Minister Guertner at that time dealt with penal matters themselves. I merely dealt with matters of civil law.
Only when in 1934 the Prussian Ministry of Justice was merged with the Reich Ministry of Justice, and now a vast number of administrative tasks were transferred to the Reich Ministry of Justice, then a new Under Secretary position was created, and that for penal matters. The Under Secretary of the former Prussian Ministry, Under Secretary Freisler, obtained that post. That division of tasks in civil and penal matters remained in force when on 27 January 1941 quite suddenly Reich Minister of Justice Guertner died, and I, as the most senior Under Secretary, was placed in charge of the conduct of affairs. I retained my civil cases and Freisler dealt with penal matters. I was placed in charge of the conduct of affairs of the ministry as the senior Under Secretary. I was never appointed Deputy Minister of Justice, and I never had myself called so, because that was, of course, impossible. I only was in charge of the conduct of affairs.
This picture, that is to say, that I merely acted as a representative, but that I actually dealt with the same work which I had dealt with before, that became also outwardly apparent. On purpose, I never worked in the Minister’s office; I never moved into the Minister’s home; and I drew the salary of an Under Secretary, not that of a Minister. On 20 August 1942, at my own request, I resigned.
Q. You have described your work as Under Secretary, and you have said that you worked largely in the sphere of civil law. Which were the most important tasks with which you dealt?
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A. In accordance with the particular interest which I had always had in economic matters, and in accordance with the work I had done previously, I was allotted the task of cooperating during two particularly fateful years of the German Reich in the maintenance of support of the economic life of the country. It was the stabilization and maintenance of currency: that was in 1923 because of, and until the end of, the inflation, and later on in 1933 on the occasion of the economic collapse. The inflation period was followed by the establishment of the Rentenmark currency, a new currency which replaced the paper mark. The inflation was also followed by the ordinance at which I worked, under which businessmen had to draw up a balance in gold marks, and it was also followed by the tremendous task of remonetization legislation. The collapse of the banks necessitated many discussions and consultations, and ordinances as for instance concerning rates of interest. Later, I worked on the new law concerning drafts and checks, and I may quote as my special work the two big economic laws promulgated in 1937, the law on shares and the law on patents. When in 1942 I resigned from my office, a new law on companies with limited liability was just about to be issued. At that time the general reform of civil law had been started, not immediately by way of a new codification, but by individual laws. When I left my office, the marriage law and the testament law were completed.
Q. Apart from your professional work as a judge, and later on as an official in the Ministry, did you ever engage in any scientific research work?
A. I can wholeheartedly affirm that question. Immediately after I took my state examination, I started on my first big project, and the first book of mine, which appeared in 1904, was a treatise on the law of retention; it was a work of historical nature. At that time I intended to take on a university career, but nothing came of that, because my home university, Koenigsberg, did not create a new chair for commercial and economic law. But I could not give up my literary work, and ever since then that has occupied me consistently side by side with my official work. The special fields with which I dealt were economic law and voluntary jurisdiction, that is to say the law concerning the procedure in matters concerning family, hereditary, commercial law and document regulations. In 1923 I became Honorary Professor at the University of Berlin. Naturally, I followed that call while retaining my official position, and I held lectures at the University of Berlin until the outbreak of the war. In 1925 the University of Koenigsberg conferred upon me an honorary doctor’s degree of political science.
Q. Did you also deal with foreign law?
A. Yes, foreign law, too, has occupied me intensively for a long time. Perhaps I may first mention one of my latest works, a large comparative encyclopedia, the “Manual of Comparative Civil and Commercial Law.” That book summarizes reports on civil and commercial law of all countries, written mostly by national experts, and I may say the law of the United States is dealt with by Professor Atkinson of Kansas University. This work which necessitated a tremendous amount of correspondence, brought me in touch with eminent jurists all over the world. I have deepened those contacts since 1929, because I went abroad to hold lectures, and those trips were above all to give me an opportunity to observe the effect of the law, at least in some countries, actually on the spot. I did succeed in doing so in Argentina; in Chile, where I dealt especially with banking laws, I wrote an essay on that subject; and in Brazil where I became an honorary member of the Brazilian Lawyers’ Association. I held lectures in Budapest, Madrid, Warsaw, Stockholm, Copenhagen. I should like to add that I am coeditor of the periodical “Foreign and International Private Law”, a publication of the Kaiser-Wilhelm Association; and, also coeditor of a publication on Scandinavian law.[157]
* * * * * * *
Q. Witness, were you active in party politics?
A. No, I never joined any party; I always stayed away from politics. My life was devoted to the practical administration of justice, and to legal research. If looking back now, I should say which one of parties of the German people I fitted into, I would call myself as belonging to the right one of the progressive, conservative direction which was promoted by the German People’s Party, [Deutsche Volkspartei] and which was also represented by the German Nationalist Party [Deutsch-Nationale Volkspartei].
Q. What was your attitude towards the NSDAP and national socialism?
A. In 1933 I was approached on the subject of joining the NSDAP; I refused. My reason was, first the fact that I could not subscribe to the program of the NSDAP. Furthermore, another reason was my view that Under Secretary of justice should remain neutral even on the surface and, therefore, must not be obliged to any parties. I was never a National Socialist. It is obvious that a party program, in its manifold aspects, has many a point which one can adopt; for example, the program’s aim of bridging class differences, that is to say, the creation of a true national community; that point I welcomed heartily, but, concerning the program of the NSDAP as a whole above all, the way in which it was to be put into effect, that was far removed from my own ideas. My own conservative attitude as a human being and as a jurist accounted for that. It came as a great surprise to me when, on 30 January 1938, the Fuehrer’s Chancellery informed me in a letter, signed by Bouhler, that Hitler had ordered that I was to join and be accepted by the NSDAP. I said that that came as a great surprise to me. I myself, like other Under Secretaries who had also come from the middle classes, had never heard of that order, and it was impossible to refuse because that would not merely have meant I would have given battle not only to the Party, but the State itself. But I never departed from that view. The membership which was ordered against my will and forced upon me, I never made use of. I never attended a Party conference or meeting. Naturally, I did not hold any office in the Party either.
Perhaps the fact that I never changed my attitude is also demonstrated by the fact that neither my wife nor my sons ever belonged to the Party. My social contacts, too, as far as they were not conditioned by official affairs, moved almost exclusively within the circles of non-Party members.
Q. The Hitler order by which Schlegelberger’s membership in the Party was decreed will be submitted by me as Schlegelberger Document 34, Schlegelberger Exhibit 92,[158] as soon as the document books shall have been completed.
Witness, what effect did that attitude of yours have on your official position?
A. I always saw to it that Party members and Party functionaries were treated just like every other citizen. That played a part particularly in personnel matters. I only appointed that person to an office who, in my view, was properly qualified; and I refused to reward Party stars by appointing them to an office.
On the other hand, the attitude of the Party toward the Ministry and myself--and I shall have to come back to that later on--made great difficulties and brought about many inner conflicts.
At this moment I should like to point out the case to which the prosecution referred concerning notaries and their hostile attitude to the Party. They demonstrated it so obviously that when I came to hear of it in my official capacity I could not form a proper opinion on it. If I had tried to suppress those cases it would have been unavoidable that the Party would interfere, which definitely would have claimed that the notaries had violated their duty of allegiance toward the State and the head of the State. Perhaps the Party would have welcomed it, because such opposition would have been a welcome cause to discredit the administration of justice and to jeopardize my personnel policy, on which depended the fate of many officials.
DR. KUBUSCHOK: The witness has referred to the case of the notaries which, under Document NG-901, Prosecution Exhibit 436,[159] was submitted by the prosecution.
PRESIDING JUDGE BRAND: What was the exhibit number?
DR. KUBUSCHOK: Exhibit 436.
The prosecution refers to your lecture held at Rostock University in 1936.[160] That lecture is compared as to its aim with a speech by Reich Jurist Leader Frank, and the prosecution sees in it an avowal of national socialism. Please give us some explanations about that speech.
DEFENDANT SCHLEGELBERGER: Counsel, you have pointed out that that speech was made in 1936. Before I discuss the details about that speech I should like to say a few words as to how, at that time, one was able at all to discuss political questions in public. It wasn’t that way that, when National Socialist quarters laid down program points, one was allowed to make a frontal attack. I ignore altogether the point of personal danger that might have arisen for an opponent. I would not have fought shy of that danger, because a person who held the office which I held was in daily danger. However, such a frontal attack would have resulted in the opposite of what I wanted to achieve, that is an increase of the opposition against reasonableness.
One had to look for opportunities which one could use, and for example, the locality had something to do with that. I chose the university for the place of my speech, and that had a decisive influence on my audience. I had to see to it that the National Socialist ideas which I wished to attack were beaten with their own weapons.
The actual reason for my speech was the fact that Freisler again and again, before the public, pointed out that the Party program was enforceable like law and was at least the framework of the law. Therefore, one was obliged to carry out that program immediately and completely.
I do not think I need to enter into any details here as to what it would have meant if that doctrine had been recognized. In the practice of the judges it would have meant separation from all legal provisions; the Party program could have been applied at random everywhere. It would, so to speak, have been the roof law under the protection of which, according to the wishes of those extreme National Socialists, legal life would have developed.
It was my aim to point out that such a construction would not be necessary at all, that the existing laws would also do justice to the fact that Germany was now a state under National Socialist government. I must point out that the law adapts itself automatically to changed conditions of life and ideologies, and from that the standard and the speed of legal changes are decided.
I intended to put in the place of the revolutionary changes of law, advocated by Freisler, an evolutionary development of law. I based myself on the principle of the interior change of the legal system, a principle which, for the first time, I propounded already in 1929 in one of my works where I also elucidated that principle. That was at a time when one could really not say that I might have based my arguments on the National Socialist thought. The compromise laws, which had already been promulgated, I mentioned intentionally without evaluating them. That was how I had argued against that thesis, and I believe had refuted it. I also used the opportunity to give my views concerning other important topical questions as well. I turned against the interference with the carrying out of sentences which I considered inadmissible. Due to previous incidents, I warned the judges against currying favor with high Party officers. I appealed to the pride of the judges and the consciousness of their independence. I also found reason to turn against it that some jurists in an absolutely inconsiderate manner, placed their own egotistic endeavors in the foreground, and did not show any understanding whatsoever for the sound idea of a true people’s community.
Generally, I used a tactic which I had employed repeatedly: I committed the high Party leaders to adhere to many of their good words which they had probably spoken without reflection. I reminded them that Hitler during his first speech before the Reichstag had declared the independence of the judges as necessary. I pointed out that Frank[161] had mentioned the internal value of justice; and, that Goering, in public, had spoken against interference with the administration of justice.
Q. What was your relationship with Hitler?
A. I believe that one must distinguish between the personal and the material evaluation, and at the same time one must connect the two. I believe that Hitler, concerning my own person, had a certain measure of respect. I believe he saw in me the experienced civil servant, who was without ambitions, and who devoted himself to work and research. Concerning my sphere of work, civil law, he had not the slightest interest in it. The fact that I was unpolitical, aroused a certain amount of distrust in him; that, I suppose, explains the fact that in contrast to civil servants of the same rank, I was never offered an honorary position either in the SS or the SA. That I, in contrast to other high civil servants of the same rank, was not awarded the Golden Party Badge; and that he restricted my connection with the Party to the absolute minimum, again explains in particular, I believe, the positively brutal attack on me in the well-known Reichstag speech of 26 April 1942. The fact that I was placed in charge of affairs after the death of Guertner certainly was not a demonstration of confidence. This is how I would like to put it: It was just a makeshift solution. At that time Hitler could not yet make up his mind to appoint a new Minister of Justice. What played a certain part, perhaps, was that the chief candidate for the office, Frank, was at that time Governor General of the Government General and was not available. Thus, there was no way out, but to let the Ministry put the Under Secretary, who had seniority in the office, in charge of the Ministry. Hitler’s distrust, as far as I was concerned, was altogether justified from an objective point of view. I may say, and I wish to place special emphasis on this, that I was never fooled or influenced by Hitler’s demoniacal qualities, and I saved my own conscience, as far as he was concerned. For myself, Hitler was the declared opponent, in fact, the person who held the administration of justice in contempt. That conviction naturally placed me in a clear position. As far as it did not jeopardize my goal, I upheld my different opinion quite openly toward Hitler. That was already the state of affairs at the time of Guertner. I may say that all my life, as long as I held office, I was out to fight for justice and against arbitrariness. In the avowal of justice there was no difference between Guertner and myself. Guertner was the recognized protector of justice, but he was not a fighter. If in the development, which was slow to begin with and later became faster, he gave up his opposition in some respects, that certainly is not due to a lack of the honest will to uphold justice. Frequently he came to me for advice and assistance. But that time was overshadowed by a continuous struggle with the Reich Jurists’ Leader [Reichsjustizfuehrer] Frank. In continuous attacks, Frank tried from his position as Reich legal office leader to achieve his final goal which was to get the office of Minister of Justice and then to change the Ministry and make it into a National Socialist Ministry. That struggle can only be understood if one knew who Frank was. Frank was the legal adviser and in difficult times the defense counsel of Hitler, and, therefore, he was particularly close to him. Before 1933 even, he had been the leader and propagandist of National Socialist legal ideas. If one bears that in mind, then one sees already on the one hand, the Ministry with its expert officials, the official activities; on the other hand, the combination of National Socialist ideas on law with the aim of overrunning the Ministry. Frank recognized Guertner’s qualities; therefore, he tried by the tactics of continuously wearing him down, to achieve his aim. If one knows National Socialist methods, one knows how stubborn and tenacious such a battle was in the methods with which it was waged, and that struggle had reached its climax when Guertner died, and I took over the conduct of affairs.
Q. What was the situation at that time?
A. One gets a true idea of that situation if one forms a picture in one’s mind of those three groups or parties which were fighting against the administration of justice with the aim of conquering the administration of justice in order to destroy it. I call these fighting groups by the names of their leaders, Himmler, Bormann, Goebbels; and, in so doing I would like to emphasize that during the whole time I only talked once to each of those three men.
Himmler proceeded by different roads; the undermining of confidence in the legal administration of justice and the conquering of its competence. Attacks were being made continuously on the administration of justice in the periodical of the SS which had already been mentioned in this trial, Das Schwarze Korps [The Black Corps]. They were not content with criticizing sentences, but proceeded to defame in public the judges who had passed the sentences. Himmler collected material by sending secret observers to the court sessions. The officials of the Ministry were watched and spied upon. Anonymous secret reports, in which the Ministry was attacked, were sent out. Persons who had been acquitted by court sentences were taken into police custody. Others, who had been sentenced to a term in prison, were seized by the police, and as the administration of justice heard later, many of those persons were killed by shooting. All these things were intended and designed to undermine the confidence in the administration of justice. The administration of justice was to be discredited in public again and again as a backward and outmoded institution both as regards personnel and the subject matter. Himmler proceeded, I should like to say, with cynical frankness, on the basis of this propaganda. He deprived the Ministry of Justice of many fields of competence, and claimed for himself even many more fields of competence from the Ministry of Justice. He invoked the power of his position under Hitler and demanded that the competence for penal cases concerning Poles and Jews should be transferred to the police. His attempts to conquer the public prosecutor’s offices for the police continued until the end. It is obvious that that aim, which was placed higher and higher, by necessity would lead to the thought of whether one would not have to show that by new and more stringent measures one was in a position to overcome the criticism which Himmler used as a pretense, and thereby take the wind out of his sails.
* * * * * * *
Q. What part did Bormann play in that struggle against the administration of justice?
A. Bormann’s work extended, above all, to personnel policy. Under the existing provisions, no ministry could appoint an official or promote him against the opposition of the Party Chancellery. The Reich Ministry of Justice always made its selection entirely on the basis of professional qualifications. Bormann, on the other hand, attached importance exclusively to the political opinion and the merits for the Party. If he objected to a suggestion made by the Ministry of Justice, and it was not possible to overcome the opposition, there was nothing else to be done at first, but to wait for a better situation perhaps, and leave the position unfilled. I experienced it myself that the position of a president of a district court of appeal remained vacant for that reason for more than a year. But it is obvious that the possibilities of such action had a certain limit. It was inadvisable to leave an unlimited number of positions vacant. And sometimes one was forced to appoint to the administration of justice personnel of only moderate qualifications, whereas persons who were better qualified were left out. Bormann knew very well how to promote Hitler’s antipathy for the administration of justice on the one hand, and on the other hand how to exploit the naturally weak and unpolitical position of the Ministry under Hitler. Hitler continuously received newspaper clippings about court proceedings and sentences. Usually, the facts were distorted, or the reports, in any case, were always inadequate. Hitler was always approached on these subjects only at a moment when for some other reason he was disgruntled and his attention had to be distracted. Those reasons very often resulted from the war situation. For Bormann, the administration of justice was the lightning conductor. The Gauleiters cooperated with him. They collected the material with great glee by getting newspaper clippings from provincial newspapers. The Gauleiter of Munich [Gau Munich-Upper Bavaria], Wagner, excelled. Every opportunity was used to discredit the administration of justice before Hitler with entirely inadequate documentation. The key to that situation lies in a statement which Goering made to me at the time the administration of justice became centralized.[162] I will revert to that later. Therefore, our main endeavor had to be to inform Hitler at the earliest possible moment, and, of course, completely and honestly. I shall have an opportunity to explain how those attempts were constantly sabotaged by Bormann.
I should like to say now that our attempt was to prevent Hitler from changing sentences after they had been passed by suggesting that the presidents of the district court of appeal should confirm the sentences whereby merely a technical, nonpolitical review would have been carried out. That attempt was intentionally brought to naught by Bormann for he realized that thereby it would have been impossible for Hitler to reopen, on the initiative of Party, trials which had been concluded.
Q. The possibility which the witness mentioned concerning the possibility of Bormann’s interference with every appointment of an official results from the decree of 10 July 1937 published in the Reichsgesetzblatt of 1937, page 769.[163] I shall submit that decree in a supplement to my document book.
Witness, concerning the evidence submitted by the prosecution, could you discuss a case which reveals such efforts being made by the Party?
A. I am able to do that. I refer to the statements made by the prosecution witness Ferber. He dealt with a case about which Guertner had frequently talked to me. That was the case against Heller in which the law against motor car traps [Gesetz ueber die Autofallen-Stellung] had been applied. For the information of the Tribunal I may say that law was promulgated on 22 June 1938. It is based on the particular initiative of Hitler.
The facts of the case were as follows: Soon after that law had been promulgated, Heller and his mistress as the riders of a driving school [sic][164] had attacked a driver and had robbed his money. While the case was being tried before the Special Court in Nuernberg in the presence of Gauleiter Streicher, and Denzler, the Gau legal office leader, Hitler appeared in Nuernberg unexpectedly. A death sentence against Heller was expected for certain. Evidently Streicher and Denzler intended to submit to Hitler in his presence a proposal for a death sentence on the basis of this new law in which Hitler was particularly interested. A telephone call was put through to the Ministry of Justice to hear an opinion on the question of clemency. Opposition was encountered there on the part of the Referent. That Referent was Ministerialrat Westphal, who was indicted here.[165] He refused to give his opinion because the legal problem which had arisen in the Heller case was being dealt with in a case before the Reich Supreme Court which was still pending and was there to be submitted for the opinion of the Reich Supreme Court judges. At that point the Party representatives became busy. Denzler reported this information to Hitler implying that Guertner obviously was sabotaging the application of this law, which Hitler himself had promoted, and he boasted that that was enough to bring about Guertner’s fall. At any rate, that interference on the part of the Party led to the fact that Hitler, following Denzler’s report, ordered the death sentence to be executed without waiting for the Ministry of Justice to give its opinion.
In Berlin, Hitler took to account the Referent Westphal in great anger for sabotaging the law, and only because Guertner acted on behalf of his own staff and only with the greatest effort was it possible to save Westphal.
Q. The Heller case which has just been mentioned begins in the transcript, page 1324, English text.[166]
What part did Goebbels play in that struggle against the administration of justice?
A. Goebbels set the machinery of propaganda to work against the administration of justice. He deluded the public by telling them that the people no longer had any confidence in the judiciary. That was a delusion for the opposite was true.
His propaganda machine not only made direct or camouflaged attacks against the judiciary in public and tried to lower their prestige, but he also tried by his art of dialectics in his speeches on the administration of justice quite deliberately to lead the judges astray and to put their consciences as judges to sleep. He coined the concept of the exigency of the State, and said that the courts, too, ought to make that their starting point. For a sentence, first of all expedience was decisive, and only later, perhaps, justice might also be considered.
Q. Goebbels’ speech before the members of the People’s Court is contained in Document NG-417, Prosecution Exhibit 23.[167]
What were the opportunities at the disposal of those power groups and which they made use of in their struggle against the administration of justice?
A. Himmler, Bormann, and Goebbels were the closest confidants of Hitler. They had access to him at any time. For him they represented the uncompromising incarnation of national socialism. He listened to them when they alleged national socialism was being endangered by the administration of justice. The entire apparatus of Party politics, police, and espionage was at their disposal. On the other hand, the Ministry of Justice was entirely isolated. Contact between the ministries, which would have strengthened its position, no longer existed.
Q. Here I would like to refer to the verdict of the IMT, English transcript, page 16963[168], and I would like to quote that passage briefly: “As to the first reason for our decision, it is to be observed that from the time that it can be said that a conspiracy to make aggressive war existed the Reich cabinet did not constitute a governing body, but was merely an aggregation of administrative officers subject to the absolute control of Hitler.”
Witness, will you continue, please?
A. In view of that situation, what could a Ministry of Justice do which was directed merely by an Under-Secretary as acting Minister who, furthermore, was not a member of the Party and whose words, naturally, did not get the same hearing as those of a Minister; a man who, as the indictment said, never attained cabinet rank? According to an express instruction by Hitler, the chief only was told those things which were necessary for him to fulfill his own task. It is evident that that instruction made possible all kinds of limitations. * * *
(Recess)
Q. Witness, before the recess we discussed the possibilities at the disposal of these power groups. Please, will you continue.
A. I ventured to point out that Hitler had given an explicit order that a chief of any office should only be instructed about that which he had to know in order to carry out his tasks. And that went very far. That situation is better explained by the fact that Minister Guertner, for instance, only found out about the euthanasia decree[169] when in reports on the situation rendered by the presidents of the district courts of appeal, a certain suspicion arose that this decree was carried out, and Guertner categorically demanded an elucidation. Whereas other ministers were authorized to listen to foreign broadcasts, that was prohibited to the Minister of Justice under threat of punishment. When I objected against this, I was told in reply that I should turn to the Ministry of Propaganda which would inform me about everything that happened.
I may point out that the opinion of the International Military Tribunal states that on account of the control over broadcasting and the press, and the propaganda machine, an independent judgment based on freedom of thought became an absolute impossibility. I, from my own experience, can only confirm that statement. A significant example is given by the following occurrence--an example showing the extent of that spy system. The Gauleiter of East Prussia had protested against the administration of justice in his district. In order to examine these complaints in 1940 or 1941--I do not know the date precisely any more--I traveled to Koenigsberg and found out that as for the reports by the president of the district court of appeal, the Gauleiter was informed about these reports sooner than I was. Based on warnings received from reliable sources, I had to expect that in the various offices of the municipality which I had to visit, special microphones had been installed for the occasion of my visit, and I could only talk with my personal Referent by driving out to the beach and picking out an isolated beach chair there in order to be able to talk to him without anybody listening to us and spying on us.
Q. The passage in the opinion of the International Military Tribunal, to which the witness referred, is contained in the English transcript on page 16,813.[170] Witness, the prosecution charges you with the fact that the Ministry of Justice was in an official contact with these offices which you have just mentioned. What can you say about this?
A. I believe that that contact is inherent in the structure of the State: the distribution of tasks to the various agencies. A cooperation with the police was certainly to a certain extent unavoidable. According to German law of criminal procedure, the prosecution is not in a position at all, without the cooperation of the police, to carry out the required investigations pending trial. If a denouncement has been received by the prosecution, the prosecution has to conduct the necessary investigation first of all. That the prosecution should do all that itself, considering the large number of things to be done, is quite impossible. The prosecution, therefore, has to turn to the local police and, for good reasons, in the German Judicature Act and the German Code for Penal Procedure, the police are designated as an auxiliary organ for the prosecution and directed to cooperate upon request of the prosecution.
Apart from the police, frequently the SD is mentioned in the trial. On the part of Hitler, the SD apart from its function within the Party had received important tasks, such as the delivery of information to various Reich agencies, and therefore even the court authorities had to refer to that source of information.
Q. In this connection, may I refer to Document NG-219, Prosecution Exhibit 42.[171] Please continue.
A. The position of the Party Chancellery, was regulated legally in a way that changes of personnel, that is to say, promotions and appointments could only take place with the cooperation on the part of the Party Chancellery. That I have already pointed out. Added to this was the fact that in 1942, the Chief of the Party Chancellery was given the position of a Reich Minister participating in legislation. It was therefore necessary to let him participate in the preparation of every law.
Q. The decree of 16 January 1942, to which reference was just made, I shall submit as Schlegelberger Document 23, Schlegelberger Exhibit 63.[172]
A. And then finally the Ministry of Propaganda. The fact that this Ministry was directed by Goebbels may cause, to a non-German’s mind, the misconception that this was a Party function. That, as I said, would be a misconception because the Ministry of Propaganda was not a Party office but a Ministry, just as the Ministry of Justice or the Ministry of Finance, or the Foreign Office, and that there was an official channel between all the ministries is a matter of course in every state. But that connection was also a necessity from the point of view of [self] defense. Only thus was it possible, at least from time to time, to guard oneself against surprises. Only thus was it possible, perhaps in the very last moment, to make successful objections.
Q. The witness referred to a provision of the Code of Penal Procedure according to which the prosecution could authorize the police to make investigations. That is article 161 of the Code of Penal Procedure. Furthermore, in this connection, article 146 of the Judicature Act has to be considered. About the importance of reports and information from the SD, I shall submit as Schlegelberger Document 92, Schlegelberger Exhibit 85, a report from the handbook for allied troops.
Witness, in your own camp, that is to say in the field of the administration of justice itself, did you have to fight against opposition?
A. That question, unfortunately, I have to confirm emphatically. First of all, and very briefly, I again have to mention Frank in this connection, the representative of the National Socialist legal ideology, who through all available channels succeeded in bringing this thought before the public. As means, he had at his disposal, first the legal publications under his influence, the National Socialist Legal Workers’ League whose president he was, and the Academy of German Law which he had created. That academy which possibly, in view of its composition, could be considered a sort of scientific institute to aid the administration of justice, evolved by Frank as a competition in order to direct the Ministry of Justice, to overrule and to discredit it with the Party. As soon as he found out, from his own information sources, that the Ministry of Justice intended to carry out reforms, he mobilized his academy immediately which on its part was to prepare plans and to publish them, and not much emphasis was placed upon their quality. But the main purpose was to demonstrate that Frank was the leader of the living young justice in opposition to the old senile machinery of justice of the State. Apart from that goal to carry out his famous thesis, “Right is that which serves the German people,” he also for personal ambitions and, last but not least, for that ambition, had intentions to take over the post of Ministry of Justice.
Q. Could you name other personalities who in that manner fought against the administration of justice?
A. From the inside, unfortunately, yes. I have not completed my statement. I am thinking of Thierack. Thierack had very close connections to Bormann. He concentrated his efforts at first on the President of the People’s Court, a position he held at the time. Behind the back of the Ministry of Justice in 1936, he arranged that Hitler make a speech before the People’s Court. As these proceedings have shown, in 1937 he had attempted to arrange another speech of that kind.
Q. The witness refers here to Document NG-209, Prosecution Exhibit 105.[173]
A. The judges of the People’s Court in this manner should be brought to understand that the People’s Court was an institution of a special nature, in closest connection to Hitler himself; and that it was only by a mistaken step that the People’s Court had been incorporated into the administrative structure of the Ministry of Justice; and concerning that administrative connection in 1938, again in all secrecy, he tried through the Chief of the Reich Chancellery, to have the presidency of the People’s Court, following the Italian example, subordinated immediately to Hitler. To my knowledge, Thierack, after he became Minister,[174] did not continue with these attempts. As I was informed from various sources, in his attempts to become Minister, he is alleged to have promised to the Party that the office of the prosecution should be turned over to the police. I shall later refer to the occurrences during the trial of the Czech Minister-President Elias; but in the end I still have to emphasize what extraordinary difficulties were made for me by the personality of Freisler.
Q. Who was Freisler?
A. Well, the witness Behl once characterized Freisler as the representative of the Party interests in the Ministry of Justice. That was correct. His career was the following: Freisler was a prisoner of war in Russia during the First World War. After the end of the war he remained in Russia for a considerable period of time. About his activities during that period of time in Russia, a veil has never been completely lifted. After he returned, he became an attorney at Kassel, mainly acting as defense counsel for National Socialists. When the Prussian Ministry of Justice was put in the hands of Minister Kerrl, the latter called the old Party member, Freisler, to the post of Under Secretary. He remained there until in 1934, on the occasion of the merger of both offices in 1934, he was transferred to the Reich Ministry of Justice. Freisler no doubt possessed a high degree of intelligence, but quite apparently he was of abnormal spiritual inclinations that ranged from extreme brutality all the way to a rather feminine weakness. After he had insulted his assistants in the worst possible manner without any reason, it would occur that soon after he came to them to ask for their forgiveness in a very servile manner. The Tribunal has actually made the acquaintance of Freisler optically and acoustically.[175] He was quite well informed about problems of criminal law, but he lacked any continuity and seriousness in his work. He was restless and imbued with a lust for power, always looking for new tasks and new problems. He was an old Party member, and he had the Golden Party Badge, but he represented that type of National Socialist who again and again fearfully vied for the favor of Hitler. Hitler definitely recognized him as a one hundred percent National Socialist, but personally did not think as much of him as Freisler would have liked. Therefrom, and from his task to supervise the Ministry from the National Socialist point of view, and from his indisputable intelligence and his expert knowledge in the field of criminal law, the dangerous qualities in his personality could be seen. He knew where he had to start in order to achieve his goals. To work with him was extremely difficult, and I may well say here that Freisler was the one, after all, who undermined the work and the strength of Guertner and contributed to his early death. And so, as far as I was concerned, my continuous attempts to restrict Freisler made it extremely difficult for me in my position. He did not stick to decisions which we had made in long debates. He made secret promises to the [Nazi] Party which, after they became apparent, restricted the Minister in his possibilities of action.
Again and again I discovered that, partly intentionally, partly out of neglect, he had failed to report to me on important occurrences. He had prohibited his ministerial directors from reporting to me directly. He wanted to do everything alone. In addition, although he did not drink much, he could not restrain himself once he started to drink, and in a condition of that kind he frequently made statements which gave an entirely wrong picture of the intentions of the Minister. Then when the disappointment came, when the agencies concerned found out that the practice of the Ministry was not according to these statements, then, of course, there were serious accusations on the part of the Party and a renewed struggle.
His unstable nature brought it about that when I made objections to him he, frequently in tears, promised to better himself; but his moral strength was not sufficient to make him keep these promises for any length of time.
Of course, my position with regard to Freisler was weaker than that of Guertner. I was, indeed, in charge of the work of the Ministry, but only due to the fact that I was the senior Under Secretary; otherwise we were on the same level. The possibility of influencing him or influencing others against him, was very limited for me, all the more because my mission was not set for a certain time, but could be repealed any day. Therefore, I could only find the optimal accomplishment of my tasks in maintaining the status quo in the Ministry of Justice as it was at the time of Guertner’s death; especially if one takes into consideration as a matter of course that on the one hand the attacks from the Party became stronger, being faced with a weaker man in charge of the Ministry, and that on the other hand this weaker man was always confronted with the necessity of an increased resistance on his part.
In these proceedings here the witness, Father Wein,[176] confirmed that during the time when I was in charge of conducting the affairs, the administration of justice had not deteriorated and that only the appointment of Thierack brought about an absolute change-over. I ask you to try to understand that in that I found a justification for the work of my life under these conditions as I have described them.
Q. What did the taking over of the post of Minister by Thierack mean to you?
A. I believe I should continue at the point where the speech made by the prosecution left off. The prosecution said, “Schlegelberger had seen the storm brewing.” That is quite correct. I anticipated a storm, and I tried to prevent it. The attitude of Thierack up to that time and his close relations with Bormann did not leave any doubt as to his program, and just as I interpreted that, it came about. As soon as Thierack assumed office, a complete change-over occurred. It was not a gradual deterioration, but it was that famous construction of a strong National Socialist administration of justice as it had been ordered by Hitler. I merely point to the changes in the administration of justice and in legislation which are contained in material submitted by the prosecution. If one sees what had been demanded for a long time and which by all means was tried to achieve, if one sees how that all of a sudden now came into effect, I believe then only one can find the right measure for that which I, in a continuous struggle, had prevented or had delayed. I do not want to omit but to describe briefly the complete change in personnel policy. With the exception of the man in charge of the budget department, all ministerial directors were released by Thierack and many Referenten transferred. The entire top level of the Ministry had changed overnight. Furthermore, twenty-two presidents of district courts of appeal, eleven of them the best ones on the basis of their qualifications, and four general prosecutors were retired.
If in the dire situation of war such a unique measure is taken, one demonstrates most clearly that my dismissal and the appointment of Thierack, in the feeling of Hitler and Thierack, represent the point at which an entire new development starts. The purge measures by Thierack were extended also to the many non-Aryan judges or judges with Jewish relatives who at that time were still in service and to many officials who did not just belong to the Party.
I believe that my decision to fight until the very limit, and to stay that long in the Ministry, has found its justification. Clearly anticipating that with that new man [Thierack] chaos would start for the administration of justice, there was only one thing left to me; although the burden physically and psychologically was at times almost impossible to bear, to try and bear it, and to fight as resiliently as possible. Of course, it was clear to me, and I had to experience the fact too, that I would be beaten at times, and had to decide to make detours wherever I could take that upon my conscience.
Q. In your opinion, what was that extreme limit which could still be justified--of those which you have just mentioned?
A. If the Tribunal was good enough to follow me in the description of my life, then it will easily recognize what my work at that time meant to a man whose life was devoted to the law. At times, today, it is hard even for me to transfer myself back again into those days and to bring those days back. In a system which was worked out to the very last detail of expediency and power, there was a lonely island amidst the continuous storm in those days--that was the administration of justice. I had to experience how the storm hit again and again, and how certain sacrifices had to be made to this storm of power in order to prevent it from triumphing completely. For me, in that situation, there was only one consideration--can a measure be made compatible with the uncompromising principles of law such as I had considered them so far as a matter of course? Was not everything now only a question of power? How could I avoid that lust for power and prevent the accomplishment of these designs? What will go through regardless of my cooperation and what can I prevent without cooperation? And that deliberation led me to find that extreme limit which I have mentioned before. It was for me the final abolition of the independence of the courts. I had to try to maintain this independence at all costs. In spite of and in the face of the devilish propaganda on the part of Goebbels, I was of the firm conviction that the German courts and German judges were still in good shape. Although, now, from the large number of the many sentences, particularly of the more recent period, the prosecution may select a few in order to prove that legal principles were abandoned in the sentences. To deal with individual cases is not my task in these proceedings. A full examination of the entire field of the administration of justice would show that this conviction of mine was very well founded, and that the maintenance of the integrity of the German courts was a goal which was well worth my work and my trouble; because I was, and still am, of the opinion that the work of the courts is the most secure guaranty for the law. Therefore, I tried again and again to draw various fields within the scope of work of the courts. For instance, in the economic field, the problem of getting agriculture [farms] out of debt [Landwirtschaftliche Entschuldung], the question of hereditary and marriage health, but the basic prerequisite was that the courts had to remain independent. When, in 1937, in the German Civil Service Law, Hitler was given the right to retire any civil servant if this civil servant could not be expected at any time to fight for the National Socialist State, in my capacity as chief of the Department for Public Law at the Ministry, I had a security clause inserted for the judges; this clause provided that measures regarding the judicial civil servant could not be based on the objective contents of a judge’s decision. Once the independence of the courts was lost, the protection of the courts was lost, too. The activity of the courts could even become a danger. Therefore, I drew for myself this extreme limit for my stay in office. With the resolution of the Reichstag of 26 April 1942,[177] my struggle reached its final stage. It was not quite clear, as it appeared frequently with Hitler’s speeches whether or not his speech had attacked the administration of justice merely for tactical reasons, and whether the true objects were general ones.[178] Dr. Lammers, the Chief of the Reich Chancellery, to whom I spoke immediately after the speech about all these matters, confirmed that background to me as being the true objective of Hitler’s polemics. I had to create clarity. I wrote to Hitler a report [Fuehrerinformation] to the effect that the judges were extremely disturbed by that speech. I had explained to the judges that with all the weight of my office, I would protect every judge who acted according to his conscience and to the law. That clarified the situation as far as I was concerned. If Hitler’s speech really meant the beginning of the end of the independence of the courts, then he had to consider my statement as an open declaration of war. That was what I wanted, and I wanted to bring about a breach, in that case, on purpose.
Q. How did your dismissal come about?
A. Hitler at first did not answer that letter which I just mentioned. There was a lot of talk behind the scenes about a new appointment for the post of Minister. A few weeks later, Lammers, Chief of the Reich Chancellery, called me to him and told me that Hitler had made up his mind to appoint a new Minister of Justice, and he asked me what my attitude would be if the choice fell on Thierack. I replied that to work with Thierack was quite out of the question. Literally, I added, “I would not sit at the same table with Thierack.” Lammers replied, that was what he had thought, and for that eventuality he was instructed by Hitler to offer me another office comparable to the position I was holding. He had thought it over and was now prepared to offer me the position of President of the Reich Supreme Administrative Court. I rejected that offer and asked Lammers to inform Hitler that I would accept a new office under no circumstances, but wanted to be retired. Soon after, Lammers wrote me that I should come to his quarters at Zhitomir and receive the document concerning my retirement from office and thereafter, to report to Hitler at his headquarters at Vinnitsa in order to take my leave. That order I carried out. On that occasion, Lammers, on order from Hitler, gave me a check for 100,000 marks, which should make it easier for me to bridge the transition into retirement.
I was not happy about that donation; on the contrary, I was greatly disturbed. I got in touch with the Chief of the Presidential Chancellery, Dr. Meissner, and asked how I could avoid accepting that amount. Meissner replied that refusal was impossible, because it would mean an unfriendly act toward Hitler, and all the bad consequences would have to be accepted. Thereupon, I did not return the check and when the Russians came, that amount was still untouched in the bank. At Vinnitsa, Hitler received me. The conversation lasted about 20 minutes. Hitler told me approximately the following: He required his officials to carry out his instructions without criticism of any kind. He added, “Since you have already criticized my measures, I believe it is better if we separate.” He was referring to the report which I have already mentioned. I took advantage of that opportunity to tell Hitler with all the frankness at my disposal that an intact and independent administration of justice was a vital question for Germany; that his method to form his judgment on the basis of information received from Gauleiters, and his intention to retire judges who had done their duty, was an impossibility. The very concept of a judge required independence. People would never respect the judgment of a dependent judge as an expression of law. I added that if I had remained in office, I would have continued to protect anybody who was prosecuted unjustly.
Hitler took these statements on the whole quite calmly. Time and time again he even nodded approval; but when I touched upon the question of the independence of judges in connection with his Reichstag speech he suddenly harangued against the generals and got into a hot fury which slowly ebbed like a dying flame.
Q. The prosecution alleges that there was a conspiratorial cooperation between you and your codefendants. Will you briefly describe your relations with the codefendants?
A. As for these relations I have, in part, to answer absolutely in the negative. A number of my codefendants I have only met here. Not with a single one of the defendants here did I have any personal contact beyond official connections. These official contacts in most cases consisted of just occasional conferences required by the work.
As the defendants’ dock shows, the prosecution has selected a mere few from the large number of officials of the administration of justice. All of them, together with other colleagues, worked only in that field to which they were assigned. If one would follow the principle of conspiracy as expounded by the prosecution, the entire administration of justice since 1933 would have to be considered one organization in the meaning of the count of the indictment. And I believe that an opinion of that nature would best be rebutted by the fact that when I left the Ministry of Justice, that great change took place. That is sufficient rebuttal for the assertion of personal homogeneity of the officials and the judges.
Q. We want to depart now from personal matters and discuss the complaints made against you. The objective charges made against you begin with the centralization [Verreichlichung] of the administration of justice. Will you give us your general point of view concerning that question?
A. When the empire was founded in 1871, certain agencies of the Reich were founded as an over-all authority beyond the limits of the individual federal state. The same occurred in the field of justice. At that time, it was called the Reich Justice Office [Reichjustizamt] and, in fact, was a Reich Ministry. Later, it got that name. The Reich Justice Office had almost exclusively legislative functions. It had to deal with regulations for the administration of justice.
Once such a regulation had been passed, all states had to issue executive laws for the execution of the respective regulation. That meant that after each major Reich law had been passed, more than 20 laws had to be passed in the various states to carry out the principles of the Reich law.
What that machinery meant can be seen if one looks at the collection of these executive laws of various states. With great surprise you find that this fills two fat volumes. As for administrative tasks, the Reich Justice Office, as already mentioned, only had to take care of the Reich Supreme Court, and in the course of time, the Reich Patent Office. Here, also, the various states [Laender] had to cooperate. The selection of judges for the Reich Supreme Court required most difficult negotiations. One has to have seen that, in order to realize fully with what jealousy each individual state saw to it that these various posts were filled according to a definite key.
It could happen that a small state could not even offer an appropriate candidate for such a position at the Reich Supreme Court, but then one had to preserve the claim and register it very carefully so that the next time, they could be given it. It was just as difficult to select officials for the Ministry of Justice. That, too, required negotiations and thus it came about that, long before 1933, everywhere, the desire for a uniform administration of justice for the entire Reich was expressed. I may remind you that the witness Behl[179] has stated that even the Social Democratic Party of Germany was expressly of that same opinion.
Q. Witness, you referred to the assumption of the administration of justice by the Reich.
A. Before the recess I pointed out that the desire for a uniform, centralized administration of justice had already existed in the period prior to 1933. The Reich Minister of Justice, Guertner, worked for that idea of the centralization of the administration of justice with great energy. The fact that he as a Bavarian did so, although it is generally known how very much Bavaria was interested in a life of its own, explains best the fact that Guertner had very good reasons for doing so. As often occurs in life, by accident a circumstance arose which speeded up the execution of that idea. This is what happened:
Once when I had a conversation with Kerrl, the Minister of Justice of Prussia at that time, and visited with him the training camp for Prussian law students--a camp which has been repeatedly referred to in this trial--I said to him that it must have cost a great deal of money to set up that camp; Kerrl laughed and replied, quite frankly:
“Oh, it didn’t cost me anything. The amounts were donated by large firms, in whose cases we were very considerate about prosecuting them under penal law. Naturally, the money was not transferred to me directly, but it came to me via the Winter Relief [Winterhilfe] account. However, the Winter Relief Organization made it available to me, and with that money we built up a very decent camp, as you can see for yourself.”
I was more than disgusted when I heard about those practices he thus unveiled. I made a report to Guertner.
The right of supervision over the Ministries of Justice of the Laender, was not in the hands of the Reich Minister of Justice. Guertner and I agreed that those practices must be stopped at the earliest possible moment, all the more so since one did not know whether or not in other Laender, similar things might be happening as were happening in Prussia. One could not tell what was happening because the ministries of the Laender throughout had new men working with them concerning whose persons, in some cases, one had certain misgivings, and justified misgivings. Frank was the Minister of Justice for Bavaria, and Thierack was the Minister of Justice for Saxony.
That experience increased Guertner’s energy in carrying out his work of centralization. The basis for that work was laid down in the first and second centralization laws dated 16 February and 5 December 1934.[180]
The result of the centralization, the transfer of the tasks of the Ministries of Justice of the Laender to the Reich, was this, from the political angle: The entire administration of justice from now on lay in the hands of a minister who was not a member of the Party and who, as Minister of Justice for Bavaria, had enjoyed the confidence of all parties from the extreme right to the extreme left. I myself, who also was not a member of the Party, remained at my post. The National Socialist Ministers of Justice of the Laender lost their official positions in the administration of justice.
The opinions of the Party as to the centralization of the administration of justice is evidenced best by a statement of Goering’s, which he made to me in 1941 when, in the course of a conversation, I said to him that the Party at every opportunity made difficulties for our ministry, he said to me: “That cannot surprise you. The reason lies in the centralization of the administration of justice under the circumstances under which it was achieved. That is the reason why the Party as a group is opposed to the Reich Ministry of Justice and makes life as difficult as possible for that ministry. The Party is of the opinion that the administration of justice should again be taken over by National Socialist hands.” Goering added, “I myself will never pardon Guertner and you for the way you acted in 1934.”
Q. I shall submit Schlegelberger Document 26, Schlegelberger Exhibit 66,[181] in reference to the aforesaid statements. Will you please give us a brief description of the organization of the Reich Ministry of Justice?
A. Under the very top, that is, under the Reich Minister of Justice, there were two separate under secretariats: the under secretariat for civil law matters, the head of which was myself; the direction of the secretariat for penal law matters which was in the hands of Freisler. Further, he was in charge of the so-called organization section [Organisationreferat], the Hereditary Farm Law [Erbhofrecht] and the Inspection Office for Judicial Affairs [Justizpruefungsamt].
Under the two under secretariats there worked a total of six ministerial directors each of whom was the head of his specialized divisions. The number of these divisions and their sphere of work changed several times in the course of time.
Inside some departments, subsections had been created which were in charge of a Ministerialdirigent. The number of higher officials[182] in the Reich Ministry of Justice amounted to approximately 250. Personnel matters were divided into regions. As regards the East, I was only in charge of my own home province, East Prussia. Otherwise, I dealt with western and southern Germany, Freisler was in charge of the remaining [regions]. Freisler was in charge of the People’s Court. The Reich Supreme Court and the Reich patent office were in my charge. The two divisions, directed by Under Secretaries were entirely separate from one another. Freisler and myself had different times at which we went to report to the Minister. The Minister asked me to come to see him when Freisler had finished his report and had left the room. Only very rarely, and only when one of my officials was to be appointed to a head office in Freisler’s sphere, or vice versa, did the two of us meet at the Minister’s. If one of the under secretaries was absent, his affairs were dealt with by the Minister together with the competent ministerial director. The other under secretary did not deputize for the one who was absent.
May I cite an example? In 1938 I had to go to the hospital as a result of an accident, and at that time the Minister did not discuss the new German marriage law with Freisler, but with the head of the respective department. If the Minister were also absent, the Under Secretary, who was present in Berlin, did only a certain amount of duty for his colleague. That is to say, he was available for matters which could not possibly be postponed. In my recollection, that happened only very rarely, for this was one point over which Freisler and I were in absolute agreement. Neither had the wish to meddle with the other’s affairs.
Furthermore, Freisler when he went on a business trip or when he went away for the summer holidays was practically always in contact with Berlin. Therefore, he told Dr. Guertner that a deputy for which I was the only possible candidate was neither necessary nor desirable. It did happen that when the Minister did not feel well and left the office earlier, he asked me by telephone to sign and to dispatch letters which he had already signed in draft form. Now and then that could have concerned matters which fell into Freisler’s sphere when Freisler could not be reached.
I should like to cite as example the letter which the prosecution submitted about the fight against political Catholicism. Concerning details accompanying that letter, I know nothing about this. In particular, I do not know what particular pressure was exercised or what instructions Hitler had issued in virtue of his right to lay down the directives of policy but I should like on this occasion to say something about what was the practice of the Ministry in regard to church affairs. I should like to point out what the witness for the prosecution, the Catholic Priest, Schosser, testified here on 9 May. According to his testimony, the Ministry refused on the occasion of a church funeral for Poles to take steps against the Catholic clergymen.
DR. KUBUSCHOK: The letter which you have mentioned is Document NG-630, Prosecution Exhibit 428.[183] The examination which you mentioned here of Father Schosser is on page 3021 in the English transcript.[184]
* * * * * * *
V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE
A. Introduction
This major section of the volume contains selections from the evidence concerning leading questions or issues of the trial. The evidence selected for publication herein constitutes only about one-twentieth of the total mimeographed record. Hence, all issues of the trial are not covered, and numerous items of evidence mentioned in the printed materials are not reproduced herein. Where extracts from testimony have been reproduced, a footnote indicates the pages of the official mimeographed transcript where the entire testimony can be found.
Both prosecution and defense evidence is contained in each of the sections into which the evidence selected has been organized. The prosecution evidence consists in the main of contemporaneous documents of the Nazi era, most of them discovered in German archives by Allied investigators after Germany’s unconditional surrender. The defense evidence consists principally of extracts from the testimony of defendants. A substantial number of the contemporaneous documents offered by the defense have also been selected for publication. With one or two exceptions, the contemporaneous documents have been reproduced within the various sections in chronological order, regardless of whether they were offered by the prosecution or the defense. In selecting defense testimony under the various topical sections, considerable emphasis has been given to the testimony of the three defendants Schlegelberger, Rothenberger, and Klemm who were appointed Under Secretaries in the Reich Ministry of Justice, and to the testimony of the defendant Rothaug, presiding judge of the Nuernberg Special Court.
The defendants were charged with participation in various types of criminal conduct “by distortion and denial of judicial and penal process.” The selections from the evidence below have been grouped into five main sections (sec. VB through VF) treating of various types of conduct by which it was alleged that the defendants engaged in criminal acts as principals or accessories.
In Hitler’s Third Reich many persons were placed entirely outside the judicial process. Therefore the first section (B) is concerned with measures under which persons were committed to the “protective custody” of the police (usually the Gestapo) or to the concentration camps of Himmler’s SS.
The next four sections (C through F) deal with various methods whereby it was charged that perversions of law and the judicial process were employed to persecute, imprison, and execute or exterminate large numbers of persons. Section C, which contains evidence on numerous topics, has been divided into three periods of time: 1933--January 1941 when Guertner was Reich Minister of Justice; January 1941--August 1942, when the defendant Schlegelberger was acting Reich Minister of Justice; and August 1942--1945, when Thierack was Reich Minister of Justice. The next section (D) deals with large groups of persons allegedly subjected to discriminatory treatment of many kinds: Germans, Poles, Jews of several nationalities, the Night and Fog prisoners from occupied western Europe, and others. Section E deals with the growth, development, and application of such concepts as treason, undermining the defensive strength, and public enemies. These concepts were applied in cases against persons who were not nationals of Germany as well as against Germans. The final section (F) deals with the handling of religious matters.
Because of the close relationship of the developments of these various topics to the crowded history of the Nazi regime, there necessarily is considerable over-lap between the several sections into which the evidence has been organized. A case where a Pole was convicted of treason against Germany (reproduced here in sec. E) cannot be divorced from the materials concerning the general treatment of Poles (included in sec. D2). The Night and Fog prisoners offer another example, since these prisoners were ordinarily kept incommunicado in concentration camps, and the evidence concerning them (D3) is closely related to the evidence dealing with protective custody and concentration camps (B). The over-lap is often quite pronounced in the extracts from the testimony of defendants. Most of the defendants were active in a number of different fields and held different official positions during the 12 years of the Nazi era. In making out his case, each defendant chose his own course in grouping together various items. In facing this unavoidable problem of over-lap, the editors have employed footnotes extensively in making cross-references between the materials contained in various sections, particularly in extracts from testimony where mention is made of decrees and other documents reproduced in various parts of the volume.
B. Measures Outside the Judicial Process--Protective Custody, Transfer of Persons to Concentration Camps and the Police
TRANSLATION OF KLEMM DOCUMENT 28 KLEMM DEFENSE EXHIBIT 28
ORDER OF PRUSSIAN MINISTRY OF JUSTICE, 15 MARCH 1934, INFORMING AUTHORITIES OF GOERING’S DECREE OF 11 MARCH 1934, AUTHORIZING THE GESTAPO AND CERTAIN PRUSSIAN AUTHORITIES TO ORDER PROTECTIVE CUSTODY FOR POLITICAL REASONS[185]
No. 76 Order concerning measures of protective custody, Executive Order of the Prussian Ministry of Justice of 15 March 1934 (I 3540), German Justice, page 341.
On account of its importance also with regard to the official sphere of activities of judicial authorities, I hereby inform these authorities of the following decree, by the Prussian Ministerpraesident (Secret State Police), dated 11 March 1934.
Berlin, 11 March 1934
The Prussian Ministerpraesident [Goering] Secret State Police Insp. 1946/11 March 34
Subject: Order concerning protective custody
Effective immediately I order the following:
1. The regulations which so far dealt with competence with regard to the application of protective custody for political reasons are cancelled. In future restrictions of personal freedom in accordance with article 1 of the Decree for the Protection of the People and State, dated 28 February 1933, may be ordered with effect on the entire state territory [of Prussia] by the Secret State Police Office only, and within their local fields of jurisdiction by the Oberpraesidenten, Regierungspraesidenten, the police president in Berlin and the local state police offices.
The district police authorities, especially the Landraete, are no longer competent for such measures. The measures hitherto ordered by them will be rescinded as per 31 March unless they have been extended by order of the competent police authorities of the constituent states.
[Page 342]
Offices of the Party and the affiliated organizations may not carry out arrests on their own initiative. In case of disobedience to this order the competent authority will interfere, and report to me, at once.
To the Ober- and Regierungspraesidenten Secret State Police Office in Berlin Police President in Berlin State Police Offices
TRANSLATION OF JOEL DOCUMENT 8 JOEL DEFENSE EXHIBIT 11[186]
LETTER OF REICH MINISTER OF JUSTICE GUERTNER TO REICH MINISTER OF THE INTERIOR FRICK,[187] 14 MAY 1935, PROTESTING AGAINST THE “MISTREATMENT OF COMMUNIST PRISONERS BY POLICEMEN”
Copy
The Reich Minister of Justice 3751 PS of the IMT Z.F.g 10--1717.34
Personal
Berlin, 14 May 1935
To the Reich and Prussian Minister of the Interior, Berlin
Subject: Mistreatment of Communist prisoners by policemen Enclosure: 1 loose sheet
My Dear Reich Minister!
Enclosed you will find copy of a report of the inspector of the Secret State Police, dated 28 March 1935.[188]
This report gives me an occasion to state my fundamental attitude toward the question of the beating of internees. The numerous instances of ill-treatment which have come to the knowledge of the administration of justice can be divided into three different causes for such ill-treatment of prisoners.
1. Beating as a disciplinary punishment [Hausstrafe] in concentration camps.
2. Ill-treatment, mostly of political internees, in order to make them talk.
3. Ill-treatment of internees arising out of sheer fun, or for sadistic motives.
I should like to make the following detailed comments on those three categories:
About No. 1. In the remand prisons and penal establishments under the Ministry of Justice, there was no need to introduce corporal punishment as a disciplinary measure. The experience of the administration of justice has taught that a well trained, reliable, and conscientious personnel of wardens is in a position to set up and to maintain model order under a strict discipline, even without corporal punishment. The more training and discipline the prison guards have, the less need exists to introduce corporal punishment as a disciplinary measure.
But if, contrary to this view, one is to suppose that there might be a need to introduce corporal punishment in concentration camps, it appears indispensable that this disciplinary measure and the manner of its application should be determined, uniformly and unambiguously, for the whole territory of the Reich. It has happened recently that camp orders of individual concentration camps concerning this matter and the use of weapons, contained unusually severe instructions which were brought to the knowledge of the internees as a stern warning, while the warden personnel was administratively informed that these regulations which dated mostly from 1933 were no longer applicable. Such a situation is equally dangerous for the warden personnel and for the internees. It would therefore appear, after the question of imposing protective custody was generally settled by the competent minister, that in the interests of all concerned, one should urgently and clearly define responsibility and legal aspect, furthermore that the same responsible authority would have to settle, by means of camp regulations generally applicable, the question of corporal punishment as a disciplinary measure, which is still unclarified, as well as the question of the use of arms by the warden personnel.
About No. 2. I cannot concur with the opinions expressed in the enclosed letter. The present penal law, which I have to enforce, renders liable to particularly severe penalties those officials guilty of inflicting ill-treatment in the performance of their duties, especially when such ill-treatment is used to extort admissions or statements. That these legal provisions also reflect the will of the Fuehrer and Reich Chancellor is shown by the fact that, during the suppression of the Roehm revolt, the Fuehrer ordered the shooting of three members of the SS who had ill-treated prisoners in Stettin. That being the legal situation, it is out of order to grant silently one part of the police forces permission to extort statements by means of ill-treating prisoners. Such a measure would destroy the respect for the existing laws and would thereby lead necessarily to the confusion and demoralization of the officials concerned.
Furthermore, such statements extorted by force are practically without value if they are supposed to serve as evidence in trials for high treason. The courts which have jurisdiction in cases of high treason consider to an ever increasing degree statements of the defendants made before the police as worthless and without any evidenciary value for court decisions. This was the result of their getting convinced in the course of numerous proceedings that confessions and statements made before the police were extorted by ill-treatment.
Moreover, I cannot follow the statements contained in the attached report in as much as the beating of Communists held in custody is regarded as an indispensable police measure for a more effective suppression of Communist activities. These explanations of the Gestapo office show precisely that the methods used up to now have not been successful in combatting the illegal Communist machine or to hinder its development.
Experience shows that such police measures may perhaps partially be successful but that they never can attain a total suppression and destruction of an illegal revolutionary organization which alone is of importance in the long run. Behind such revolutionary organizations there are professional revolutionaries of great experience and frequently exceptional intelligence. These succeed very soon by means of cleverly camouflaging all more important functionaries in excluding for all practical purposes the possibility of betrayal as a result of mistreatment.
About No. 3. The experience of the first revolutionary years has shown that the persons who are charged to administer the beatings generally lose pretty soon the feeling for the purpose and meaning of their actions and permit themselves to be governed by personal feelings of revenge or by sadistic tendencies. As an example, members of the guard detail of the former concentration camp at Bredow near Stettin completely stripped a prostitute who had an argument with one of them and beat her with whips and cowhides in such a fashion that 2 months later the woman still showed two open and infected wounds on the right side of her buttocks, one 17.7 by 21.5 centimeters and the other 12.5 by 16.5 centimeters, as well as a similar wound on the left side of the buttocks 7.5 by 17 centimeters. In the concentration camp at Kemna near Wuppertal, prisoners were locked up in a narrow clothing locker and were then tortured by blowing in cigarette smoke, upsetting the locker, etc. In some cases the prisoners were given salt herring to eat, so as to produce an especially strong and torturing thirst. In the Hohenstein concentration camp in Saxony, prisoners had to stand under a dripping apparatus especially constructed for this purpose until the drops of water which fell down in even intervals caused seriously infected wounds in their scalps. In a concentration camp in Hamburg four prisoners were lashed for days--once without interruption for 3 days and nights, once 5 days and nights--to a grating in the form of a cross, being fed so meagerly with dried bread that they almost died of hunger.
These few examples show such a degree of cruelty which is an insult to every German sensibility, that it is impossible to consider any extenuating circumstances.
In conclusion, I should like to present my opinion about these three points to you, my dear Reich Minister, in your capacity as cabinet member in charge of the establishment of protective custody and the camps for protective custody.
1. It seems now absolutely necessary that the competent minister should decree unified camp regulations for all camps for protective custody, which shall regulate completely and unmistakably the question of corporal punishment as disciplinary measure, and the question of use of weapons by the guards.
2. It appears necessary that the competent cabinet minister order valid for all police authorities an absolute prohibition against mistreatment of prisoners for the purpose of forcing statements.
3. All mistreatments which are entirely or partly due to personal reasons must be prosecuted vigorously and punished under close cooperation of all governmental offices concerned.
Heil Hitler!
[Signed] DR. GUERTNER
TRANSLATION OF DOCUMENT NG-326 PROSECUTION EXHIBIT 456
DIRECTIVE OF 12 JUNE 1937 FROM HEYDRICH, CHIEF OF THE SECURITY POLICE, TO POLICE OFFICES, CONCERNING PROTECTIVE CUSTODY FOR JEWISH RACE DEFILERS
Copy
The Chief of the Security Police Berlin, 12 June 1937 S-P (II B) No. 4021/37
[Handwritten] Annulled 28 August 1937 [Handwritten] Ku
Subject: Protective custody for Jewish race defilers.
From what I can see from a statistical survey, cases of race defilement have increased considerably recently. In order to take preventive measures against this danger, it is to be examined in every single case of race defilement whether protective custody is necessary after the sentence inflicted by law has been served.
For this purpose I request that a short report be made 1 month prior to the discharge of the condemned from prison with the valid judgment concerning the case of race defilement attached.
Apart from this I request that immediately after termination of legal proceedings in a case of race defilement in which a male person of German blood has been sentenced, the Jewess involved be taken into protective custody and reported to this office.
No publicity whatever is to be made of this order.
[Signed] HEYDRICH S. Certified: [Signed] KASKATH Clerk
To all-- Higher State Police Offices State Police Offices Higher State Police Offices Criminal Police Offices
TRANSLATION OF SCHLEGELBERGER DOCUMENT 90 SCHLEGELBERGER DEFENSE EXHIBIT 83
EXTRACTS FROM THE REGULATIONS OF THE REICH MINISTRY OF THE INTERIOR, 25 JANUARY 1938,[189] CONCERNING PROTECTIVE CUSTODY
* * * * * * *
Circular Decree[190] of the Reich Minister of the Interior 25 January 1938--Pol. S-V I No. 70/37--179 g
Secret
Article 1
Admissibility
1. For the protection against potential enemies of the people and the State, the Secret State Police [Gestapo] is hereby authorized to impose protective custody as a compulsory measure on all persons who through their behavior endanger the welfare and the security of the people and the State.
2. Protective custody shall not be decreed for punitive purposes or to take the place of legal imprisonment. Punishable acts are to be judged by the courts.
Article 2
Competence
1. Competence to order a person into protective custody rests exclusively with the office of the Secret State Police.
2. Motions for an order of protective custody are to be addressed through the local and regional State Police agencies to the office of the Secret State Police. With every motion detailed reasons are to be given which must include defensive statements [Einlassungen] made by the arrested person. As soon as the person under provisional arrest has been interrogated, a copy of this interrogation will be forwarded immediately.
3. An order for protective custody can only be issued after the accused has been heard on the charges raised against him.
Article 3
Temporary Arrest
1. The office of the Secret State Police, and the regional and local state police agencies are authorized to order the temporary arrest of any person to whom the provisions of article 1 apply, provided--
a. That such person is likely to engage in subversive activities unless detained.
b. That there is danger that evidence may be destroyed [Verdunklungsgefahr].
c. That the person is suspected of preparing for his escape.
2. The record must show that the accused has been advised of his provisional arrest within 24 hours after he has been seized. Likewise the record must show that he has been advised of the reasons for his being placed under temporary arrest.
3. A person under temporary arrest must be released not later than 10 days from the day of his arrest, unless an order for protective custody has been issued within that period by the office of the Secret State Police.
Article 4
Right to Issue Directives
The right of the Reich governors, the Land government, the Oberpraesidenten, and the Regierungspraesidenten, to issue directives to the superior State Police and Police offices, is not affected by articles 2 and 3.
Article 5
Order for Protective Custody
1. To place a person under protective custody an order for protective custody must be issued in writing by the office of the Secret State Police. At the time of his arrest or not later than the day after the order for protective custody has been transmitted, the accused will be handed a copy of the order for which he has to sign a receipt.
2. Any order for protective custody must include a brief statement of the reasons for which protective custody was ordered.
3. The next of kin (wife, parents, children, brothers, or sisters) of a person under protective custody are to be informed that he has been placed under protective custody and where he is located, unless special reasons render such action inadvisable.
4. If a civil servant is taken under protective custody the Secret State Police must immediately notify his superior agency and state the reasons for his protective custody.
5. If a member of the NSDAP or of any of its formations is taken under protective custody, the Secret State Police must notify the Party agency concerned and state the reasons for his protective custody.
Article 6
Execution
As a matter of principle, persons under protective custody are to be placed in State concentration camps.
Article 7
Duration
1. Protective custody is to last no longer than necessary to achieve its purpose.
2. Release from protective custody is ordered by the office of the Secret State Police. It is the responsibility of the Secret State Police to examine at regular intervals of not more than 3 months whether the protective custody is to be lifted. The arrested person must be released not later than 3 days after the protective custody has been lifted.
Article 8
Foreigners
Foreigners, who have been taken into protective custody, are to be deported unless special reasons render such action inadvisable.
Article 9
Executory Regulations
Executory regulations to implement the preceding provisions shall be issued by the chief of the Security Police.
To the Office of the Secret State Police, the regional, and local State Police Agencies.
For information only:
The Reich Ministers, Reich Governors, Land Governments, The Prussian Oberpraesidenten, Regierungspraesidenten, and the Police President of Berlin.
(Not published)
PARTIAL TRANSLATION OF DOCUMENT NG-2218 PROSECUTION EXHIBIT 604
CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO PRESIDENTS OF DISTRICT COURTS OF APPEAL, 31 JANUARY 1938, REQUESTING LISTS OF ATTORNEYS ALLOWED TO DEFEND PRISONERS HELD IN PROTECTIVE CUSTODY
Berlin, 31 January 1938
Copy
The Reich Minister of Justice 4611--1a^7 194/38 The Presidents of the District Courts of Appeal
Subject: Defense of prisoners in protective custody by attorneys
To prepare a decision of the Reich Leader SS and Chief of the German Police on whether certain attorneys can generally be allowed to defend prisoners held in protective custody, you are requested to examine immediately whether attorneys in your district, and which ones, could be considered in this respect. To defend prisoners held in protective custody, qualification and reliability are necessary to a particularly high extent. Therefore, in making the selection, a very strict standard will have to be applied. Mere membership in the NSDAP--as far as it was acquired only after 30 January 1933--will generally not warrant the necessary extent of reliability; on the other hand, this qualification will not have to be denied merely because the attorney is no Party member. Only such attorneys can be considered whose attitudes prove beyond doubt that they fully approve of the political plans of the State and of the ideological aims of the movement. For the rest, it will have to be assumed that attorneys not acting as counsel for the defense in criminal cases--will generally not defend prisoners held in protective custody either.
I request that attorneys qualified according to these rules to defend prisoners held in protective custody and who, if possible, ought to reside at various places of your district be in sufficient number entered into a list arranged according to State Police Offices. As to their qualification I request that the president of the bar then be consulted, the necessity of a strictly confidential treatment will have to be pointed out to him. Agencies, other than the judicial administration, will not be consulted. I then request that two copies of the list be submitted and that the opinion of the president of the bar be attached. Concerning the attorneys mentioned in the list, personal data and qualification for each of them have to be attached in addition to the character and political attitude of the attorney, particularly the manner of his professional training as counsel for the defense in criminal cases has to be explained in this statement; furthermore, if possible, whether it can be assumed that the attorney enjoys the confidence of the State Police Office.
Negative reports, if such is the case, are requested.
As Deputy [Signed] SCHLEGELBERGER
Note
I have discussed the question with the attorney Dr. Dormann today. He received from me 3 copies of the decree to deal with them; it was especially pointed out to him that the affair was strictly confidential. After contacting Dr. Droege he will try to compile for Hamburg and Bremen a list of such attorneys who are qualified to defend prisoners in protective custody.
Note
After 2 weeks
11 February 1938
[Signed] LETZ
Note.--I have reminded Dr. Dormann by telephone. The list is under deliberation at present.
Note
1. To be submitted to the Senator.
2. Two weeks.
5 May 1938 [Signed] LETZ
When opinion arrives, report has to be made.
[Signed] ROTHENBERGER
Certified true copy. Hamburg, 9 August 1947
[Signed] VON THADEN Justizoberinspektor
[Stamp]
Hanseatic District Court of Appeal Hamburg
TRANSLATION OF DOCUMENT NG-366 PROSECUTION EXHIBIT 256
MINUTES OF DEFENDANT KLEMM ON CONFERENCES OF REICH MINISTER OF JUSTICE WITH ATTORNEYS GENERAL AND PRESIDENTS OF COURTS OF APPEAL, 23 AND 24 JANUARY 1939, CONCERNING PROTECTIVE CUSTODY
Conference with the Attorneys General [Generalstaatsanwaelte][191] on 23 January 1939
Protective custody after serving punishment, after acquittal, after release from arrest pending trial.
From the individual districts:
Munich (Leimer)--In Memmingen 4 cases of arrest for protective custody occurred and 2 of those after penal detention, 2 after arrest pending trial (not advisable, because executed in the same prison, probably even in the same cell), 8 in Augsburg, 1 in Kempten, 7 in Munich, altogether 359 after penal detention. The cases are decreasing.
Hamm (Semler)--No detrimental cases. 1 case in Arnsberg with the explanation that there is no intention to criticize the sentence. There have been frequent requests for calling back in cases where no warrant of arrest is issued.
Berlin (Jung)--The State Police [Stapo] takes functionaries of the KPD [Communist Party] into protective custody after penal detention. In cases where a warrant of arrest in high treason affairs is rejected, protective custody is to be ordered at once. Furthermore, in 1937 and 1938 a few priests and Jews in protective custody in cases of refusal of warrants of arrest. Protective custody justified on an acquitted sexual criminal (later conviction). No further annoying clashes.
Jena (Wurmstich)--Penitentiary inmates as a rule always in protective custody after penal detention likewise traitors and defaulters [violating restrictions acknowledged by signature upon release]. As regards the detrimental cases, improvement since 1936. Jehovah’s Witnesses are arrested on principle after penal detention, but are mostly released after 3–4 days.
Duesseldorf (Hagemann)--3–4 percent of the released are taken into protective custody. Jehovah’s Witnesses are released, if they countersign. There are frequent requests for calling back in cases, where no warrants of arrest are issued.
Stettin (Staecker)--Only in very few cases protective custody after penal detention. In 2 cases (abortion by female defendant Dr. Buchholz and 1 other case in accordance with section 175a of the penal code [Sodomy]) protective custody was entirely justified as the result of the appeal has shown. (Case Buchholz 4 years of hard labor.) As a rule, Jehovah’s Witnesses and high treason criminals are arrested pending trial.
Celle (Schoenering)--On principle, traitors, Jehovah’s Witnesses, homosexuals, and persons guilty of abortion are taken into protective custody after penal detention. 4 detrimental cases of protective custody: priest, RM 10,000 bail; race defiler, RM 15,000 bail; acquitted because of proved innocence; Jew (after being acquitted of acting maliciously against the State); insulter of the SS (after penal detention).
Hamburg (Drescher)--Protective custody as preventative measure after penal detention, etc., has to be acknowledged as justified, but not as a correction of a judicial decision. No special details.
Karlsruhe (Lautz)--Jehovah’s Witnesses as a rule are taken into protective custody after penal detention. Protective custody after repeal of the warrant of arrest was justified in 2 cases.
Graz (Meissner)--The Chief Public Prosecutor asked the State police in 2 cases for actions of protective custody, because a 13-year-old gangster could not be prosecuted and because the use of violence could not be clearly proved to a priest in a case of sexual crime.
Brunswick (Mueller)--There is one case, where protective custody as a correction of a judicial decision is embarrassing, because protective custody is justified (priest, sexual criminal). In another case, (priest, sexual criminal) the protective custody is not justified. In general the State Police is trying to act in agreement with the public prosecutor.
Oldenburg (Christians)--On principle, functionaries of the Communist Party are taken into protective custody after penal detention, furthermore, Jehovah’s Witnesses in almost all cases. Only a few unsatisfactory cases.
Naumburg (Hahn)--Frequent request for calling back if no warrant of arrest is issued. The impression has been given that judges are deciding for a warrant of arrest, because protective custody seems to them harder than arrest pending trial. Often the criticism of justice because of actions of protective custody is not absolutely unjustified.
Special example: A former SS Sturmfuehrer (disloyalty) after 1 year of penal detention was given another year in protective custody.
Nuernberg (Bems)--Cases of protective custody after penal detention, etc., have decreased, although frequently protective custody is exercised, if no warrant of arrest is issued. Protective custody as criticism of justice has not occurred any more. On principle, high treason criminals, Jehovah’s Witnesses and race defilers are taken into protective custody after penal detention.
The minister ends the conversation by stating that in the interest of justice those cases are to be regretted where protective custody is to be regarded as justified criticism of justice, besides no objections can be raised against preventative measures.
[Signed] KLEMM 25 January 1939
Conference with the Presidents of the Courts of Appeal on 24 January 1939
Protective custody after serving term of imprisonment, after acquittal, after release from arrest pending trial.
Hamm (Schneider)--Conditions have improved during the year 1938. The most important cases are the ones after arrest pending trial. The taking into protective custody is performed more carefully today because of the reputation of justice. The complaint has been made that the length of protective custody is assuming the character of punishment. In one case (public notary) protective custody after release from arrest pending trial was justified. Some lawyers refrain from submitting a complaint of arrest because protective custody is pending. There are judges who in case of doubt issue a warrant of arrest in order to avoid protective custody. In one case of criminal proceedings homosexuals were released from arrest pending trial and later on legally acquitted; during the trial, however, they were brought to court from protective custody every day. Monks from Dorsten were taken into protective custody after their acquittal.
Darmstadt (Scriba)--In one case defendant taken into protective custody while still being in court after acquittal. In some cases protective custody was inflicted after repealing arrest pending trial, release, however, was obtained after objecting by the administration of justice. General picture: Decline of measures of protective custody in face of contradictory legal decisions.
Berlin (Hoelscher)--In 1938 only 3 cases of protective custody. A decline of arrests has been observed.
Duesseldorf (Schwister)--Frequent requests for calling back if warrant of arrest has been refused. It has even been noticed that corresponding agreements were made between the investigating or examining judges and the State Police (Duesseldorf). In one case protective custody was justified and in another case one additional year of protective custody. Those cases are very rare now; good understanding exists between the court and the State police. Therefore the impression that justice is being criticized does not exist.
Naumburg (Sattelmacher)--A mitigation has been noticed, however, there are frequent requests for calling back if warrant had been refused.
Hamburg (Rothenberger)--Cases of protective custody have been increased, because the warrants of protective custody are decided on in Berlin. In 6 cases, Jewish women have been taken into protective custody because of sexual intercourse with Aryans. In the case of Laeiss vs. half-Jewess, she has already been under protective custody for 1½ years. State police file notes from police records state:
(1) Protective custody, “to make the punishment finally effective.”
(2) Protective custody, “to make the served sentence still more effective.”
(3) Protective custody, “because of the big number of previous convictions.”
(4) Protective custody, “to prevent prejudicing the course of justice through the interference of lawyers as defense counsel.”
Rostock (Goetsch)--Good cooperation with the State Police, only preventive measures have been noticed.
Graz (Meldt)--No difficulties, not the slightest disharmony, or criticism of the law.
The minister concludes the discussion by indicating that it is to be the task of the presidents of the courts of appeal to see that arrests in the courtroom by the State Police are avoided and recommends for the rest to remain in contact with the State Police.
[Signed] KLEMM 25 January 1939
PARTIAL TRANSLATION OF DOCUMENT NG-629 PROSECUTION EXHIBIT 28 [Also Rothenberger Document 3 Rothenberger Defense Exhibit 3][192]
EXTRACTS FROM A REPORT ON A 1 FEBRUARY 1939 CONFERENCE AT THE MINISTRY OF JUSTICE BETWEEN DEFENDANT ROTHENBERGER AND VARIOUS COURT PRESIDENTS[193]
Report on the conference of [court] presidents on 1 February 1939
Present: Senator Dr. Rothenberger, Attorney General Dr. Drescher, Vice President Letz, District Court Presidents Korn and Dr. Ruther, Bremen, Local Court President Dr. Blunk, Local Court Directors Schwarz, Boehmer, Hansen, and von Lehe, Senior Judges of Local Court Gersdorf and Stender, Chief Public Prosecutor Lohse, Bremen, Oberlandesgerichtsrat Dr. Segelken and the undersigned.[194]
Senator Dr. Rothenberger and the attorney general reported on the discussions at the meetings of the presidents of the courts of appeal and attorneys general with the Reich Minister of Justice.
Senator Dr. Rothenberger first asked for a report on the attitude of the judges with reference to the articles in the “Schwarze Korps” [Black Corps, official newspaper of the SS] before his speech on 28 January 1939, and wanted to know whether his address had put their minds at ease. With the exception of Wandsbek where the articles of the “Schwarze Korps” evidently were not noticed, it was the general opinion, expressed particularly by the district court president of Hamburg and Director Hansen, Altona, that the judges were actually extraordinarily disturbed by the attacks of the Schwarze Korps. The statements made by Senator Dr. Rothenberger have had a rather soothing effect since there was now some hope for improvement. However, there were doubts as to whether the Reich Minister of Justice would succeed in carrying his point against the Schwarze Korps i.e., the SS. These doubts were based especially upon the former passive attitude of the ministry.
I. The attorney general then reported on the penal development of the events of 9 to 11 November.[195] The former regulation according to which the State Police is the final authority in deciding whether or not such a case should be followed up, has been abolished following a decision by the Reich Ministry of Justice. The Reich Minister of Justice and Chief Public Prosecutor Joel have stated that it would, of course, be impossible to handle these things the normal legal way; if, at first, the law as such has been changed by order from higher authorities, then it would not be possible to prosecute those people involved in the perpetration. Therefore, by way of example the conception of violation of the public peace would have to be abandoned. This can be legally justified because the perpetrators lacked the knowledge of illegality since they acted on order. As far as the criminal offenses committed during the encounter are concerned, negligible acts should be disregarded. Otherwise, cases will be withdrawn, but only by order of the Fuehrer, while serious criminal offenses, as for instance rape and race defilement have to be prosecuted. The order for prosecuting will be issued in every case by the minister after, to begin with, the perpetrators in case they are Party members or members of a Party organization have been expelled by a special department of the Supreme Court of the Party which has been established in Berlin.
Goering had strongly disapproved of the events. In his opinion, it was the hardest blow the Party had ever received.
Comments concerning these events should not be prosecuted under the Heimtueckegesetz if they were occasioned by well founded protest.
Senator Dr. Rothenberger pointed out that nothing had happened in Hamburg, thanks to Gauleiter Kaufmann’s attitude which Ministerpresident Goering had expressly recommended. He asked for understanding in the attitude of the Reich Minister of Justice and to pass that understanding on to the judges.
As far as prosecution under the Heimtueckegesetz is concerned, because of comments about the events between 9 and 11 November, he stated that the court might find itself in the position where it would have to investigate the facts. Such cases would have to be reported.[196]
* * * * * * *
IV. The discussion on the question of protective custody by the police was then reported upon. The standpoint of the ministry is, which also finds approval here, that protective custody measures, insofar as they are purely of a preventative nature, cannot be objected to; that, however, corrective measures such as have become known in various cases should not be permitted.
Senator Dr. Rothenberger requested immediate presentation of all cases in which the judge is under the impression that the police are attempting to correct the verdict through their arrest measures. In addition to this, all cases should immediately be reported in which the police effect an arrest in the courtroom.
* * * * * * *
PARTIAL TRANSLATION OF DOCUMENT NG-340 PROSECUTION EXHIBIT 257
LETTER FROM BOUHLER, CHIEF OF THE FUEHRER’S NAZI PARTY CHANCELLERY, TO LAMMERS, 26 JULY 1939, CONCERNING HITLER’S DECISION TO PLACE PERSONS IN SECURITY DETENTION UNDER HIMMLER FOR WORK IN CONCENTRATION CAMPS
Berlin W 8, 26 July 1939 Vosstrasse 4
The Chief of the Chancellery of the Fuehrer in the NSDAP
To the
Chief of the Reich Chancellery, Dr. Lammers
Subject: People in security detention
Dear Party Member Dr. Lammers,
Some time ago the Reich Leader SS made a request to the Reich Minister of Justice to the effect that some of the people in security detention be put at his disposal for important work in the concentration camps. The urgency for this increased, when on the 50th birthday of the Fuehrer a great number of persons in protective custody were dismissed. The request of the Reich Leader SS was refused in the letter of 14 July 1938 because these persons apart from carrying out work to fulfill the requirements of the penal institutes also did such work as appeared urgent under the Four Year Plan. When, however, the penitentiary Brandenburg-Goehrden was inspected by the chief of the office for matters concerning pardoning, the Chancellery of the Fuehrer, it was established that a large number of the people in security detention were busy painting cardboard soldiers for private firms. Considering the far more important work (which can actually be regarded as urgent in connection with the Four Year Plan) which is being carried out by prisoners, for example, in the concentration camp Sachsenhausen and in the adjoining brick yard, the Fuehrer has ordered that all dispensable persons in security detention are to be put at the disposal of the Reich Leader SS immediately.
At the request of the Reich Leader SS, after inspecting the concentration camp Sachsenhausen in the spring, I supported the request he made to the Fuehrer. I was then given the order to ascertain the way in which the persons in security detention were occupied at the present time. During the process of my investigation I established what was required, and I also received the following report from the Reich Ministry of Justice concerning this matter:
“According to the most recent information, there were 4,303 persons in security detention. Of these 4,096 are working; i. e., 721 of them (16.8 percent) are carrying out work for the requirement of the penal institutes and other authorities; and 3,375 persons in security detention (78.4 percent) are engaged in work in connection with the Four Year Plan (including work for export and for military use). The remaining 207 persons in security detention (4.8 percent) were not working on the day of my investigation, in consequence of illness or because they had to undergo a term of imprisonment.”
There can be no doubt that the persons in security detention who are working on the toys mentioned, and who, per person, enable the institute to earn daily RM 1.20-1.80 are inserted under the heading of “urgent work for the Four Year Plan.”
In consequence of my report in Obersalzberg, the Fuehrer, who already had leanings toward this interpretation after my first report, decided that the persons in security detention were to be incorporated into the concentration camps under jurisdiction of the Reich Leader SS.
I have on purpose refrained from informing the Reich Minister of Justice directly. I request you to inform the Reich Minister of Justice of the decision of the Fuehrer.
I have informed the Reich Leader SS of the decision of the Fuehrer and of my letter to you.
Heil Hitler!
Yours faithfully [Signed] BOUHLER
TRANSLATION OF DOCUMENT NG-190 PROSECUTION EXHIBIT 284
VARIOUS MEMORANDUMS AND LISTS OF REICH MINISTRY OF JUSTICE, 28 SEPTEMBER 1939 TO 7 MARCH 1941, CONCERNING EXECUTIONS WITHOUT TRIAL OR EXECUTIONS AFTER TRIAL UNDER VARIOUS CIRCUMSTANCES
1. Note by Reich Minister of Justice Guertner to Lammers, 28 September 1939, Concerning Executions of Three Persons Without Trial and Urging Clarification of Problems Created by Punishment “Without Criminal Proceedings and Without a Sentence.”
Note
1. Publications in the press
a. The Reich Leader SS and chief of the German police reports that Johann Heinen, Dessau, was shot on 7 September 1939, because of his refusal to cooperate in tasks for the protection of the security of the national defense. In addition, Heinen was a criminal who had been convicted previously for theft.
b. The Reich Leader SS and chief of the German police reports the following have been shot:
(1) On 11 September 1939 Paul Mueller from Halle because of arson and sabotage. Mueller had been convicted previously 8 times to imprisonment and penitentiaries because of crimes violating property rights.
(2) On 15 September 1939 August Dickmann from Dinslaken, born 7 January 1910, because of his refusal to fulfill his duty as a soldier. D. stated as a reason for his refusal that he was a Jehovah’s Witness. He was a fanatical follower of the international sect of the serious explorers of the Bible [ernste Bibelforscher, Jehovah’s Witnesses].
2. Statement of facts--Details are not known here since the judicial authorities had nothing to do with the matter. Whether the military judicial authorities have knowledge of it (case Dickmann) is not known here either.
3. Legal basis for the executions without trial--The Fuehrer is said to have ordered these executions, or to have approved them. Furthermore, he is said to have ordered that the Reich Leader SS should maintain by all means the security within the territory of the Reich, and this order includes also immediate execution in cases of actions in violation of war laws (report of SS Brigadefuehrer Dr. Best).
Upon the request for information about this order of the Fuehrer, Gruppenfuehrer Heydrich replied that the Minister of Justice should contact the Fuehrer directly in regard to the executions.
4. Legal situation--Should the information made available to the Ministry of Justice be correct, then a concurrent jurisdiction would now exist in the nonoccupied territory of the Reich, that is outside of the area of combat and operation. There would exist in this area a concurrent jurisdiction for the punishment of war crimes between the People’s Court, the military courts, and the Special Court on one hand, and the police on the other hand. According to which criteria should the question of the competency be decided in the individual case?
Within the nonoccupied territory the state of public order and security does not permit that any authority should be hampered or disturbed in its activities.
The criminal procedure according to the war laws is practically the same as the procedure before the courts martial. The Special Courts have just not been called courts martial. I refer to the case of the farmer Glein from Obersleben near Weimar, who during the night of 18 September 1939 put fire to his grain-rick and thus destroyed 100 hundred-weights of grain. He was sentenced to death by the Special Court on 18 September 1939.
5. In a further case (Ernst Georgi of Freiberg), a warrant of arrest had been issued against the defendant on charges of fraud. The State Police, Office Plauen, suggested to place Georgi at the disposal of the Secret State Police, and to cancel the trial fixed for the 18th of this month, since this file should be treated in a special way according to an order of the chief of the Security Police and, therefore, a transfer to the trial in Freiberg would not be feasible.
In this case the crime was committed before the war decree [Kriegsverordnung] took effect. After a short period the defendant was returned to the public prosecutor. The trial took place, and the sentence (10 years penitentiary, and protective custody) was passed on 26 September 1939. The Security Police did not refer to a general order in this case. What the legal basis was for the interference with the court proceedings, is not known to me.
6. I think it to be urgent that the problem, whether crimes committed in the nonoccupied territories should be punished according to the war laws, or by the police without criminal proceedings and without a sentence, be clarified in general.
Berlin, 28 September 1939 [Signed] DR. GUERTNER
The above note, I handed over to colleague Lammers on 28 September 1939.
Berlin, 30 September 1939 [Signed] DR. GUERTNER
2. Handwritten File Note by Guertner, 14 October 1939, on a Conference with Lammers Concerning Executions Without Trial upon Order of Hitler
Note: 14 October 1939, 12:00 V. [Noon]
Lammers saw me by order of the Fuehrer.
He said that yesterday he had informed the Fuehrer about the contents of my manuscript. The Fuehrer said he had not issued general directions. He said he had ordered the 3 executions [Erschiessungen]. He also could not give up this right in individual cases, since the courts (military and civilian) did not prove capable of coping with the peculiar conditions of war.
Thus, he had ordered now the execution of the Teltow bank robbers. Himmler would contact me in this matter before the day is over.
14 October 1939
[Signed] GUERTNER
3. Draft of a Proposed Letter from Guertner to Himmler, 30 November 1939, Concerning the “Carrying-out of Death Sentences”
Berlin, 30 November 1939
The Reich Minister of Justice
To the Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior, Heinrich Himmler
Subject: Carrying-out of death sentences
Enclosures: 2 documents (one copy of sheets 110–115 of the file IIIg 19 5039/39 and one of the attached list II, sheets 67–72 of the file IIIg 10a 5010/39)
[Handwritten marginal note] To be submitted again on 30 November 1939
[Initialed] GTR [Guertner]
Dear Herr Himmler!
For your information I submit in the enclosure[197] two copies of list reports to the Fuehrer about the death sentences passed since 3 September 1939, the day I have been put in charge of decisions about appeals for mercy in regard to death sentences--and about the decisions I made, or intend to make.
In regard to the shootings, mentioned at the end of list II it has been published in the press that the perpetrators, as for instance in the cases of Latacz, Jacobs, and Gluth, had made themselves guilty of resistance by force or, as for instance in the case of Potzleschak, had tried to escape. Let me point out that these publications--always using the same phraseology--were apt to attract the same attention of at least those persons who participated in the criminal proceedings. On the day before the shooting of Latacz the press had reported about the trial which took place in the hospital for prisoners on remand. Latacz who prior to his transfer was lying in the prison hospital, had a bandage with metal braces. Thus, also the broad public was informed about his physical condition, and knew that a resistance was hardly possible in such a condition.
Heil Hitler! Yours very much devoted
To be signed by the Minister [initialed] Dr. C.[198] [Crohne]
28 November
4. List compiled by the Reich Ministry of Justice tabulating information concerning 18 persons executed without sentence or after sentences for a term of years[199]
-------+-------------------+-------------------+---------------------+-------------------+------------------- | | | | Stage of in | | | | | proceedings in | Method of Current| | Facts in the | Proceedings | which execution | transmission of number | Name | case | and execution | was carried out | orders to us -------+-------------------+-------------------+---------------------+-------------------+------------------- 1 | Johann Heinen, | He was ordered to | No sentence. | | | Dessau, | help in the | Reich Ministry of | | | -g 10b 1634/39 g- | construction of | Justice was | | | | an air raid | informed by a | | | | shelter and | newspaper notice. | | | | refused to do so | Shot on 7 | | | | arguing that he | September 1939. | | | | was a stateless | | | | | person. | | | | | | | | 2 | Paul Mueller, | Arson and | No sentence. | | | Halle, | sabotage. | Reich Ministry of | | | -g 10b 1634/39 g- | Details unknown. | Justice was | | | | | informed by a | | | | | newspaper notice. | | | | | Shot on 15 | | | | | September 1939. | | | | | | | 3 | August Dickmann, | As a Jehovah’s | No sentence. | | | Dislaken, | Witness he refused| Reich Ministry of | | | -g 10b 1634/39 g- | to serve in the | Justice was | | | | Army. | informed by a | | | | | newspaper notice. | | | | | Shot on 15 | | | | | September 1939. | | | | | | | 4 | Horst Schmidt, | Wearing the | No sentence. | | | Kassel, | uniform of a navy | Reich Ministry | | | -g 10b 1634/39 g- | officer he | was informed by a | | | | pretended to be a | newspaper notice. | | | | member of the | Shot on 6 | | | | crew of a | November 1939. | | | | victorious | | | | | submarine | | | | | and committed | | | | | numerous frauds. | | | | | | | | 5 | Israel Mondschein,| He committed | No sentence. | | | Kassel, | rape using | Reich Ministry | | | -g 10b 1634/39 g- | violence on a | was informed by a | | | | German girl. | newspaper notice. | | | | | Shot on 6 | | | | | November 1939. | | | | | | | 6 | a. Franz Broenne, | They assaulted an | No sentence. | | 7 | b. Anton Kropf, | SS guard and | Reich Ministry was| | | prisoners in | knocked him down. | informed by a | | | protective | | special delivery | | | custody, | | letter of the | | | Mauthausen | | Reich leader SS of| | | -g 10b 140/39 g- | | 9 December 1939. | | | | | Were hanged on 8 | | | | | December 1939. | | | | | | | 8 | Spressert, | Attempted indecent| No sentence. | | | -III g 10b | assault on a | Reich Ministry of | | | 1859/39 g- | half-Jewish girl, | Justice was | | | | whose father was | informed by a | | | | a Jew. | newspaper notice. | | | | | | | 9 | Witte, | Refusal to work in| No sentence. | | | -g 10b 1859/39 g- | a plant important | Reich Ministry of | | | | to the war effort.| Justice was | | | | | informed by a | | | | | newspaper notice. | | | | | | | 10 | a. Paul Latacz, | They attempted, on| By sentence of the | Shot on 14 October| No order was 11 | b. Erwin Jakobs, | 30 September 1939,| Berlin Special | 1939 by order of | transmitted to of | Berlin, | to rob the Teltow | Court of | the Fuehrer. | the Reich Ministry | -g 10b 1846/39 g- | county savings | 13 October 1939 | | Justice. | | bank. | sentenced to | | | | | 10 years | | | | | penitentiary. | | | | | | | 12 | Franz Potleschak, | He snatched away | By sentence of | Shot on 16 October| No transmission of | Langwied, | a girl’s handbag | the Munich Special | 1939. | orders to the | -g 10b 1743/39 g- | from her, on | Court of 6 October | | Reich Ministry of | | 21 September 1939,| 1939 sentenced to | | Justice, | | taking advantage | 10 years | | subsequent | | of the black-out. | penitentiary in | | information by | | | accordance with | | report of the | | | paragraph 2 of the | | senior prosecutor, | | | decree concerning | | Munich, and by | | | public enemies. | | letter of the | | | | | Reich Leader SS of | | | | | 29 November 1939 | | | | | stating that the | | | | | information had | | | | | been omitted by | | | | | mistake. | | | | | 13 | Joachim Israel | He committed 6 | Sentence of the | Shot on | Letter from | Joseph, | cases indecent | Berlin Special | 25 October 1939. | Bormann of | Berlin-Spandau, | assaults on girls | Court of | | 25 October 1939 to | -g 10b 1895/39 g- | under age, in the | 23 October 1939; | | the Reich Ministry | | ages of 4–10 | for indecent | | of Justice stating | | years. | assaults | | that by order of | | | coinciding with | | the Fuehrer the | | | race defilement, | | Jew was to be | | | sentenced to | | handed over to the | | | 6 years | | Secret State | | | penitentiary. | | Police in order | | | | | to be shot. | | | | | | | | | | 14 | Gustav Wolf, | He attacked a girl| By sentence of the | Shot on 1 or 2 | The order of the | Naumburg, | in broad daylight | Criminal Court | December 1939 | Fuehrer (through | -g 10b 1931/39 g- | and after having | Naumburg of | after sentencing. | the Reich Leader | | repeatedly stabbed| 25 October 1939 | | SS) to the Reich | | her with a knife, | he was sentenced | | Ministry of | | he robbed her | to 10 years | | Justice was | | wrist watch and | penitentiary for | | transmitted | | attempted to | highway robbery; | | through | | commit an | and attempted | | Oberreg.rat Werner | | indecent assault. | rape. | | of the criminal | | | | | police office, by | | | | | telephone and | | | | | letter on | | | | | 1 December 1939, | | | | | to the effect that | | | | | the sentenced | | | | | person was to be | | | | | handed over to | | | | | the Gestapo. | | | | | 15 | Fritz Bremer, | He called on | By sentence of the | Shot on | The order of the | Breslau, | family members of | Special Court at | 21 December 1939. | Fuehrer was | -g 10a 5631/39 g- | soldiers fallen in| Breslau of | | transmitted | | the Polish | 14 December 1939 | | by phone and | | campaign and | he was sentenced | | letter on | | stated he had been| to 15 years in | | 21 December 1939 | | informed by his | the penitentiary | | by Oberfuehrer | | nephew serving on | in accordance with | | [Gruppenfuehrer] | | the eastern front | paragraph 4 of the | | Schaub to senior | | about the heroic | decree concerning | | public prosecutor, | | death of the | public enemies. | | Joel. | | relative | | | | | concerned. He | | | | | presented letters | | | | | written by himself| | | | | allegedly written | | | | | by his nephew and | | | | | finally had | | | | | “travel expenses | | | | | and other costs” | | | | | refunded to him. | | | | | | | | 16 | Max Gross, | On 13 November | By sentence of | Shot on 20 January| The order of | Munich, | 1939 he took a | the Munich | 1940 after the | the Fuehrer was | -g 14.177/40 g- | 3-year-old boy | criminal of | extraordinary | transmitted by | | with him and when | 5 January 1940 | objection had | telephone by the | | the latter was | he was sentenced | been submitted to | Gruppenfuehrer | | reluctant, coerced| to 6 months in | the special | Schaub to the | | him by slapping | prison for duress | division of the | senior public | | and tried to | in coincidence | Supreme Court | prosecutor, Joel. | | commit, as | with bodily | (Reichsgericht). | Later on confirmed | | admitted by | injury. | (In this | by a letter of | | himself, an | | connection, | Schaub to Joel. | | indecent assault | | see remark 87). | | | on him. The crime | | | | | was prevented by | | | | | the arrival of the| | | | | mother. | | | | | | | | 17 | Viktor Meyer, | He stole things | By sentence of | Shot on | Transmission by | Berlin, | belonging to his | the Berlin Special | 30 January 1940. | telephone of the | -g 14.225/40 g- | brother and to a | Court of | | Fuehrer’s order | | businesswoman | 19 January 1940 | | by Schaub to | | (repeated offense)| he was sentenced | | senior prosecutor | | and knocked down | to 12 years in | | Joel. Later | | and robbed a | the penitentiary | | confirmed by | | prostitute. | for repeated theft | | letter. | | | and for serious | | | | | robbery in | | | | | coincidence with | | | | | bodily injury. | | | | | | | | 18 | Alfred Gluth, | 7 cases of arson, | By sentence of | Shot on | No order received | Marburg, | from February to | the Berlin Special | 18 November 1939. | by the Reich | -g 5.4688/39 g- | September 1939; | Court of | | Ministry of | | buildings, shacks,| 17 November 1939 | | Justice. The case | | storehouses, and | he was sentenced | | became known from | | supplies of | to 10 years in | | newspaper reports. | | agricultural | the penitentiary | | | | products. | [handwritten: | | | | | prison?] | | | | | for arson in | | | | | coincidence with | | | | | paragraph 1 of | | | | | the decree | | | | | concerning crimes | | | | | committed by means | | | | | of violence. | |
5. File Note of 6 March 1941 Submitted by Dr. Crohne to the defendant Schlegelberger, concerning “Executions Planned and Carried Out on the Basis of Dubious Information”
1. Gluth case--In the summer of 1939 the almost 18-year-old locksmith apprentice Gluth set 4 fires in Marquardt near Potsdam in order to disturb the population, and to show off afterwards as an especially efficient member of the fire brigade. The medical expert stated that Gluth was still in the age of puberty and that the state of his development was equal to that of a 16½-year-old boy. In the opinion of the experts his acts were caused by the physical and mental changes connected with the age of puberty, and further by the awakening of the desire to do important things, which is typical for this age. Sentence: 10 years’ imprisonment.
The Fuehrer ordered his execution. According to the statement of SS Brigadefuehrer Mueller, the expert opinion was known to the Fuehrer, but the latter stated that it would be foolish to save such persons, who are a danger for society for further infamous actions. On 19 November 1939 Gluth was shot for offering resistance.
2. Trampe case--Trampe stole jewels and clothes from the apartment of a friend, who was the wife of a soldier, and pawned these articles for RM 200. He had access to the apartment in his capacity of repair man. Afterward the soldier’s wife and her husband agreed with Trampe on the damage. Trampe defended himself by stating that he was by want compelled to steal, that he intended to redeem the stolen objects later and that he was sure from the beginning that the couple would forgive him afterward because of their friendship and because of his distressed condition. The court accepted his statement as true and sentenced him to 6 years of penitentiary. The press reported that his defense was untruthful, and that it was not accepted as true by the court.
Trampe was shot on 27 September 1940 by order of the Fuehrer. It is not known here whether the shooting took place merely on account of the incorrect reports of the press.
3. Jackubetzki case--The milker Jackubetzki had a savings account in the Landeshaus in Breslau. These were the savings from his wages. One day he came to Breslau without money and wanted to withdraw his savings. Since the Landeshaus was already closed, he got the idea of taking away the handbag from a woman walking in front of him in order to get money for his trip home. He did that, and was sentenced to 10 years penitentiary.
Referring to a press report in the “Nachtausgabe” [Evening Edition] (not in the file) the Fuehrer expressed, on 9 December 1940, by phone through the SS Gruppenfuehrer Schaub his astonishment about the fact that J. was not sentenced to death. In the “Nachtausgabe” the case was misrepresented; it could not be seen from the article that the deed concerned was prompted by the occasion.
On 26 February, Under Secretary Dr. Freisler conferred with SS Gruppenfuehrer Schaub and related to him the details of the perpetration, whereupon Schaub considers the case as settled.
4. Kuhlmey case--Kuhlmey in his capacity as an auditor knew a number of manufacturers who were drafted into the army. He asked their wives to authorize him to adjust their allowance cases. He cheated the wives of 4 soldiers by giving them altogether about RM 375 less than he had received at the public welfare office. He cheated the public welfare office of about RM 3,000 by obtaining allowances on false pretenses and without the knowledge of the woman concerned, and by keeping the money for himself. Sentence: 5 years penitentiary. There still are some minor cases to be sentenced.
On 14 October 1940, Schaub notified us by phone that the Fuehrer had learned about the case through an article in the V.B. [Voelkischer Beobachter] of 9 October 1940. If, in the still open cases the death sentence should not be imposed, a transfer to the State Police will be ordered. It cannot be seen from the report of the “Voelkischer Beobachter,” under the headline, “Soldiers’ wives thoroughly cheated” that K. caused detriment first of all to the welfare office and in addition also to a few women. It contains some hints though that K. also received subsidies which were not due to the women, but creates the impression that the total amount of about RM 3,500 was withheld to the detriment of soldiers’ wives.
[Handwritten note] Submitted to Under Secretary Dr. Schlegelberger according to order. Case 1 does not belong here.
[Illegible initial] 6 March 1941 [Illegible initial] 6 March
7 March [Signed] DR. CROHNE
PARTIAL TRANSLATION OF DOCUMENT NG-369 PROSECUTION EXHIBIT 258
LETTER FROM PEOPLE’S COURT PRESIDENT, THIERACK, TO GUERTNER, 14 AUGUST 1940, RECOMMENDING TRANSFER TO CONCENTRATION CAMPS WITHOUT TRIAL OF PERSONS FALLING WITHIN A “MINOR GUILT” CATEGORY OF HIGH TREASON
The President of the People’s Court 1400-I, Confidential!
To the Reich Minister of Justice Berlin W 8 Wilhelmstr. 65
Berlin W 8, 14 August 1940 Bellevuestr. 15
[Stamp]
Reich Ministry of Justice 17 August 1940 Dept. III
Immediately after I was recalled from the war, I realized that things were not as I had expected when plans for the People’s Court were worked out. It was overloaded with trials and this because it had to handle cases which it had certainly not been intended to judge. This happened especially in cases which arose in the Protectorate of Bohemia and Moravia because as yet there was no possibility of transferring the cases to the courts of appeal. But even among cases which are ready for such a transfer there are some which should not be dealt with by the courts of appeal for various reasons.
However right it is to exterminate harshly and uproot all the seeds of insurrection, as for example we see them in Bohemia and Moravia, it is wrong for every follower [Mitlaeufer], even the smallest, to be given the honor of appearing for trial and being judged for high treason before a People’s Court or, failing that, before a court of appeal. In order to deal with these small cases and even with the smallest, the culprits should surely be shown that German sovereignty will not put up with their behavior and that it will take action accordingly. But that can also be done in a different manner, and I think in a more advantageous one, than through the tedious and also very expensive and ponderous channels of court procedure.
I have therefore no objection whatsoever if all the small and smallest followers who are somehow connected with the high treason plans which have been woven and plotted by others are brought to their senses by being transferred to a concentration camp for some time. This would have the further advantage that dispositions would be taken quickly and that they would be doubly effective because of that, and that these dispositions could be rapidly modified if by the measures taken the culprit were brought to a better attitude.
One can think, in addition to this, of the many cases of article 90c of the Criminal (Penal) Code, in which, by inconsiderately exploiting the strong position of the foreign state, persons who had to cross the border for some reason or other (work, or visiting relatives) were used to find out something about the neighboring state. This occurred particularly frequently in the border areas which were at that time Polish or Czech.
In any case, I consider it to be an absolutely essential prerequisite that all these cases should be submitted first of all to the Chief Reich Public Prosecutor of the People’s Court for penal prosecution. If he considers that article 153, Code of Penal Procedure can be made to apply, then the People’s Court will be able to give its consent to this in nearly all cases. Then the accused would be put at the disposal of the Security Police with the injunction that he be placed in a concentration camp for a certain period of time.
I start from the principle that the conception of minor guilt in the sense of article 153, Code of Penal Procedure is naturally not the same in cases which are suitable for the People’s Court, as in those cases in which the official judge has to decide. Even if this conception is relative and depends on the nature of the offense, a legal extension of article 153, Code of Penal Procedure should surely be made in order to presume insignificance of guilt for an act which can be characterized as a crime, as, e.g., crimes in the nature of high treason in the territory of Bohemia and Moravia.
[Signed] THIERACK
TRANSLATION OF DOCUMENT NG-540 PROSECUTION EXHIBIT 260
LETTER FROM MEISSNER[200] TO DEFENDANT SCHLEGELBERGER, 22 APRIL 1941, CONCERNING TRANSFER OF CONVICTED PRISONERS TO THE GESTAPO
Berlin W 8, 22 April 1941 Voss-Strasse 4
The Minister of State and Chief of the Presidential Chancellery of the Fuehrer and Reich Chancellor
RP 83/41 Secret 02/312
Personal
Confidential
Dear Herr Schlegelberger!
In the matter of the transfer of convicted prisoners to the Secret State Police, Reich Leader Martin Bormann has meanwhile informed me by order of the Fuehrer that the Fuehrer does not consider it necessary to procure opinions from the Reich Ministry of Justice on sentences which are submitted to him for reviewing. The question remained unsettled of whether the Fuehrer wants to request the transmittal of sentences himself or to hear your opinion in cases in which no sentence is submitted. At present, however, I do not consider it expedient to pursue the matter by sending another letter to Reich Leader Bormann. I would, however, leave it to your discretion to inform me briefly and with the utmost speed prior to the transfer of the prisoners to the Secret State Police about the factual and legal situation of all those cases in which you think that essential details for the evaluation of the perpetrator’s character or of the crime have not been brought to the Fuehrer’s attention. I shall then inform the Fuehrer of the details I learn from you as far as the case requires this. The transfer of the convicted prisoners to the Secret State Police may be postponed in these cases for a short period until you hear from me again.
Heil Hitler!
Yours very truly [Signed] DR. MEISSNER
To State Secretary Dr. Schlegelberger Reich Ministry of Justice Berlin W 8 Wilhelmstrasse 65
TRANSLATION OF DOCUMENT 648-PS PROSECUTION EXHIBIT 264
DIRECTIVE ON BEHALF OF THE REICH MINISTER OF JUSTICE TO PUBLIC PROSECUTORS, 22 OCTOBER 1942, CONCERNING THE “TRANSFER OF ASOCIAL PRISONERS TO THE POLICE”
Reich Minister of Justice IV a 1665/42 g.
Berlin W 8, 22 October 1942 Wilhelmstrasse 65 Tel. 11 00 44 Long Dist. 11 65 16
To the Attorneys General
For information [Stamp] Secret
A. Chief Reich Prosecutor at the People’s Court
B. Presidents of the District Courts of Appeal, Graz Innsbruck Linz Vienna
Subject: Transfer of asocial prisoners to the police
I. In agreement with the Reich Leader SS, the following group of lawfully sentenced prisoners confined to penal institutions will be transferred to the custody of the Reich Leader SS.[201]
1. Jews--men and women--detained under arrest, protective custody, or in the workhouse.
2. Gypsies--men and women--detained under arrest, protective custody, or in the workhouse.
3. Russians and Ukrainians residing in the Reich as non-refugees (excluding Latvians, Esthonians, and Lithuanians) detained under arrest, protective custody, or in the workhouse.
4. Poles residing in the former Polish state territory on 1 September 1939, men and women, sentenced to penal camps or subsequently turned over for penal execution, if sentence is over 3 years, or includes subsequent protective custody, (including Kriegstaeter [perpetrators of crimes during war time] and persons in protective custody).
5. Men only, in protective custody (except those sentenced by Austrian Law to workhouse according to sec. 1, par. 2, Reichsgesetzblatt, No. 165, dated 10 June 1932).
6. Convicts sentenced to subsequent protective custody--men only (including Kriegstaeter). Excepted from this transfer are--
a. Those sentenced by an armed forces court and by an SS and police court.
b. Prisoners of war.
c. Those sentenced by Dutch courts.
d. Those sentenced by former Yugoslav courts.
e. Foreigners, not coming under groups 1–4. People from the Protectorate and stateless persons are considered natives.
Until further notice, the transfer is to be postponed for--
a. Those sentenced by former Polish courts or by the present courts of the Government General. Poles, sentenced by former Polish courts in the Occupied Eastern Territories can however be transferred.
b. Germans sentenced by German courts in the Occupied Eastern Territories, in the Government General, in Holland, in Norway, Alsace, Lorraine or Luxembourg.
c. Those sentenced by the courts of Alsace, Lorraine, and Luxembourg.
d. Nationals of the Protectorate.
Those in protective custody and in the penitentiary with subsequent protective custody are to be selected for special screening by the [department] concerned, Department XV of the Reich Ministry of Justice, and, therefore, are also not to be transferred immediately if the institution is convinced that release from protective custody would enter into the question within a predictable time. On account of their favorable development during the execution of punishment (not merely because of old age or similar reasons). Those who are sentenced to additional protective custody upon completion of punishment for high treason and sedition are generally to be selected for this special screening. Department XV of the Reich Ministry of Justice will decide which of the prisoners who are not to be transferred according to this shall be excepted permanently from the transfer.
The director of the institution is personally responsible for the selection of prisoners to be transferred.
If doubt arises in individual cases whether the transfer shall be made, the decision of the Reich Ministry of Justice has to be requested. The same applies if a prisoner who is considered for transfer is still needed as a witness, etc., in other proceedings or in cases of additional sentence by a court.
II. The decisive day fixed for lawful sentence is 1 November 1942. Only prisoners lawfully sentenced before 1 November are liable for transfer. Further directives concerning arrest, confinement in special institutions, and so forth, of those legally convicted later, are reserved.
III. Sick prisoners are not exempted from transfer, they are to be transferred as soon as they are transportable. Final decision on insane prisoners is reserved, transfer at the present is postponed.
IV. In preparation for transfer of prisoners belonging to groups I, 1–6, excluding cases of postponement, lists bearing name and current number of each prisoner, separate for each group, and 1–4 for men and women, are to be executed by the institutions. Four copies have to be sent directly from the institution to the Reich Ministry of Justice for the attention of President of the Senate Hecker. The first lists are to be executed according to the status existing on 1 November of this year. Supplementary lists, compare II, also, on the status at 1 December of this year and 1 January 1943, and are to be submitted up to the 8th day of the month in question. Institutions having over 100 prisoners for transfer, submit partial lists for 100–200 prisoners, whenever completed.
The lists must be divided as follows:
1. Number of list. 2. Surname and Christian name. 3. Date of birth (day, month, and year). 4. Place of birth. 5. Last residence. 6. Nationality. 7. Institution number. 8. Sentence or measure of security and improvement. 9. a. Acting court. b. Executing authority and its reference number. 10. Start and completion of sentence--in case of ex-servicemen, note that term has not yet started. 11. Offense--main offense only. 12. Able to work--yes, no.
V. Prisoners not yet consigned to the proper institution, or temporarily consigned to other institutions, will be specified by the competent institution, to which they are to be delivered as soon as possible.
VI. Slowdown of production in vital armament factories, is to be avoided during transfer of prisoners. Therefore, the transfer has to be effected gradually with distribution over several months, as deemed necessary by the individual institutions, in consideration of the factories. At the same time, the institutions most affected are already filled up because of changes in the execution plans. The number of prisoners and the time of transfer for the different districts, will be announced here from time to time.
VII. With completion of the transfer to the police, the penal term is considered interrupted. Transfer to the police is to be reported to the penal authority, and in cases of custody to the superior executive authority, with the information that the interruption of the penal term has been ordered by the Reich Ministry of Justice.
VIII. Preparatory to examinations of all male penitentiary prisoners, sentenced to terms over 8 years, the directors of institutions concerned received verbal instructions at the Reich Ministry of Justice. These instructions are valid correspondingly for persons in protective custody and penitentiary prisoners with additional protective custody, whose transfer has been postponed until examination of case by department XV of the Reich Ministry of Justice (compare I, par. (4)).
IX. The information of this statute is to be given exclusively to such directors of institutions, for whom its knowledge is an absolute necessity in consideration of the incarcerated prisoners. The number of these directors is to be kept as small as possible, by concentration of the prisoners concerned, in some cases in agreement with the adjacent districts. Concerning convicts with a sentence of more than 8 years, such concentration has already been ordered from here.
X. I request that special care be taken for the apprehension of all prisoners, including those not delivered to the competent institution, or those transferred to other institutions for industrial reasons.
BY ORDER: [Typed signature] Dr. Crohne Certified: [Signed] KIRSTEN
As Administrative Assistant [Ministerialkanzleiobersekretaer]
[Seal] Reich Ministry of Justice Office of the Ministry
TRANSLATION OF DOCUMENT 701-PS PROSECUTION EXHIBIT 268
DIRECTIVE OF 1 APRIL 1943, ON BEHALF OF THE REICH MINISTER OF JUSTICE ANNOUNCING THAT POLES AND JEWS RELEASED FROM PRISONS PURSUANT TO A DECISION OF THE REICH SECURITY MAIN OFFICE, ARE TO BE TRANSFERRED TO CONCENTRATION CAMPS
The Reich Minister of Justice 4410 b Vs 1 379/43g
Berlin W 8, 1 April 1943 Wilhelmstrasse 65
To the Public Prosecutors of the Courts of Appeal,
To the Commissioner of the Reich Minister of Justice for the penal camps in Emsland Papenburg, Emsland
Subject: Poles and Jews who are released from the penal institutions of the department of Justice[202]
Additional copies for the independent penal institutions.
I. With reference to the new guiding principles for the application of article 1, section 2 of the decree of 11 June 1940 (Reichsgesetzblatt I, p. 877), enclosure I of the decree of 27 January 1943-9133/2, enclosure I-III a_2_ 2629, the Reich Security Main Office has directed by the decree of 11 March 1943, II A 2 number 100/43--176--
a. Jews who, in accordance with number VI of the instructions are released from a penal institution, are to be committed by the State Police (Regional) Office competent for the district in which the penal institution is located, for the rest of their lives to the concentration camps Auschwitz or Lublin, in accordance with the regulations for protective custody that have been issued.
The same applies for Jews who in the future are released from a penal institution after serving a sentence of confinement.
b. Poles, who in accordance with number VI of the instructions are released from a penal institution, are to be taken by the State Police (Regional) Office competent for the district in which the penal institution is located, for the duration of the war to a concentration camp in accordance with the regulations on protective custody that have been issued.
The same applies in the future to Poles, who after serving a term of imprisonment of more than 6 months, are to be discharged by a penal institution.
Conforming to the request of the Reich Security Main Office, I ask that in the future, (a) all Jews to be discharged, (b) all Poles to be discharged, who have served a sentence of more than 6 months be designated for further confinement to the State Police (Regional) Office competent for the district and are to be placed promptly at its disposal, before the end of sentence for conveyance.
II. This ruling replaces the hitherto ordered return of all Polish prisoners undergoing imprisonment in the Old Reich condemned in Incorporated Eastern Territories. The decree of 28 July 1942-4410 b Vs 1 1731, has lost its validity. Imprisonment up to 6 months imposed within the Incorporated Eastern Territories, excluding exceptions, is to be carried out in these territories, and not in the Old Reich.
BY ORDER: [Typed] Dr. Eichler Certified: [Signed] FREYER [Seal] Clerk
Reich Ministry of Justice Office of the Ministry
EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER CONCERNING TRANSFERS OF PERSONS TO THE POLICE[203]
DIRECT EXAMINATION
* * * * * * *
DR. KUBUSCHOK (counsel for defendant Schlegelberger): I should like to refer to another complex of questions. Witness, in the course of this trial you have often heard that persons against whom prosecution was pending or who had already been sentenced were turned over to the police. How did these transfers to the police come about?
DEFENDANT SCHLEGELBERGER: These transfers are a very sad chapter for anybody who has a sense of justice. They came shortly after the beginning of the war in 1939. From publications in the press Guertner found out that the police had killed people. Guertner made notations about these notices in the press, had them filed and gave a compilation of these notices through Lammers to Hitler together with his compiled notes, and he explained the situation in detail. The purpose was clear. Hitler should be made to discontinue these things. Lammers actually submitted these compilations to Hitler, but told Guertner later that Hitler had said that he had not given a general directive to carry out these shootings but in individual cases he could not do without these measures, because the courts, that is, military courts as well as the civil courts, were not able to take care of the special conditions created by the war. At the same time Lammers announced that Hitler in a further case had already ordered the execution by shooting.
Q. I refer to Document NG-190, Prosecution Exhibit 284.[204]
A. I am certainly not making a mistake in saying that that decision on the part of Hitler was probably the most serious thing which ever happened to this man Guertner, whose main intention was to serve justice. It was an order which Hitler had given through administrative channels to the police, and the execution of it was assured on the basis of the means of power then prevailing. The attempt on the part of Guertner to reinstate the respect for court decisions therefore had failed; but he was not satisfied with that. He wanted to insure that the administration of justice should be given the authority to intervene in time and to attempt at least to thwart the execution of the order given to the police. That, of course, was only possible if the administration of justice was informed in time about the order that had been given to the police, and that request by Guertner was actually granted. Subsequently the administration of justice as a rule was informed by Hitler’s adjutant, Schaub, wherever an order of that kind was given to the police.
The question, therefore, as to how after one has been informed, one can make an attempt to prevent the execution of Hitler’s order involved great difficulties particularly because the police had a time limit of 24 hours after which it had to report to its superiors that the order had been executed. Guertner then was of the opinion that for these matters he had to assign the one official in his ministry whom he could use as a capable man with the police--who shared Guertner’s opinion in these matters--and from whom one could expect, on the basis of previous experience, that he would show sufficient cleverness. Guertner therefore charged my codefendant Joel with that mission.
When the information about such an order was received, feverish work started. First one had to try to extend the police time limit; that is, to persuade the police to delay the report. That alone brought great difficulties, because the police official incurred considerable risk. But in some individual cases it succeeded. At the same time, the files of the case were called to Berlin and all other bits of information which probably had caused Hitler to order the transfer of the person concerned to the police. Then a detailed report was made of the act and the culprit which justified the sentence, and telephone calls took place with various agencies whenever that seemed to have chances for success. Some individual cases were successful. But if it could not be achieved that the order turning over the individual to the police was rescinded, although everything had been tried, then there was no other alternative than to issue a directive to the authority which was about to carry it out, telling them that they should no longer resist but should turn over the man to the police.
If the Reich Ministry of Justice had failed to give the man up, the police would have broken the resistance by force; the condemned person could not be saved. During the war, civilian and military command offices in numerous cases were seriously charged with the fact that through a defense which they had to consider as useless, they had sacrificed many lives. Such a useless sacrifice it would have been if the Reich Ministry of Justice had instructed the prison authorities, via the executive office, to resist the police. The subject of this sacrifice would have been not only threats to officials or civil servants, but to the entire administration of justice, which would have been eliminated and its opponents would have triumphed. The acting official in the ministry would have been eliminated as a saboteur; and already at that time he would have been replaced by a person who would willingly and without exception have put the administration of justice in the service of the Party. The individual cases of transfer which the prosecution has described have to be evaluated from these points of view. I myself, after taking charge of the Ministry of Justice, immediately established contact with Minister Meissner in order to determine basically that no order for transfer made by the police was to be executed as long as the administration of justice did not have a report. This intention of mine was again foiled by Bormann. A letter from Meissner to me makes this apparent. Hitler had me informed by Bormann that the obtaining of the opinion of the Ministry of Justice was not necessary. Meissner, who shared my opinion, asked me in spite of that, in those cases where the ministry believed that Hitler was not properly informed, that a report should be sent to Meissner. I did that in all cases.
* * * * * * *
Q. What do you have to say about the Markus Luftglas case, a case of transfer to the Gestapo, Document NG-287, Prosecution Exhibit 88?[205]
A. This case, too, I no longer remember even though the name recalls certain memories. In my statements I have to refer to the documents that have been submitted, and by referring to them I would like to determine the following: the Fuehrer order to the police was given to the Reich Ministry of Justice on 24 October 1941, through the usual channels by the Presidential Chancellery. That nothing happened in this case is absolutely impossible. It would have been inexplicable why my letter to Lammers in which I informed him of the release was written only 4 days later, on the 29th, for letters of that kind were answered immediately in our office as a matter of course. The fact that our letter is dated only the 29th shows me rather that in the meantime unsuccessful interventions had taken place.
Now I notice that in this letter to Lammers I informed him that Luftglas had been transferred to the police for the purpose of execution. That is noticeable because the information about the orders given by the police never said anything about executions, but merely stated “transfer” as the subject of the order. If in this letter to Lammers, I therefore informed him that Luftglas was transferred for the purpose of execution, this can only be based on the information we received from the police, and I am quite sure that I formulated the letter in that way in order to inform Lammers how the direct Fuehrer order--that is, the order to the police--was actually worded and in order to point out to him the effects of such transfer orders.
In conclusion, in regard to this question of transfer I would like to say that the Hitler order went to the police through administrative channels. The police had legally and by authority the possibility to execute the order. The Ministry, on the other hand, had only one weapon, and that was the word. If this weapon remained without success, the Ministry was defenseless and had to submit to force.
* * * * * * *
C. Measures to Influence or Avoid the Judicial Process
1. DEVELOPMENTS PRINCIPALLY DURING THE PERIOD WHEN GUERTNER WAS REICH MINISTER OF JUSTICE (1933–JANUARY 1941)
a. Example of relations of officials of the Reich Ministry of Justice, judges, and public prosecutors with officials of the Nazi Party, the Gestapo, the SD, the SS, and the SA
TRANSLATION OF KLEMM DOCUMENT 20 KLEMM DEFENSE EXHIBIT 20
LETTERS FROM GUERTNER, REICH MINISTER OF JUSTICE, TO HITLER’S DEPUTY RUDOLF HESS AND TO THE SA CHIEF OF STAFF, VIKTOR LUTZE, 5 JUNE 1935, CONCERNING INTERFERENCE IN THE TRIAL OF CAMP HOHENSTEIN PERSONNEL
1. Letter from Guertner to Hess
Copy The Reich Minister of Justice Berlin, 5 June 1935 Z.F.g^{10} 1696.34 Letter to the Deputy of the Fuehrer Reich Minister Hess
Secret!
Personal!
Subject: Criminal proceedings against the merchant and SA Obersturmbannfuehrer Jaehnichen and 22 party members for causing bodily injury in the performance of their official duties (protective custody camp Hohenstein/Saxony)
Dear Colleague!
With reference to the indictment which I submitted on 20 March 1935 in the above-mentioned criminal case I wish to state the following:
On 3 May 1935, after a trial lasting approximately 6 weeks, the prosecutor, and public prosecutor, Dr. Walther, proposed the following sentences:
Against--
Jaehnichen (camp commander), 5 years, penitentiary. Zikera, 1 year 6 months imprisonment. Heinz Meier, 3 years imprisonment. Herbert Meier, 3 years 2 months imprisonment. Tuerke, 3 years imprisonment. Volkmar, 2 years 3 months, penitentiary. Leuschner, 2 years 3 months imprisonment. Romkopf, 2 years 6 months imprisonment. Karche, 1 year 8 months imprisonment. Hausch, 1 year 4 months imprisonment. Lehmann, 3 years 3 months imprisonment. Kuehnel, 1 year imprisonment. Stachowski, 1 year imprisonment. Ude, 1 year imprisonment. Friedrich, 1 year 3 months imprisonment. Schmeling (police), 1 year imprisonment. Konitz, 1 year imprisonment. Uhlmann, 1 year imprisonment. Sturzkober, 10 months imprisonment. Schupp, 1 year 6 months imprisonment. Hensel, 2 years 3 months imprisonment. Heinicker, 1 year 6 months imprisonment. Putzler, 3 years 9 months, penitentiary. Liebscher, 7 months imprisonment. Heeger, quashed by reason of the amnesty.
On 15 May 1935 the 12th Great Criminal Panel of the District Court [12. grosse Strafkammer des Landgerichts] in Dresden pronounced sentence according to which the following were sentenced for violation of Article 340[206] of the Criminal (Penal) Code:
Jaehnichen to 6 years imprisonment. Zikera to 1 year 6 months imprisonment. Heinz Meier to 3 years imprisonment. Herbert Meier to 3 years imprisonment. Tuerke to 3 years imprisonment. Volkmar to 2 years 3 months imprisonment. Leuschner to 2 years 6 months imprisonment. Romkopf to 2 years 6 months imprisonment. Karche to 1 year 8 months imprisonment. Hausch to 1 year 4 months imprisonment. Lehmann to 3 years imprisonment. Kuehnel to 1 year imprisonment. Stachowski to 1 year 6 months imprisonment. Ude to 1 year imprisonment. Friedrich to 1 year 3 months imprisonment. Schmeling to 1 year imprisonment. Konitz to 1 year imprisonment. Uhlmann to 1 year imprisonment. Sturzkober to 1 year 10 months imprisonment. Schupp to 1 year 6 months imprisonment. Hensel to 2 years imprisonment. Heinicker to 1 year 6 months imprisonment. Putzler to 3 years 9 months imprisonment.
The proceedings against Liebscher and Heger were quashed by virtue of the law concerning exemption from punishment [Straffreiheitsgesetz].
After the sentences had been proposed, but before they had been actually pronounced, the president of the 12th Great Criminal Panel received the following communication from the Reich Governor in Saxony:
Office seal The Reich Governor in Saxony II 84/35
Dresden--A, 1. on 8 May 1935 Post Office Box: 78 Telephone: 24 371
To the President of the District Court, Dr. Roth Dresden--A. Pillnitzer Strasse 41
Dear President:
I have been informed that a sentence of 3½ years penitentiary has been proposed for the defendant Standartenfuehrer Jaehnichen. Without wishing to interfere in the proceedings nor wanting to influence you as judge in any way, I should like to point out to you again before the passing of the sentence that the circumstances created by the revolution in 1933, which--no doubt--were still affecting conditions at the beginning of 1934 should not be disregarded when passing sentence.
Another point which seems to me worthy of consideration is the fact that one cannot accuse Jaehnichen of a villainous disposition and, above all, that the scum of the earth were to be guarded in Hohenstein. In view of these facts I leave it to you to examine whether the offenses actually demand a punishment of such great severity or whether an acquittal might be considered.
As Gauleiter I consider it my duty to point once more to the exceptional circumstances.
Heil Hitler!
[Signed] MARTIN MUTSCHMANN.
Furthermore news was received here that the two lay judges who acted as judges during the trial, Regierungsamtmann Helbig and the merchant Pesler, were expelled from the NSDAP after the sentence had been pronounced. I do not know who was responsible for this expulsion.
Finally, the prosecutor, Public Prosecutor Dr. Walther, an SA man, was approached by his Obersturmfuehrer after the sentence had been passed, suggesting that he withdraw from the SA.
The fact that these measures coincided with the passing of judgment suggests some internal connection. This, however, would mean that very dubious and most unwelcome consequences have resulted from the proceedings which were legally perfectly correct. If, from the communication of the Reich governor, which is reproduced above, the receiver was apt to gain the impression that here his decision as a judge was being influenced by high quarters, the same might be said, only to a larger degree of the measures taken against the two lay judges. Such action as was taken against lay judges after the verdict was returned, would naturally leave them under the impression that they are responsible before a certain authority for all their actions, carried out in their line of duty while acting as judges. This would destroy judicial independence, a factor which until now had been considered the basis of an orderly administration of justice. Apart from that the lay judge who when commencing his duties is made to take an oath that he will vote to the best of his knowledge and belief will in this way be subjected to great inner conflicts. The consequences resulting from such measures against the prosecutor would be no less serious. This official also would be faced by great conflicts in the performance of his duty. Thereby the orderly unbiased work of the legal authorities would be endangered to such an extent that I would feel it my duty to examine, whether under these circumstances it is at all possible for public prosecutors and judges to be party officials or members of the SA.
It therefore seems necessary--
1. That in the above case the perplexity caused by these measures should be removed by some suitable countermeasures, and
2. That provisions be made to avoid the renewal of such occurrences which are incompatible with the administration of justice and therefore with the security of legal right guaranteed by the State.
I beg to let me have your opinion concerning this matter and to inform me of the measures taken over there. In view of the importance of the case I should welcome a speedy settlement.
Heil Hitler!
[typed] signed: DR. GUERTNER
2. Letter to the Chief of Staff of the SA of the NSDAP with the copy of the indictment attached
insert page 1 Secret!
Enclosure: 1 separate document Personal!
Dear Chief of Staff:
In the above-mentioned criminal case, where severe ill-treatment of prisoners in protective custody at the Hohenstein/Saxony internment camp is the subject of the indictment, the trial took place before the 12th Great Criminal Panel of the District Court in Dresden between 20 March and the middle of May 1935. Regarding the details of the incidents on which proceedings were based, I beg to refer to the enclosed copy of the indictment, dated 25 October 1934, and particularly to page 21 of the result of the inquiry.
On 3 May 1935 the prosecutor, Public Prosecutor, Dr. Walther, proposed the following sentences:
insert page 1 and 2 up to
News was received here that the prosecutor, Public Prosecutor Dr. Walther, an SA man, had been approached by his Obersturmfuehrer after the sentence had been passed, suggesting that he withdraw from the SA. The fact that this measure coincided with the passing of judgment suggests that there might be some internal connection between the two. This, however, would represent a very dubious and most unwelcome result of the procedure, which was legally perfectly correct. As a result of such measures the officials would be faced by the greatest of conflicts in the performance of their official duty. This would endanger the orderly unbiased work of the legal authorities to such a degree that I consider it my duty to examine whether under these circumstances it is at all possible for public prosecutors and judges to be also party officials or members of the SA.
It appears therefore necessary--
1. That in the above case the perplexity caused by these measures should be ended by some suitable countermeasures, and
2. That provisions be made to avoid the renewal of such occurrences which are incompatible with the administration of justice and therefore with the security of legal rights guaranteed by the State.
May I ask you to let me have your opinion regarding this matter and to inform me of the measures taken over there. In view of the importance of the case I should welcome a speedy settlement.
Heil Hitler!
[typed] signed: DR. GUERTNER
3. To the Minister, secret
4. 2 weeks
TRANSLATION OF DOCUMENT NG-323 PROSECUTION EXHIBIT 32
LETTER FROM THE REICH MINISTRY OF JUSTICE TO PUBLIC PROSECUTORS, 10 MARCH 1937, CONCERNING COLLABORATION BETWEEN PUBLIC PROSECUTORS AND THE GESTAPO AND ENCLOSING A CIRCULAR DECREE OF HIMMLER ON THE SAME SUBJECT
D.RM.d.J. [The Reich Minister of Justice] 4606--IIa^3 146/248
Berlin, 10 March 1937 Metallblatt [offset printing]
To the Chief Public Prosecutor at the Kammergericht[207] and to the Chief Public Prosecutors at the Courts of Appeal (with------* copies for the Public Prosecutors)
[Handwritten]* insert figures from distribution plan below.
[Stamp] received at office 11 March 1937
[illegible handwritten notes]
[Handwritten] according to distr. plan forwarded 17 March 1937
Concern: Collaboration between the office of the public prosecutor and the Gestapo.
[Handwritten] (Copy Circular letter Reich Leader SS of 18 March 1937)
1 Enclosure forwarded 17 March 1937
For your information I forward the enclosed copy of a circular decree of the Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior of 18 February 1937.[208]
In order to have this decree fulfill its purpose and in the interest of the closest possible collaboration between the office of the public prosecutor and the authorities of the Gestapo, I hereby issue this supplementary order that in future public prosecutors routinely address all requests for investigations to be conducted on the basis of reports of political nature received by them directly, to the local and district police authorities via the competent State police offices. When in cases based on such reports the necessary interrogations of the accused or the witnesses are procured by the court itself or by the expert of the prosecution, and the police authorities are not at all involved in the proceedings, I request that State police offices be informed of the proceedings as soon as possible. If, because of the urgency of a matter, the transfer of files is deemed inadvisable, the State police office is to be informed when the proceedings are instituted and if the occasion warrants, a copy of the indictment is to be submitted.
The enclosed circular decree was issued with my approval; but I also made it known that I expect this interpolation of the competent State police offices not to cause any great delay in the forwarding of the proceedings to the public prosecutor, and that the State police offices are merely transit agencies during this part of the proceedings. They will be exclusively concerned with information on the proceedings and not with the decision about the necessity of further inquiries or perhaps even the question as to whether proceedings are to be turned over to the public prosecutor at all.
With these aspects in mind, I request that the effects of this circular decree for the police be carefully noted, and that I be informed in the event of any considerable delays.
BY ORDER: [Signature] CROHNE 10 March
[Handwritten] Distributed [Signed] ECK 19/3
1(a) copies of circular decrees distributed to all Dept. Chiefs and assistants.
1(b) copy with enclosure to Depts. 3262, 4026, 4007/1 taken care of [Initial] E. 19/3
2. resubmit (notice to Reich Leader SS) to 2: Submitted Gsta [signed] ECK 19/3
[Initials] KLE [Klemm] 9 March
Draft Dept. IIa^3 323/37 Copy of circular decree to Reich Leader SS, for information
2. Request for copy of circ. decree. E 22/3
3. Illegible [Initial] KLE [Klemm] 22/3 [Illegible initials] 20/3
Plan for distribution
Bamberg 7 Kassel 3 Berlin 8 Kiehl 3 Braunschweig 1 Koeln 7 Breslau 16 Koenigsberg 7 Celle 11 Marienwerder 3 Darmstadt 3 Muenchen 10 Dresden 7 Naumburg 10 Duesseldorf 6 Nuernberg 7 Frankfurt 4 Oldenburg 1 Hamburg 3 Rostock 4 Hamm 9 Stettin 5 Jena 11 Stuttgart 8 Karlsruhe 9 Zweibruecken 4 __ __ 95 72 TOTAL 167
[Signed] BEHRENS, 11 March
Political dept. chiefs Political assistants[209]
* * * * * * *
[Handwritten:] A few surplus copies are available. Distribution completed.
Gsta [Initial] E. [ECK], 8 May
to 4606--IIIa^3----248
Berlin, 18 February 1937
The Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior
S V 1 No. 341/36
To: a. The Gestapo Office in Berlin, for forwarding to all Regional State Police Offices and State Police Offices
b. for information of: State Governments in Prussia: to the Regierungspraesidenten
Concerning: The forwarding of Gestapo affairs to the office of the public prosecutor.
It is the Gestapo’s task, to investigate and to combat all seditious movements, and to collect and evaluate evidence of such investigation. These tasks can only be accomplished by the State police offices, if all political police-affairs dealt with by the local and district police authorities within their district are submitted to them promptly. As auxiliary organs of the Gestapo, it is the duty of the local and district police authorities to do so.
Thus, all matters in the affairs of the Gestapo are on principle to be submitted to the office of the public prosecutor via the competent State police office. In urgent matters of arrest, records may be submitted directly to the office of the public prosecutor after notifying the State police office previously by telephone. In such a case, a copy of the interrogation record is to be forwarded at once to the State police office.
The Reich Minister of Justice will instruct the office of the public prosecutor to direct the requests for investigations of reports of political nature, received directly by him, to local and district police authorities via the competent State police office.
It is the responsibility of the State police offices to speedily evaluate the proceedings channeled through their offices and to forward them without delay.
BY ORDER: [typed] signed: DR. BEST
[Stamp] The Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior
Certified: [Illegible signature] Assistant
to IIIa^3----248/37
PARTIAL TRANSLATION OF KLEMM DOCUMENT 33 KLEMM DEFENSE EXHIBIT 33
PARTY CHANCELLERY INSTRUCTIONS TO PARTY OFFICIALS, 31 AUGUST 1937 AND 9 FEBRUARY 1938, CONCERNING THE EXCLUSIVE CONCERN OF JUDICIAL AUTHORITIES IN PROSECUTING PUNISHABLE OFFENSES AND PROCEDURES WHERE PARTY MEMBERS MAY HAVE COMMITTED THEM[210]
Administration of Penal Law
Imposing of Fines by Party Offices
A. 108/37 31 August 1937
For special reasons, I draw your attention to the fact that the prosecution of punishable offenses is exclusively the concern of the judicial authorities.[211] All cases, where persons have committed a punishable offense, must be turned over or reported to the appropriate authorities.
It is not admissible that sentences, especially fines, are imposed on punishable persons by offices of the NSDAP or its affiliated organizations. Party members disregarding this warning, who demand from the person who has committed an offense e.g., the payment of a fine, possibly with an additional hint that this would settle the affair, will run the risk of a criminal prosecution.
* * * * * * *
A. 15/38
9 February 1938
The question of prosecuting or not prosecuting punishable offenses committed by Party members, is exclusively a matter of decision by the public prosecutor’s office or by the Reich Minister of Justice.
It has been noted, that Party offices have frequently approached the regional State police office or other State police offices with the request not to prosecute punishable offenses committed by Party members, or not to submit their investigations to the public prosecutor’s office. Since the officials of the Secret State Police are at the same time assistant officials of the public prosecutor’s office, and as such are obliged to prosecute all punishable offenses without respect to the person of the offender and without any special invitation from the public prosecutor’s office, unpleasant discrepancies would result if such wishes were satisfied. Nobody but the public prosecutor’s office or the Reich Minister of Justice can decide whether or not a punishable offense shall be prosecuted. The public prosecutor’s office therefore has always the opportunity to make investigations of its own, concerning incidents which, by the Party’s request are not prosecuted any longer by the Gestapo, or to have investigations made by the police authorities or by the constabulary, which would not exactly be in the interest of the Party. In the future, the lawful duty of the Secret State Police to prosecute all punishable offenses must be respected, and all cases of doubt with regard to such prosecution have to be reported directly to the appropriate Chief Public Prosecutor through the appropriate Gauleiter, or to the Reich Minister of Justice through the chief of the Party Chancellery, the aim being to accomplish an administration of criminal prosecution which will comply with the interests of the Party.
However, this procedure must be adopted sparingly since the same, and under certain circumstances more severe, principles will be applied to Party members as to non-Party members.
TRANSLATION OF SCHLEGELBERGER DOCUMENT 34 SCHLEGELBERGER DEFENSE EXHIBIT 92
LETTER FROM THE CHIEF OF THE FUEHRER’S NAZI PARTY CHANCELLERY TO DEFENDANT SCHLEGELBERGER, 30 JANUARY 1938, STATING THAT HITLER HAS DIRECTED THAT SCHLEGELBERGER BE ACCORDED MEMBERSHIP IN THE NAZI PARTY
Berlin W 8 Vosstrasse l 30 January 1938
The Chief of the Chancellery of the Fuehrer of the NSDAP To Under Secretary Dr. Schlegelberger Berlin
Dear Mr. Under Secretary,
The Fuehrer has directed [verfuegt], on the occasion of the 5th anniversary of the National Socialist rise to power, that you be accorded membership in the NSDAP.
I take pleasure in bringing this to your attention while requesting that you submit to me your personal data such as your first name, last name, place and date of birth, and correct address.
Heil Hitler!
[Signed] BOUHLER
PARTIAL TRANSLATION OF DOCUMENT NG-901 PROSECUTION EXHIBIT 436
TWO ORDERS SIGNED BY DEFENDANT SCHLEGELBERGER FOR THE INITIATION OF CRIMINAL PROCEEDINGS AGAINST NOTARIES BECAUSE OF THEIR ATTITUDE TOWARD THE NATIONAL SOCIALIST STATE, 19 MAY 1938 AND 6 DECEMBER 1938
Copy
Order for the Initiation of Criminal Proceedings
In accordance with article 38, paragraph 3 of the Reich Notary’s Code, and article 71, paragraph 2, German Civil Service Law, I initiate an inquiry against notary Karl Walbaum of Goettingen.
Notary Walbaum can no longer be relied upon to lend his active support to the National Socialist State at all times. This suspicion is proved by his general attitude, for instance--
(1) The notary joined the German National People’s Party [DNVP] towards the end of 1932 in order to help in preventing the National Socialist German Workers’ Party from taking over exclusive State leadership.
(2) In 1933 he was expelled from the Stahlhelm,[212] because he worked openly against the affiliation of the Stahlhelm to the National Socialist State.
(3) He did not adopt the German Salute in Court until fall 1937, and in the streets he fails to use it even today. On the occasion of his interrogation by the president of the district court on 13 April 1938, he referred to the German salute as the ancient salute given by German gladiators to the Roman emperor.
(4) He is opposed to the existence of the National Socialist Party and its union with the National Socialist State, and he expressed this attitude not only in a letter to the Kreisleiter of Goettingen, dated 11 April 1938, but also during his interrogation on 12 April at the branch office of the Secret State Police, and on 13 April 1938 by the president of the district court.
(5) In the plebiscite and general election on 10 April 1938 he voted “No.” I appoint District Court Judge Weissgerber of Goettingen head of the inquiry.
Berlin, 19 May 1938
The Reich Minister of Justice As deputy
[typed] signed: DR. SCHLEGELBERGER
* * * * * * *
Carbon copy
Order for the Initiation of Criminal Proceedings
By request of the deputy of the Fuehrer[213] I initiate an inquiry against notary Dr. Kurt Prelle of Naumburg (Saale) in accordance with article 38, paragraph 3 of the Notary’s Code; article 71 of the German Civil Service Law and with the Executive Decree to article 71 of the German Civil Service Law.
It has become doubtful whether notary Dr. Prelle can still be relied upon to lend his active support to the National Socialist State at all times. These doubts are based on the following occurrence:
Since 1 August 1932, Dr. Prelle had been a member of the National Socialist German Workers’ Party, Membership No. 1 255 200. In the course of a Party court proceedings he was accused of having made a purchase from the Jew Max Cohn in Naumburg (Saale) on 24 December 1935. On 18 February 1936, during the proceedings he submitted a questionable justification in which he explained that not he himself but his wife without his knowledge had bought picture postcards from the Jew Cohn for a total of 10 Reichspfennig. He continued, however, to explain that in view of the speech made on 18 August 1935 by the president of the Reich Bank, Dr. Schacht, and in view of the fact that the Reich government was using Jewish banks for raising Reich loans, every State citizen was entitled to buy as much as he wanted from Jews. As a result of this, Dr. Prelle was expelled from the Party by a decision of the Party’s Kreis Court at Naumburg (Saale) dated 30 June 1936, because he had not made the Party’s fight against Jewry his concern and did not even support it.
The right to commission someone with the establishment of these facts is being reserved.
Berlin, 6 December 1938
The Reich Minister of Justice As deputy
[typed] Signed DR. SCHLEGELBERGER
(Seal)
TRANSLATION OF DOCUMENT NG-825 PROSECUTION EXHIBIT 433
REPORT ON A CONFERENCE, 22 AUGUST 1939, BETWEEN DEFENDANT ROTHENBERGER AND SS MAJOR ECKHARDT, SD CHIEF IN HAMBURG, CONCERNING COOPERATION OF THE JUDICIARY WITH THE SD IN HAMBURG
Conversation between Senator Dr. Rothenberger, SS Sturmbannfuehrer Eckhardt, SD Subsection Hamburg and SS Oberschar [Oberscharfuehrer], Amtsgerichtsrat Moeller.
Subject: Cooperation of the Administration of Justice in Hamburg with the SD Subsection Hamburg
1. There prevails agreement that it would be purposeless to appoint special informants in the various branches of the administration of justice to inform the Liaison Officer, Amtsgerichtsrat Moeller. The already existing circle of informants, to which Moeller should from now on belong, is abundantly sufficient to inform the senior president [of the court of appeal] about wishes and difficulties, views on the reaction to new laws, moods of the judges, etc. If from this circle things are brought forward which cannot be settled directly by the senior president, Sturmbannfuehrer Eckhardt is prepared to put his SD apparatus at their disposal on instructions from Moeller.
2. Senator Dr. Rothenberger expressed the wish to be able to fall back on the information apparatus of the SD in necessary cases, e. g., to ascertain whether there is any truth in rumors which by repetition have become the subject of a criminal procedure. Sturmbannfuehrer Eckhardt consents to this.
3. Senator Dr. Rothenberger declares that he is prepared to put at the disposal of the SD subsection current copies of such sentences as are significant on account of their importance for the carrying-out of National Socialist ideas in the field of the administration of justice, and which are being collected in the appellate court. Sturmbannfuehrer Eckhardt considers a current transmission of important judicial sentences in this way to be particularly valuable for the work of the SD.
4. Sturmbannfuehrer Eckhardt requests that employees of the judicial authorities be reminded before they travel abroad to keep their eyes open in foreign countries and to record their experiences and impressions in a report on foreign opinion. Senator Dr. Rothenberger points out that he has been kept informed up to now as to essentials, of one employee’s impressions on journeys abroad. In future, each employee of the judicial authorities is to make a report on foreign opinion at the close of his journey, a carbon copy of which will be forwarded to the SD subsection for information.
5. Up to now, informants who are at the disposal of the SD have not been nominated for the local court districts Harburg and Wandsbeck. Senator Dr. Rothenberger wants to seek out suitable individuals and to nominate them to the SD subsection.
For the rest, the parties concerned are in agreement that cooperation, with the wide consideration for the importance of the sphere of work on both sides, is best guaranteed by any debatable questions being dealt with directly by the liaison officer Moeller, either in writing or orally.
Hamburg, 22 August 1939.
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS FRIEDRICH ELKAR[214]
MR. KING: Will you please state your name?
WITNESS ELKAR: Elkar.
Q. Will you tell us briefly what your educational background and training has been?
A. I was born in July 1911 in Altenberg. Then, for 14 years I went to elementary school, and I went to the Oberrealschule, Fuerth, and there in the year 1931 I made my final examination. Then I studied for four terms each at the Universities of Erlangen and Munich. In the year 1935 I made the first state examination, the so-called Referendar Examination. Then for about 3 years I was at the Nuernberg-Fuerth court as a legal clerk in the administration for training. Then, in July 1939, I made the second state examination, that is, the assessor examination, at Munich. Thereafter, for a short time, I worked for a Nuernberg lawyer. Then, due to wartime conditions, I was unemployed for a while. In October I was taken into the Security Service at Nuernberg. That was on 16 October 1939. I was there at the SD during the entire war. In 1945 after the collapse I worked for some time as an agricultural worker.
Q. After you had passed your first state examination and prior to the time that you had taken your second examination were you at any time assigned, while you were in Nuernberg, to the defendant Rothaug?
A. Yes, first I had two cases when I was appointed defense counsel before the Special Court, and that is where I met Rothaug. And then for 2 months I was there for my legal training. That was at the end of my legal training period in February or March 1939.
Q. You said that in October of 1939 you became a member of the SD.
A. Yes, on 16 October 1939.
Q. Before I put several questions to you concerning your activities with the SD, will you explain briefly the relationship between the SD, (Security Service) of the Reich Security Main Office (RSHA) and the SS?
A. Relations between the Reich Security Main Office and the SS--well, the Security Service, SD, belonged to Office III of the Reich Security Main Office. That was the central office of the SD at Berlin. A large number of the employees of the SD, had been taken into the General SS. To that extent a rather loose connection existed between the SS and the SD. In particular, the Supreme Chief of the Reich Security Main Office was first Heydrich and after his death, Kaltenbrunner, whereas the chief of the SD who was under Heydrich and Kaltenbrunner was Ohlendorf.[215] Is that sufficient?
Q. Tell me how the SD was organized at Gau level?
A. At Gau level principally every Gau had an SD department. That, according to the Gau level, was the SD sector, and the extent of this SD sector was usually the same as that of the Gau.
Q. How were these SD organizations which were attached to each Gau organized? Were there departments in each SD organization within each Gau, and if so, what were these departments?
A. In the SD districts there were departments [Referate], as we called them. Essentially there were four--III was the designation of the SD office in general; III-A, law and administration; III-B, folkdom and public health; III-C, cultural fields, including education; and III-D, economy.
Q. When you were assigned to the Gau here in Nuernberg for the SD, to which one of these four departments were you assigned?
A. I was assigned to the department of law and administration.
Q. And what was your position in that department?
A. I was in charge of it. That is to say, for quite some time there was only one man in it, really. There was only one person.
Q. Can you tell me in general--I will later ask you some specific questions, but now tell me in general what your duties were as head of law and administration of the SD in the Franconia Gau.
A. The SD as home information service, in our case through the Reich Security Main Office had to inform about all developments in various fields of German life. I personally had to report about all developments in the field of law and administration, positive and negative developments which occurred in that field of law and administration, to investigate and to report about them.
Q. Being assigned to the law and administration section, did you confer with the defendant Rothaug in connection with your official duties?
A. Yes. On the basis of an instruction received from the inspector of the Security Police and SD at Munich who was our administrative superior, from an instruction through him we had to take up in connection with the prosecution of the Special Courts in order to inform the inspector, and in the last event, the Reich Security Main Office, about the pending criminal cases, that is to say, the activity of the Special Courts. In the course of this action, it came to a conference of my chief with the president of the court of appeal, and in the course of that conference Doebig, the president of the court of appeal, stated that he was not competent for any agreement that had to be passed here, because as the Public Prosecutor, the prosecution was under his control. For that reason on the same day, practically at the same hour, a conference was brought about with the General Prosecutor Dr. Bens. On that occasion, the presiding judge of the Special Court, Rothaug, was present. Bens justified that by saying that the first hand information about pending criminal cases before the Special Court could best be obtained from the presiding judge himself, because it was he who was in charge of scheduling the cases and therefore could give the best information, and for that reason Rothaug was drawn into that conference. The oral agreement came about to the effect that from time to time if my superior office was interested, I should get the appropriate information from Rothaug.
Q. In connection with this series of conferences, when did you first see Rothaug?
A. Well, the conference in question you mean?
Q. No. As I understood the answer to the previous question, after you had seen Doebig and Bens, you were finally told that you would confer in connection with your official duties with Rothaug. When then did you have your first conference with Rothaug concerning your official duties?
A. The first short conference took place immediately after that conference with Bens and Doebig on the same day in Rothaug’s office. On that occasion, Rothaug stated that he was quite ready to work together with the SD, as far as information was concerned.
Q. And thereafter, did you see him at regular intervals, and if so, how often did you see him?
A. At that time, an agreement was reached between Rothaug and myself that principally I should come into his office every Saturday, and there he would inform me about matters which in his opinion were interesting for me--criminal cases--and give me all the information. On that occasion, we were also able to discuss any other legal questions of interest that actually came up; and particularly during the first half year I met Rothaug pretty regularly on Saturdays.
Q. Now after these Saturday conferences with Rothaug, did you make a report to your superiors on what was said?
A. I sent reports to the Reich Security Main Office about everything in the way of information which I received from Rothaug.
Q. And these reports which you sent to the Reich Security Main Office went first to your superior located in Nuernberg, and then, as far as you know, to Berlin and possibly to the head of the SS? Is that right?
A. It really occurred that way, that whatever Rothaug considered important he reported himself. I took stenographic notes, and I had them transcribed at my office, and on the basis of this information, I wrote my report to Berlin--of course without any opinion on my part and without making essential changes which would not have been within my duties.
Q. In these conferences with Rothaug, which occurred fairly regularly every Saturday morning, can you tell the Court in general what was discussed? Later on, I want to ask you several specific questions, but now, if you will, please tell us in general what Rothaug discussed on these occasions with you?
A. Mostly the information which he gave me was in a form of instructions about developments of criminality which he explained with examples of individual cases. He informed me, for instance, that mail robberies or black-out crimes were increasing and that they constituted most of the criminal cases at that time. Then he explained to me in what manner criminal procedure had to be developed in order to present effective measures against that undesirable development of criminality and to manifest that in the way of jurisdiction. On that occasion, of course, individual cases were also discussed. In addition to that, he also mentioned matters of legal and political development; also in the field of substantive law, matters which came to his attention in the course of these proceedings, sometimes in the form of short dictation or of handwritten slips which he prepared. It was not only that the current cases were explained to show the development in criminality but also anything that occurred in the field of law and had to be corrected by higher offices, be it that it needed a negative or positive decision that he wanted to have written down and reported to higher offices.
Q. Rothaug knew, I take it, that these notes and reports which he handed to you were passed on by you in line with your official duty--passed on to higher authorities in the Reich Security Main Office and in the SS?
A. That he knew for certain, and in my opinion that was what he wanted. It could be seen from remarks to the effect that such matters had to be reported to higher offices so that from these higher offices appropriate countermeasures could be taken.
Q. Did Rothaug discuss in these conferences with you the sentences he expected to give in cases that were to be heard in his court in the near future?
A. Yes, the proceedings in the next period of time which were to be tried sooner or later, as far as they were important, were discussed partly on the basis of the files, partly on the basis of his knowledge of the files; he gave me a short explanation of the facts and also his opinion about the legal procedure, the legal dealing with the cases as far as the application of the facts was concerned in consideration of the sentence to be expected.
Q. What in general was Rothaug’s attitude, so far as he reported it to you, on the interpretation of criminal law?
A. Rothaug, in principle, was of the opinion that particularly in times of war on account of a certain laxity of security measures, be it due to shortage of personnel or other things, criminality would increase; that not only an increase of serious criminal cases would occur, but also of so-called political criminality; and that the activity of the Special Courts should be conducted in such a manner that an increase of serious criminality of that kind should be forestalled; that any attempt against the State in a political, criminal, or other manner would have to be wiped out by severe penalties.
Q. Can you tell us what Rothaug’s apparent attitude was toward foreigners, especially Poles, so far as the application of criminal law to them was concerned?
A. In my opinion, Rothaug’s position was that particularly toward foreigners--Poles and others--that no clemency should be applied; that especially these elements had to be met with severe measures in order to assure that attempts which would be made to counteract the successes of the armed forces should be choked off at the outset. It may be that he would have used more clemency towards German criminals than to foreigners.
Q. Can you tell us whether you are familiar with the decree against Poles and Jews promulgated in 1941?[216]
A. Yes, that is a concept for me.
Q. You are in general familiar with the provisions of this decree, are you not?
A. Well, in detail--of course today I couldn’t say--but in general, yes.
Q. What was Rothaug’s attitude toward Poles and Jews prior to the time that this decree was promulgated so far as you know from the conversations that you had with him and from the reports that you passed on from him?
A. I believe that it was clear to Rothaug that here, if I may say so, there was a gap in the law; that that gap should be bridged; but that a judge with the right political attitude should be in a position, in spite of this gap, to sentence accordingly. He found the juridical way to pronounce the sentences which he considered appropriate.
Q. In other words, would you say that Rothaug achieved, without a decree, and prior to the time that it was promulgated, the same legal effect that later could be achieved under it?
A. That is correct, beyond doubt. As a Special Court judge in Nuernberg, he achieved the same success. I should only think that perhaps measured by conditions all throughout the Reich, he thought that a formulation of these principles was needed.
Q. Is it your feeling that Rothaug’s outspoken comments on the need for such a decree, as was later formulated, was influential in the final promulgation of that decree?
A. Well, as far as the various things are concerned that finally led to the decree, I am not well informed about that; but that Rothaug’s information may have contributed, that I believe.
Q. In any event, prior to the time that that decree was formulated in 1941, you had sent up in line with your official duty many of Rothaug’s comments on what the law, or what the situation lacked at that time?
A. That was certainly the case.
Q. In discussing the cases with Rothaug in these Saturday morning conferences, do you recall any particular case to which Rothaug referred?
A. You mean in a particular category of a criminal act?
Q. No, I do not refer to that. Perhaps my question was not clear. I meant in spectacular cases which were to be tried by Rothaug, or other judges in his court. In other words, did you discuss, or did he discuss with you the more spectacular cases at any time?
A. Yes, he did. I remember, for instance, the case of the Dachau criminal, I think it was Poelmann.
Q. One moment. I did not get that name.
A. Poelmann. That man Poelmann, if I remember correctly, had taken a large quantity of lard from a barn in Fuerth, I believe at night. There may have been several hundred pounds and also other things. If I remember correctly, Poelmann was sentenced to death by Rothaug. The verdict I believe was not executed, but through a pardon was commuted into a long prison term, I think 8 years of hard labor. Rothaug talked to me at that time about that pardon, which technically reduced the death sentence, which in Rothaug’s opinion was a correct sentence, to a prison term.
Q. Do you remember any other cases that you discussed with Rothaug?
A. Yes, one typical case, the case of Katzenberger. That case Rothaug and I discussed also once, and I expressed my opinion that on the basis of information I had received, and also on the basis of opinion on what was known of the criminal, that the sexual relationship was not an accomplished fact, because the law, insofar as I knew, required the act of sexual relation between a German and a party of non-Aryan descent.
DR. KOESSL: May it please the Tribunal, I object against the examination. I object to the examination in this manner, because the opinion which is stated by the witness, the legal opinion which is stated by the witness shows that he is not an expert, and furthermore, he has not been called as an expert witness.
PRESIDING JUDGE MARSHALL: We see nothing in the answer in the nature of which shows anything other than he was just stating a conversation, the way we get it.
WITNESS ELKAR: I do not in any way wish to give an expert opinion here. I only wanted to explain why I came to speak about the case of Katzenberger, because I was asked whether he spoke of any other case, and particularly this case is one which was mentioned as the case of Katzenberger. Therefore, may I continue with my statement? At the time the facts were not complete, because it was not proved so far as I know that the German woman was doing anything more, according to the proof, other than that she was sitting on his lap, and Rothaug--I remember that quite clearly here--said that one had to take the human facts into consideration and could hardly expect that a man of that kind, he meant the man Katzenberger, would act otherwise once the girl had been sitting on his lap, and that consequently, he considered the proof as given.
MR. KING: Now may I for a brief moment digress to another subject. In your position with the SD you undoubtedly had an opportunity to observe the political influence that various people with whom you came in contact exercised?
A. Yes.
Q. What do you know about Rothaug’s influence with the Party men who ran the Gau Franconia. What are your impressions?
A. Rothaug had some close connections to the Gau Inspector Haberkern. Haberkern as Gau Inspector could gain an insight in all matters going on in the Gau, and in my opinion for a discussion of such matters, particularly in the legal field, he took the advice of Rothaug, so that, since the Gauleiter depended on Haberkern, Rothaug certainly could have his opinion go to the Gauleiter on legal matters.
Q. What men besides Haberkern were influential in directing the affairs of the Gau Franconia?
A. Well, first, Streicher was Gauleiter. After he left, there were several staff office chiefs who were acting, and then Holz became acting Gauleiter. Then Holz went to the army, and at that time the Kreisleiter Zimmermann was in charge of the official business of the Gauleiter and as far as I know, the relationship between Zimmermann, Haberkern, and Rothaug was very close.
Q. May I at this point ask you to clarify one matter. You say that Streicher, Haberkern, Holz, and Zimmermann, as leaders of the Gau, were, of necessity, members of the Party Leadership Corps?
A. Yes.
Q. Now in your opinion from what you were able to observe, did Haberkern’s reliance on Rothaug, and Rothaug’s influence over him result in Rothaug having a very great influence on the Party Leadership Corps here in the Franconia Gau?
A. Insofar as Haberkern could indulge in the influence as to the Leadership Corps, Rothaug through Haberkern had the same influence, and I should like to assume that in the question of law Rothaug certainly was the man who was the higher authority so far as the Gau was concerned.
Q. Do you know whether Rothaug had ever taken an oath of secrecy as a collaborator with the SD?
A. Yes, he did.
Q. Do you know when that happened?
A. That must have been in 1940, because in May 1940, approximately in the spring of 1940, that is before the French campaign, the conference of prosecutors which I had mentioned took place, and I believe a short time afterward Rothaug was drafted for the SD and was put on oath by the SD.
Q. What was the higher, more responsible position in the SD, the position of informer [Nachrichtenmann], or the position of collaborator [Mitarbeiter]?
A. May I correct that? There were no official informers. You mean the confidential agent [Vertrauensmann]? Then there was also the term of honorary collaborator [ehrenamtlicher Mitarbeiter]. The confidential agent was the man who in a certain field of law, penal law or the administration of justice, occasionally was used for information that had to be kept secret. On account of the shortage of men, which existed during the war, it had become necessary to bring in also honorary staff members [ehrenamtliche Maenner] who had certain functions, and who in a definite special field, also had the function of rendering information; the informative material which had come from other places was digested by them and put together in reports. All such people in the special field, that is the field of penal law, were a source of information. The honorary collaborator I would like to put on a higher level than the confidential agent.
Q. I think I did use the wrong term in referring to the confidential agent as informer, but in any event, you understood my question, and I think I understand your answer.
Did you ever attend a trial which was presided over by Rothaug?
A. Yes.
Q. From your observation, can you tell us briefly how Rothaug conducted his trials?
A. Once it was the case Heller and Muendel, well known highway trap-setters [Autofallensteller]. Then the case Feldstengel. There were several others. These were cases of burglary during the black-outs, black-out crimes.
May I pick out here the principal matters such as they presented themselves to me after my experiences as an SD man. I think I am not mistaken in assuming that Rothaug considered the trial before the Special Court as a means of direction and education and that accordingly he conducted the main trial on a broad basis and facts which constituted transgressions against the program of the Party, the directives of the political leadership, such facts were developed to such an extent that the illegal elements which were contained in the opposition against the political leadership were brought to the foreground. I would like to say that he rather disregarded other circumstances concerning the defendant, his office, his position. He wanted to remove those circumstances, to leave them aside, in order to develop clearly the criminality of the act of the defendant, and just because he considered the trial as a means for the direction and education of the people, he used every means to make it possible for as many people as possible to attend and underline matters which offered possibilities for the political education in order to exert influence on the listeners in that manner.
Q. In your conferences with Rothaug did he express the view that trials were to be used as a means of political education?
A. Yes, of course.
Q. From your observation of Rothaug’s conduct of trials where he was the presiding judge, your answer is that in practice they actually were conducted that way, as a means of political education; that was the purport of the answer to the next to the last question, I believe.
A. Yes, that was my personal impression, which I gathered from the comparatively few trials which I attended myself and also from information on the basis of the material about the trials. From those reports, it could be seen that Rothaug had the intention to use the many trials as a means for political education.[217]
* * * * * * *
CROSS-EXAMINATION
DR. KOESSL (counsel for defendant Rothaug): Witness, your position was that of chief of a department?
WITNESS ELKAR: No, in an Abschnitt. May I point out that there was no such expression as Abteilung; there were special departments, Referate.
Q. So it was Referat III-A?
A. Referat III-A.
Q. Referat III-A was part of the home forces?
A. Yes.
Q. Your work with Rothaug was based on general directives, on the basis of which the SD groups had to get in contact with the Special Courts; is that correct?
A. The real cause for the contact with Rothaug as presiding judge of the Special Court was, as I explained yesterday, the desire of the inspector of the Security Police and the SD in Munich to be informed about the decisions of the Special Courts, or to remain currently informed about their decisions, because the inspector of the Security Police and the SD in Munich was, at the same time, supposed to send reports to the Reich defense commissar who, at that time, was in Munich, but whose field was all of Bavaria. A measure of that kind was of a local nature, at first only for Bavaria, an internal instruction, let us say, from the RSHA, because a contact of that kind did not exist at that time.
Q. But it was a contact which was taken up all over Bavaria?
A. Yes.
* * * * * * *
Q. Do you still know what the purpose of the visit of the SD leaders with Doebig and Bens was and what considerations, what principal considerations were discussed on that occasion?
A. As I have already explained, subject at first on the occasion of that official contact, taking up of contact, was that from an authoritative source the reports should be received about pending criminal cases, and of course also about legal problems in connection therewith. The SD through all its reports from the outside, received information about the consequences of court decisions on morale. It is clear to us today that the layman’s point of view frequently deviates quite essentially from the facts established in court. And in order to provide a correction, a possibility of checking our reports, it was necessary that we establish the official connection to the court authorities.
Q. Therefore, it was intended that this contact should correct mistakes in the reports received from other sources, which mistakes were based on reports from laymen and frequently caused misunderstandings of the facts?
A. That is essentially true.
Q. Now, you discussed at first the conferences. You came to Rothaug first on Saturday mornings in order to get information?
A. Yes.
Q. Did you stick to that in the course of the following period, or were there larger intervals between these meetings?
A. If I should indicate a period first--
Q. I asked only, was that regularly on Saturdays?
A. In the beginning yes, the first half year.
Q. And later?
A. Later, either if an inquiry had been sent to us from some other source or when, on the basis of reports which we had received from other sources we had questions to put before him, or when Rothaug on his part had to report anything on the basis of his activity, and I emphasized yesterday that he was very productive for us, that in the field of political law, not only in the field of general law, but beyond that and also in the field of civil law, he brought to us experiences and inspirations.
Q. If I understand you correctly, Rothaug dealt with matters of principle of a general nature not, for instance, the treatment of individual cases, the manner in which individual cases were handled.
A. You have to distinguish here between the--you have to start here from the assignment which the SD had as information sources for the whole country. As I emphasized yesterday, the purpose was to eliminate wrong developments first, to point them out. In case of these developments in the wrong direction it could only be matters of principle in the beginning. According to the instructions we had received, it did not suffice to point out a principal wrong, that is to say a gap in the law, but it was necessary that on the basis of concrete examples of definite individual examples that gap be proved, and if possible at the same time in this case, of course, by the expert, recommendations had to be made for modifications. And on the basis of this activity individual cases were the subject of discussions and conferences. Frequently, as far as I remember, it occurred that at times the individual case itself was discussed as, for instance, the case of Katzenberger and another case which I still remember.
Q. So it was a matter of justifying opinions if individual cases were mentioned?
A. Yes.
Q. It was not a matter of interfering into an individual case on the part of superior offices, an interference into a pending, into an actual proceeding?
A. Well, of course it was possible that the individual case itself, through the leadership office, became known to the Ministry and caused individual measures. I can give you an example. In the directives concerning files there is a provision according to which wills are to be attached to the files of the court. Furthermore, there is some directive of some sort according to which last letters of soldiers who have been killed could be considered, under certain circumstances, as having the force of a “last will.” That was particularly customary in the air force, that, in case a flier died, these letters were considered, and if there were any provisions in these letters concerning the heritage, and there was no other proof of any will existing, they were considered to represent the will. That happened, for instance, in one case. There was a soldier by name of Schneiderbanger. The woman who had lost her husband in the First World War, and I believe already one son in this war, lost her last son. It was in air combat over London, I believe. She presented to the court the letter in which some provisions were included about his luggage, I believe. The court considered that letter to represent his will, and asked for the original from the woman--asked that the original be put in the files. Since for sentimental reasons she objected to that, she was threatened with a fine or a prison term. That affair raised a lot of discussion. Various offices of the Party intervened, and it came before us. I reported that case. In the opinion of the RSHA it was not a rare case, but a development which would have to be taken into account either by law or by directive from the Ministry. It was strange that in this case the reaction of the Ministry of Justice was not the issuance of a general instruction, but an order through channels that the woman in this particular case be permitted to keep the letter.
PRESIDING JUDGE MARSHALL: One moment, please. The witness answered, some little time ago, that these reports to the RSHA and the answers from them were for the purposes of justifying the opinions of the lower court. At that point, Dr. Koessl asked the question whether it was intended as an interference of those opinions. I couldn’t observe that the witness answered that question, and I should like to know whether it was an interference and not merely an attempt to justify.
WITNESS ELKAR: In as much as we discussed these cases at our level, one could not speak of interference in the individual cases. How far the RSHA, through conferences with the various ministries--in this case, the Ministry of Justice--could interfere, I am not in a position to estimate.
Q. I am not so much concerned as to how much they could do, but I am very much interested in knowing what they did do, if anything, in the matter of interference.
A. Well, of course we reported with the intention that a wrong development in individual cases should find correction occasionally, but I am not so familiar with that in the legal field. We received instructions from superior offices that in this one or the other case a measure from the Ministry or the respective superior office was caused by the report.
DR. KOESSL: Wasn’t it so that at that time the fact had become apparent and noticed that offices which were outside the administration of justice were frequently concerned with matters of justice; for instance, offices of the NSDAP, Kreisleiters, and so on?
WITNESS ELKAR: Yes.
Q. Were the conferences also concerned with the attempt of preventing such interference?
A. I can hardly remember that when speaking to Rothaug that problem was ever discussed to any extent. Occasionally, when mention was made from the outside, that question was touched too; but if I remember correctly, Rothaug was of the position that the Party, for instance, was definitely justified to make its intentions known to the court; he said in the same manner which, for instance, the administration of mail service--in case of a fraud on the part of one of the officials--gives its expert opinion about the case, then in the same manner that right should be conceded to the Party. For that reason, he offered at all times information to the Party and gave also advance information about pending cases and an opportunity to state its--the Party’s--point of view.
Q. That was originated by law, if I remember correctly, Witness. Wasn’t it provided that in penal cases against members of the Party, on the basis of a legal decision, the Party had to be informed?
A. Yes, that of course.
Q. That is what I mean. Was there more involved?
A. For instance, in cases of insidious attacks[218], a directive by the Ministry of Justice was required. That directive, as far as I know, came about in cooperation with the Party Chancellery.[219] It is true that the Party Chancellery, certainly before it rendered its decision, received information from the Gauleitung concerned with that case. But I believe that I am not mistaken to assume that Rothaug, even beyond that in local cases of political significance, tried to get the opinion of the Gauleitung concerned.
Q. You told us yesterday that you discussed pending cases on the points of view of the general development of criminality. Was that the basis of your conferences on Saturdays and later on at more frequent occasions?
A. Perhaps I can make the answer a little clearer by emphasizing the circumstances under which this more intense cooperation with the Special Court under Rothaug, in particular, came about. The conference between Doebig and the others was concerned with the official agreement, as I have said. The position and the tasks of the SD are known to you. I assume that the SD was in a position to obtain these official informations and opinions from the official sources, but we had to try to find out about the matters which were, for instance, in the more detailed files--matters about which information cannot be obtained through regular channels--or to find out about matters which went beyond the pattern of an official opinion about a penal case; that is to say, as we have explained before, a particular experience or an opinion about another court. The obtaining of that information could only be the case if as an SD man I had a closer connection to Rothaug beyond the official character of my mission. And Rothaug, after that first official conference with Doebig--in a conference between himself and myself--stated that he was prepared to do so.
Q. Did you take up contact with other officials of the administration of justice in your position at that time?
A. Here again I have to deal with the administrative organization. As you have heard yesterday, the Abschnitt, after the SD Main Office, was the next lower echelon. It was not our task as such in all fields, let’s say of law and of administration, to obtain and to collect material of information. That task remained to the so-called field offices. I believe we had five in Nuernberg. These field offices as far as I am informed had their confidential agents again; and that there were legal men--members of the court--among those, is quite known. As far as my mission was concerned, that is to say, in order to appraise and evaluate the material which came from the field offices, I needed of course a qualified person, an expert, who had a wider field of experience; and for that purpose I needed Rothaug. He agreed, and he also had the right attitude.
Q. Yesterday you spoke about the slackening of the security machinery during the war. Could you remember that preventive measures against danger arising through conditions of war was part of the discussions and conferences with Rothaug?
A. You mean measures to be taken by leadership offices?
Q. In order to prevent possibilities of dangers arising from special conditions, arising from emergencies of war.
A. Of course.
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Q. Witness, I want to go over to another point. What concrete reasons do you have for judging what influence Rothaug had on Haberkern in regard to the leadership of the Gau; what influence was exerted through Haberkern on the Gau leadership?
A. I know that Rothaug was at the Hotel Haberkern, at the so-called Stammtisch [club table], that he was seen there frequently; I know, furthermore, partly from having been present there myself, in the “Blaue Traube” restaurant [Hotel Haberkern] that other leading men of the Gau were also present there. For example, the Kreisleiter Zimmermann occasionally; also the Higher SS Police Leader Dr. Martin and several other people; and I know furthermore that, at this Stammtisch, matters concerning the Gau were discussed. I can further say with quite a good deal of certainty that Haberkern, especially in legal questions, based himself on the advice and actions of Rothaug, since Haberkern, as I believe I emphasized already yesterday, as Gau Inspector, at any time could have insight into any matters which were of interest to the Gau and what was going on inside the Gau; he could, of course, on the basis of this insight inform the competent Gauleiter.
Q. Did the Gau not have a definite office for handling legal questions?
A. Yes, the Gau had a legal office, the Gaurechtsamt.
Q. Was Rothaug in charge of this office?
A. No. Rothaug was in the National Socialist Legal Workers Association [NSRB] the head of which in Gau Franconia, at times was also the head of Gaurechtsamt, namely Oeschey. In the NSRB, Rothaug had the position of a Gau group leader of the [group] judges and prosecutors; you know that the NSRB was composed of [several] groups.
As Gau group leader of [group] judges and prosecutors, Rothaug was in the Gau Franconia, the judge, the leading jurist, politically; who also from the political point of view, especially the personnel policies of the Party had the primary influence on it--the most important influence, that is, on the Gau leadership. The Gau leader depended a great deal on its own initiative or due to the questions by the Party Chancellery, who had to advise and give opinions on certain personnel policies, questions of personnel policy. The Gau leader and the Gaurechtsamtleiter had to find out Rothaug’s attitude.
Q. But, Witness, is it not evident already from the fact that the Gau leadership had to turn to Rothaug via the Gaurechtsamtleiter that the Gaurechtsamtleiter was the decisive man, the advisor of the Gau leadership?
A. One should suppose that from the outside, just from looking at the organization, but actually I should suppose--I think I can say that with certainty, that the Spiritus Rector, shall we say the guiding and thinking spirit even under the leadership of Oeschey, was Rothaug.
Q. Now, did you have an insight into the attitude of Rothaug with his associates from the political point of view?
A. Do you mean the association on the Special Courts?
Q. Yes.
A. In order to do so it is necessary--
Q. Please, did you have an insight or not?
A. Yes.
MR. KING: May I ask if the witness wants to expand his answer or not. I think the witness should be permitted to if he so wishes. What is the ruling of the Court on that?
PRESIDING JUDGE MARSHALL: Yes, he may answer it further if his answer requires an explanation. Sometimes a question calls for a direct answer; sometimes that answer is not fair to the witness unless he explains why. In this instance he may answer.
WITNESS ELKAR: Rothaug was operating on the principles from the National Socialistic point of view, that was correct; that a judge in a Special Court had to fulfill a certain minimum requirement from a political point of view; that it was not enough for Rothaug that Special Court judges were appointed who, from the technical point of view, met the requirements, but they must also have, politically, a certain maturity--shall we say, a certain political maturity.
DR. KOESSL: Are you finished?
A. Yes.
Q. Insofar as the political maturity of the associate judges goes, did Gross and Ferber fulfill that and Hoffmann--were all of those taken from the Special Court by Rothaug removed from the Special Court, or am I correct?
A. It was so, the basic attitude of Rothaug toward the requirements of judges in the Special Courts was that he emphasized occasionally, again and again, that these requirements were, of course, not fulfilled in all the points of the requirements, because in his opinion the political orientation did not exist to the extent he desired it. He said, however, that under his leadership, weaker judges would, shall we say, fall in line.
Q. Did the associate judges of Rothaug suffer politically in any way, such as through the SD, because they had different legal opinions and different conceptions of law, because they had voted differently in the discussions?
A. By the SD? Do you mean to say by that that steps were taken from the higher authorities?
Q. Did Rothaug report about the unfavorable comments about his associate judges in order to have them reprimanded?
A. That was not the case, for Rothaug stated again and again that under his leadership the judges followed the corresponding course.
* * * * * * *
Q. Can you remember whether it was Rothaug who made efforts to have the severity of wartime legislation explained to the people--whether these efforts of his were successful?
A. You mean to say that the hints upon the enlightening form of these sessions brought it about also that the population would understand it better now?
Q. Understanding on the part of the population, of the severity as well as a warning.
A. As far as I remember, the material that was reported was not sufficient in order to judge this--in order to draw such summary conclusions.
Q. Did you, yourself, make observations that the people, the population, felt that they had been warned?
A. That there was a fear of the Special Court is a matter of general knowledge. That this was in connection with the efforts of Rothaug, I cannot judge whether this was so.
* * * * * * *
Q. You, yourself, were SS Hauptsturmfuehrer or SD Hauptsturmfuehrer, how was that called?
A. During the course of the war I came to the rank of SD Hauptsturmfuehrer, in 1942.
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EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[220]
DIRECT EXAMINATION
DR. SCHILF (counsel for defendant Klemm): I shall now ask you to describe to the Tribunal the work you performed at the Reich Ministry of Justice. First of all, how was it that you got into the Reich Ministry of Justice?
DEFENDANT KLEMM: That happened in the course of the centralization [of the administration of justice in Berlin]. The Minister of Justice, Dr. Guertner, appeared to have the desire that the Reich Ministry of Justice, which comprised the administration of justice of 16 states [Laender], have the Laender represented at the agencies of the Ministry approximately according to their size and their importance. That is how it happened that on 1 April 1935, officials from every former Ministry of Justice in the states were at that time, I believe, transferred to Berlin. From the Ministry of Justice for Saxony, four officials were transferred to Berlin. I never expressed the wish to be transferred to Berlin. The fact that I too was transferred to Berlin is probably due to the fact that negotiations had been held between Thierack and Guertner. I don’t know though. About my being transferred to Berlin, I heard at the middle of March 1935. A fortnight later, I was due to start work in Berlin.
Q. What was this sphere of work which was transferred to you at the Ministry in Berlin?
A. Because from 1929 I had worked for the prosecution, and also because at the Ministry of Justice for Saxony, I had dealt with special measures concerning penal law, I was given at the Ministry of Justice a position in Division III at that time, which later became Division IV. I was appointed auxiliary advisor on high treason cases, and as district Referent [Bezirksreferent] for several districts of district courts of appeal, both in political and nonpolitical cases.[221]
* * * * * * *
Q. As an expert on political penal cases in those days, that is in 1935 and 1936, did you have close connections with the Gestapo?
A. The Referent for political penal cases for district courts of appeal entertained no relations with the Gestapo. When general questions, questions of particular importance arose, they were dealt with by the Special Referat, or if there was just one question, it was handled by the one Referent charged as the SS liaison officer to the police.
Q. The prosecution submitted a document, which is Exhibit 31, NG-266. Unfortunately, I can only quote the pages of the German text. In the German document book, page 44, following. Mr. Klemm, I suppose you have Exhibit 31 before you?
A. Yes, I have.
Q. You know the contents?
A. Yes, I know the contents.
Q. This is a letter of 13 June 1936 from the Reich Minister of Justice to the chiefs of the various agencies, particularly the Oberlandesgerichtspresidenten, and general public prosecutors, informing them that in September or October of the same year, that is 1936, a discussion with experts of the Gestapo was to be held, I ask you now whether that document is suitable to confirm your personal statement that you never had anything to do with the Gestapo?
A. That conference was a conference of prosecutor generals and of the Presidenten of Oberlandesgerichte. They were to be informed about stopping crimes, particularly concerning high treason and treason. For that reason police experts discussed the subjects. I did not attend this conference, but the speeches made there dealt purely with technical matters. They were speeches by experts from the central organization of the police, which had the most comprehensive view of these matters. I know that it has been tried to find out a little more about this exhibit.
Q. Mr. Klemm, in this connection the prosecution has submitted another exhibit, that is, Document NG-323, Exhibit 32.[222] The first part of the document is a letter from the Reich Leader SS, Himmler, of 18 February 1937 to the Gestapo office in Berlin; and on that subject the Reich Ministry of Justice stated his opinion on 10 March 1937 giving instructions to the general public prosecutors concerning the collaboration between the office of the public prosecutor and the Gestapo.
I ask you whether what you have said before is to be changed by this Exhibit 32?
A. No, I do not have to change it. That circular instruction by the Ministry of Justice, as one can see from the file note, was drafted in Department II, not in Department III to which I belonged. Besides, this regulation is a purely technical one as to how the files are to be handled during the investigation made by the police.
DR. SCHILF: May it please the Tribunal to refer to the fact that the file note which the witness mentioned is to be found on the letter of 10 March 1937, left upper corner. It is IIA and then there are some Arabic numbers. In this connection, the prosecution has not submitted any further documents against you.
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EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[223]
DIRECT EXAMINATION
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DR. WANDSCHNEIDER (counsel for defendant Rothenberger): Now [beginning in 1933], a great change occurred in your career. Could you tell the Court when and on the basis of what considerations you decided to give up this quiet and secure life?
DEFENDANT ROTHENBERGER[224]: The year 1933 came. On 5 March 1933, there were parliamentary elections in Hamburg, as everywhere throughout the Reich. In these elections the National Socialist Party obtained about 40 percent of the votes. Therefore, it was ordered to form a new government, because it was the strongest Party in the Parliament.
Until that time Hamburg had the government majority which consisted of Social Democrats and Democrats. The NSDAP, which was ordered to form a new government, formed a coalition government with the Democratic Party, the German People’s Party, and the German National People’s Party.
The day after the election, that is on 6 March, the Reich Governor and Gauleiter of Hamburg Kaufmann, called me up. Until that time I had not known him personally. He asked me whether I would be willing to assume the position of the acting mayor in this new government of Hamburg. He told me that he had heard about me, and therefore he was making this offer to me. I requested him to give me one day to think the matter over, and then I refused his offer. I gave as a reason that I considered that my task lay in the administration of justice, that I wasn’t inclined for representative nor for political tasks, and these were connected with the position of mayor of a city like Hamburg. Thereupon, he asked me whether in that case I would be willing to take over the administration of justice of Hamburg as its chief, and I answered that I would.
Q. In the subsequent time did you again refuse leading positions in the Reich? Perhaps you can mention that in this connection here now.
A. In March 1933 I thus became Justizsenator, as he was called, in Hamburg, chief of the administration of justice. And the Tribunal already knows that these Ministries of Justice of the individual states, of which there were, I believe, 18 at the time, in 1935, were dissolved by the so-called centralization of the administration of justice. Therefore, toward the end of 1934, the Reich Minister of Justice, Dr. Guertner, approached me in Kiel where we met on the occasion of a university festival, and asked me whether I would be willing to become presiding judge of the People’s Court, which at that time was being created. I rejected that offer, even though this was the second position of a judge in Germany next to the president of the Reich Supreme Court. But for administration of criminal law I had neither the experience nor the inclination. The political development of the People’s Court, of course, one could not predict in any way at that time. But I remained in Hamburg and when in 1935 the administration of justice was incorporated into the Reich and my office as chief of the administration of justice, Justizsenator, was eliminated. I became president of the Hanseatic District Court of Appeals. That is a position of judge which, however, at the same time also includes administrative jurisdiction. I believe that the Tribunal is already familiar with the fact that, from 1935 on, Germany was divided into, I believe, 35 or 37 areas of district courts of appeal, and at their top there was each time a president of the district court of appeal. In 1936 to 1937 the Reichjustizfuehrer [chief of NSRB] Frank[225] approached me through a representative and asked me if I would like to be his representative in Berlin in his capacity as Reichjustizfuehrer. It was not difficult for me to reject that offer, because during the course of those 2 years I got to know Frank. The personal characteristics of Frank have repeatedly been emphasized in this trial, but I want to add one more attribute, that he was extraordinarily vain and that he never forgave me that I could refuse to become his assistant.
Q. In conclusion, in regard to this question, would you please state something about your additional positions in Hamburg which you had in addition to your position as president of the district court of appeals?
A. In Hamburg I had several extra duties during the years when I was still in Hamburg, that is, from 1935 on. That is in addition to my main duty. I was Honorary Professor at the Hamburg University for civil law, and there I, in a certain sense, continued my activity as repetitor, that is, tutor, so to say. That is, I held lectures for students. From 1938 on I was president of the Reich Maritime Office. That was the final authority in decisions about collisions at sea and about the litigations regarding the withdrawing of a license which resulted from this for captains who were found guilty in case of a collision. From the beginning of the war I was president of the Prize Court [Prisenhof] in Hamburg. The Tribunal probably knows the functions of such a Prize Court. Until August 1942 I remained at Hamburg, and from August 1942 until December 1943 I was in Berlin as Under Secretary. In December 1943 I again left there, returned to Hamburg, and was a notary in Hamburg.
* * * * * * *
Q. We now come to the question as to why you became a Party member and a Gau Leader [Gaufuehrer] of the NSRB. Those are phases of your political life during which you participated actually and formally in the NSDAP. Can you explain why you first became a Party member?
A. For reasons of full conviction I became a Party member in 1933, because at that time this party appeared to me to be more united and less split up than the other, earlier parties; and in 1934 or 1935 when Gauleiter Kaufmann approached me and asked me to take over the Gau leadership of the NSRB, I had already gained my first impressions and experiences in the struggle between the administration of justice and the Party. It has been emphasized here time and again how, during the first period, after the revolution of 1933, every Kreisleiter attempted to interfere in court proceedings; the Gestapo tried to revise sentences, and it is known how the NSRB tried to gain influence with the Gauleiter and Reichsstatthalter in order to act against the administration of justice. In this respect I gained very bad impressions in Hamburg with the Gaufuehrer at this time of the NSRB, Dr. Haecke. The Reichsstatthalter removed him from office and asked me to take his place, and I do not regret having taken that step because only owing to the fact that I myself held that office, I was in a position to eliminate attacks on the part of the Party against the administration of justice from the outset. And that may only have been possible because I had a Reichsstatthalter in Hamburg who was smart enough and objective enough to realize pretty soon that any fight against the administration of justice can only lead to the destruction of the state itself. I gained influence on the man particularly by two events. First, because at the first opportunity when the attempt was made to put an incapable man in charge of a penal institution, I refused to do so. I asked to be sent on leave and asked him to assure me that that man would be removed. The case was mentioned here again--a man by the name of Laatz.
Q. I shall submit an affidavit about that case.
A. To describe the attitude of the Reichsstatthalter in Hamburg, it is important also to stress that the mayor of Hamburg today, who, after the surrender in 1945 was appointed officially and publicly expressed his gratitude for the calm and objective attitude displayed by Reichsstatthalter Kaufmann during all these years in Hamburg. It belongs to the same field that 2 years later I took over the Gau legal office and thereby excluded any competition; and it belongs to the same complex of questions that during the same year my membership in the Party was put down as 850,000, which gave me a possibility to stand up more strongly against the so-called “old fighters” [Alte Kaempfer--earliest Nazi Party members]. On account of the identity, of course, between president of the district court of appeals and Gaufuehrer, I was envied by all other district court of appeals because they continually had to struggle against the Party while I was saved this struggle.
Q. How long did you hold these offices?
A. I held these offices until August 1942 when I was transferred to Berlin; then the Gau legal office was dissolved; and the office of the Gaufuehrer of the NSRB, I gave up.
Q. Then, you became deputy [Under Secretary in the Reich Ministry of Justice] in Berlin.
A. Yes, I became deputy in Berlin until December 1943.
Q. What was your attitude toward the SD in Hamburg; could you tell us something about that? I am referring to Document NG-825, Prosecution Exhibit 433,[226] in that connection.
A. The SD in Hamburg during the first few years had a bad selection of personnel. There was the usual system of informers; I was spied upon; the Reichsstatthalter was spied upon and that led to their removal. The Reichsstatthalter, when he found out about that, removed the entire personnel from office from Hamburg. The new men whom he appointed, as far as they were concerned with matters of administration of justice, came to me in 1939. In the meantime, the directive had been sent down from the Reich Ministry of Justice to the effect that the SD should be considered and used as a source of information of the state by agencies of the administration of justice; and here also I was independent to nominate individuals who would not submit reports intended to go against the interests of the administration of justice, but who themselves were in favor and sympathy with the principles of the administration of justice, and that is the basis for the conference with the SD Fuehrer in Hamburg which is contained in NG-825, the fact that I made suggestions to nominate men who were judges and whom I knew would never submit reports which were against the administration of justice. Since that time, also in Hamburg, no SD informer appeared in court proceedings, and, as far as I know, no reports were submitted which were against the administration of justice.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG[227]
DIRECT EXAMINATION
* * * * * * *
DR. KOESSL (counsel for defendant Rothaug): In what places and what official positions were you employed before you became presiding judge of the Special Court of Nuernberg?
DEFENDANT ROTHAUG: I have already mentioned that after the result of the state examination had become known, I was soon called into the Bavarian administration of justice. My appointment was first with the public prosecutor’s office in Ansbach for the so-called post-practice [Nachpraxis]. This post-practice was supposed to last for about 3 months. In my case, however, it was interrupted after only 3 weeks. Perhaps I had proved myself a good student, and after that I was first transferred to the local court in Weissenburg. I want to mention that I was called to the prosecution in Ansbach on 1 May 1926. Until approximately August 1926, I was working at the local court at Weissenburg. Subsequently I came to the local court at Pfaffenhofen on the Ilm.
Q. You just mentioned Pfaffenhofen on the Ilm. Where were you living at that time?
A. I would consider it more to the point if I would first describe my official positions now, up to the Special Court in Nuernberg. That’s what you asked me, isn’t it?
I believe I have already mentioned that I came to the local court at Pfaffenhofen on the Ilm. There I was employed until the turn of the year 1926–1927. Subsequently I came to the local court at Ingolstadt on the Danube. I was court assessor during all this time up till 1 June 1927. At that time I became public prosecutor in Hof. In the late fall of 1929 I became Amtsgerichtsrat at the local court of Nuernberg. In the middle of 1933, I became first public prosecutor at the public prosecutor’s office of Nuernberg-Fuerth; in the late fall of 1934, district court judge at the Schweinfurt District Court; and on 1 April 1937, district court director at the District Court Nuernberg-Fuerth, and there I was, among other positions, employed as presiding judge of the Special Court of Nuernberg.
Q. You mentioned Pfaffenhofen on the Ilm. With whom were you living at the time?
A. In Pfaffenhofen on the Ilm I was looking for a room. I was advised to take a room with a family who were from Franconia because I myself was from Franconia. This family had a small meat factory outside of Pfaffenhofen on the Ilm. The family’s name was Haberkern. That was in 1926.
Q. Is that the later Gau Inspector Haberkern who was the owner of the “Blaue Traube” where the club table [Stammtisch] was that was supposed to have been the basis for your political position of power?
A. That is correct. That is the same Haberkern who later on became Gau Inspector of Nuernberg or more correctly was working with Gauleitung of Nuernberg.
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Q. On 1 May 1947 [30 April 1947], the witness Elkar[228] called you, and I quote, “the highest authority on legal questions in the Gau of Franconia.” (Tr. p. 2896.) A little later he calls you “the Spiritus Rector in the NSRB.”
Doebig says you had been the leading spirit in the NSRB. (_Tr. p. 1775._)
What influence did you exert on the NSRB as a whole?
A. First of all, may I say in general, particularly to the introductory question, that I consider that those opinions expressed about me are considerable exaggerations. As for having been an authority on legal questions, that is out of the question. I have always found that other people found it a great deal easier; they always dealt with problems far more quickly, particularly those who passed these opinions. In effect, the way with us was that questions which concerned my Gau group, that is to say, the judges and prosecutors’ groups, were passed on to me. I then gave my opinion on those questions. My opinion was passed on to the Gauwalter and he then passed the matters on in the routine way which is the custom in every state; it was just passed on then to the next authority.
I really don’t think that at any time or at any place I had to cope with a problem of world importance.
Q. Did you receive immediate instructions from the NSDAP and the Gauleitung concerning your work in the NSRB?
A. I never received such direct instructions from the Gauleitung.
Q. What were your duties as Gaugruppenwalter in the NSRB for the judges’ and prosecutors’ groups?
A. In part, that question has already been answered. All problems which fell within the scope of that professional organization, the Jurists’ League, all problems which reached that organization could come to us from any quarter, as they could come from the population itself. All those problems were passed on to the Gaugruppenwalter to deal with, and they were forwarded to that group, the members of which were in some way affected by the event under discussion.
On the other hand, naturally, we also had to cope with the particular difficulties and problems of our members and we had to take care of their affairs because, after all, they had joined a professional organization like ours for that purpose.
I should like to give a practical example to explain this matter, and I will give an example of an event which actually occurred, an event with which we had to deal.
When the administration of justice was centralized, certain offices of judges were downgraded. Here at the district court of Nuernberg, for example, the department chiefs who had had the rank of local court directors [Amtsgerichtsdirector], overnight, and only because the administration of justice was being centralized, were downgraded by one grade. That was done without it being their fault in any way. Naturally that caused a tension, and naturally the people whom it affected were very much annoyed. They came to see me and told me about the matter. As far as I remember they were not Party members, they were of the older generation, and they said that they had been treated in a way in which people should be treated only if they had violated service regulations. I then gave a precise account of the occurrence, made a report, and drew attention to the fact that such treatment of officials was untenable. To begin with, Berlin was against taking any interest and they used the well known slogan, “The interests of the people have to take precedence over the interests of the individual.” However, by again and again digging away at the matter, we succeeded in solving the problem in a way which was satisfactory to everybody concerned.
That was, for example, one of the duties with which we had to deal.
Q. As Gaugruppenwalter for the judges’ and prosecutors’ groups, did you have an office of your own?
A. I neither had an office of my own nor a staff of my own. I merely had my chair and my two hands. The work that I had to do there I did as an individual, and as a rule I wrote it out with my own hand. I then submitted the matters to the Gauwalter.
Q. Did you wear a uniform in that capacity?
A. Except when I was in the army, all my life I have never worn a uniform.
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Q. What offices were asked about the political attitude of a judge and a prosecutor, and who made out the final qualifications?
A. Political qualifications were exclusively made under the responsibility of the competent bearer of the sovereignty, that is, the Kreisleiter or the Gauleiter. For these questions they had a so-called Kreis personnel office, or Gau personnel office. When a so-called political qualification of a civil servant was to be made, these offices addressed inquiries to offices where the civil servant or official concerned was known; that is to say, if he was a member of the NSRB, they addressed an inquiry to the Gauwalter of the NSRB, or in another instance to the competent office of the Civil Service League, or to the Ortsgruppe, local group of the Party, or to the SA, or SS. The answers to these inquiries were then gathered at these offices and from there, if necessary, by reviewing or examining the facts that were reported the so-called political qualifications report of an official was made out. This political qualification report was made out because the supervisory offices of this civil servant by provisions of the law were obligated to form a judgment on this question with the intervention of the Party.
Q. How did this develop in your case, and according to what principles did that proceed?
A. That was an affair which caused the least difficulty. The Gauwalter gave the slip that had been sent in by the competent Party office to the Gau group administrator who was competent for that official. That was I, myself, in the case of inquiries regarding judges and prosecutors, as long as I was entrusted with that function. I then returned the slip after it was filled out to the Gau administrator again, who on his part then reported to the Party office.
It is important to know here that according to an express order a man who was a Party member was not permitted to be judged as politically unreliable as long as a Party disciplinary proceeding had not been carried out against him because of some established facts.
During the time of my activity in regard to that function, it is of significance that at that time almost all judges and prosecutors were members of the Party on account of the well known action on 1 May 1937.
Q. Did you hear of a case in which a judge or a prosecutor was described as politically unreliable? And if so, what happened to that man?
A. In my time I did not hear of such a case. The declaration which we made in every case had the following stereotyped contents: “Circumstances which could raise doubts as to the political reliability of the person concerned did not occur.”
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Q. The witness Elkar said literally, and I quote, “As far as I know, the relations between Zimmermann, Haberkern, and Rothaug were very close.” (Tr. p. 2896.) [Page 374, herein.]
How did you come to know Zimmermann, and what were your relations with him?
A. I have already pointed out that it was only in the course of 1940 that I met Zimmermann by accident when he was at the Blaue Traube.
Q. How often did he attend sessions of the Special Court when you were presiding judge, and do you know why he attended those sessions?
A. I cannot remember one single case when Zimmermann attended one of my sessions. However, it is possible that he attended at the case of Schmidt-Fasel, which has been discussed here several times.
Q. As to Haberkern, you have already testified that quite by accident, as a young assessor, you met him in 1926 and that for many years you had no contact with him. How and when did you hear that Haberkern was in Nuernberg?
A. That was in connection with the National Socialist change-over in 1933. In those days his name often appeared in the newspapers, and that was how I discovered that he was in Nuernberg and that he played a political role.
Q. You have already said that you did not resume contact, not even when against your will you were transferred to Schweinfurt. You have also given us your reasons. When and how was it that you renewed your relations with Haberkern?
A. It was in 1938 as far as I recollect. One day Haberkern rang me up and asked whether I was that Rothaug who in 1926 had stayed in his home. I told him that I was that man, and he was very pleased and asked me to come to see him and his wife. They were the owners of the Hotel Blaue Traube, Nuernberg. I told him that I would go to see him some day, and one day I did go to see him. That was how I came to the Blaue Traube.
Q. What were Haberkern’s offices in Nuernberg and the Gau Franconia?
A. He was Gau inspector, the leader of the Hotel and Restaurant Association, and he was also an Ortsgruppenleiter. I believe he was the Ortsgruppenleiter of the old city.
Q. Through this function did he have any contacts with your official position as judge?
A. No. The Gau inspector, according to his official duties, has to take care of internal matters of the Party. As a leader of the Hotel and Restaurant Association all he could have done was to find me some rooms for my summer holidays. I had nothing to do with his local group [Ortsgruppe] because I belonged to a different group.
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Q. Witness, did the Party offices in Party affairs have their own legal consultants?
A. In this connection, one must point out that every Party office, even the Ortsgruppenleiter, the leaders of the local groups, had their own legal offices. I had nothing to do with that matter.
Q. When were matters concerning legal questions brought to you?
A. Only if simultaneously they affected the interests of the NSRB, and even then only if they affected the interests of the Gau Group for judges and public prosecutors.
Q. Did the Gauleitung take any interest in the general administration of justice?
A. I never noticed that the Gauleitung of Franconia ever took any interest in the development of the legal situation.
Q. Did the legal situation play a decisive part in the Gauleitung?
A. I never noticed anything of that sort.
Q. At the table at the Blaue Traube that has been mentioned here so often, were there ever any discussions which have been laid down previously?
A. May I summarize my statement and perhaps say for the last time that I went to the Blaue Traube with the same intentions that other people had when they went there, and with which other people are in the habit of going to other pubs. As for conferences with agendas, they weren’t held there for the simple reason that that would have been parliamentary. I met other people there, too, but I didn’t meet anybody who went there with any political aims.
Q. Were official matters discussed there?
A. Not official, though Party matters were discussed there; but there, as I think happened in those days at every table in every pub, political things were discussed, and the war was discussed. If somebody were to ask me today what we talked about, I would not be able to give an account of even one trend of ideas that we discussed there.
Q. Did you ever go to Haberkern with your own affairs, that is to say, to get any of your own wishes of a personal nature fulfilled?
A. I never bothered Haberkern on any matter of that kind.
Q. Do you know whether other people from your entourage asked Haberkern for his help on their own behalf?
A. I heard that they did.
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Q. When the witness Ferber[229] mentioned the doubts which the Reich leadership harbored for your political reliability, he said that the SD took an interest in your remaining at Nuernberg. From the account of the witness Elkar, English transcript, page 2888, [page 369, herein,] we know that approximately in May 1940, you were called to a conference which was attended by Doebig, Bens, and the SS section leader, Friedrich, and that in that way you got into contact with the SD. What was the topic of those discussions when you joined in?
A. That matter was rather different. To begin with, Elkar came to me at my office. Then Obersturmbannfuehrer Friedrich called and also a Standartenfuehrer whose name I no longer remember. All those three men belonged to the SS. Those three men told me that they had come to call on me because they wanted to introduce themselves to me, and they wanted to try and establish good relations between their office and the administration of justice authorities.
Conditions in general were then discussed, in particular the fact that the administration of justice in certain press organs, above all the Schwarze Korps, was being subjected to continuous attacks. They considered that state of affairs undesirable, all the more so as they also knew that those articles were generally written on the basis of one-sided information. They also asked for my opinion as to what I would think of all questions which arose here in Nuernberg concerning the administration of justice, if they were to be dealt with to start with on a lower level before a report was made on a higher level. I thought that was a good idea. They asked me whether I would care to be the mediator. I suggested district court of appeals and the general public prosecutor since as it was, they had told me that they intended to call on those officials, too.
I would like to point out that the three of them had only called on me because Elkar had brought them along. As you know Elkar had been with me for training as a Referendar. At that time I had no idea what the SD was about, and what its functions were. The conference with Doebig and Bens was along the same lines and both men saw the point and agreed that it was quite a reasonable plan which had been submitted to them. They suggested that it might be a good thing to let these matters be dealt with through me because the cases which occurred with me were cases which were to be treated later.
I would subsequently be asked to attend that conference. I, myself--and I think it would have been the same with every human being--couldn’t imagine, or anyway, couldn’t imagine very well what was going to happen at that conference. That was the basis on which developments went along.
Q. What was Doebig’s attitude to Friedrich’s wishes?
A. I believe I have already answered that question. As usual, he was in favor of cooperation.
PRESIDING JUDGE BRAND: May I ask you a question. It wasn’t entirely clear what you meant in your testimony. You suggested that investigations on a lower level should take place before the higher level. Investigations of what--what kind of matters?
DEFENDANT ROTHAUG: Investigations is not the word I meant to say. I wanted to say that by negotiations, matters which concerned the administration of justice were to be settled on a lower level.
Q. What kind of matters--which concerned the administration of justice?
A. What we had in mind was attacks which within the sphere of the Party were made against the administration of justice. I can illustrate that by an example.
Q. It is not necessary now. No, I understood you to act under this suggestion as an intermediary. Was that your word?
A. That I was to become the intermediary?
Q. Yes, between what parties or what groups?
A. Between the SD and the administration of justice.
Q. Yes, and then you said since these matters are all matters to be dealt with by me afterwards, it was reasonable that you should be the intermediary. Did you refer to legal matters?
A. That concerned matters--cases which might be brought before me or which were already pending before me. Matters in which those agencies were interested for reasons of criminological developments, but they were not interested in the individual case as such, in its treatment, or in the decision.
Q. And what was the lower level where the matters were to be first discussed?
A. The main difficulties which arose and which gave cause to discuss this matter at all were made from up above--from a higher level. A report was made on some occurrence or other to the SD; the SD passed the matter on to Berlin; from there it was passed on as a rule without having been settled or even examined to the press where it caused a great deal of sensation.
Q. Was this lower level, to which you refer, the local representatives of the SD?
A. Yes, naturally.
PRESIDING JUDGE BRAND: Go ahead.
DR. KOESSL: Now, Witness, tell us please, what was to be prevented by the discussions, the report to the higher level; what was it--was it that things were to be clarified after the higher level had dealt with it?
DEFENDANT ROTHAUG: One cannot state all that in one reply in such a general way. With these questions it always depended on what the individual case was like; what the attending circumstances of the individual case was like; and it depended upon what the aims and object of the participants were. Without going into the matter of the individual case, it is impossible to give an objective answer.
Q. The witness Doebig said, “It was only a great deal later after I had left Nuernberg that I heard for certain that Rothaug worked in the SD.”[230] Later, Doebig stated that he remembered that the SD Leaders Friedrich and Elkar paid him a visit, but that he could not remember the subject which was discussed. Anyhow, he had never given an inference that the administration of justice would cooperate with the SD. (Tr. pp. 1865–1866.) What position did Doebig take?
A. I have already answered that question when I said that Doebig was altogether in favor of settling matters in that way.
Q. How often would Elkar call on you in the subsequent periods?
A. He said on Saturdays, and that makes it sound as if he had come every Saturday, but that is quite out of the question. He came on some Saturdays, but sometimes weeks passed or months until he came to see me again about some matter or other. As was the case with many other things that were organized within the sphere of the Party, they dragged on and finally nothing much was done.
Q. What did Elkar tell you during these discussions about the functions of the SD, regarding the state of the Party?
A. He told me, and I think that was probably right, that the SD as we saw it was an institution of the nature of an official agency; that is to say, it was an organization of the police type; its activities and functions can best be described as an agency that gathered the opinions of the people; one intended to find out what the people really thought on official measures taken by the government, that is to say what they thought about laws, about judgments, about other administrative measures, etc. Those reports were then to be evaluated and passed on the competent Supreme Reich Authorities to enable them in their governmental transactions and measures, to remain aware of the thoughts of the people. In all these reports therefore, what mattered was not to find out who the people were who were critical and undesirable, but on the contrary, the intention was to find out what people were really thinking; and therefore, it was undesirable and prohibited to prosecute in any way an individual who stated his opinion in this connection. That was roughly the scope of the functions of the SD.
Q. In the English transcript at page 2912, the witness Elkar mentioned the official character of the SD. I am showing you a book, and would ask you to tell the Tribunal what the title is.
A. The book is entitled Ministerial Gazette [Ministerialblatt]; it was issued by the Reich Minister of the Interior; it was published in 1938.
Q. Please turn to page 1906. At the right hand corner you will find a circular decree by the Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior, dated 11 November 1938. Please read out section 1 of that circular decree.
A. Under the heading police administration, it says, “Collaboration of the authorities of the administration with the SD was the subject of the Reichsfuehrer SS (SD) circular decree by the Reich Ministry of Interior, dated 11 November 1938.” Then, there is a file note. Then--“one: The SD of the Reichsfuehrer SS (SD), as information organization, intelligence organization for Party and State, has to work in particular in support of the security police and has to fulfill important duties. The SD thereby acts on the instructions of the State. That necessitates close understanding and cooperation between the SD and the authorities of the general and internal administration. In reply to inquiries by the SD, information has to be imparted therefore to the same extent as if inquiries had come from a government authority. The official agencies of the SD, in the same way, are under obligation to reply to inquiries of the general and internal administration.”
Q. Witness, what were the motives for which you met with Elkar and discussed matters with him?
A. The main cause was that he knew me from his former training period.
Q. You may continue.
A. I said Elkar knew me since the time when he was in training, because he was assigned to me. He was by nature a very faithful person, and at the time when he was not yet with the SD, I was connected with him by purely human relationships. That is how it came about that at that time, after he had taken up service with the SD and a connection with the administration of justice and the SD was sought, he came to me first for I was known to him; and that is how in the subsequent period the entire relationship was purely a matter of comradeship. This is shown best perhaps by the fact that one day Elkar informed me that he would probably be transferred to the RSHA in Berlin for further training. Thereupon, I told him that in that case I would also discontinue my activity because I would not start all over again with a new man.
Q. What descriptions did Elkar give you about the further handling of the SD reports in Berlin?
A. He said that the information which I gave him--which was usually an opinion on problems which were connected with the collection of comments from the people--he would incorporate into his reports. These reports in Berlin would then be divided according to whichever participating Reich agency was interested and put at the disposal of those offices.
Q. Did you have an insight into questions and tasks which were outside of the administration of justice?
A. I did not gain any insight into those questions.
Q. Did Elkar tell you anything about the activity of the SD Einsatzgruppen in the east?
A. No. I only found out about that now.
Q. Did Elkar speak to you about the so-called final solution of the Jewish problem by extermination, execution, or gassing?
A. No word was ever spoken about this. I do not believe that Elkar was informed about matters of that kind either.
Q. Did Elkar tell you about individual SD Fuehrers being entrusted with special tasks, as for instance, the feigned attack on the Gleiwitz radio station, or similar undertakings which were the subject of the IMT Trial?
A. Matters of that kind were not discussed among us. The examples you have cited became known to me only here in Nuernberg in the course of this trial.
Q. What was the basic line of your conversations with Elkar, or the basic topic?
A. As I have already stated, the conversations were mainly on problems which were raised by opinions which were gathered from the population. That then led to problems of a general nature, for example, the general development of wartime criminality in one field or another.
In general, that was the direction in which our conversations developed and that was also the aim of such conversations.
Q. Could everything be said in such conversations without restrictions?
A. I believe that that was the only possibility at that time in Germany where a person could say exactly what he was thinking; and the reason for that is because, in this connection in particular, only the truth was at stake for they were interested in finding out what the population was actually thinking in regard to certain events, measures, laws, speeches, judgments, etc.
Q. Do you know in what form these reports were forwarded?
A. That is not known to me; I never read such a report.
Q. According to Elkar’s testimony you directed your attention to the development of criminal and penal proceedings. (Tr. p. 2890.) What ideas did you represent?
A. I believe I have already stated my position on that question. I do not remember a great deal in detail regarding what was discussed at that time. One question, for example, which interested us and which demonstrates how we came to speak about these matters and what opinion we represented is the question which was frequently discussed in this trial, and that is the contact of the prosecution during the trial with the court because of the application for penalty. Opinions from circles of lawyers and judges and from the prosecution were gathered for this purpose at that time. I myself represented the opinion that this problem grew into a problem only because it was treated in a wrong manner on the part of the administration of justice. The entire question could be solved by a small remark in the “Deutsche Justiz,” namely, by pointing out that the law does not provide that a formal application has to be made, and therefore it would have been sufficient to instruct the prosecutors to refrain from a formal application for penalty and to be satisfied with adducing the evidence and then stating the reasons which spoke for and against the defendant. With that, the entire excitement and fuss which was caused by the formal application for penalty could have been avoided.
Q. What reason did you give for this suggestion?
A. The reason which I have just explained.
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Q. Elkar alleges that you had also talked about pending trials and had discussed also the facts as well as the legal situation and future judgment. (Tr. p. 2891.) Was the name of a defendant ever mentioned as long as trial was still pending?
A. The names of defendants never played any importance in these conversations. The manner of expression was general. The individual cases, as such, were of no importance at all and their outcome even less so. It is possible that in the most infrequent cases--as an example of a definite criminal deed, in order to demonstrate, for example, the method of the consequences of this crime and to use it in the discussions of general questions, that an individual case was mentioned, but not in a single case was it like this that Elkar ever was interested in a certain pending trial or even wanted to get information about the final outcome in advance; such an evaluation was not possible in practice at all for the decision could be given only on the basis of the trial after it was concluded. Thus, Elkar’s activity was not aimed at such a goal.
Q. By mentioning an individual case, did you ask for the opinion of the RSHA in order to find a basis for the political evaluation of the offense?
A. Never. I had no connections whatsoever to the RSHA. Moreover, such a method even in the Third Reich would have been an absolute impossibility, and it was never alleged that this occurred.
Q. Did you, in any individual case, receive an instruction from the RSHA or a recommendation to direct the trial in a certain direction under a certain point of view, or to pronounce a certain definite penalty?
A. This, too, was never alleged so far. Such a procedure, too, would have been an absolute impossibility. No office would have dared to suggest anything of that nature even.
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Q. We started with your relationships to the SD. On what formal basis were your relationships with the SD? Were you a member of the SD?
A. I was never a member of the SD; I don’t know either whether there was such a thing as a membership in the SD; or, whether the people were assigned to the SD from the SS. Only during this trial did I hear that there was such a thing as an actual membership in the SD. At that time I assumed that it was an institution of the nature of an official agency, the personnel for which was appointed by the SS. I never made any application for any membership in this institution; I never signed anything.
Q. Elkar says that in 1940 you had taken an oath as collaborator of the SD; that is in the English transcript at page 2896. Did you take an oath?
A. I can say this with absolute certainty, that I never took an oath in that connection. The possibility exists that it was called to my attention that matters which I found out in connection with such conversations were supposed to be kept secret. However, I do not have the slightest recollection of this either, so I cannot imagine that I was approached on this matter in a solemn ceremony. It is a fact, in any case--and this is why the people who worked for me also knew about these occurrences--that the matters which were discussed there, without exception, I believe, I had also discussed with them and among them. Thus, I had no thought of violating any secrets or any pledges of secrecy.
Q. What was the status called that you had with the SD?
A. In former times I never worried about that because for me it was not a question of practical importance as to what I would be designated as, since I had agreed to hold conversations of the type that I used to carry on with Elkar. Thus, in former times, there was no need to have some kind of a rank for that, or whatever you want to call it.
Q. Did you ever become a member of the SS?
A. I was never a member of the SS.
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b. New devices to change final court decisions--The “Extraordinary Objection” and the “Nullity Plea”
PARTIAL TRANSLATION OF NG-715 PROSECUTION EXHIBIT 112
EXTRACT FROM LAW, 16 SEPTEMBER 1939, AMENDING REGULATIONS OF GENERAL CRIMINAL PROCEDURE, MILITARY CRIMINAL PROCEDURE, AND THE PENAL CODE
1939 REICHSGESETZBLATT, PART 1, PAGE 1841
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