VI. Final Regulations (part 1 of 4)

VI. Final Regulations (part 1 of 4)

Article 40

Validity in the Protectorate

This decree is also valid for the German courts in the Protectorate of Bohemia and Moravia.

Berlin, 21 February 1940

The Plenipotentiary for the Administration of the Reich FRICK

PARTIAL TRANSLATION OF DOCUMENT NG-677 PROSECUTION EXHIBIT 188

EXTRACTS FROM AFFIDAVIT OF DR. ESCHER, GERMAN ATTORNEY,[234] CONCERNING THE USE OF THE NULLITY PLEA

Dr. Ernst Escher, Attorney Fuerth, 7 December 1946 Rudolf Breitscheidstrasse 8

Sworn Affidavit

As a result of questioning by the American prosecutors in the Nuernberg courthouse, I have the following declaration to make in connection with the questions set before me concerning the procedure of the so-called nullity plea by the Chief Reich Prosecutor:

1. Previous legal situation--It is true that the legal principle that a man cannot be tried twice for the same offense [ne bis in idem] is not clearly stated in the German Criminal Code, dated 22 March 1924, and since subjected to frequent editorial changes; this maxim, however, was repeatedly acknowledged in the so-called “motives” of that law. In all of the German legal terminology and literature, no doubt had ever occurred that an individual, once legally tried, could not be resummoned before a court for the same criminal act, without the introduction of additional evidence of proof. New proceedings against an accused who had been legally acquitted, could only be initiated in accordance with the rules concerning such a reconsideration of a once legally concluded trial (arts. 359 ff., in particular, art. 362 of the Criminal (Penal) Code).

The accused was therefore assured that, once he had been legally acquitted, he would not be summoned a second time before the court on the same charge.

These principles were never repealed in the Code of Criminal Procedure itself; they remained unaltered until the present, and the Criminal Code of 1946, issued by the [Allied] Control Council also incorporated them.

2. During the war, Hitler’s government, in a decree pertaining to the competence of the criminal and Special Courts and covering other regulations of criminal procedure, dated 21 February 1940 (Reichsgesetzblatt 1940, I, p. 405, in art. 5, pars. 34 to 37), created the procedure of the so-called nullity plea[235] by the Chief Reich Prosecutor and thereby annulled and destroyed this fundamental legal maxim. Within a year after a verdict became valid, according to this decree, the Chief Public Prosecutor at the Reich Supreme Court was empowered to use the nullity plea against the final sentences of the local courts of the criminal divisional courts and of the Special Courts if, due to an error in the application of the law to clearly established facts, the sentence could be regarded as unjust.

In a later decree, dated 13 August 1942, allowance was made for a further extension in the use of the nullity plea. Published in the Reichsgesetzblatt in 1942 (p. 508 ff.), this decree in article 7, paragraph 2, established the right of the Chief Public Prosecutor at the Reich Supreme Court to employ the nullity plea, if the decision due to an error in the application of the law was unjust, or if there were serious objections to the validity of the evidence on which the decision was based, or to the sentence itself.

By this decree, it became practically possible to employ the nullity plea against every final judgment and of summoning an accused man the second time before a criminal court despite the fact that his case had already been legally decided.

As is evident in the literature, and especially in the published decisions of the Reich Supreme Court, the nullity plea was not infrequently employed. I refer to the official collection of Reich Supreme Court decisions, volumes 74, 75, and 76 of the published decisions involving the nullity plea.

* * * * * * *

I have been asked how the nullity plea of the Chief Public Prosecutor at the Reich Supreme Court was obtained legally. In this connection, I am only able to state that, according to regular procedure, the chief of the local prosecution--thus in Nuernberg, the Chief Public Prosecutor at the district court of Nuernberg-Fuerth--Chief Public Prosecutor Schroeder in the cases with which I was concerned--would send the documents with an appended suggestion to use the nullity plea first to the attorney general at the court of appeal (during the last years, Bens) and from there to the Chief Public Prosecutor at the Reich Supreme Court in Leipzig.

According to the text of the law, the nullity plea could also be employed to the advantage of the condemned. In one case, I myself filed a nullity plea with the Chief Public Prosecutor at the Reich Supreme Court. I was, however, informed that there was no justification for the instigation of the nullity plea.

[Signed] DR. ERNST ESCHER Attorney

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS ERNST ESCHER[236]

CROSS-EXAMINATION

* * * * * * *

DR. SCHILF (counsel for defendants Klemm and Mettgenberg): Now I am going to refer to the factual contents of your affidavit. (NG-677, Pros. Ex. 188.[237]) This statement concerns itself exclusively with the problem of the nullity plea. Therefore, Witness, I will ask you whether you consider yourself a particular specialist on this problem and held yourself to be such an expert when, on 7 December 1946, you made that statement.

May I point out that the first part--I should like to say one half, the first half, is concerned with theoretical matters, that is to say, with the interpretation of the law. The remainder is concerned with facts. Furthermore, you refer to literature and also to decisions made by the Reich Supreme Court. May I ask you to give me your point of view?

WITNESS ESCHER: On no account can I say that I am an expert or that I have special knowledge of the problem of the nullity plea. We defense counsels, generally speaking, do not have much time to devote ourselves to scientific problems. As a rule we deal with problems only when they have been brought to us by our practical work. Concerning the theoretical aspect of the nullity plea, I have never in my practice studied it, in detail, but when the nullity plea, became topical, I examined the questions which a defense counsel has to investigate. When in December 1946 I was asked what I knew about the nullity plea, what I had to say about my knowledge of this matter, I mentioned the two cases which occurred in my practice. It seemed necessary to me, however, to give a brief introduction concerning the situation such as it was before the introduction of the nullity plea and such as I saw it after the introduction of the nullity plea. I read several decisions, but I would consider it conceit if I were to say that I possessed thorough knowledge of the problem of the nullity plea.

Q. Witness, in your practice you only came across two cases, isn’t that correct?

A. Yes.

Q. In spite of your statement, Dr. Escher, I have to discuss one theoretical question with you. In your introduction such as you characterized it just now, on page 2 under 2 of your affidavit, you have drawn a conclusion, that is a conclusion as to what the introduction of the nullity plea led to. You said, and I am going to quote literally: “The so-called nullity plea of the Oberreichsanwalt was created and thereby the basic legal principle, ne bis in idem, double jeopardy, was revoked and destroyed.” As you made such a far-reaching statement on that point, I would like to hear in brief as to what, at the time you deposited your affidavit, you understood by the legal principle ne bis in idem, double jeopardy. I noted you mentioned that principle twice. May I ask you to give a brief account to the Tribunal of your opinion as you held it at that time?

A. The principle of double jeopardy meant that a person on whom a legal verdict had been passed could not without new facts having emerged or without the condition of articles 359 and following of the Code of Penal Procedure applying, be retried by a court. Neither the prosecution nor the defendant after legal sentence had been passed could demand a new trial unless the conditions such as they are laid down in the law were fulfilled. That is, for example, perjury on the part of a witness, the finding of new documents or similar fundamental new aspects. By that principle the possibility of the nullity plea was eliminated. And that and not more is what I believe to have stated in my affidavit.

* * * * *

Q. Witness, concerning your opinion on the principle of double jeopardy, your view that that principle was eliminated by the nullity plea, will you maintain your opinion in the face of what I am going to read to you now? It is a paper by Oberreichsanwalt Retzer, Leipzig, published in Deutsche Justiz, volume 1941, No. 20, page 562, I quote:

“It is doubtful whether the nullity plea is possible if the violation of the law which occurred refers to a condition of the trial. It is undisputed in the case of a violation of the principle of double jeopardy. The Supreme Reich Court in a great number of cases revoked sentences where the principle of double jeopardy had been violated.”

That is the end of the quotation. To make it clearer, the Supreme Reich Court revoked these decisions by way of the nullity plea, and four cases are quoted and the file numbers are given. My question--now that I have read this to you--do you maintain your opinion?

A. May I say briefly the nullity plea could only be made by the Oberreichsanwalt, but not only against the defendant but also in favor of the defendant. It was, therefore, altogether possible that the Oberreichsanwalt, if he considered a verdict unjust, should use the nullity plea in favor of the defendant. Such a case does exist, even if through certain circumstances or errors a man is sentenced twice for the same crime by different courts, which happened occasionally because, for example, it wasn’t known in the case of a Nuernberg case that this man had already been sentenced in Berlin. When that was revealed, the Oberreichsanwalt naturally could make use of the nullity plea in favor of the defendant. Such cases evidently are discussed in the decisions which my colleague has just put to me. In those cases, the nullity plea was a blessing and worked in favor of the defendant, but in most cases, or at least in very many cases, the nullity plea was used without any new facts or conditions, according to article 359 by the Oberreichsanwalt against the defendant.

Q. Witness, the essence of what I put to you is this: You said, by the nullity plea, the principle of double jeopardy has been destroyed, and the other author says that the nullity plea was in fact to protect that principle. I wanted to ask you whether you maintain your opinion, and you have not answered that question as yet.

A. I am of the opinion that the question, the way it is put, contains a little misunderstanding insofar as Retzer deals only with one special case of the nullity plea where it was made in order to revoke decisions which had been made in violation of the principle of double jeopardy. Naturally, the principle of double jeopardy was not expressly eliminated by so many words, but the effect of the introduction of the nullity plea was that a man, on whom a legal sentence had been passed without new facts or circumstances having come to light, could be retried by a court. Sometimes it could operate in his favor, but in the majority of cases it went against his interest, in my experience, that is.

* * * * * * *

EXTRACT FROM THE TESTIMONY OF DEFENDANT ROTHAUG CONCERNING A CASE WHERE, AFTER A NULLITY PLEA, THE REICH SUPREME COURT CHANGED A PRISON SENTENCE TO THE DEATH SENTENCE WITHOUT REFERRING THE CASE BACK TO THE SPECIAL COURT OF FIRST INSTANCE[238]

DIRECT EXAMINATION

* * * * * * *

DEFENDANT ROTHAUG: * * * In order to elucidate how severe, for example, the Reich Supreme Court, in particular, generally judged the situation in those cases [sabotage cases during wartime] is demonstrated by the case in the list of the death sentences of the Special Court Nuernberg in which the notation is made--Sentence of the Reich Supreme Court. I believe it was in 1941. The following were the facts:

A Pole had given a civilian pair of pants to a Serbian PW in order to enable him to flee into his home country. In fact, the Serbian prisoner did escape. The Pole confessed; however, he denied decisively that he had intended that the Serb should join the Tito forces; that he only did it out of compassion. Therefore, we sentenced him to a penal camp, 3 years in a penal camp. Thereupon, a nullity plea was filed, the Reich Supreme Court changed the sentence, did not even refer it back to us, but quickly sentenced the Pole to death by stating that, in their opinion the facts which we had already determined ourselves, as I have just told you in a few brief sentences now, were absolutely sufficient to pronounce the death sentence.

And I still recall that the important point of view was--and I remember it, because I was interested--that it could not matter in wartime what concrete intentions he had but that it was absolutely sufficient that the Pole could have counted upon the possibility that the Serb would join Tito’s forces.

* * * * * * *

2. FURTHER DEVELOPMENTS PRINCIPALLY DURING THE PERIOD WHEN THE DEFENDANT SCHLEGELBERGER WAS ACTING REICH MINISTER OF JUSTICE (JANUARY 1941–AUGUST 1942)

a. The Influence of Hitler and Others upon the Administration of Justice

PARTIAL TRANSLATION OF DOCUMENT NG-152 PROSECUTION EXHIBIT 63

LETTERS FROM DEFENDANT SCHLEGELBERGER TO HITLER AND LAMMERS, MARCH 1941 AND MARCH 1942, CONCERNING JUDICIAL SENTENCES DISPLEASING HITLER AND PROPOSING PARTICIPATION IN CIVIL PROCEEDINGS BY PUBLIC PROSECUTORS

[Stamp]

Reich Chancellery 5197 B-4 April 1941 The Acting Minister for Justice

Berlin, 10 March 1941

My Fuehrer,

In continuing the work of the deceased Reich Minister Dr. Guertner, I will do my utmost to install the administration of justice with all its branches more and more firmly within the National Socialist State. In the course of the large number of verdicts pronounced daily there are still judgments which do not entirely comply with the necessary requirements. In such cases, I will take the necessary steps. In order that such judgments be dealt with rapidly you, my Fuehrer, have created the nullity plea and the extraordinary objection for criminal cases. For civil proceedings, the right of application by the Chief Reich Prosecutor at the Reich Supreme Court for the resumption of the procedure, could serve the same purpose as provided in an ordinance drafted by myself. So as to avoid all such wrong verdicts, the public prosecutor’s office is called on, in this draft, to participate in civil proceedings, and should stress the right of the national community against the individual interests of the opposing parties.

Apart from this it is desirable to educate the judges more and more to a correct way of thinking, conscious of the national destiny. For this purpose it would be invaluable if you, my Fuehrer, could let me know if a verdict does not meet with your approval. The judges are responsible to you, my Fuehrer; they are conscious of this responsibility and are firmly resolved to discharge their duties accordingly.

I feel that it is my duty to you, my Fuehrer, to bring it to the attention of the judges if a decision does not conform to the opinion of the State leadership.

Heil, my Fuehrer! [Signed] DR. SCHLEGELBERGER

[Stamp] 3868 B [Handwritten] 1508/1

The Acting Reich Minister of Justice

Berlin, 10 March 1941 [Initial] L. [Lammers] [Handwritten] 11 March 2 enclosures

Dear Reich Minister Dr. Lammers:

In connection with our telephone conversation of today, I am sending you a copy of my letter addressed to the Fuehrer.[239] I consider it of great importance that the Fuehrer receive this letter as soon as possible. It has come to my knowledge that just recently a number of sentences passed have roused the strong disapproval of the Fuehrer. I do not know exactly which sentences are concerned, but I have ascertained for myself that now and then sentences are pronounced which are quite untenable. In such cases I shall act with the utmost energy and decision. It is, however, of vital importance for the administration of justice and its standing in the Reich, that the head of the Ministry of Justice should know to which sentences the Fuehrer objects; for nothing is more dangerous than the creation of a so-called atmosphere, of the causes of which the Minister of Justice is unaware. That is the reason for my request to the Fuehrer in the last paragraph of my letter. I repeat, this attempt to establish a direct contact between the Fuehrer and the Minister of Justice must be made at once if irreparable damage is to be avoided.

In explanation of the first paragraph of my letter, I enclose the mentioned draft of the decree, which is to be provisionally discussed here on the 17th of this month with the Reich Chancellery. Basic approval has already been received from the Reich Finance Minister, the Reich Minister of the Interior and the Reich Minister of Economics. Participation by the prosecuting authorities in civil cases was already known in Roman law. Nowadays, in the recently published Italian code of civil procedure, this participation has been extended, following the general line of my draft, because, as is indicated in the report to the king, a purely platonic participation is no longer sufficient.

The deceased Reich Minister Dr. Guertner, during the last days he was still in office, advised me to examine the question of whether an extraordinary objection should be created for civil as in criminal cases. I have adopted the right of the Chief Reich Prosecutor to ask for the reopening of a case but deliberately with such limitations, that by human standards no offense can be created thereby; this special reopening will only be put into practice in so-called secular cases.

With best regards and Heil Hitler!

Yours very truly [Signed] DR. SCHLEGELBERGER

Enclosure to the Letter of 10 March 1941 from Defendant Schlegelberger to Lammers

Draft of a Decree Concerning Participation by the Public Prosecutor in Legal Proceedings of matters of Civil Law

dated....................1941

The Ministerial Council for the Defense of the Reich issues the following decree with force of law:

Article 1

(1) The public prosecutor is authorized to participate in civil law proceedings in order to plead the circumstances which have to be considered from the point of view of the national community and for the final judgment. For this purpose, the public prosecutor may be present at all proceedings and may give his opinion regarding the judgment which is to be passed. He may submit facts and evidence insofar as this does not affect the rights of either party with regard to the disagreement.

(2) Regulations which already provide for participation by the public prosecutor in matters of civil law, are not affected.

Article 2

In matters of civil law where a valid final judgment has been passed, the Chief Reich Prosecutor at the Reich Supreme Court may, within a year after the decision has become valid, file an application for reopening the proceedings if there are serious legal and factual objections against the justness of the decision, and if he considers new proceedings and a new judgment to be necessary because of the special importance of the judgment to the national community.

Article 3

(1) The high senate for civil matters at the Reich Supreme Court makes a decision by writ, on application.

(2) The participants in the previous proceeding may be heard.

Article 4

(1) If the Reich Supreme Court grants the application of the Chief Reich Prosecutor, it will again take up--as far as this is necessary--the previous proceedings and the judgments passed, and will order new proceedings and a new judgment.

(2) The Reich Supreme Court determines whether the new proceedings and judgment will be dealt with by the court previously concerned with the case, or will be replaced by another court of the same standing, or whether it will be dealt with by a senate of the Reich Supreme Court.

Article 5

(1) The new proceedings will be considered a continuation of the previous proceedings.

(2) The court is bound by the legal and factual judgment on which the Reich Supreme Court based its writ.

(3) No court fees will be charged for the new proceedings and judgment.

Article 6

The president or a member of the high senate for civil matters, appointed by him, may issue temporary orders regarding the execution of judgments concerned in the application of the Chief Reich Prosecutor at the Reich Supreme Court.

Article 7

The Reich Minister of Justice is authorized to issue supplementary regulations and regulations for the implementation of this decree.

Article 8

In the Protectorate of Bohemia and Moravia, this decree is only valid for proceedings before German courts.

The Acting Reich Minister of Justice

Berlin, 24 March 1942

My Fuehrer:

When I took office, I asked you to inform me whether, if a sentence did not meet with your approval, you would allow me to correct it. I ask permission to consider the telephone call made on Sunday, 22 March, concerning the case of Schlitt at Wilhelmshaven as granting my request, and I express my sincerest thanks for this.

I entirely agree with your demand, my Fuehrer, for very severe punishment for criminals [Verbrechertum], and I assure you that the judges have honest will to comply with your demand. Constant instructions in order to strengthen them in this intention and the increase of threats of legal punishment have resulted in a considerable decrease of the number of sentences to which objections have been made from this point of view, out of a total annual number of more than 300,000.

I shall continue to try to reduce this number still more, and if necessary, I shall not shrink from personal measures as before.

In the criminal case against the building technician Ewald Schlitt from Wilhelmshaven, I have applied through the Chief Reich Prosecutor for an extraordinary objection against the sentence at the special senate of the Reich Supreme Court. I will inform you of the verdict of the special senate immediately it has been given.

Heil my Fuehrer! [Signed] DR. SCHLEGELBERGER

To the Fuehrer and Chancellor of the Greater German Reich, Adolf Hitler

TRANSLATION OF DOCUMENT NG-280 PROSECUTION EXHIBIT 70

CORRESPONDENCE BETWEEN THE REICH CHANCELLERY AND DEFENDANT SCHLEGELBERGER, MARCH AND APRIL 1941, AFTER HITLER HAD EXPRESSED DISPLEASURE AT A SENTENCE GRANTING EXTENUATING CIRCUMSTANCES TO A POLE

Berlin, 28 March 1941

Pertaining to Reich Chancellery 4729 Subject: Sentences against Poles

1. Memorandum:

According to information from Reichsleiter Bormann a sentence of the Lueneburg District Court (apparently in a rape trial) against a Polish farm hand has been submitted to the Fuehrer, in which the defendant is granted extenuating circumstances because it was felt that he did not have the same restraint in his relations to female co-workers as German farm hands have. The Fuehrer rejected this view of the court as totally misleading. Under Secretary Schlegelberger is to take the necessary steps to preclude a repetition of this view.

[Initial] F [FICKER]

The Reich Minister and Chief of the Reich Chancellery

Berlin, 29 March 1941 Dispatched 30 March

Reich Chancellery 4729 B [Handwritten] See Reich Chancellery 5021 B

2. To: Under Secretary Dr. Schlegelberger Reich Ministry of Justice

Dear Mr. Schlegelberger:

The sentence of the Lueneburg District Court of 21 October 1940 on the Polish farm hand Wolay Wojcieck from Rolfsen has been transmitted to the Fuehrer. In it the court states:

“The defendant is granted extenuating circumstances in respect to the crime. The court considered in the defendant’s favor that, as a Pole, he does not have the same restraint in his relations with female co-workers as the German farm hand would have.”

The Fuehrer rejected the view of the court as totally misleading. The Fuehrer urges you to take immediately the steps necessary to preclude repetition in other courts of the view of the Lueneburg court. I should be obliged if you would inform me what steps you have taken in the matter.

Heil Hitler!

Yours very truly, (Name of the Reich Minister) [Handwritten] with final copy

3. To Reichsleiter Bormann

Dear Mr. Bormann:

I transmitted the instruction of the Fuehrer as contained in your letter of 26 March 1941, concerning the consideration of extenuating circumstances in crimes committed by Poles, to Under Secretary Dr. Schlegelberger with the request for information about what steps he has taken in the matter.

Heil Hitler!

Yours very truly, (Name of the Reich Minister)

[Initial] L (with original copy)

4. [to be submitted again] on 28 April [Initials] Ri 29/3 F 28/3

Reich Chancellery 5021 B--2 April 1941 Kri-Fi Record RH 4729 B 1b, 392 B

The Acting Reich Minister of Justice

Berlin, 1 April 1941

[Initial] /L. [LAMMERS] 1. Office: 2 April [Stamp] Enclose previous records 2. Miss Frobenius:

See Reich Chancellery 5194

[Initial] L. [Lammers] 2 April

Dear Reich Minister:

Upon receipt of your kind letter of 29 March 1941 I immediately consulted the files of the criminal case against the Polish farm hand Wolay Wojcieck. In the statement of the court the passage quoted in your letter is indeed to be found. By means of a circular letter with the order for immediate transmittal to all judges and public prosecutors I brought the mistake in the viewpoint, as it is shown in this passage of the court’s statement, to the attention of the administration of penal justice [Strafjustiz] without delay. I consider it impossible that such an incident will occur again.

I also had the responsible president of the Appellate court and the judges concerned ordered to report here tomorrow with the intention of changing responsibilities at the Lueneburg district court with a view to excluding the judges who cooperated in issuing the sentence from further employment in criminal jurisdiction.

Heil Hitler!

Yours very truly, [Signed] SCHLEGELBERGER

1. Reported to the Fuehrer. Also reported on the letter of Under Secretary Schlegelberger of 3 April 1941.

2. Office--The above letter is to be filed.

3. To be submitted to me again.

Berlin, 3 April 1941

[Handwritten] 1. Schl. has been provisionally informed by phone.

2. [Illegible] above Count 2

3. Min. Counsellor Kritzinger [illegible] L 4 April

[Stamp] Reich Chancellery 5914 B--4 April 1941 [Handwritten] submitted with File Reich Chancellery 5021 B

The Acting Reich Minister of Justice

Berlin, 3 April 1941 [Initial] L [Lammers] 3 April

Your Excellency, Herr Reich Minister:

In addition to my letter of 1 April 1941 I beg to inform you that the presiding judge of the penal chamber which passed the sentence in the case against the Polish farm hand Wolay Wojcieck is no longer presiding and that the two associate judges have been replaced by other associate judges.

Heil Hitler!

Yours very truly, [Signed] SCHLEGELBERGER

[Handwritten]

Reich Chancellery 5021, 5194 B

1. No further steps will be taken.

2. The Reich Minister of Justice is going to transmit the [Illegible].

3. To be submitted again on 24 April.

[Initials] KR [Kritzinger] 10 April

See Reich Chancellery 5929 B Justice 11

TRANSLATION OF DOCUMENT NG-611 PROSECUTION EXHIBIT 64

CORRESPONDENCE BETWEEN BORMANN, LAMMERS, AND DEFENDANT SCHLEGELBERGER, 25, 29 MAY AND 28 JUNE 1941, CONCERNING A SUGGESTION OF HITLER TO CONVERT A PRISON SENTENCE INTO A DEATH SENTENCE

[Handwritten] Reich Chancellery 7593 B Reich Leader Martin Bormann To Reich Minister Dr. Lammers, Berchtesgaden Reich Chancellery

Fuehrer Headquarters, 25 May 1941 Bo/Si. [Initial] L [Lammers] 26 May 1 enclosure

Personal By messenger

[Handwritten]

1. [stamp] Miss Frobenius: (Reich Chancellery)

2. To Ministerialrat Ficker

[Initial] L [LAMMERS] 26 May [stamp] See document of 29 May

Dear Mr. Lammers:

In yesterday’s edition of the “Voelkischer Beobachter” the Fuehrer read the enclosed report according to which the Special Court of Munich in a trial in Augsburg sentenced the 19-year-old Anton Scharff to 10 years’ hard labor for theft under cover of the black-out; the public prosecutor had asked for the death sentence.

In the Fuehrer’s opinion this sentence is entirely incomprehensible. The Fuehrer believes that in such cases capital punishment must definitely be given if crimes committed under cover of the black-out are to be kept to a minimum from the outset. The Fuehrer has also emphasized time and again that the criminals should receive severe punishment considering the heroic fighting of our soldiers.

The Fuehrer requests you to inform Under Secretary Schlegelberger again of his point of view.

Heil Hitler!

Yours very truly, [Signed] M. BORMANN [Typed] (M. BORMANN)

1 enclosure [Handwritten] War 12

[Enclosure]

JUST MISSED THE SCAFFOLD

10 Years’ Hard Labor for a Pickpocket--Death penalty demanded

Augsburg, 23 May

The 19-year-old Anton Scharff was tried for theft under cover of the black-out before the Special Court of Munich in session in Augsburg. On the evening of 18 April in the Jesuitengasse in Augsburg, the perpetrator snatched the handbag from a young woman as she was going to unlock the door of her house. Upon the woman’s screams for help, the perpetrator was pursued and caught by passers-by. He was sentenced to 10 years’ penitentiary and corresponding loss of civil rights.

The public prosecutor had asked for the death penalty.

The Reich Minister and Chief of the Reich Chancellery Reich Chancellery 7593 B

Fuehrer Headquarters, 29 May 1941

1. To Under Secretary Dr. Schlegelberger

[Handwritten] Charged with the management of the affairs of the Reich Minister of Justice.

Subject: Crimes committed under cover of the black-out Enclose copy of enclosure of Reich Chancellery 7593 B

Dear Mr. Schlegelberger:

The Fuehrer took from the Munich edition of the “Voelkischer Beobachter” dated 24 May, a report, a copy of which is enclosed, according to which the Special Court of Munich in a session in Augsburg sentenced the 19-year-old Anton Scharff to 10 years’ penitentiary for theft under cover of the black-out; the public prosecutor had asked for the death penalty. The Fuehrer considers this sentence entirely incomprehensible. The Fuehrer believes that in such cases the death penalty must definitely be given, if crimes committed under cover of the black-out are to be kept down to a minimum from the outset. The Fuehrer has also emphasized time and again that the criminals should receive especially severe punishment considering the heroic fighting of our soldiers.

The Fuehrer requested that I reiterate his point of view to you.

Heil Hitler!

Yours very truly, (Name of the Reich Minister)

2. To Reich Leader Martin Bormann

In reply to the letter of 25 May 1941--Bo/Si-- Enclose copy of 1

Dear Herr Bormann:

Enclosed please find a copy of my letter of today to Under Secretary Dr. Schlegelberger for your information.

Heil Hitler!

Yours very truly, (Name of the Reich Minister)

3. After dispatch to Ministerial Director Kritzinger for his information.

[Initial] KR [Kritzinger] 2 June

4. To be filed.

(Name of the Reich Minister) [Initial] L [Lammers] [Initial] F [Ficker] 27 May

Berlin, 28 June 1941

Reich Chancellery 9687 B/29 June 1941 The Acting Reich Minister of Justice III secret 23 1548/41

[Initial] KR [Kritzinger] 20 June [Initial] F [Ficker] 30 June

To: The Reich Minister and Chief of the Reich Chancellery Berlin W 8 Voss Strasse 6

Submitted to the Reich Minister for his information.

[Initial] KR [Kritzinger]

1 July

Subject: Crimes committed under cover of the black-out Reference: Letter Reich Chancellery 7593 B dated 29 May 1940.[240] [Handwritten]: To be filed. [Initial] L [Lammers]

Dear Reich Minister Dr. Lammers:

I am very much obliged to the Fuehrer for having complied with my request to take the sentence of the Special Court in Munich against Anton Scharff as an opportunity to have me informed about his views as to the proper expiation for crimes committed under cover of the black-out. I shall again inform the presidents of the district courts of appeal and the attorneys general of this view of the Fuehrer as soon as possible.

The short notice in the Munich edition of the “Voelkischer Beobachter” dated 24 May, which was enclosed in your letter of 29 May, does not make the sentence comprehensible in my opinion either. In the judgment the following facts are stated. Scharff, who was not quite 19 years old when he committed the crime, is the only child of a painter’s family and comes from a very poor home. On account of an infection of the lungs his father is unable to work as a painter and his only occupation is in the office of the Nazi Party Public Welfare Organization in Pfaffenhofen on the Ilm. The parents have barely the necessaries of life.

Since the middle of 1937 the defendant was thrown on his own resources and gained his living without parental help and away from home on poorly paid jobs, first by agricultural work and recently as an unskilled worker with a firm in Augsburg. His conduct and efficiency were satisfactory. As the defendant, whose wages amounted to 50 pfennig per hour, could not make both ends meet and contracted harassing debts, he absented himself from work several times in order to get better earnings through odd jobs, such as helping in the loading of wagons at the railroad station and also in this way to obtain dismissal from his employers who would not discharge him.

Around Easter 1941 he left his job after having spent his last wages. He reckoned with his early drafting into armed forces, since he had volunteered for an antitank unit and, with consent of his father, had enlisted for 12 years in order to bring his financial troubles to a final stop. This time he did not find work at the railroad station. Thus, it happened that he soon found himself without means, and hit upon the idea of getting money by stealing a handbag. After having watched the district in question, he thought that on 18 April 1941 at about 2200 hours he had found a fitting opportunity and snatched the handbag from under the arm of a young woman whom he had followed for some time when she was about to unlock the door of her house. When the woman, a war widow, called for help and people approached, the defendant fled and threw away the handbag but was arrested a short time later without offering resistance.

On the basis of these facts which help to elucidate the peculiarity of the offense and the character of the perpetrator, the court was induced to pass a mild sentence. Since no violence could be proved, the defendant was not convicted of robbery, but only of theft. As extenuating circumstances, the clean conduct sheet, satisfactory work, his youth and immaturity, as well as the hard life, full of deprivations, led by defendant, were put to his account by the court and for these reasons the death penalty was dispensed with.

I ask you to assure the Fuehrer that my unwavering attention is directed to the safeguarding of the protection of the people against public enemies through the severe punishment of criminals.

Heil Hitler!

Yours very truly, [Signed] DR. SCHLEGELBERGER

TRANSLATION OF DOCUMENT NG-287 PROSECUTION EXHIBIT 88

CORRESPONDENCE BETWEEN LAMMERS, SCHAUB, AND DEFENDANT SCHLEGELBERGER, OCTOBER 1941, CONCERNING TRANSFER OF MARKUS LUFTGAS TO THE GESTAPO FOR EXECUTION[241]

The Reich Minister and Chief of the Reich Chancellery Rk/ 15506 B

Fuehrer Headquarters 25 October 1941 [Handwritten] 393A

1. To: Under Secretary, Professor Dr. Dr. h.c. Schlegelberger, charged with the management of the affairs of the Reich Minister of Justice

Berlin W 8 Wilhelmstrasse 65 [Handwritten] Refer to newspaper

Dear Mr. Schlegelberger:

The enclosed newspaper clipping about the sentencing of the Jew Markus Luftgas to imprisonment for 2½ years by the Special Court of Bielitz has been submitted to the Fuehrer.[242] The Fuehrer wishes Luftgas to be sentenced to death. May I ask you urgently to instigate what is necessary and to notify me about the measures taken so that I can inform the Fuehrer.

Heil Hitler!

Yours very truly, (Signature of the Reich Minister)

[Handwritten] Justice 11

2. To: SS-Gruppenfuehrer Julius Schaub[243]

Fuehrer Headquarters

Subject: Markus Luftgas

Dear Mr. Schaub:

After receiving your letter dated 22 October 1941 I got into touch with the Reich Minister of Justice and asked him to instigate the necessary measures.

Heil Hitler!

Yours very truly, (Signature of the Reich Minister)

3. Copy of the newspaper clipping to be filed.

4. After dispatch--For the attention of Ministerial Director Kritzinger for information.

5. After 1 month.

(Signature of the Reich Minister) [Initial] L [Lammers]

Copy [Enclosure] to Rk. 15 506 B

“Berlin Illustrated Night Edition” No: 246, Monday 20 October 1941

Jew hoarded 65,000 eggs and allowed 15,000 of them to spoil

By wire from our reporter

Breslau, 20 October--The 74-year-old Jew Markus Luftgas from Kalwarja removed a huge number of eggs from the controlled economy and had to answer for it at the Special Court in Bielitz. The Jew had hidden 65,000 eggs in containers and in a lime-pit, 15,000 of which had already spoiled. The defendant was sentenced to 2½ years’ imprisonment as a just punishment for a crime against the war economy regulations.

Berlin, 29 October 1941

The Acting Reich Minister of Justice III g-14 3454/41

To the Reich Minister and Chief of the Reich Chancellery in Berlin W 8, Vosst. 6

[Initial] L [Lammers]

[Handwritten] 3/11

1. Submitted to the Minister for his information

2. To be filed.

[Initial] KR [Kritzinger]

Subject: Case against the Jew Luftglass (not Luftgas) Sg 12 Js 340/.41 of the Chief Public Prosecutor in Katowice --Rk. 15506 B dated 25 October 1941.

Dear Reich Minister Dr. Lammers:

In accordance with the order of the Fuehrer and Reich Chancellor dated 24 October 1941, transmitted to me by the Minister of State and Chief of the Presidential Chancellery of the Fuehrer, I have handed over to the Gestapo for the purpose of execution, the Jew Markus Luftglass who was sentenced to 2½ years’ imprisonment by the Special Court in Katowice.

Heil Hitler!

Very truly yours, [Signed] SCHLEGELBERGER

TRANSLATION OF DOCUMENT NG-508[244] PROSECUTION EXHIBIT 72

CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO PRESIDENTS OF DISTRICT COURTS OF APPEAL, 15 DECEMBER 1941, QUOTING FROM A SPEECH BY HITLER AND STATING THAT JUDGES AND PUBLIC PROSECUTORS MUST KEEP HITLER’S WORDS IN MIND

The Acting Reich Minister of Justice 33/2-IIa2 3024/41

Berlin W 8, 15 December 1941 Wilhelmstrasse 65 Tel. 11 00 44 Long distance: 11 65 16

To: The Presidents of the District Courts of Appeal and the Attorneys General

An important factor in keeping up the morale of the German people on the home front is the prompt and purposeful administration of penal justice.

The Fuehrer was referring to this when, in his speech before the German Reichstag on 11 December 1941, he said:

“The memory of those who died for the existence and greatness of the German people even before our time makes us realize the extent of our duties.

“He who tries to escape this duty, however, has no right to live among us as a member of the German national community.

“We shall be equally unrelenting in our fight for the preservation of our people as we were in our fight for power.

“At a time when thousands of our best men, fathers and sons of our people, are being killed in battle, nobody shall hope to live who attempts to depreciate at home the sacrifice which is made at the front. No matter under which disguise the attempt is made to disturb this German front, to undermine the resistance power of our people, to weaken the authority of the regime or to sabotage production on the home front; the culprit shall die! But there is this difference--while death brings highest honor to the soldier at the front, the other who depreciates this sacrifice shall die in shame.”

Every judge and every public prosecutor while doing his duty must keep these words of the Fuehrer in mind. This will enable him to fulfill his task in such a manner as is demanded by the Fuehrer.

I beg to give this outline immediately to all judges concerned with the administration of penal justice and to all public prosecutors, and to bring it to the notice of all judges who will in future be concerned with the administration of penal justice.

[typed] Signed: DR. SCHLEGELBERGER Certified: [Signed] MASSMUNDT First Secretary at the Ministerial Chancellery

[Stamp]

Reich Ministry of Justice, Office of the Minister

TRANSLATION OF DOCUMENT NG-445 PROSECUTION EXHIBIT 73

LETTER FROM THE PRESIDENT OF THE BERLIN COURT OF APPEAL TO DEFENDANT SCHLEGELBERGER, 3 JANUARY 1942, COMMENTING UPON “INFLUENCE EXERTED UPON THE JUDGES”

The President of the Berlin Court of Appeal File number--3130.--A. 522/36

Berlin W 35, 3 January 1942 Eltzholzstrasse 32 Phone No. 27 00 13

To: Under Secretary Dr. Schlegelberger in Berlin W 8, Wilhelmstrasse 65

Subject: Report about the general situation in the districts. Reich Ordinance of 9 December 1935--Ia 11012.

1. When I paid a visit to the criminal court a few months ago in order to attend proceedings of the Special Court, I heard from the representative of the president of the district court in Moabit that “the Reich Ministry of Justice was expecting two death sentences” in the criminal case which was on the docket. My investigations produced the fact that the competent public prosecutor had informed the president of the Special Court prior to the session that he had received a directive from the Reich Ministry of Justice to ask for a death sentence in two cases. The president of the Special Court had informed me the representative of the president of the district court hereof. I consider it undesirable that officials of the public prosecutor’s office pass on prior to the proceedings such directives given them by a higher authority to the president of the court, as it has been done here. For I am afraid that judges, including those sitting in the Special Court, are in some cases much more easily inclined to pronounce a given penalty, especially the death penalty, if they hear that “the Reich Ministry of Justice” has given a directive to the public prosecutor’s office to ask for such a sentence or that “according to the views of the Reich Ministry of Justice” this penalty is necessary. I consider such a communication, given to the court by the public prosecutor, as undesirable, also because the “opinion of the Reich Ministry of Justice” conveyed by the public prosecutor, might possibly, in an individual case, but represent the personal views of a minor official of the Reich Ministry of Justice, about which he had informed the competent official of the public prosecutor’s office.

2. The president of the Berlin district court, according to what he reported to me recently, in the course of a visit to a criminal trial in Moabit observed the following:

The trial was set for 0900 hours. Punctually at 0900 the president of the district court had taken a seat on the witnesses’ bench. The judges did not show up at first. Instead, loud voices could be heard from the conference room behind the courtroom. The president of the district court got the impression of a heated debate in which one voice could be heard above the others. According to what the president of the district court could observe, the defendant’s attention was aroused, and he listened in the direction of the conference room. No actual words could be understood by the president of the district court, but he thought it quite possible that the defendant who was very much nearer to the conference room could hear details. Therefore, the president sent a marshal to the conference room with the order to inform the court about that. Shortly afterward the public prosecutor appeared first in the courtroom, then the members of the court. They all came through the same door which leads directly to the courtroom from the conference room. After the beginning of the proceedings the president of the district court soon could undoubtedly recognize that the extraordinarily loud voice he had heard before had been the voice of the public prosecutor’s representative for that trial.

3. Recently I learned from an official complaint [Dienstaufsichtbeschwerde] that immediately prior to the session the president of a Special Court had conferred with the public prosecutor. Thereby the punctual beginning of the session was prevented, and the final results were that all other people involved in the trial had to wait unnecessarily for the beginning of the session. The president of the district court told the judge that if such talks seemed necessary they should be timed in such a way that the punctual beginning of the session would not be delayed thereby.

4. It has been reported to me that repeatedly, even after the beginning of the session, especially after the end of the producing of evidence and prior to the beginning of the pleadings, the public prosecutor’s representative repeatedly got in touch with members of the court in the conference room, during an intermission in the proceedings. In these talks, as I have been told, the question of guilt, but above all the sentence, had been discussed.

5. I have been informed confidentially that a Gau office for legal affairs [Gaurechtsamt] has conveyed the following information to the Reich Office for Legal Affairs of the NSDAP:

“According to a confidential instruction of the Reich Ministry of Justice, details of which I do not know, the public prosecutors have been requested to contact the judges about the sentence to be asked for before the pleadings take place. This request has caused extraordinary surprise, especially among lawyers. The pleadings of the defense counsel have practically become a mere formality. Prior to the pleadings of the defense counsel the court and the public prosecutor have already agreed upon the penalty. In practice, the court in almost every case always agrees to the penalty asked by the Chief Public Prosecutor.

“Naturally, this does not only strike the defense counsel, but gradually also the population.

“In this connection, a change must take place immediately. If a conference between the public prosecutor and the court concerning the degree of the penalty is considered necessary at all, at least it can be asked that the defense counsel, too, be present at these talks and be permitted to clearly state his point of view.”

It is my opinion that, as soon as the trial has begun, any contacts between the public prosecutor and members of the court are undesirable, because, as the events discussed above prove, misunderstandings are provoked thereby.

The public prosecutor’s getting in touch with the court, as requested in the decree of 27 May 1939--4200. IIIa-4-758, and as it was also suggested in the concluding speech of the late Reich Minister of Justice at the conference held in the Reich Ministry of Justice on 24 October 1939 (condensed report, pp. 50 and 51), therefore, will have to be limited to the time before the beginning of the trial. It seems practical to have it take place already the day before the trial or even earlier. At any rate I do not think it desirable that the contacts are made immediately before the beginning of the trial and that, in addition, they happen in the conference room of the court, because then occurrences such as I have described under 2 and 3 of this report cannot always be prevented. I consider it an illicit contact when the latter takes place after the end of the producing of evidence or, even more, after the pleadings have been concluded. Therefore, the president of the district court in Berlin, upon my request, has conferred with the attorney general of the district court. The latter has instructed the public prosecutors within his area of jurisdiction to get in touch with the president of the court--as far as this is necessary--already the day before the trial or still earlier, at any rate, however, to refrain from making contacts after the beginning of the trial. The presidents of the courts have been notified by the president of the district court accordingly, and have been instructed to refrain under all circumstances from any getting in contact in the conference room immediately prior to the beginning of the session. The prevention or limitation of discrepancies between the penalty demanded by the public prosecution and the sentence passed in court, which was the purpose of the decree of 27 May 1939 and of the detailed arguments of the late Reich Minister of Justice, should be safeguarded by a timely and comprehensive contact prior to the trial.

Moreover, and as stated above, I consider it as undesirable in the interest of the administration of justice, and in order to remove any fears concerning influence exerted upon the judges, that officials of the public prosecutor’s office communicate “the opinion of the Reich Ministry of Justice” in the case on hand, or any orders which may have been issued to them concerning the penalties to be asked, to the court outside of the proceedings.

In view of the general importance of the matter, I thought it advisable to report about it.

[Typed] Signed: HOELSCHER

Certified.

[Signed] R. OTTILIE

[Seal] Berlin Court of Appeal Clerk

PARTIAL TRANSLATION OF DOCUMENT NG-752 PROSECUTION EXHIBIT 24

EXTRACT FROM HITLER’S SPEECH TO THE GERMAN REICHSTAG, 26 APRIL 1942, REQUESTING CONFIRMATION OF THE RIGHT TO KEEP EVERYONE AT HIS DUTY AND EXPRESSING HIS INTENTION TO INTERVENE WHERE JUDGES “DO NOT UNDERSTAND THE DEMAND OF THE HOUR”[245]

* * * * * * *

I do expect one thing--that the nation give me the right to intervene immediately and to take action myself wherever a person has failed to render qualified obedience and service in the performance of the greater task, a matter of to be or not to be. The front and the homeland, the transport system, administration and justice must obey only one idea, that of achieving victory. In times like the present, no one can insist on his established rights, but everyone must know that today there are only duties.

I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position without regard for his person or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty.[246] And that just because among millions of decent people, there are only a few exceptions. For, today, one single common duty takes precedence over all rights, even the rights of these exceptions. It does not interest me therefore whether, in the present emergency, leave, etc., can be granted or not to an official or employee in every individual case, and leave which cannot be granted should not be saved up for a later date.

If there is anybody who is entitled to ask for leave, it would be first of all only our front soldiers and secondly the men and women workers who supply the front.

For months I have been unable to grant leave to the eastern front, and nobody at home, whatever his office, should dare therefore to insist on his so-called “established right” to leave. I myself am justified to refuse because since 1933 I have not taken 3 days’ leave--a fact which is probably not known to these individuals.

Furthermore, I expect the German legal profession to understand that the nation is not here for them but that they are here for the nation, that is, the world which includes Germany must not decline in order that formal law may live, but Germany must live irrespective of the contradictions of formal justice. To quote one example, I fail to understand why a criminal who married in 1937, ill-treated his wife until she became insane and finally died as a result of the last act of ill-treatment, should be sentenced to 5 years in a penitentiary at a moment when tens of thousands of honorable German men must die to save the homeland from annihilation at the hands of bolshevism, that is, to protect their wives and children.

From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.

The achievements and sacrifices of the German soldier, the German worker, the farmer, our women in town and country, that is, the millions of our middle classes, imbued only with the idea of victory, demand the corresponding attitude on the part of those who themselves have been called by the people to protect their interests. In times like the present there can be no sacrosanct individual with established rights but all of us are merely obedient servants of the nation.

Deputies!

Men of the Reichstag!

A tremendous winter battle is behind us. The hour will strike when the fronts will come out of their rigidity, and then history will decide who was victorious in this winter--the aggressor who insanely sacrificed his masses or the defender who simply held his position. During the past few weeks I have read continuously about the violent threats of our enemies. You know that my duty is far too sacred to me and that I take it far too seriously ever to be careless.

Whatever man can do to forestall dangers, I have done and shall continue to do in future.

PARTIAL TRANSLATION OF DOCUMENT NG-102 PROSECUTION EXHIBIT 75

FOUR COMMUNICATIONS, MAY-JUNE 1942, CONCERNING THE AUTHORITY FOR THE CONFIRMATION OF SENTENCES[247]

1. A Letter from Schlegelberger to Hitler, Enclosing a Proposed Decree for Hitler’s Signature

The Acting Reich Minister of Justice

Berlin, 6 May 1942

My Fuehrer!

Repeatedly, and finally in the session of the Greater German Reichstag on the 26 April of this year, you expressed that the front and the homeland require the unrelenting punishment of criminals, and that the judgments of the courts which do not meet these requirements cannot be tolerated.[248]

In order to accelerate the setting aside of such decisions, you, my Fuehrer, created the extraordinary objection to the Reich Supreme Court.[249] With the help of this legal resource the judgment against Schlitt, which you mentioned in the session of the Reichstag, was quashed within 10 days by sentence of the Reich Supreme Court. Schlitt was sentenced to death and executed at once. I believe, however, that the desired aim could be achieved even better and quicker if the Reich Minister of Justice, by means of an authority of confirmation, were given decisive influence on the award of punishment.

If you, my Fuehrer, could decide, by signing the attached draft of a decree, to transfer to the Reich Minister of Justice this right of confirmation for cases in which you do not want to decide yourself, the following would be achieved thereby:

The entire administration of penal justice be placed under the supreme control of the Reich Minister of Justice as far as the award of punishment is concerned. He could then achieve an increase of insufficient punishment in every case.

The Reich Minister of Justice would pronounce the nonconfirmation either himself or, more probably, in view of the approximately 300,000 penal sentences per annum, through the presidents of the courts of appeal.

In case of a nonconfirmation, the president of the court of appeal would himself fix the punishment or bring about another judicial decision on the measure of punishment.

The Reich Minister of Justice could, as soon as it is obvious that a criminal court cannot master a case, transfer the matter to another court.

It is guaranteed that the Reich Minister of Justice will immediately be informed about all important criminal matters. The attorneys general who, according to the draft, would have to propose the nonconfirmation, are under his direction. I can absolutely rely on the insight and willingness to serve of the 35 presidents of the courts of appeal. Should they ever lack the necessary severity, I myself would pronounce the nonconfirmation.

Therefore I believe that, if you, my Fuehrer, will agree to the draft, I could assume the responsibility that the punishment awards of the courts will no longer lead to complaints.

Heil, my Fuehrer!

[Signed] DR. SCHLEGELBERGER

[Draft]

Decree by the Fuehrer on the authority for Confirmation in Criminal cases of 1942.

I

As far as I shall not decide myself, in my capacity as holder of the supreme judicial power, I charge the Reich Minister of Justice to regulate within his jurisdiction the confirmation of sentences passed by special courts and other penal courts. In this connection the following is ordered:

II

I authorize the Reich Minister of Justice to pass on to the presidents of the courts of appeal the right to refuse confirmation to the amount of penalty following a valid judgment upon application of the general prosecutor in as much as such nonconfirmation of the sentence is not pronounced by the Reich Minister of Justice himself.

III

In case the president of the court of appeal denies confirmation of the sentence, he will return the case to the same or another court for another award of penalty. In case it was wrongly denied or disregarded that the culprit was a people’s parasite [Volksschaedling], brutal criminal, dangerous professional criminal or a dangerous immoral criminal, he is also entitled to quash the sentence for award of a just penalty and to pass the case to the same or another court for a new trial and judgment.

IV

Upon demand of the general prosecutor, the president of the court of appeal, by calling in two judges as advisers, can also commute the sentence in free procedure himself.

V

The court to which the president of the court of appeal has passed on the case will, with the aid of the prosecutor, decide by writ or judgment in a proceeding that will be freely determined by itself.

VI

In case of urgent reasons dictated by public interest, the Reich Minister of Justice can pass a pending trial on to another court within his jurisdiction.

VII

The Reich Minister of Justice, in accordance with the Reich Minister and chief of the Reich Chancellery and the head of the Party Chancellery, is entitled to issue instructions for the execution of this decree.

1942 THE FUEHRER

The Reich Minister and Chief of the Reich Chancellery

2. File Memo by Lammers Concerning Discussion with Hitler’s Subject Decree on Authority for Confirmation of Sentences

To RK. [files] 6832 u. 6833 B.

Fuehrer Headquarters, 11 May 1942

Subject: Draft of a Fuehrer decree on the authority for confirmation in criminal cases

1. Miss Buege: (a) The enclosed letter[250] of the Reich Minister of Justice, dated 6 May 1942, addressed to me and also the enclosed notes of the Under Secretary Dr. Schlegelberger are to be registered under Rk., (b) the original copy of the Fuehrer decree is to be placed into a separate file.

[Handwritten] carried out.

[Initial] BG 11 May

2. I have presented the matter to the Fuehrer on 7th instant and recommended the suggested decree. It seems to me indeed the only and safe way to master insufficient punishment in legal sentences.

The Fuehrer agreed to the decree in principle but could not decide on signing it; moreover, suggested whether it was not appropriate to soon fill in the position of Reich Minister of Justice and to leave the reform in question as well as the other reforms also to the new Reich Minister of Justice.

3. Under Secretary Dr. Schlegelberger, who visited me here, has been briefly informed by me on 8th instant about the state of the affair. He told me that he had already interested the Reich Marshal [Goering] also in the draft of the decree, and that he [the Reich Marshal] had promised him to speak in favor of the decree.

Under Secretary Dr. Schlegelberger further stressed the fact that the decree would naturally lose all its value for him if the confirmatory authority would pass to party offices (Party Chancellery, Gauleiter). To that I replied that one could perhaps consider to listen to the party before using the confirmatory authority. With regard to this question on 9th instant, Under Secretary Schlegelberger presented the notes of the same day to me. (Rk. 6833 B). He promised me also to send more material to the case in hand.

4. Office--Please enclose files for the filling of the position of Reich Minister of Justice!

5. To UStS. Kritzinger with the request for consultation conferences for further adaption of this matter. (Support of chief of Party Chancellery, contact with the Reich Marshal.)

[Handwritten] Rk. 1527 H 41 Mg. Rk. 553 Bg. 41

3. Letter by Bormann Opposing Schlegelberger’s Proposed Decree and File Note by Lammers Concerning It

[Stamp] Reich Chancellery 8457 B 13 June 1942 Fi [Handwritten] Submitted with Reich Chancellery 7964 B 13 June

NATIONAL SOCIALIST GERMAN WORKERS PARTY

PARTY CHANCELLERY

The Chief of the Party Chancellery

Fuehrer Headquarters 10 June 1942

[Stamp] See affair of 10 June--III C--Ku. [Stamp] Submitted through adjutant [Handwritten] Duly submitted to the Reich Minister 13 June Settled R 15 June

[Initial] F [Ficker] [Initial] L [Lammers]

To: The Reich Minister and Chief of the Reich Chancellery Dr. H. H. Lammers Berlin W 8 6 Voss-Strasse

Subject: Draft of a Fuehrer decree concerning the authority for confirmation [of sentences] in criminal cases

Reference: Your letter dated 21 May 1942--Reich Chancellery 7010 B.

Dear Dr. Lammers:

During the session of the Reichstag held on 26 April 1942, the Fuehrer requested the Greater German Reichstag expressly in consideration of the exigencies of the war, for the authorization to take all measures he deemed expedient without being bound by the existing legal provisions.[251] The Fuehrer’s choice of [expressing his desire] this way shows the importance he imputes to sovereign acts of the State [Hoheitsakten]. It is not proper to limit pronounced sentences--which have a certain effect on legal affairs--in their guiding effect on legal and factual circumstances by questioning their irrevocability through further unpredictable interventions, after all lawfully provided legal resources have been exhausted. This applies to a special degree to the judgments of courts which, in every case, represent a considerable intervention into the personal conditions of the people involved and, moreover, have a certain effect on the entire nation, be it as an intimidation or as a satisfaction with the strong, order-establishing hand of the State. Moreover, the arrangement of the life of the people requires that the further development of legal conditions starts from certain fixed basic conditions which cannot be shaken from any side, and that the security of the law be guaranteed. If the Fuehrer expressly requested the right of direct intervention over all formal legal provisions, then this emphasizes particularly the importance of the modification of a judicial sentence.

The proposal made by the Reich Minister of Justice, however, is likely to obliterate the impression of this authorization, and to impair its importance. However, this would be an inevitable consequence of the transfer of the correcting authority to the presidents of the court of appeal and of the strong decentralization originating thereby. The proposed decree of the Fuehrer would be nothing more than another effort to correct insufficient sentences as has been repeatedly undertaken before by the Reich Justice Ministry. In addition to the analogy provision of article 2 of the Reich criminal (penal) Code, I am especially thinking of the extraordinary objection, the nullity plea, the participation of the public prosecutor in civil proceedings, the public parasite decree, the decree against desperate criminals, and the provisions concerning dangerous professional criminals and immoral criminals.

[handwritten] Justiz 3

Despite all these provisions we were not in the position to silence the complaints on judgment inadequate in consideration of the exigencies of war. We observed again and again how these provisions were applied as mildly as possible, and not at all with the required readiness for responsibility and strictness which actually would have been possible.

It is my conviction that the proposed decree of the Fuehrer will have the same fate as the measures whose execution remained with the administration of justice.

It must be expected that the presidents of the courts of appeal will shrink from an intervention into the independence of the judge, of which they still have the old conception. They will bring the judge concerned on to the right path, not so much guided by their own conviction, but in order to get him to pass a sentence which will satisfy the threatening criticism. Even less, however, can one expect, for the same reason, more rigorously enhanced measures against an obstinate or incapable judge. Therefore, we must not expect the elucidating and guiding decisions hoped for in the material and personal field, the value of which lies first of all in the educational influence on other judges and on the public, but only measures or indications limited to individual cases.

In a formal respect, the following misgiving should be stressed: With the wording provided under paragraphs I and II of the draft, the Fuehrer literally deprives himself to a vast extent of the right of correcting sentences. In all cases which are brought to the Fuehrer’s knowledge only after the president of the court of appeal or the Minister of Justice has decided on the confirmation of a sentence, this decision was taken “by order of the Fuehrer.” Even with regard to the authorization by the Reichstag there would not be any room for the Fuehrer’s decision, since by the proposed decree he would have renounced the authorization legally assigned to him, in favor of the Minister of Justice or even of the president of the court of appeal.

Because of these considerations I am not able to agree with the draft of a Fuehrer decree as suggested by Under Secretary Schlegelberger.

In view of the importance which I assign to these fundamental objections, I have refrained for the time being from showing the additional objections I have to the structure of the decree and its individual provisions.

Heil Hitler!

Yours very truly

[Signed] M. BORMANN [Typed] (M. BORMANN)

1. During yesterday’s conference with Under Secretary Schlegelberger I informed him of the basic ideas in Reichsleiter Bormann’s letter dated 10 June 1942. Schlegelberger would appreciate a copy of this letter. I do not think that there are objections to this. However, I wish to answer Reichsleiter Bormann’s letter and perhaps make my reply available to State Secretary Schlegelberger.

[Initial] KR [Kritzinger] 26 June

2. a. UStS. Kritzinger b. RKabR. Dr. Ficker

With request for conference

[Initial] F [Ficker] 26 June

Berlin, 25 June 42

[Initial] L [Lammers]

4. File Memo Noting Postponement of Proposals for Judicial Reform Until a New Reich Minister of Justice is Appointed

Following report to the Reich Minister [Lammers]

To RK. 8457 B Berlin, 26 June 1942

Subject: Confirmation of sentences in criminal cases

1. The Reich Minister does not consider to pass on the letter written by Reichsleiter Bormann to State Secretary Schlegelberger and intends to discuss the matter orally with Reichsleiter Bormann on occasion.

2. Submitted to the Reich Minister according to instructions. Reichsleiter Bormann’s objections are aiming essentially at two points:

[Initial] L [Lammers]

a. He does not expect much from a delegation to presidents of courts of appeal as these would not interfere with sufficient energy;

b. He fears the Minister of Justice’s proposal would flatten the impression made by the Fuehrer’s Reichstag speech.[252]

As to the doubts of a more editorial nature expressed at the end of the letter, it should be possible to remove them by another formulation, which will also be necessary for other reasons. This reediting might be taken in hand as soon as an agreement exists on the fundamental points.

3. In file Bormann.

[Initial] F [Ficker] Turn over

[Reverse side]

1. Discussion with Reichsleiter Bormann took place.

We agreed that further handling of all proposals regarding justice reform must be reserved to the new Minister of Justice.

2. a. To UStS. Kritzinger. [Initial] KR [Kritzinger] August 3 b. To RKabR. Dr. Ficker. [Initial] F [Ficker] July 31

Who are requested to take notice.

3. To files.

Fuehrer Headquarters, 28 July 42

[Initial] L [Lammers]

TRANSLATION OF DOCUMENT NG-387 PROSECUTION EXHIBIT 400

REPORT FROM DEFENDANT ROTHENBERGER TO DEFENDANT SCHLEGELBERGER, 4 JULY 1941, CONCERNING CRITICISM OF JUDGES BY THE SS PERIODICAL, THE DRAFT LAW ON “ASOCIALS”, AND THE LACK OF SUITABLE CANDIDATES FOR JUDGESHIPS

The President of the Hanseatic Court of Appeal 3130 E-1a/3/ (3x)

Hamburg 36, 4 July 1941

Registered

To: Under Secretary Dr. Schlegelberger Reich Ministry of Justice, Berlin

Subject: Report on the general situation

Reference: Your No. Ia 11012/35

I

The article “Mental Black-out” in the “Schwarzes Korps” of 17 April 1941 had a disastrous effect on the morale of the judges; in the last paragraph of this article the actions of the judges are compared with the conduct of a people’s parasite, who takes advantage of the black-out to commit his crimes. If the judges read the correction in the bulletin of the Reich chamber of attorneys of 20 May 1941 and then see there is no vindication of the judges to the public, a further increase of the displeasure among the German judges can scarcely be imagined.

II

I was confidentially informed of the draft of the law of April 1941 concerning the treatment of asocial elements.[253] According to this law the custody of these persons is exclusively in the hands of the Reich Security Main Office, and so the sterilization insofar as the decision of this office as to whether a person is asocial has been declared binding on the eugenics court. I consider so extensive a disregarding of a judicial authority very dubious, and I propose that the local court consisting perhaps of a judge, a physician, and a representative of the police should decide whether an asocial element should be kept in lifelong custody or should be sterilized.

III

Day before yesterday I undertook a careful review of the courts of Bremen, and I learned anew that there is in Bremen a complete lack of suitable younger men to become judges. One of the reasons for this lack was the fact that the customary manner in which lawyers had hitherto applied for the judicial career has been made impossible because only up to 4 years of their activity as attorneys may be included in their service age for purposes of calculating salaries. As the Finance Minister has agreed, for the annexed eastern territories, three-quarters of the period of service as an attorney may be added to the service age for purposes of calculating salaries. I propose that this provision shall also be issued for Bremen, because of the special circumstances. In view of the whole development of the judicial situation in Bremen, I should consider it very regrettable if the Bremen lawyers were deprived of the opportunity of becoming judges.

[Signed] ROTHENBERGER

TRANSLATION OF DOCUMENT NG-395 PROSECUTION EXHIBIT 74

REPORT FROM THE PRESIDENT OF THE COURT OF APPEAL IN HAMM, 7 JULY 1942, CONCERNING THE ALARM AMONG JUDGES CAUSED BY HITLER’S REICHSTAG SPEECH OF 26 APRIL 1942, AND CERTAIN ACTIVITIES OF THE GESTAPO AND THE NAZI PARTY AFFECTING LEGAL MATTERS

The President of the Court of Appeal File No. 3130 I

To: The Reich Minister of Justice, Berlin W 8

Hamm (Westphalia), 7 July 1942 Telephone 1780-1786

Subject: General situation, Decree of 9 December 1935--Ia 110/2

Enclosures: 2 copies of the foregoing report. 3 copies of a report by the senior judge of the local court [at] Haltern, of 22 June 1942.

1. The Fuehrer’s speech at the meeting of the Reichstag on 26 April 1942 has, as far as the administration of justice is concerned, caused alarm among the judges of my district. Uncertainty in the administration of justice was threatening, since the Fuehrer’s reproaches--except in the Oldenburg case, particulars of which were, however, not given either--were held in general terms, and the question on what reasons the Fuehrer based his reproaches could not be answered. As soon as possible, I called together the judges of the court of appeal and informed them, and through the presidents of the district courts, the judges of their courts, and of the local courts that I, too, did not know the reasons for the Fuehrer’s reproaches, but that it was the duty of all of us to examine ourselves earnestly as to the extent to which he was to blame; the judges were to continue to do their duty and were to hold themselves responsible to the Fuehrer and to their own conscience; the sentences passed by the courts of this district have always been severe, except for some cases, and this standard should be kept up in the future. It has been reported to me that my words have had a calming effect; the administration of justice in this district continues to proceed along the proper lines, and according to my observations the standards of sentences have remained the same.

Among the population, the Fuehrer’s critical remarks about the administration of justice have given rise to spitefulness as well as to sympathy for the profession of the judges. At the moment the matter is hardly talked about, but it has not been forgotten. Above all, it is painful for the judges that the number of persons is increasing who do not believe that the judges pass unbiased sentences. In my opinion, endeavors must be made to restore the confidence of the people in the unprejudiced administration of justice. At any rate all things have to be avoided which could further that impression. I have asked the attorney general to take measures to prevent the sentence demanded by the prosecution from leaking out previously. It is quite natural that if it becomes known before the trial that the prosecutor will demand the death sentence with the approval of the Ministry of Justice, it will easily be believed that the judges are prejudiced.

According to my observations, information about the sentence which the prosecutor will propose with the approval of the Reich Ministry of Justice, is disturbing to the judges, even if mentioned only in the course of conversation, which is understandable on account of the authority of the Ministry of Justice and the position of the judges. Even old, experienced judges find their unprejudiced state of mind upset. But according to my observations, the judges are absolutely ready to accept general directives and to follow them in the administration of justice. Therefore, I think it highly desirable that the directives which are issued at the conferences of the presidents of the courts of appeal in the Reich Ministry of Justice as well as those given some days ago at the meeting of the attorneys general in the Reich Ministry of Justice should be submitted in writing to the presidents of the courts of appeal for the information of the judges. I think this will greatly assist the administration of justice.

2. The number of death sentences passed within the area of this court of appeal shows the following development. There were--

1940 27 death sentences. 1941 52 death sentences. 1942 (first 6 months) 45 death sentences.

The increase is due to wartime conditions and to the extension of the sphere of the death sentence by the law of 4 September 1941. Of the death sentences passed this year, 6 were passed for offenses against war economy, 10 for sexual offenses, 8 for crimes of violence, and 20 for theft.

On an average, 5 to 6 weeks elapse between the pronouncing of the sentence and the execution.

3. Since last May, police officials have appeared frequently in the criminal court in order to report to their superior office about the proceedings. The president of the district court at Dortmund has reported the following cases to me:

“(1) In the middle of May 1942, a habitual criminal was tried before the criminal court and was sentenced to death. A Kriminalsecretaer [detective] of the local criminal police attended the trial as an observer. He told the president himself, and expressly pointed out during the trial, that the Reich criminal police office had instructed him by teletype to attend. I heard that this criminal police official telephoned the prosecuting attorney before the trial and told him that he could imagine why he had been sent. The official had a conversation with the prosecutor during the deliberation of the court. During this conversation he declared that the police would have no reason to take action if an order for security detention would be made. He indicated that his presence was connected with the speech of the Fuehrer. I have neither spoken to the prosecutor nor have I had any reason to ask for a written statement. For the president who informed me vouches for the truth.

“(2) At the end of May, a trial was held before the criminal court against another criminal who was condemned to death. An official of the criminal police was summoned as a witness. Before the opening of the trial this official submitted to the court a letter from the Reich criminal police office, in which the local police authorities were requested to inform that office of the result of the trial--especially whether the demand for the death penalty, which was to be expected, had been complied with--and of the mitigating circumstances mentioned in the court’s findings in the event that a punishment other than the death penalty be awarded. Unfortunately, the president failed to take note of the exact contents of the letter. The official attended the proceedings after having been interrogated in the witness box.

“(3) At another trial held before the criminal court, at which the death sentence had been demanded but was not passed, a criminal police officer who had been summoned as a witness took the court’s findings down on a sheet of paper.

“(4) An SS member in uniform, holding the rank of a sergeant, attended a trial before the Special Court in which, among other persons, the wife of a Landrat was involved. He asked for permission to be present at the hearing and said that he was coming from Kassel on behalf of a police or security authority.

“(5) An official of intermediate rank of the local secret State police office participated as observer at another out-of-town trial of the Special Court lasting several days. No further details are known.

“(6) A detective from Bochum participated as witness at the trial of a juvenile perpetrator by the Special Court in Bochum. He compared the penalty imposed by the Special Court with another penalty--a term of imprisonment for many years--allegedly imposed the day before by the penal chamber at Bochum upon a juvenile perpetrator (because of poisoning?). On this occasion he remarked, with regard to the sentence handed down by the penal chamber, that the police had but to examine whether there was a motive, in order to interfere. This remark was made after the trial.”

4. As the attorney general has already reported to the Reich Ministry of Justice, the Secret State Police recently did not commit two civilian workers from the Ukraine who had shot a forest keeper in the Dortmund district court area to the court for prosecution, although the court had issued a warrant for arrest and the Special Court was prepared for an immediate conviction. They were hanged later on by the secret State Police. Furthermore, it was reported to me by the local court at Haltern that on 19 June 1942 a Polish laborer was hanged in its district by the police because he was said to have had sexual intercourse with a German woman. I enclose a copy of the report dated 29 June 1942. If the rumors are true that the Fuehrer has transferred capital jurisdiction to the police to this extent, it would be desirable to inform the judges and public prosecutors of this arrangement through official channels, as it is assumed that the police are engaged in unauthorized and unlawful activity. Publications in the daily newspapers give the impression that these were executions of sentences which had been legally imposed.

5. The office of racial policy [Rassenpolitische Amt] of the NSDAP issued a treatise on “National Socialistic policy with regard to foreigners” for official use by the Party of which I received confidential information. It contains regulations for marriages between Germans and members of other nations which are of importance with regard to the exemptions of foreigners from the marriage clearance certificates which are subject to the approval of the presidents of the courts of appeal. I propose to ask the office of racial policy to submit this treatise to all presidents of the courts of appeal. Applications for exemptions from marriage clearance certificates have assumed large proportions within my district. The procedure which I have adopted is in accordance with the principles of the treatise “policy with regard to foreigners.”

6. The district of this court of appeal has been very disturbed by air-raid alarms at night during recent months, until about two weeks ago. Air raids occur only occasionally now, keeping within moderate limits. In a number of places the Wehrmacht has started employing male inhabitants to replace the antiaircraft personnel. Older age groups have been trained for this purpose in daily courses from 1900 till 2200 hours. 15 officials and employees of the court of appeal have been detailed for this.

[Signed] SCHNEIDER

TRANSLATION OF DOCUMENT NG-417 PROSECUTION EXHIBIT 23

SUMMARY BY DR. CROHNE OF THE REICH MINISTRY OF JUSTICE CONCERNING GOEBBELS’ SPEECH TO THE MEMBERS OF THE PEOPLE’S COURT, 22 JULY 1942

_Report on the Speech of Reich Minister Dr. Goebbels before the Members of the People’s Court on 22 July 1942_

Reich Minister Dr. Goebbels stated at the outset that he had been asked by President Thierack to address the members of the highest German court of justice. He had gladly complied with this request. What he had to say had a special political aspect owing to the Fuehrer’s approval of his comments, the draft of which he had submitted to the Fuehrer.

The civil servants of the administration of justice had, owing to the nature of their work, always been subject to public criticism. Also today decisions of the courts were criticized and called alien to the spirit of the German people. One must not reply to the reproach that justice had failed by protesting that always only certain cases of wrong decisions had been singled out and the great number of the good and correct judgments had been disregarded. We are dealing here with a principle, i.e., of a wrong attitude of many judges who could not redeem themselves from their old ways of thinking. The one-sided teaching at the universities is to be blamed for it to a considerable extent and also the fact that the judge lived secluded in his professional surroundings and knew too little of life itself. Decisions alien to the spirit of the German people had, however, very detrimental effects especially during wartime. All must be done to remedy the situation before it is too late for the administration of justice. No professional men except the judges had heretofore had the guaranty of being irremovable. Even generals could be removed. A powerful state could not renounce the right to remove officers unsuitable for their office because of inaptness or other reasons. This had to apply to the judge as well. The idea of the irremovable judges he went on to say, originated in an alien intellectual world, hostile to the German people.

The Minister then referred to individual judgments that nowadays were unbearable. He cited in the first instance the case of the Jew Leo Sklarek. (In the Minister’s speech stated by error is the case of “Barmat.”) He could not understand that this notorious Jewish profiteer, who after his emigration to Prague had been a spy, had only been sentenced to 8 years’ penitentiary (the judgment of the People’s Court of justice of 16 April 1942 was delivered for having incited to commit high treason, based on paragraph 92 of the Penal Code). The judgment which the court of Eichstaedt had delivered, in the case of a man killed in action in the East having been insulted, was also untenable. A woman upon receipt of the news of his death who had uttered, “Thank God,” had been acquitted by reason of impossible justification. The Minister also referred to Moelder’s letter.

While making his decisions the judge had to proceed less from the law than from the basic idea that the offender was to be eliminated from the community. During a war, it was not so much a matter of whether a judgment was just or unjust but only whether the decision was expedient. The State must ward off its internal foes in the most efficient way and wipe them out entirely. The idea that the judge must be convinced of the defendant’s guilt must be discarded completely. The purpose of the administration of the law was not in the first place retaliation or even improvement but maintenance of the State. One must not proceed from the law, but from the resolution that the man must be wiped out. The criminal must know beforehand that he will lose his head, should he assault the foundations of the State. These drastic measures must not be left to offices outside of justice but are the duty of justice. The big sacrifices of life which must be made by the best part of the people during the war give us a special reason to treat the offender with all ruthlessness. We must bear in mind that during the winter 1941–1942 every criminal had better billets in the prisons than 3½ million German soldiers. Today we have an entirely different conception of certain offenses which in normal times would not have been considered serious at all, but are now regarded as deserving death penalty; (theft during an air-raid alarm, robbery of handbags during black-out hours, and heavy penalties in cases of listening to foreign wireless stations this action being mental self-mutilation). Justice ridiculed itself by placarding summons to missing persons prior to their being pronounced dead, as everybody knew the missing person in the East or even in any enemy’s country could not report at all.

In this connection the Minister went on to speak about the Jewish problem. He went on to say that if still more than 40,000 Jews whom we consider enemies of the State could freely go about in Berlin, this was solely due to the lack of sufficient means of transportation. Otherwise the Jews would have been in the East long ago. The officers of justice must recognize their political task also while attending to the Jews. To feel sorry for them would be a blunder. It was an untenable situation that still today a Jew could protest against the charge of a president of the police who was an old Party member and a high SS leader. The Jew should not be granted any legal remedy at all nor any right of protest.

In his final comments the Minister pointed out again that the State must apply all means to ward off its foes at home and abroad. During a war it was therefore necessary that the idea of the expedient decision took the first place in justice. The people had to be possessed with the will of absolute self-maintenance. He recalled the words which the Fuehrer had said on 30 January 1933 to him on their way from the “Kaiserhof” to the Chancellery of the Reich upon entering the chancellery, “Nobody will ever get me out of here alive.”[254]

After this speech President Thierack expressed his thanks to the Minister for his fundamental comments and said that the Minister had greatly assisted him once before and asked him to repeat his inspiring and directing instructions also in future.

[Typed] [Signed] DR. CROHNE 23 July

TRANSLATION OF DOCUMENT NG-071 PROSECUTION EXHIBIT 98

SECRET REPORT OF THE CHIEF OF THE SECURITY POLICE AND SD, 3 SEPTEMBER 1942, CONCERNING “THE CONTROL OF PENAL JURISDICTION” AND THE REACTIONS OF JUDGES THERETO

5 September 1942

[Stamp] Reich Chancellery

The Chief of the Security Police and of the SD Office III

Berlin SW 11, 3 September 1942 Prinz-Albrechtstrasse 8

[Stamp] Secret!

Personal--Submit immediately

Reports from the Reich No. 314

1. To be secretly submitted to the attention of the Reich Minister.

[Initial] L [Lammers] 10 September

2. Circulation-- Cabinet Counsellor Dr. [illegible] Cabinet Counsellor v. Stutterheim Cabinet Counsellor Dr. Ficker

3. To be filed.

Berlin, 5 September 1942

This report is strictly for the addressee personally and contains news material transmitted unreviewed in order to retain its character of fresh news.

ADMINISTRATION AND LAW

Reports on the Control of Penal Jurisdiction

Under the impression made by the Fuehrer’s Reichstag speech of 26 April 1942 and by the general criticism of penal jurisdiction, the former leadership of the Reich Ministry of Justice[255] had, according to additional clauses already previously existent, been persuaded to reinforce the so-called control of penal jurisdiction. This control consisted in an extensive participation of the Ministry and of the supervising judicial officials, and presidents of the district courts of appeal and of the district courts in the sentencing-activity of the individual criminal judge on the principle that, especially in criminal cases with a political implication, the judge must receive assistance when pronouncing a sentence. Actually, it involved then a substantial extension of the already existing consultative obligations of the public prosecutor to the Ministry and, on the other hand, the introduction of a consultative obligation in the relations of the courts to the Ministry as well. According to numerous reports from the whole territory of the Reich, these measures have met with an extremely dissentient reception among juridical circles. The complete break with the hitherto prevailing conception of judicial independence which the control of penal jurisdiction means, is said to have been, to a certain extent, very unfavorably commented upon within the judiciary. In certain cases, this is even said to have led to outspoken expressions of opinion against the National Socialist State which allegedly wished to suppress judicial independence in order to surrender justice to a right of control by political offices. The origin of this attitude on the part of certain judges in this respect is always the conventional conception of judicial independence according to which the judge was exclusively subordinated to the written law and therefore did not need to follow any directives even of the most general character, that may be issued by the administration of justice with reference to any precise line of conduct in jurisdiction.

Politically enlightened judges have likewise, according to the reports, viewed the control of jurisdiction with misgivings. In this, they have indeed not so much perceived a danger to judicial independence, for it was clear to them that its implication up to now, namely, exclusive subordination of the judge to the law, has been deeply altered to suit the National Socialist juridical philosophy, as in the fact that the obligations to the National Socialist ideology must have precedence over the obligations to the law if jurisdiction was not to be in opposition to the political objectives of the nation’s leadership. Since the execution of law in the National Socialist State has important political tasks to fulfill, a certain influence on the judges must be made possible in the form of instruction on important political viewpoints which the individual judge cannot grasp outright by himself.

As reported, however, these judges have likewise given an unfavorable reception to the method of control of penal jurisdiction, for it amounts only to an attempt with inadequate means to solve from a wrongly selected principle the very problem posed to the administration of jurisdiction, namely the uniform political and ideological adjustment of the judge.

The intention of the administration of justice to gain influence on legal jurisdiction through the channel of the Ministry and the presidents of the district courts of appeal and of the district courts was therefore doomed to failure. The indispensable prerequisite for the possible success of such a gain of influence would have been that the officials exercising the control base their action on a unified political principle. As shown by experience, however, this has by no means been the case.

On the whole, the objective pursued by the leaders, who have been at the head of the Reich Ministry of Justice so far, in introducing the control of jurisdiction in order to reduce the far from negligible number of wrong sentences, can only be reached under certain conditions. Indeed certain sources of error have been removed with great difficulty. Without active handling of the basic problem of the political and ideological adjustment of the judiciary itself, a real improvement [Gesundung] of the execution of law cannot be expected in the long run.

The following example extracted from a series of similar cases is characteristic of the situation created by the introduction of the control of jurisdiction.

Roaming about at night at his place of domicile for several months, a Polish civilian workman stole from gardens and dwelling places money, numerous articles of underwear and clothing, as well as other articles of daily utility. As the competent special court established, he had carried this out under cover of the black-out.

In line with provisions, introducing reporting as a duty, the president of the competent district court of appeal had brought the case by telephone to the knowledge of the Reich Ministry of Justice. In its reply to the telephone message the Ministry advised the following day that the death penalty would probably not be deemed necessary for the Pole. That in any case the public prosecutor would receive explicit instruction before opening of the court hearing as to the penalty which should be asked against the Pole. The Ministry thereupon instructed the public prosecutor to propose 10 years of particularly rigid confinement in a place of detention. The court ruled accordingly.

As reported, the hypotheses under which this verdict took place, as well as the degree of the sentence itself, met with lively criticism on the part of politically awake lawyers. On the one hand it caused concern that by the direction of the administration of justice in such a manner the judge might from the outset be relieved of personal responsibility for his verdict. In as much as in a very great number of cases it becomes known to the court that the public prosecutor is being supplied with instructions regarding the application in criminal proceedings, it merely needs to comply with the request of the public prosecutor, thereby evading embarrassment which might possibly result from mistrials through reference to the concept of the Ministry. On the other hand, the case as described illustrates that the success of such a control stands and falls with the persons to whom such control is entrusted. If confusion prevails in the Ministry itself as to the line which the administration of justice should follow in regard to the Pole, there naturally is no guaranty that mistrials are excluded through the concept of control. The verdict in the case under consideration must be considered a faulty judgment; because under prevailing conditions there is no justification for the leniency which it expresses on behalf of a Pole who commits crimes under the cover of the black-out.

In connection with this and a series of similar cases reports of judges whom this development fills with serious concern stressed over and over again the need for informing the judiciary about the great goals of the leaders of the State. At the present time there is but a comparatively small number of judges who make an earnest endeavor to analyze the State political necessities as such, and the political foundation of the administration of justice. Unfortunately, it has so far been a fact that any civil servant in the administration who has just passed his second state examination in law has been more fully informed about the political goals of the State leaders and the political opportuneness than perhaps any president of a senate.

Also, this circumstance should be recognized as an important reason for the failure so far experienced in the administration of justice. Consequently, there exists a greater need than ever for bringing the judges much closer to the problems of State leadership and of State necessities as they arise newly all the time due to the war.

In the opinion of others, the former heads of the Reich Ministry of Justice likewise failed to fully realize their intent of remedying the lack of judgment of some judges in the case of decisions on penal cases with political aspects by controlling the administration of justice. It was said that in meetings held in the Ministry, the presidents of the district courts of appeal had been instructed to explain in official meetings to the judges under their jurisdiction how serious the situation is which is now encountered in the administration of justice, and in that connection to discuss examples for faulty verdicts, among other things also dealing with such which the Fuehrer himself has criticized. Some of the presidents of the district courts of appeal and of the district courts had discharged this task in such a manner that they manifestly refrained from expressing an opinion of their own, thereby making known that they themselves held a different opinion. This led to increased insecurity on the part of many judges.

An extension of report requirements yielded in some districts results along similar lines. It was partly made compulsory for judges at local courts, for example, to report every case of even moderate import to the president of the district court who on his part passed it on to the president of the district court of appeal and he to the Ministry. In some districts every judge at the local court was held to make a report each session on all cases which had come up. According to another report all judges of a district court of appeal had met to consult on a verdict which a judge of the local court was about to pronounce.

Going by the Fuehrer’s criticism of some individual verdicts, the Ministry occasionally makes reference as to the Fuehrer’s opinion in principle--so it is reported--in regard to certain delinquencies, urging upon the presidents of the district courts of appeal to acquaint their judges with the Fuehrer’s attitude as it more or less was assumed to be. This, too, resulted, in part, in completely confusing the concepts of the judges. To cite an example, a verdict was discussed at a meeting of the presidents of the district courts of appeal held in the Reich Ministry of Justice, according to which a woman, whose child had fallen into a vessel of hot water while playing and scalded itself fatally, had been sentenced to 6 weeks of imprisonment. The Fuehrer criticized that case because the loss of the child was hard enough a punishment for the mother and that, therefore, court proceedings reflected the concept of justice in form but were not in harmony with the natural concept of justice. When this case was passed on by the presidents of the district courts of appeal and of the district courts to the court judges, it was, in part, understood to mean that in principle it was the Fuehrer’s intent that women should be punished very mildly only.

The following case is cited as an illustration of the practical result of an interpretation of the Fuehrer’s will along such lines.--A woman had planned to give to the judge, who was considering a civil complaint made by her, a parcel with foodstuffs, a few days before the case came up in court for a hearing. Thereupon, the judge initiated court action against her because of an active attempt to bribe a judge. Bearing in mind the purported will of the Fuehrer that mild sentences should be imposed upon women and using such will as justification, the instruction was given that the woman was not to be punished at all. Only at a later date was this instruction modified in that it was ruled that a small fine was to be paid.

In connection with these and similar cases it is reported that it is a very doubtful principle to bring to the knowledge of the judges what is merely the purported or assumed will of the Fuehrer. Naturally this is bound to lead to constant conflicts for the judge. Considering things from all angles it is evident from the numerous reports which have come to hand that the so-called directing of the administration of justice met with but a limited amount of the success at which it had aimed. Aside from the numerous doubts which arise as a matter of principle, the amount of work involved to make this directing practically possible is not commensurate with results so far achieved. Compulsory reporting, which met with a considerable amount of criticism by the public prosecution even before introduction of the directing policy, has been considerably increased after the introduction of the directing policy and now extends even to the presidents of the district courts of appeal and of the district courts. This is said to have brought about a very considerable delay and burden in work which can neither be reconciled with the simplification and acceleration nor with the number of personnel at this time still available to the judiciary. Over and above this, the duty to submit reports has considerably paralyzed the power of decision and readiness to assume responsibility on the part of the judges, in as much as in many instances they are relieved of responsibility by other instances, as a result of which they feel to have been deprived of their essential task as judges.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[256]

DIRECT EXAMINATION

* * * * * * *

DR. KUBUSCHOK (counsel for defendant Schlegelberger): I am now starting on a new group of questions. Do you wish me to start on it before the recess?

The prosecution charges you with directing the administration of penal law through the Reich Ministry of Justice. Please state your views.

DEFENDANT SCHLEGELBERGER: Concerning these questions, we must differentiate between the position of the public prosecutor and that of the judge. The public prosecutor is an administrative agency dependent upon the instructions from his superior agencies. The judge is responsible merely to the law and his own conscience and judgment. The question to what extent and under what prerequisites the prosecutor has to report to his superior agency has been laid down in administrative regulations. The more important the individual question, the higher the agency the opinion of which is requested. It has therefore always been a matter of course that the importance of penal cases according to the case itself, or according to the punishment which is to be expected, has to be reported to the higher authority. I notice the suggestion was approved and an instruction was issued, an instruction which as far as it concerned a matter which was being dealt with at the trial always had to be interpreted in such a way that in the last analysis the public prosecutor had to make his decision dependent on the course of the trial. In 1939 Guertner--I myself had no part in these matters at the time and I don’t know what part Freisler played--pointed out to the public prosecutor that they should see to it that a great difference between the demand for a sentence of the prosecution and the actual sentence pronounced by the judge be avoided.

[Recess]

Q. Witness, we were discussing the guidance of the administration of criminal justice. Please continue with your explanation.

A. Before the recess I had referred to a decree by Guertner which required a constant connection with the courts in order to avoid a discrepancy between the plea of the prosecution and the final verdict. May I continue on this point?

I should like to assume that this decree or this order finds its definite reason in the fact that at that time a large number of new laws had been promulgated for which precedence in sentences did not exist and could not exist. Only gradually it was possible, with regard to these laws, to form a firm foundation based upon sentences and opinions of the supreme judicial authority. Frequently, therefore, surprises occurred if the prosecution in applying the law had a definitely different position from the opinion of the Tribunal. The purpose of that decree was to avoid this ambiguity as far as possible, and to reduce these differences to the least possible measure, also concerning the extent of punishment, which depended on the findings of the court. That quite apparently, as a matter of course, could only be achieved by a conference before the trial. The reports submitted by the prosecution, by the president of the Kammergericht on 3 January 1942, and from the same year by the president of the district court of appeals at Hamm, revealed that some misuse had taken place. It is stated there that the prosecutor after the presentation of evidence--that is to say, during the proceedings--had pointed out to the court what sentence with the approval of the Ministry he would demand, and in so doing created the opinion in the court that he expected that sentence and that penalty.

From this report can be seen that the presidents of the district courts of appeal quite rightly considered this behavior a misuse. The report by the president of the Kammergericht I had not seen until now. I do not know what steps were taken after that report was received by Freisler. Maybe this is a case again, one of these cases, where important matters had been neglected by him.

The report from the president of the district court of appeal at Hamm I remember very clearly. I had made up my mind to put this matter on the agenda of the next meeting of the presidents of the district courts of appeal. These meetings had the express purpose to discuss such questions which had been raised in the reports. Owing to the fact that I left my office soon thereafter, there was no longer any opportunity for me to carry out these intentions.

Q. The two reports you mentioned were submitted by the prosecution as Document NG-445, Prosecution Exhibit 73 and Document NG-395, Prosecution Exhibit 74 with the Documents NG-505 and 508, Exhibits 71 and 72.[257] The prosecution also charges you with having influenced the jurisdiction of the judges. I ask you to state your position with regard to these documents.

A. In the course of the examination today I was compelled on various occasions to explain to what degree the Party intended and tried to wrest various fields from the administration of justice and turn these competencies over to the police. In July 1941 that question was especially acute because there was an attempt to take away from the administration the prosecution of Jews and Poles. The opposition based its arguments on sentences which revealed a certain ignorance on the part of the judges of conditions of actual life. Under any form of government one has heard complaints about the fact that the judges were far removed from the facts and experiences of daily life. In the old Reichstag there was hardly any debate on matters of justice without these complaints, and such complaints naturally coming up during the war and in the course of many events the complete changes of all conditions of life and national economy found plenty of nourishment. It was the duty of the central agency to acquaint the judges with such general points of view and to demonstrate to them what the influence of temporary conditions and recent conditions would have to be upon the policy of criminal law. Apart from that, one had to be vigilant against that danger which I have described, namely, that certain fields of the administration of justice could be wrested from them.

At that time sex crimes of Poles were very frequent. The reason for that could possibly have been that these laborers who had been brought into Germany, in many cases, came into a living community with the families of the employers, that the husbands were usually at the front, and that the Poles themselves, that is, the greater part of the Poles themselves were in Germany without their families. The ground for sex offenses, therefore, was conditioned by these elements, and some judges did not recognize that.

In the documents submitted by the prosecution one case is mentioned which was tried before the Penal Chamber Lueneburg. It is the case of a sex crime committed by a Polish agricultural laborer. That defendant was granted extenuating circumstances, because, and I quote, “He did not have the same restraint toward female co-workers as a German agricultural worker would.” That opinion apparently was untenable. The Reich Supreme Court sharply rejected it. It was also very dangerous at the same time, because if reasons of that kind had become known to Hitler there would have arisen a new grave danger to the entire administration of justice. Therefore, I saw cause to find a different job for this judge who apparently was not aware of prevailing conditions. Cases of this nature and many others which may not have been quite as wrong but could have made a certain impression gave cause and reason for a type of propaganda which promised a great deal of success and that made me write that letter of 24 July 1941 to the court authorities in the provinces where I pointed out that in the cases of definitely criminal elements a sexual crime as a rule should be considered according to the legal provisions and regulations as a crime to be punished with death. The actual documentary background for that letter is to be found in the document of the prosecution. Therefrom one can see in what cases the police may have corrected the sentences by the judges, and one cannot overlook the fact that such frequent interventions on the part of the police to improve on the sentences by the judges represented a signal for the much desired event of taking over the power to punish by the police, and the man in charge of the Ministry conscious of his duty had to take that into account.

Document NG-508, which my defense counsel has mentioned, is the reproduction of a passage from a Hitler speech concerning the administration of justice; it was a speech before the Reichstag; and that concerned in general the necessity of severe punishment in times of war; and according to my duty I brought this speech to the attention of the judges.

* * * * * * *

Q. In Document NG-102, Prosecution Exhibit 75,[258] you made the suggestion for a confirmation of sentences by the presidents of the district courts of appeal. Under what circumstances did you make that suggestion?

A. This suggestion to have the sentences by the courts confirmed is in close causal connection with this practice of transferring prisoners to the police.[259] Hitler’s Reichstag speech of April 1942 left no doubt in my mind that these interventions would increase, and my suggestion was to the effect that Hitler should delegate the right, the prerogative which he reserved for himself, to the Ministry of Justice and to the presidents of the district courts of appeal. If this had been achieved, the whole matter would have remained in the hands of the administration of justice, for even the applications for nonconfirmation according to my draft were supposed to be made by the attorneys general who in turn had received instructions from the Ministry.

My letter in regard to this question of confirmation shows again what means I had to use. I could not reveal the real reason if I did not want to be unsuccessful from the very beginning. Bormann, however, in this case saw through my reasons. In a letter from Bormann to Lammers, Bormann writes, this attempt was again a confirmation of the will of the administration of justice to keep these matters in their own hands, as, for example, the question of analogy [analogy provision of article 2, Reich Criminal (Penal) Code], or the extraordinary objection or the nullity plea; but in the Ministry of Justice there was not the will to apply these means with the necessary severity. Above all, Bormann saw clearly that if my draft had become law, Hitler’s right of intervention would have been destroyed with one stroke. All the presidents of the district courts of appeal were supposed to pronounce their decisions in Hitler’s name, and if they had confirmed in the name of Hitler, Hitler could no longer have attacked their opinion. If I may use a common expression, I can say that Bormann, the fox, did not fall for the trap. In that connection, perhaps, I may point out two things. Lammers’ remark in the document shows that I refused to have the Party drawn into this confirmation procedure basically. Furthermore, the document shows how I had to go about such things. These confirmation sentences existed in the case of military courts, that is also in the case of air force courts which were subordinate to the Commander in Chief of the Air Force, that is Goering. Thus, I could count an understanding for my suggestion in the case of Goering, and, therefore, I secured his support through a special oral report on my suggestion.

* * * * * * *

CROSS-EXAMINATION

* * * * * * *

MR. LAFOLLETTE: Doctor, I would like to go back, now, to Prosecution Exhibit No. 75, which is Document NG-102. Briefly that was the series of letters and correspondence beginning in May 1942, which contains your proposed method of handling clemency matters after Hitler’s speech of 26 April 1942. Do you remember?

DEFENDANT SCHLEGELBERGER: Yes, it is a question of confirming the sentences.

Q. Yes. On 6 May 1942, you wrote Dr. Lammers--addressed the letter to Reich Minister Dr. Lammers--

“Dear Sir:

“During our last conversation, I already told you that I intended to propose to the Fuehrer the introduction of a confirmation of judgment passed; a plan to which you agreed.”

I am leaving out a sentence; I don’t think it is necessary. It’s in the record here.

“Today I am transmitting to you an open letter to the Fuehrer along with draft of the decree requesting them to the Fuehrer.

“Copies for your files are attached.”

Then on the same day, 6 May 1942, you wrote to Hitler, and you started the letter, “My Fuehrer,” and you stated, among other things:

“If you, my Fuehrer, could decide by signing the attached draft of a decree, to transfer to the Reich Minister of Justice this right of confirmation for cases in which you do not want to decide yourself, the following would be achieved.”

Then it lists a technical analysis of the decree, as you see it. Then I go to the last paragraph of your letter addressed, “my Fuehrer,” of 6 May 1942, which reads in the English text:

“Therefore, I believe that, if you, my Fuehrer, will agree to the draft, I could assume the responsibility that the punishment awards of the courts will not lead to complaints any more.”

Now that followed the speech of Hitler on 26 April 1942. Do you recall writing that letter?

A. Yes.

Q. On 12 May 1942, in this same exhibit and document, you write again to Dr. Lammers, and this time you say:

“Dear Reich Minister Dr. Lammers:

“With regard to your request, I am sending you today some material from which, I think, follows that a Reich Minister of Justice controlling criminal justice cannot dispense with the possibility not to confirm a sentence. I may add that when the draft of the decree was already under way to you, Reich Marshal Goering explained to me in detail at a visit in Karinhall that he in the sphere of Wehrmacht justice, sector Luftwaffe, could only overcome the difficulties of heterogeneous legal administration by this confirmation, and that in his opinion it was definitely necessary to introduce the confirmation also for civil justice.”

Then I am going to skip a sentence and I’d like to read the last paragraph of the letter:

“I would be especially grateful to you, dear Reich Minister Lammers, if you would present the matter to the Fuehrer again. I have the hope therewith that, if the Fuehrer rejects the present handling of criminal justice, and on the strength of your argument, knows that the confirmatory proceeding is the only and safe remedy, he will not withhold this remedy from the Reich Minister of Justice.

“With best wishes and Heil Hitler,

“Yours very sincerely, signed Dr. Schlegelberger.”

As I recall your testimony, it was that Hitler had been very abusive to you in his speech of 26 April 1942, and that after that you had made up your mind to resign. Is that what you testified to?

A. Yes. I have said that I wanted to make it clear whether these attacks were directed against the administration of justice, and in that case I was determined to let matters drift toward a break and to withdraw from my office.

Q. Now I know that you said in 1941 that Goering had said to you that he would never forgive you and Dr. Guertner for centralizing justice, is that correct?

A. Yes.

Q. And now when you desired to have a conversation with Goering, would you go to Karinhall or would he come to the Reich Ministry of Justice, as a rule?

A. No, no. In such cases when Goering wanted to speak to me, he called me up and asked me to come and see him. Goering at that time dealt with a case in which he wanted to have a legal opinion. That was why he wanted to talk to me. On that occasion, we came into that conversation.

Q. Did Goering agree to support your plan at this conversation you had with him between 6 and 12 May 1942, or do you recall?

A. I take the liberty to explain that. I told him what my plan was, and he told me, “But that is the only possibility to handle these things.” [He said] I could not get anywhere in my field if I did not have that right of confirmation.

Q. Now in May 1942--about that time during May and June 1942--Reich Marshal Goering would have had the capacity to be a very strong ally, did he not?

A. That could be stated in that general way, and now in retrospect I could not state for any particular month because the relations between Hitler and Goering changed continuously. And with Goering it might have been similarly. It depended upon the question in what temper Hitler was met.

* * * * * * *

b. Defendant Rothenberger’s writings on judicial reform and his guidance of judges in his district

TRANSLATION OF DOCUMENT NG-075 PROSECUTION EXHIBIT 27

CORRESPONDENCE BETWEEN THE REICH CHANCELLERY AND HITLER’S ADJUTANT, MAY AND JUNE 1942, MENTIONING THAT HITLER HAD CONSIDERED “NOTEWORTHY” THE ROTHENBERGER MEMORANDUM ON JUDICIAL REFORM

The Reich Minister and Chief of the Reich Chancellery Reich Chancellery 6837 B

Fuehrer Headquarters, 11 May 1942

Subject: Memorandum regarding judicial reform

1. When I reported to the Fuehrer on 7 May, the Fuehrer informed me that he had received a memorandum regarding a judicial reform from a well known lawyer which appeared noteworthy to him. He will arrange to have this memorandum sent to me.

2. On 8 May, State Secretary Dr. Schlegelberger casually remarked, while visiting me, that he believed that the memorandum which the Fuehrer mentioned was drawn up by the president of a district court of appeal, Rothenberger.

3. Miss Buege: Enter (Rk.) Letter remains here.

4. To the personal adjutant of the Fuehrer Major General Schaub.

Fuehrer Headquarters

Dear Mr. Schaub,

The Fuehrer told me when I reported to him on 7 May, that he had received, sometime ago, a memorandum regarding a judicial reform from a well known lawyer, which appeared to him worthy of consideration. The Fuehrer did not mention the name of the lawyer. The Fuehrer promised to have this memorandum sent to me. I should be much obliged to you, if you would take care of this matter.

Heil Hitler!

Yours obediently (Name of the Reich Minister)

5. Resubmitted on 25 May 1942. [stamp] Resubmitted Office 25 May [Handwritten] see Reich Chancellery 8230 B

[Initial] L [Lammers]

Reich Chancellery 8230 B/ 8 June 1942 1 enclosure The Fuehrer and Chancellor of the German Reich CS--The Personal Adjutant NSKK--Major General A. Bormann[260]

Berlin W 8, Reich Chancellery Fuehrer Headquarters, 7 June 1942 [Initial] KR [Kritzinger]

To Reich Minister Dr. Lammers Berlin

Subject: Reich Chancellery 6837 B

My very dear Reich Minister:

In reply to your letter of 11 May, addressed to SS Gruppenfuehrer Schaub, enclosed please find the memorandum which you requested concerning the judicial reform drawn up by President of Senate Dr. Rothenberger, Hamburg.

Heil Hitler!

[Signed] A. BORMANN Personal Adjutant of the Fuehrer

Certified: [Signed] SCHROEDER

Enclosure

Reflections on a National Socialist Judicial Reform

I

Since 1914 the world has found itself in one of the greatest revolutions of history. National socialism, which was born during the First World War, is the pivotal point of this revolution. Having welded the German nation together politically from 1918 to 1933 into a national community it is about in the present World War to “organize” Europe anew and to create a new world philosophy. It goes without saying that during such a “world revolution” certain fields of human endeavor cannot keep pace. Among such fields belongs, in particular--along with all the arts and sciences--jurisprudence. The first decisions in history were always made by men and nations in the elementary struggle for power. But the aim of this tremendous reorganization of the world is that for the first time in history not power, but justice will be victorious. In periods of transition this justice must prevail in different ways from the ways it chooses in untroubled times of peace. The scope of a peacetime administration of justice is often too narrow to do justice to present events. Thus, a historical revolution such as the present one will, of necessity, bring about a crisis in law, and particularly a crisis in the administration of justice; and the extent and intensity of this crisis depend on the extent of the revolution. A crisis is customarily defined as a state of the most violent intensification of the symptoms of a sickness, which is followed by a decisive turn, either toward the worse, to final descent--death in the case of man, and dissolution in that of a public institution--or the pendulum swings to the other side after the climax of the crisis, toward recovery. The present crisis in the administration of justice today is close to such a climax. A totally new conception of the administration of justice must be created, particularly a National Socialist judiciary, and for this the druggist’s salve is not sufficient; only the knife of the surgeon, as will later be shown, can bring about the solution.

II

What is the present state of German justice? Complete and clear fronts are drawn--on the one side are all the activist forces in Germany, particularly the old guard of the Party, to whom today’s justice is a hindrance in the pursuance of their aims. Natural friction occurs daily between elementary law, such as it is experienced by the activists, and the law as it is administered by the legal authorities of today. In every German village, and in every German city, modern jurisprudence, as the representative of the law, especially the judge and his verdict, have lost their influence considerably in the ancient struggle between might and right. We find that the pronouncement of justice does not enjoy in our totalitarian state the authority it deserves. On the other side are the representatives of justice who complain about this condition, namely, about the extensive elimination of judicial procedures; the lack of authority of the verdicts; the revision of lawful judicial sentences by police measures; the dwindling confidence of the people in their judges; the slight regard generally accorded the judges’ position in the press, on the air, and in films, etc. The German judge, the true representative of justice, stands alone and unprotected, presuming upon his so-called independence, above all, justice; and the German judges have hitherto not succeeded in gaining the confidence of the Fuehrer. It is true, German justice has become, organizatorially speaking, a united Reich justice, and all efforts are being made to create a National Socialist justice. Jurisprudence strives--if only with varied success--to fit into the National Socialist ideology. A close relationship based on trust, however, does not exist between the Fuehrer and German justice, nor between the German nation and the NSDAP which represents the people on the one hand, and German jurisprudence on the other. This distinguishes the present crisis from all the previous ones. The fact that jurisprudence has been greatly criticized at all times lies in the very nature of the problem. It has even been stated that criticism follows the pronouncement of justice as inevitably as the shadow follows the body. From all periods of history, and from all civilized countries, cases can be cited which originate in the excitement over an injustice which a judge may have done to a person (Plato’s Apology; Voltaire’s writings in connection with the trial of Calas; Zola’s J’accuse). He who goes to the judge believes that he is in the right. If he triumphs, he considers it a matter of course; if he is defeated, he thinks he has been wronged. However, the present condition is basically different. Justice today cannot turn to anyone. It has not gained so far the confidence of the leaders nor that of the NSDAP, and it is about to lose the confidence of the people. But without such confidence, without a connecting link with the leaders and with the people, justice is condemned to a final decline. It requires this confidence as man requires the air he breathes, in order to be able to live.

III

In a situation of this nature those who are responsible for the administration of justice have a historical responsibility--self-recognition. There is a painting by Raphael in one of the rooms of the Vatican, the “Stanza della Segnatura,” which represents the goddess of justice [Justitia] with her three genii--the genius of truth, holding her torch on high; the two-faced genius of wisdom; and her third companion, holding up a mirror to the goddess, the genius of self-recognition. Why does the Fuehrer, the Party, and the people criticize the administration of justice? What are the causes? What suggestions can justice itself make to the Fuehrer, in order to eliminate this condition?

1. Occasionally, the opinion is expressed that an authoritarian state can tolerate no strong judiciary whatsoever. The dynamics of national socialism exclude, it is said, the static which is the very essence of justice. The independent judge is a sad remnant of a liberalistic epoch, and there is no real justification for a separate ministry of justice in addition to a national ministry of the interior and the police. Also the National Socialist Reich came to power without the support of law; indeed, it did so despite the law. Consequently, it can solve its future problems without the help of the law, or at least without a strong legal system. History shows time and again--and the period since 1933 has confirmed it in many spheres of public life--that progress is a series of contradictions. White follows black. It is understandable that many old Party comrades raise the cry: fight against the judge per se; and they do so as a reaction against the legalistic state of the 19th century, against the neutral, unpolitical administration of justice, against judges who were trained unpolitically, who were taught to follow closely to the letter of the law, and whose independence finally resulted in the separation of the people and the state. Two aspects of this reaction are valid.

a. The bourgeois-liberalistic state which, under the influence of the doctrine of the division of power, empowered the courts to control legislation and administration, has finally been superseded by the unity of the Reich. The courts are merely an organ of the state, as the arm is only a limb of the human body. However, this arm can never set its own head aright. Law must serve the political leadership. Justice is not control of the leadership, neither is it protection of the individual against the state; rather, it is a function of the community which should serve to regulate the community life. The functions and the jurisdiction of the judge, in particular his relation to other departments, will therefore have to be redefined. But before this decision is reached, which is of such far-reaching consequences for the entire development of our Reich, the administration of justice itself has to be reformed radically in the interests of the Reich itself. This decision must not be influenced in any way by the experiences which the leadership has had with the law during the past 10 years. Otherwise, the danger exists that an unorganic and planless undermining from within, and a gradual fragmentation of the administration of justice will occur--as they have already set in, because the administration of justice has failed. The criterion, however, for the functions of justice and particularly of the judge in the National Socialist Reich must be a justice which meets the demands of national socialism. Therefore, suggestions must be submitted to the Fuehrer which clearly define what such a justice, and particularly a National Socialist judge, must be like.

b. In the second place, this reaction of “antagonism toward law” is justified because the present moment absolutely demands a rigid restriction of the power of law. He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration of justice. To accomplish such a far-reaching revolution in domestic and foreign policy is only possible if, on the one hand all outmoded institutions, concepts, and habits have been done away with--if need be, in a brutal manner--and if, on the other hand institutions that are in themselves necessary but are not directly instrumental in the achievement of a great goal and which, in fact, impede it, are temporarily thrust to the background. All clamor about lawlessness, despotism, injustice, etc., is at present nothing but a lack of insight into the political situation. The question is solely: Is a strong judiciary incompatible with the National Socialist authoritarian state (Fuehrerstaat) per se, that is, permanently, or only temporarily?

2. He who is used to thinking along historical lines and who understands the essence of national socialism will have no doubts as to the answer. Justice has at all times been the strongest pillar of every great civilized state. Great empires fell when despotism and corruption took the place of justice and of order; great empires rose to heights beyond imagination when the central figure, the actual creator, the embodiment of the concept of justice--the judge--represented authority. It was accepted as a matter of course during the classical age of the Imperium Romanum that the most exalted and honored place in the state was occupied by the praetor along with the consul--not to mention the enormous cultural influence that Roman praetorian law has exerted for centuries on the whole of Europe. The judge was the highest official of the state also during the height of the British Empire. Italian fascism also recognized the importance of this question for the preservation of its empire by agreeing with me on the following propositions at the German-Italian Conference held in Vienna in March 1939.

Proposition 5

“The judge, in contrast to other civil servants, derives his authority directly from the state leadership.”

Proposition 8

“Among civil servants the judge occupies a unique position in the organization of both states.”

What a far-reaching influence was exerted on the Germanization process of the East in the early Middle Ages by the highly developed city laws, particularly by the law of Magdeburg and Luebeck! The law and therefore the judge has always been one of humanity’s most prominent representatives of civilization. Also the aim of the gigantic struggle for existence in which the German people are at present engaged is to replace power and despotism by justice and order (the new order) in Europe and the entire world. There is no order without a strong law. Likewise the inner worth of the National Socialist Reich consists in the fact that every citizen does not think of it, his Reich, as the embodiment of the interests of individual pressure groups or parties, but of his sense of justice. In the eyes of the German people, more so than in the eyes of many other peoples, justice is and remains the most treasured gift; it is not the illusion of “equal rights for all,” but is in line with the old Prussian saying, “to each his own.” The superficial view that an authoritarian state cannot tolerate a vigorous judiciary is therefore wrong. The better the inner strength of a state is consolidated, the better is justice assured and the stronger is therefore the judiciary. Only a state based on external force must be afraid of a strong judge, and history has shown time and again that nothing leads faster to self-annihilation than a paucity of laws and a feeble administration of justice. The judge is the representative of justice. It is he who in the eyes of the people is the guarantor of justice, not the professional jurist nor the public prosecutor, nor the attorney; because he, the judge, administers justice, uninfluenced by friend or foe, unbiased and unswayed by the quarrels and tendencies of the day, not prey to human foibles. With him rests the decision over life and death; he intervenes decisively in every sphere of human life and in the most treasured possessions of a people such as liberty, honor, family, work, land, etc. Here the people expect an unflinching representative of a strong law who seeks the truth and justice with intense devotion and a clear mind. Nor can a political leader, even the best, nor a Landrat nor a Gestapo official be at the same time a judge. They all perform completely different functions; they must direct, organize, plan, and look into the future. Their decisions too must be just, but the idea of justice is not the guiding principle of their vocation. They all require a counterpoise in the form of a magistrate of whom the great Ulpian says: “Priests are we, because we foster righteousness and preach the knowledge of what is good and just.” Corruption, personal selfish interests, vanity and craving for power which happen to play an important part in human life, cannot--apart from having a rigid political leadership--be better prevented than through the fact alone that a strict judiciary authority exists.

3. And this is where the awareness of their mission and the historical obligation begins for the men responsible for the German judges. They are to see that the fire of justice never quite dies not even during the most difficult times of a great world revolution. The German ideals of justice embodied in a strong judiciary must--since it is timeless--be fitted into the future construction of a National Socialist Reich. This, however, is possible only when the fire continues to glow. Political situations require constant measures of opportuneness, and every stubborn resistance to it--“on principle” or “fundamental deliberations”--is senseless. But one must be constantly aware of the danger that the very “convenient” putting aside of a regulated administration of justice conceals the tendency of habit. It is the task of a new German justice to prevent such a development. This cannot be achieved, however, by bewailing the present condition or even by resigning herself to it. She must look into the mirror and ask herself: What can I do to put at the disposal of the Fuehrer a justice and judges in which he may have confidence?

IV

Theoretically, the constitutional position of the German judge, especially his position in respect to the Fuehrer, is not difficult to solve. Overcoming the division of power the Fuehrer is not only the legislator and executioner of power, but also the supreme judge. Theoretically, the authority to pass judgment is therefore only his. If he could carry out this authority also in practice, there would be no more judiciary problem and no legal crisis. But he cannot do so. Therefore, he has transferred his authority to the individual judge, that is, directly without any further administrative channels. The judge acts differently from any other official who is a member of a sometimes rather long official hierarchy, by virtue of a decree issued to him direct by the Fuehrer. This is the meaning of freedom of the bench. Every other private Party official or public office has to abstain from all interference or influence upon the judgment. This superior position corresponds to the obligations of the judge to find justice exclusively according to National Socialist ideas. Because a judge who is in direct relation of fealty to the Fuehrer must judge “like the Fuehrer.” In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and the German judge, that is, also in the form of a judge, the supreme judge in Germany, the “Judge of the Fuehrer.” He is to convey to the German judge the will of the Fuehrer by authentic explanation of the laws and regulations. At the same time he must upon the request of the judge give binding information in current trials concerning fundamental, political, economic, or legal problems which cannot be surveyed by the individual judge.

That only the best are considered worthy of a privileged position such as the judge holds can also be seen from another reason. The former legislation was suspicious and therefore casuistic toward the judge. It attempted to regulate every conceivable fact of law, thereby degrading the judge to a subsumptive mechanism. The Fuehrer as legislator, however, knows that a living people’s law which can be understood by every citizen and which is to reach a truly just sentence in the individual case can be established only by an elastic legislation with far-reaching opinions of the judge. The multicolored and versatile life is therefore fettered as little as possible by the law today. Every Reichsgesetzblatt teems with such general terms as--normal sentiment [of the people], dignity and etiquette, honesty, National Socialist ideology, etc. This loose binding to the law of the judge without an excellent judiciary personality is, however, a contradiction in itself and will forcibly endanger justice, unity, and security of law considerably. National Socialist free method of legislation, creation of a living people’s law, and quality of the judge therefore necessarily act and react on one another.

Repeated theoretical demands for a National Socialist personality as judge are not enough. One must recognize reasonably and clearly that the present type of judge--no reproach should hereby be made to an individual judge--in his historic development, his training, and his selection does not and cannot meet this demand. And just as reasonable are the practical deductions to be made from this.

V

The historic development of the German judiciary is in short the following:

At the same time at which the Roman law, which in no way whatever was connected with the German national consciousness, was introduced in Germany (15th century), the freely elected German people’s judge was replaced by the civil servant, the professional judge. He studied at first at Italian universities, and later--up to the present time--his method of thought was influenced by legal reasoning in accordance with Roman law. Originally he, though an alien, was nevertheless, in his capacity as the highest official of the individual sovereigns, an authority in the country; thus, 19th century liberalism, with its hypertrophy of laws, its plethora of courts, its wild pursuit of litigation, and its juridical thinking, led to a steady increase in the number of judges, and indeed to a debasing, vulgarization, and “bureaucratizing” of the judges. In a liberal state these judges became independent simultaneously in the sense of a complete detachment from people and state. The authority of the judge can be determined by two entirely different means: Once by granting him a superior position and by letting only few qualified men with a strong personality become judges--then the authority and the so-called independence will as a matter of course come out to a certain extent as a by-product--or else the judge’s position will be formally converted under severe stress into a bureaucratic civil service position in which he will attempt to carry through his conception of law by being granted independence through legal guaranty. Prussia, and with her the rest of the German states, consequently the second German Reich, took the latter way.

National socialism will have to proceed on the first path. Because the nature of national socialism is in direct contrast to this degeneration of the old German, nonbureaucratic people’s judge which occurred historically through foreign influence. National socialism will revive the concept of German judge as prototype the same as it created the concepts of Fuehrer, followers, folk-community, honor, loyalty, farmer, soil. It will also have to clear the concept of German judge as prototype of human society from all that is foreign to him, all that has stuck to him in the course of the developments of the last centuries, and ask itself the question: What does a German mind understand by the term “judge”?

According to the concept which every German has of a German community the judge is a fundamental type of human life. Just like the farmer, the soldier, and the various types of trade, the judge too belongs to every community developed beyond the most primitive state. The characteristics of the prototype of judge are--

1. That he is independent and not confined to directions. A judge who has to ask someone else for the sentence is just as much a caricature as a farmer without a plough and a soldier without a weapon. Upon the fact that the judge can use his own discretion is founded the magic of the word “judge.”

2. And a second item is in our description of a German community. The judge has a strong inner authority. He is the interpreter of law who is superior to all other servants of the state in knowledge, experience, and humanity. That the German people have a fine feeling for a strong, responsible, independent judge for the decision of its interests, can be seen among other things from the following: In spite of all judiciary crises and in spite of every reproach against the judges and their decisions, national socialism has never called: Dismiss the judges, we do not wish or require judges any longer! The discontented have always turned only against the present ones and have demanded better. Neither the laborer nor the farmer, neither the businessman, nor the tradesman has ever voiced the desire to appoint for the settlement of their arguments in place of a judge an official who is bound by instructions. However, something entirely different has occurred, with the Fuehrer a man has risen within the German people who awakens the oldest, long forgotten times. Here is a man who in his position represents the ideal of the judge in its perfect sense, and the German people elected him for their judge--first of all, of course, as “judge” over their fate in general, but also as “supreme magistrate and judge.” The mail received in the Fuehrer’s office in one day would prove this. No wonder, that next to this man, the German bureaucratic judge who represents so little of long established judiciary grandeur had to lose further authority. The special interest we have in this election of the Fuehrer to supreme judge in the united Reich is the acknowledgement of the true judge. This does not infer a renunciation of the concept of the judges itself, as is sometimes concluded, but it does infer a renunciation of the bureaucratic judge. The spontaneous recognition of the Fuehrer as supreme judge of the German people is essentially due to the fact that the Fuehrer wholly independent, separate from any influence or person, not supported by any machine of state but solely by the loyalty of the people fights for the rights of the German people within and without its borders, that is, all qualities which personify a true judge.

3. And thirdly, there will be only one judge in our community. Just imagine! There is a judge on every corner of a market place which we see before us. One feels that 3 of them are too many, while there may safely be 4 tailors, even 40. That they might not have enough work would not fundamentally disturb our imagination. But 4 judges. The symbol that there is only one right, only one justice as presented so clearly in the single judge, would be obliterated. One would begin to compare as in the case of 4 stores--where do I get better right? The authority of the judgment suffers if more judges than needed are present.

Practical considerations also make a radical reduction of the number of judges imperative. During the next decades Germany simply will not have enough young students who have the requirements for the profession of a judge, who have the inclination and aptitude to become a lawyer, and especially a judge, in such an active period. The thorough laying off of personnel which must take place in the entire German administration after the war is even more urgent and justified in the case of judges, as this reduction is in line with the essentials of judges, they being the representatives of the one law and the one justice.

VI

The historic evolution of the German judge is also in conformity with his training and his selection. To decide what is right does not require constructive or scientific thinking but above all, it presupposes the art to appraise human beings, to understand human emotions and the ability to comprehend all phenomena of life. Training methods of today lead to abstract thinking, to materialism, and to an ignorance of the ways of the world. The theoretical scientific method taught nowadays in universities is apt to imbue the student after being first introduced to a juristic line of thought with abstract conceptions and with a system of logic which makes it very difficult for the student to find his way later on in a world of facts. The outcome is the abstract lawyer, subject to so much criticism who does no longer recognize human beings but only conceptions, moreover, it is also the source of ever recurring disagreements between politically trained National Socialists and lawyers. Very often there is a world of difference between them. The point from which all training reforms must go out must be paragraph 20 of the Party program, which reads:

“The curriculum of all educational institutions must be adapted to practical life.”

In detail this means--

1. Substitution of the logical, abstract method of thinking by a method of conception taken from practical everyday life. No “lecture” with a deductive training method, given by a professor to a hundred or more “listeners,” but some kind of working community of perhaps twenty to thirty students who will be introduced inductively to the system--that is empirically from life--by a teacher endowed with scientific, practical and educational talents. These teachers are either university teachers who carry out at the same time the duties of a judge or administrative lawyer, or else judges in office who teach simultaneously at a university. The selection of about 200 qualified leaders who must be held in readiness at the end of the war for a fundamental reeducation of our youth is the most pressing problem. Only such men are able to guide the productive energies of the beginners into the right channels, and so prevent a false, abstract education as well as the cutting of lectures and the cramming down of lessons.

2. These working communities to be established in universities must ever maintain close contact with practical work (court, administration, Party). The strict division practiced heretofore--at first 3 years’ university training exclusively, then 3 years’ practical work--has provided them with a dangerous, theoretical “preinoculation.”

3. A man who chooses to be a judge and who therefore administers justice to all phases of human endeavor must know life itself, the real and practical life. Therefore, anyone who after passing the probationary state examination, at the approximate age of 26, has worked for 2 years in the judicial sphere as a candidate with some court--as has been customary heretofore--has not the “calling” of a judge. He has only become acquainted there with a small sector of life from a very definite angle. Only he who has steeled himself and proved his mettle outside a safe civil service position shall pass judgment and decide over human lives. He may stand his test in accordance with his inclination in economic life (banking, industry, shipping, commerce, agriculture), or as an attorney who looks at the objects of justice from “another” angle, or by taking an active part in Party or administrative life either at home or abroad. The decisive factor is that the future judge has not lived his life only “behind bars.” He also must have stood “before the bars,” in real life. These requirements lead us to recognize two facts.

a. No one should be appointed a judge before the age of 35. To judge requires a ripe judgment, a certain spiritual detachment, and a very pronounced character; qualities which can hardly be asked of a 28-year-old candidate who has never had to struggle in real life.

b. No one who has acquired a life position in another profession wishes to become a judge at the age of 35, unless the following primary conditions are created: The position of a German judge must be of such high standard with regards to ideal and material rewards as to attract even the best of our youth. By an elastic legislation and the freedom of the bench, the leadership of the State places such full confidence upon the judges--as are granted to no one else in an autocratic state--that only the best can be considered to deserve this confidence. He who has begun a thing must go on with it; if there are to be men in an autocratic state invested with the freedom of the bench, then this freedom should be granted to a few and exceedingly well qualified men only.

VII

The demand to reduce the number of judges--I reckon with a reduction from about 16,000 to about 8,000 for Germany proper--gives us the problem of a fundamental reform of the entire organization for the administration of justice. A mere reduction of the personnel without a simultaneous reform of working methods and of the organization would not result in improving the work but only to its deterioration as is the case everywhere else in general administration. I have laid down my conception of this reform of justice in the following detailed proposals:

1. The general political satisfaction of the people and the concept of a national community of interest, which is growing more and more, will already by themselves relieve the courts of much work.

2. Much work is done which is only in a general way connected with the administration of justice and which is more of an administrative than of a judicial nature. This work can well be done and without harm by other administrative departments. I mean herewith a large part of the work done by voluntary jurisdiction, such as recording of deeds and general registry work. The core of the administration of justice from a political point of view--that is, the administration of criminal law--must, on the other hand, remain in its entirety in the care of the judiciary as it should under no circumstances be torn and split up among several other ministries.

3. The organization of the courts, comprised at present of four levels--lower court of first level, district courts [Landgericht], court of appeal, and the supreme court--must be converted into an organization of three levels--district court [Kreisgericht], Gau court, and supreme court--to conform to the new political organization of the Reich and to party jurisdiction.

All proceedings at law must be based upon the district court [Kreisgericht] which will no longer be provided with three judges as at present the district court [Landgericht] but only with one. Moreover, trial by one judge only will be the ideal and the rule of the administration of justice. The district judge is the principal link between the judges and the people. Establishing the facts at the source is decisive for all subsequent findings, as this established the closest contact with real life in respect of time and locality. The “exodus from the country” to “higher” positions, observed with much concern in the case of judges and which is in concurrence with the exodus from the country by the people in general and also of interior administrative organs, must be counteracted with all means with the aid of political pressure on the personnel concerned. The district judge must be--from a human and from a professional point of view--the most efficient judge of all. Legislation has placed all means at his disposal for a quick and correct judicial decision. It must be he who is directing all proceedings at law, and not the parties as has been customary heretofore. A state of affairs is untenable where the parties at times “just tested their ground” in the court of the first level, and where they were reluctant to admit the truth and the evidence, because “they will go to the Reich Supreme Court in any case.” The better the guaranties created in the first level with regard to personnel and proceedings, the less will be the justified demand for the means for legal redress. Of course, the possibility for a re-examination of each and every judgment (with the exception of petty cases) must remain. The authority that goes with the word “uncontestable” may be only accorded to the decisions of the Fuehrer. But the primary conditions for the application of legal remedies will be rendered more difficult. The capitalist conception of the value of matter in litigation shall no longer be the standard as at present, but the standard must be the importance and the effect a judgment will have on the public in general and on the further evolution of justice. The Gau court at the residence of the Gauleiter and Oberpraesident will be designated as court of appeal and will be provided with three judges in accordance with the Fuehrer principle; the Reich Supreme Court with three or five judges sits as court of revision also in accordance with the Fuehrer principle, therefore not subject to the outcome of voting but to leadership. I am, in principle, against all centralization. In spite of the foregoing, the place for the Reich Supreme Court of Greater Germany is in the capital of the Reich, consequently in Berlin and not in Leipzig (a compromise of the second Reich). The Reich Supreme Court will not act as at present as a court of revision for all cases of a certain value of the matter in dispute. It is only competent with regard to maintaining a uniform administration of justice and to guarantee stability of law.

Titles such as Amtsgerichtsrat, Landgerichtsrat, Oberlandesgerichtsrat, and Reichsgerichtsrat are out of place to describe the activities of judges of the future. A judge does not give “counsel” but passes judgment. Therefore, the only title that corresponds to the matter in question and with his activity is the title of “judge.”

4. The merger of the present day Amtsgerichte and the Landgerichte to establish a Kreisgericht [district court] with its seat probably at the residence of the Landrat [county councilor], or of the district party leader, means the abolition of many smaller courts not capable of sustaining themselves. Apart from this, the conception of the “Amtsrichter” as the father of a small community has died out long ago. In his place stepped the young and forever coming and going assistant [assessor] who has to prove himself or the Amtsgerichtsrat with his all too narrow outlook on life who has very often become embittered because he had not been promoted or did not have enough to do. The decisive factor is not his judicial wisdom but his authority as a human being. Consequently, the honorary (unpaid) justice of peace shall try petty cases of every day occurrence in each community. He is not requested to have a legal training, in as much as it is his duty to reconcile the parties and to restore the peace between neighbors. The man who enjoys the most authority of all men in the community--in accordance with the prevailing characteristics of the place, he may be a trusted senior party member, a pensioned officer, or a farmer--will be given the chance to perform here a most beneficial activity. Besides, for judicial matters requiring the attention of a trained lawyer, the judge of the district court [Kreisrichter] in his capacity as a circuit judge will hold court in case of need on special court days in communities belonging to his district. In this way every German fellow citizen has access to a court in his place of domicile, moreover, the judge heretofore confined to a too limited sphere for his activities will automatically disappear.

5. The duties of a judge must have an exclusively judicial character. All duties not requiring for their discharge the special schooling, experience, and training of a judge must be transferred to the judicial administrator, the higher, intermediate civil servant of the administration of justice. The satisfactory experience made by the general interior administration, and by financial and postal offices in regard to their well versed, old time magistrates and chief inspectors may well serve as an example. To relieve the higher officials of some of their duties and to delegate them to lower grade civil servants prevents the former from becoming narrow-minded, short-sighted, and trivial and imbues the latter with the readiness to assume responsibilities. The duties of a judicial administrator--in places not provided with an official domicile of a district judge--consists of preparing current work and applications intended for the district judge [Kreisrichter] but also for the justice of the peace.

VIII

Therefore, it will be possible to produce the type of National Socialist judge only by--

1. A radical change of training methods.

2. A radical reduction in the personnel.

3. Removing the judges from the civil service.

4. A radical change in the entire judicial organization.

This means a sweeping judicial reform top to bottom, talked about for decades, even for centuries, but which was not accomplished either by the second or by the intermediate Reich [Weimar Republic]. Administrative work and decisions on each and every point require a great deal of time. Consequently, these problems must be tackled as soon as possible from within the administration, not “although,” but “because” we are engaged in war; not because they will come into force and practice during the war, but because they must be held in readiness for after the war. Frontline soldiers returning from the war can be assured that the preparation made for the appointment of National Socialist judges will contribute its share of safeguarding for all time the ideals they have fought for. And the judiciary system, if not completely transformed and reorganized, will hardly attract to it the best of the returning soldiers primed with energy, wanting to quench their thirst for peaceful and constructive work. Well qualified and vigorous judges are indispensable for the enormous peacetime tasks in store for the great Germanic Reich.

Hamburg, 31 March 1942

[Signed] ROTHENBERGER

TRANSLATION OF DOCUMENT NG-389 PROSECUTION EXHIBIT 76

REPORT FROM DEFENDANT ROTHENBERGER TO DEFENDANT SCHLEGELBERGER, 11 MAY 1942, NOTING ROTHENBERGER’S INTENTION TO INTENSIFY “THE INTERNAL DIRECTION AND STEERING OF THE ADMINISTRATION OF JUSTICE,” AND ENCLOSING COPIES OF ROTHENBERGER’S INSTRUCTIONS TO JUDGES IN HIS DISTRICT

The President of the Hanseatic Court of Appeal 3130 E--1a/4

Hamburg 36, 11 May 1942

Personal! Registered

To: State Secretary Dr. Schlegelberger Reich Ministry of Justice

Subject: Report on the situation

Reference: Your ordinance of 9 December 1935--Ia 11012 3 enclosures

I

In April of this year I made a trip through various provinces [Gaue]--Dresden, Prague, Vienna, Graz--to inform myself to conditions in central Germany and Austria.

II

The Fuehrer’s speech of 26 April 1942 did not surprise me very much. It confirmed to me the regrettable fact that the Fuehrer has no confidence in the German administration of justice and in the German judges. A radical National Socialist reform of the legal system which I have suggested for years in verbal and written reports[261] has therefore become even more urgent.

The effect of the Fuehrer’s speech on the judges in my district was absolutely crushing. It is impossible to gauge the effect on the German judges of the proclamation regarding the removal of judges and the way in which this was made known to the world in the form of an enabling act[262] passed by the Reichstag with frantic applause. I therefore considered it my first duty to counteract this effect by taking the following measures:

1. On Tuesday, 28 April, I had a preliminary discussion with my presidents to hear how my staff felt about the matter.

2. On Wednesday, 29 April, I discussed the present situation in detail with the Gauleiter and asked him to address, together with me, all judges of my district.

3. We did this on Friday, 1 May. I spoke for approximately three-quarters of an hour, next the Gauleiter spoke for about 20 minutes. Neither of us glossed over the seriousness of the situation; we openly faced the Hamburg judges whose jurisdiction did not cause the present crisis, and we stressed the necessity for a fundamental reform. We pointed out that two dangers had to be forestalled:

a. further loss of authority of the judge’s verdict,

b. a feeling of doubt on the part of the judges or of anxiety with regard to their family’s livelihood.

I have, therefore assumed responsibility for each verdict which the judges discuss with me before passing it.

4. On Wednesday, 6 May, the Gauleiter upon my request addressed all political and economic leaders of Hamburg on the subject of the present crisis. I considered this necessary so as not to alarm the population and prevent attacks against the judges.

5. On the same day I made arrangements with all senior police officers (the Higher SS and Police Leaders, heads of the criminal police, of the Secret State Police, and of the SD) to the effect that every complaint about juridical measures taken by judges was to be referred to me before the police would take action (especially regarding execution of sentence).

6. I made similar arrangements with all representatives of the Hamburg Press. The press was to refer to me before subjecting a verdict to any form of criticism.

I cannot agree with the objection to these measures on the grounds that with other Gauleiter such procedure would not have been possible. In 1933, the Gauleiter was anything but favorably disposed toward the judges. I am of the opinion that every political minded National Socialist leader can be convinced of the necessity of an orderly legal system, provided the system is National Socialist in character. Not even the continued changes of political leaders in Hamburg, especially among senior police officers, which have occurred since 1933, ever disturbed our smooth cooperation.

III

In view of the present situation I am intensifying the internal direction and steering of the administration of justice which I have considered to be my main task since 1933. For that purpose, I have issued the instructions which are set out in enclosures 1, 2 and 3.

IV

The meeting of the chief presidents in the Reich Ministry of Justice on 5 May this year did not satisfy me. It was my impression that most of the chief presidents were very much depressed. I do not believe that their inner confidence was restored in the course of the meeting.

V

I suggest that the chief presidents should be confidentially informed of judgments passed in the Reich which have caused special criticism in the Reich Ministry of Justice, so that the judges may get some idea of the Fuehrer’s will regarding the various spheres of the administration of justice.

[Signed] ROTHENBERGER

Enclosure 1

Hamburg, 6 May 1942

The President of the Hanseatic Court of Appeal

To: All Judges in the District of the Hanseatic Court of Appeal

As I already stated at the plenary meeting of the judges on 1 May 1942, I am prepared to advise every judge who in doubtful cases might desire to approach me personally. I shall in such cases ask the judges to arrange for an appointment with my staff and to bring along the respective files for report.

[Typed] [Signed] ROTHENBERGER, DR

Enclosure 2

The President of the Hanseatic Court of Appeal

Hamburg, 7 May 1942

To: The President of the Hamburg District Court The President of the Bremen District Court The President of the Hamburg Local Court

In view of the present situation I issue the following instructions in agreement with the attorney general:

I

A meeting of the presidents will be held at my office every week at which the presidents of the district courts of Hamburg and Bremen and of the Hamburg local court as well as my expert adviser will be present. The attorney general and the Chief Public Prosecutors with the district courts of Hamburg and Bremen have promised to attend whenever the cases under discussion are of special interest to them.

On the basis of brief written notes containing the titles, file numbers, and a few key words of the matter to be discussed the presidents in the course of this meeting will report on the important decisions which were passed in penal and civil cases during the preceding week as well as on the essential penal and civil cases to be tried in the following week.

The attorney general as well as the Chief Public Prosecutors will also bring up for discussion important preliminary investigations, submitted to the attorney general during the preceding week.

Outside of these regular meetings the presidents will immediately report to me matters of special importance and urgency.

II

For the purpose of procuring the material I request the presidents to have the criminal and civil divisions and chambers submit brief reports to them every week in the form of a review and a summing up of important pending penal and civil cases, which, if necessary, will have to be supplemented by verbal reports.

III

Apart from the weekly presidents’ meeting, a special meeting with the presidents of the Special Courts in Hamburg will be held in my office every week at a date personally arranged by me in each case in which the attorney general and the chief public prosecutor of the Hamburg district court will also take part. With this meeting I shall connect a conference with the head of the public relations department for legal matters in Hamburg.

As stated under I, the chief prosecutor of the Hamburg district court will report on essential preliminary investigations on Special Court cases, which have been brought before the prosecuting authority during the preceding week.

The presidents of the Special Courts will report in the same way on essential decisions passed by the Special Courts during the preceding week as well as on important cases to be tried before the Special Court in the following week.

In case of urgent Special Court proceedings the presidents of the Special Courts have to report immediately and independently of these regular meetings.

The cases of the Bremen Special Court will also be discussed at the presidents’ conference.

IV

I consider as essential in the sense of these instructions all cases which are of special importance, among them primarily--

a. Penal cases in which the death penalty or a long term of hard labor is to be expected.

b. Penal cases which are of primary significance for the protection of the population.

c. Penal cases due to the war, especially cases of offenses against the war economy, illegal slaughtering and similar penal cases, as well as cases against prisoners of war and against public enemies, and cases concerning crimes committed under the cover of the black-out.

d. Penal cases against Poles, Jews, and other foreigners.

e. Penal cases of special importance concerning crimes committed by, or against minors.

f. Crimes due to tragic unfortunate circumstances.

g. Penal cases in which a decision on the kind and degree of punishment is especially difficult or in which uniform handling is especially urgent.

h. Penal and civil cases in which persons are involved who are State or Party officials, or dignitaries, or who hold other eminent positions in public life.

i. Penal and civil cases in which it is clearly the intention of the parties to call in agencies not connected with the judicial authorities.

k. Penal and civil cases in which there seems to arise a conflict between the established law and the necessity of an economically and socially, reasonable solution.

l. Penal and civil cases concerning the interests of State and Party, or political and economic problems, as well as problems of foreign policy and ecclesiastical problems, or the effects of the war (for instance bomb damage, matters concerning urgent payment of church rates in kind, etc.).

m. Penal and civil cases in which legal problems of a general nature arise which require uniform handling by the courts.

[Stamped] [Signed] ROTHENBERGER, DR

Enclosure 3

The President of the Hanseatic Court of Appeal

Hamburg, 7 May 1942

To the Presidents of the Civil Senates and of the Criminal Senate

The Fuehrer’s speech and the Reichstag resolution of 26 April 1942 make it necessary to do everything possible in the organizational field in order to secure jurisdiction of the kind the Fuehrer expects, especially in wartime. As announced in my speech of 1 May, I therefore intend to inform myself as extensively as possible prior to the trials of cases which are of political significance, or which involve the possibility of a certain contradiction between formal law and the public sentiment or National Socialist ideology in order to discuss matters if necessary with the presidents in question. Incidentally, I expect the presidents more than ever before to confidently submit to me for discussion matters involving the afore-mentioned problems. To obtain information as far as the civil senates and the criminal senate of the Hanseatic court of appeal are concerned, I have requested the president of the senate, Dr. Struve, at present my permanent deputy, to assist me by holding conferences with the presidents of the senates at regular intervals at which the presidents will furnish a review of the cases which will come up in the near future. Generally the report can be brief. But it must furnish sufficient details in cases which require special attention according to the Fuehrer’s speech, in order to enable my deputy to decide whether my intervention is necessary or expedient. In this connection the facts of the case and the decisive legal points of view will have to be discussed. I expect that these arrangements which are only destined to serve jurisdiction and to strengthen the position of the judges will meet with general approval, and I hope that my deputy will be fully supported by you. I shall of course continue to be at your disposal for personal discussions.

[Typed] [Signed] ROTHENBERGER

The President of the Hanseatic Court of Appeal 3150 E--1a/4

Hamburg 36, 1 June 1942

Registered

To: State Secretary Dr. Schlegelberger Reich Ministry of Justice Berlin

Your Ordinance of 9 December 1935--Ia 11012.

Following up my report of 11 May 1942 on the situation, I beg to inform that I have, in the meantime, taken the same steps in Bremen which I had taken in Hamburg as a consequence to the Fuehrer’s speech. The authorities at Bremen (the Lord Mayor, the Kreisleiter, the President of the Police, the head of the Secret State Police, and the head of the SD district) have made the same arrangements with me as did the respective Hamburg authorities.

[Signed] ROTHENBERGER

c. Testimony of Defendant Rothenberger Concerning His Memorandum on Judicial Reform

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[263]

DIRECT EXAMINATION

* * * * * * *

DR. WANDSCHNEIDER (counsel for the defendant Rothenberger): Dr. Rothenberger, would you please first make some general statement about your memorandum?

PRESIDING JUDGE BRAND: The exhibit number, please.

DR. WANDSCHNEIDER: We are concerned with Document NG-075, Prosecution Exhibit 27,[264] in document book 1-B, page 1. I have submitted a list to the Court on which the documents I shall mention are listed. Please begin with your statement.

DEFENDANT ROTHENBERGER: The memorandum is a brief summary of what I had worked out during the previous years in Hamburg. The reason for my writing such a memorandum at all, I believe, I already indicated yesterday. I had pointed out that the development in the Reich until 1942, when this memorandum was written, gave cause for growing dangers and misgivings for every jurist.[265] Furthermore, I had pointed out how the administration of justice was pushed more and more into a defensive position by the Party and the SS and how the jurists, as well as all Germans, either acquiesced in this condition and this development or even went along with it, and how the administration of justice was more and more in retreat battles. I did not want to and could not go along with this line of action. And I did not want the administration of justice again and again to be confronted with faits accomplis. The Party and the SS concerned themselves with ideas for reforms of the administration of justice and it was my opinion that the only office which was competent for this and an expert organization in the field was the administration of justice itself. And the starting point for the attempt to change the course of this development were my experiences which I had gathered in Hamburg and in England.

My conviction grew stronger and stronger to the effect that that question of the position of the judge in a state was significant not only for the administration of justice itself, but that it was a basic problem of political life in every state. Germany had always gone from one extreme to the other in politics, and now we were experiencing, during the year 1933 and the subsequent years, the extreme of a power state. And one of the causes for this was, in my conviction, that in Germany we were lacking a point of rest, an authority which due to tradition and out of its independence was in a position to influence the development critically. This impression in particular was very vivid to me from my experiences in England. Therefore, my belief that the idea of the so-called Judge-King in Germany too, if there was any chance at all, would exert an influence on the development. This memorandum represents a final warning to Hitler in order to hold him back from this development which had begun. If today I put the question to myself, whether I believed that I could convince Hitler at all from my knowledge that I have today I, of course, have to answer no to that question. According to my knowledge at that time I hoped for it and I believe that the fact alone that I undertook such an attempt at all is the best proof for this; and my belief of the time will be understood on the basis of the experiences which I had gathered in Hamburg where it had been possible by trying to swim against the current and to exert influence upon leading political personalities, that one could succeed there.

The aim of my memorandum was, in the final analysis, the same as has to be the aim of every state, namely, the rebuilding of an autonomous law which is independent of the form of government and without temporal limitation. In countries which have a tradition this may not be a problem at all, but in Germany this question had for decades been the problem, and already since 1905 leading jurists in Germany had occupied themselves with this problem again and again.

If I had described this idea in my memorandum in very dry and bare words then this memorandum as hundreds of others would immediately have been thrown into the wastepaper basket and I would have been described as a fool. Therefore, I had first to describe the means which could create the prerequisites for such a final condition and, therefore, I described the proximate aims which I wanted to reach first. I emphasized them first. In order to clarify to the Tribunal that the position of a judge in Germany is a completely different one than in England, and I believe also than in the United States, I have to go into the historical development of the profession of the German judge in a few words. I can do this more briefly since this historical development is indicated briefly in this memorandum; furthermore, because in a lengthy article which I wrote at that time, which will be submitted as an exhibit by my defense counsel, I went into this historical development in detail.

I therefore want to say here merely by a slogan that once due to the acceptance of the Roman law in Germany in the 16th Century which took place only on the continent of Europe and not in England, and furthermore caused by the development of the Prussian state where the administration of justice, as I already emphasized yesterday, was only a stepchild; that due to these two circumstances the judges’ profession played only a very modest and mediocre role. In Germany we had about 19,000 judges who belonged to the General Civil Service and who in no way differed as far as their income, or their position, or their reputation was concerned from an absolutely average civil servant.

The essential factor in this development was that the practical course of the education of a judge in Germany to this very day brought about that only persons who were merely average lawyers decided to take up the judge’s profession.

If I may be permitted to do so, I would like to mention briefly how one becomes a judge in Germany. At the age of approximately 25, one becomes assessor; at this time one decides whether one wants to become a judge. If one does decide to become a judge, one remains for a number of years and at that time it was about 5 to 8 years--a so-called assistant judge, Hilfsrichter.

This means that one exercises the functions of a judge, to be sure, but one can be discharged any day. And then in the course of years one finally achieves being appointed a judge. It happened only very rarely that a person who had been sitting as an assistant judge for a number of years was not appointed judge.

Then when one finally became a judge one received an income of about 300 marks. A fairly good skilled worker in Germany earned twice as much. Therefore, one had to lead a very modest life. One was treated as a civil servant to the extent that every year a so-called qualification or efficiency report had to be written about every judge. In other words, a report had to be made as to the qualifications of the judge. The superior of the judge had to go to the court session in order, as we expressed it, to examine the judge; that is, to examine whether the judge was able or not.

Then, the judge waited for his next promotion which played a very decisive role for him and for his family in view of his small income. There was a scale of promotions from the local court to the district court, to the district court of appeal, and finally, to the Reich Supreme Court.

This briefly described course of training thus demonstrates that the judge in a quiet existence of a civil servant was employed only as a judge all the time, and this gave cause to the leading German jurists since 1906 to do something about it. The first precursor of this idea was a certain Adickes. These jurists tried to suggest a basic alteration of this course.

Adickes was followed by an Under Secretary Muegel, and he in turn during the Weimar Republic was followed by the then Reich Minister of Justice Dr. Schiffer who today is again Minister of Justice in the Russian zone of occupation. All were of the same opinion that his position of the judge had to be changed fundamentally and that this would be possible only by a very severe reduction of the number of judges.

If the prosecution is charging me I believe even in the indictment itself with the fact that I in very clear words desired to change this condition, or suggested changing this condition, by saying that not the salve of the drug store but the knife of the surgeon, was needed then I am in good company in so saying to the extent that my predecessor for these plans was Reich Minister of Justice Dr. Schiffer who by the way is fully Jewish. He expressed the following thoughts about this problem at the time, and I quote:

“The wound should not be covered up and smeared over, it must be cut, pressed out, and scraped out. The reform in the administration of justice which we need is not an enlargement or a reconstruction but a thorough reduction.”

These plans which were discussed in Germany for 50 years, and the execution of which failed every time, I now made my own. As can be seen from the memorandum, I was confronted, above all, with the problem as to what means could be used at all to bring about this reduction in the number of judges without reducing the quality of jurisdiction. The means which I suggested were also very closely allied to those means which had been suggested for 50 years. These means were as follows: First, the concept of the justice of the peace. I believe that I do not have to go into the details of this position because, first of all, I assume that the Tribunal is very familiar with this institution of a justice of the peace; and secondly, because I said something about it in the memorandum itself; and thirdly, because I discussed it in a lengthy article which will be submitted.

The second method which I suggested, and which I also discussed in a lengthy article, which will be submitted as an exhibit is the idea of the administrator of justice [Rechtspfleger]. This is an idea which conforms with the investigations I made in England about the master, the registrar, and the clerk.[266] The aim here is clear too, namely, that the judge should act during the trial exclusively as a judge and must be relieved of the burden of all technical preparations and of the tasks which are not truly the tasks of a judge.

The third method which I suggested was a change in the structure of the German courts as a whole. Details about this too are not only in my memorandum, but in articles which will be submitted in evidence here. My aim was to introduce, in the place of the super organization of the German courts, a nonbureaucratic, simple, and clear structure of organization of the courts. In this organization of the courts the idea was decisive for me that every judge in Germany should have the same rank, but not as it had been up to now where the judge had to wait for and was dependent upon a promotion so that his activity, even subconsciously, was guided by his aim of being promoted. I wanted to do away with all titles. In my opinion, every judge deserves only the title “judge.” I was of the opinion that through these changes, the inner independence of the judge would be strengthened. The decisive factor for this inner strengthening of the judge was my suggestion to take the judges out of the general group of civil servants.

In my memorandum I attempted to explain to Hitler the basic difference between a regular civil servant and a judge.

This, of course, would have meant that the judge, from the point of view of his income, his position, and especially his reputation, would occupy an overwhelming position in Germany. I expressed this as follows and underlined it. The position of the German judge must, ideally and materially, be organized in such a way that it will appeal to the best of the future lawyers. And with this question namely the pure civil servant career of a judge, up to this time, is connected another request I made, that only a person should be appointed judge who before that had worked in another profession and had there gained experience, be it in economics, be it in another sector of the state, or above all, as an attorney. I was of the opinion that only a person of advanced age and older than was usual in Germany--I said that the minimum age should be 35--should become a judge, because a man who is very young and who has not, outside of a quiet life as a civil servant, been forced to fight and to gather experience, is not able to judge about the fate of people which is entrusted to him in the courtroom in a just and humane manner. And the last point of these suggestions for reform is the training of judges already at the university. I started with the assumption that the legal questions are very essential for the pronouncing of a sentence, but that the decisive question in every trial is the finding of the facts and the evaluation of the persons, be it the witnesses, the plaintiff, or the defendants. The training that was given at the German universities was in former times exclusively concerned with legal problems. At the university the students listened as an audience to a professor who read out his lectures on legal theory; that to be sure is necessary, but it had to be supplemented by a practical point of view. This recognition I had gained from my long experience as a tutor in Hamburg, and therefore my detailed suggestions which are mentioned in the memorandum which I later carried in Berlin. And perhaps I may be permitted later to go into them in detail.

* * * * * * *

Q. I now go into the individual cases. First I put the question to you. On page 6 [section III] of your memorandum you said (_NG-075, Pros. Ex. 27_)[267]: “Occasionally the opinion is represented that an authoritarian state cannot bear a strong judiciary.” Whom did you mean? Who represented that point of view occasionally?

A. That is very clear that the Party and the SS represented that point of view.

Q. You meant thus your opponents in your daily life?

A. Yes.

Q. In your legal practice?

A. Yes, because I knew that these two organizations, the Party and the SS, in the course of the years exerted a very strong influence on Hitler. It was therefore decisive for me first to deal with the question as an immediate aim from the point of view to gain an influence on Hitler as a judge in order to exclude all influences of the Party and the SS. And out of that knowledge I made the requirement that between Hitler and the German judiciary there should be no intermediary; that, in other words, nobody should be allowed to influence the judge, be it a political leader, be it Bormann, be it Himmler, or any other organizations which so far had exercised a strong influence on the judge. And the second concrete requirement which I made, and which is contained in my memorandum is that the entire administration of the criminal law [Strafrechtspflege] should not be split up but its entire extent remain with the administration of justice. In connection with that are some formulations which I made in my memorandum which state that the political leaders and the official of the Gestapo cannot be judges at the same time. A corruption and hunger for power cannot be prevented in any better way than by a strong personality of a judge. And if I raised such requirements and then thought about how I could explain these thoughts to a man like Hitler, as I saw him at the time, how can I dare undertake such a step at all, the result of such an attempt was exclusively dependent upon the tactics or the methods which I employed. And therefore, in formulating my memorandum, my ideas, I made certain concessions but I always added the aim itself immediately afterward. I would like to cite two cases particularly which the indictment put into the record in that connection. First, the following sentence:

“All clamor about lawlessness, despotism, injustice, et cetera, is at present nothing but a lack of insight into the political situation.” And then I continue: “The question is solely: Is a strong judiciary incompatible with the National Socialist authoritarian state [Fuehrerstaat] per se, that is, permanently or only temporarily?” And another sentence with which I am being charged is the following: “Political situations require constant measures of opportuneness, and every stubborn resistance to it--‘on principle’ or ‘fundamental deliberation’--is senseless.” And I continue: “But one must be constantly aware of the danger that the very ‘convenient’ putting aside of a regulated administration of justice conceals the tendency of habit”--and that last phrase is underlined--“What can I do to put at the disposal of the Fuehrer a justice and judges in which he may have confidence?”

Now for me the basic problem existed--how is it possible to make these ideas of a judiciary at all compatible with the ideas of an authoritarian state, because the authoritarian state as such was a fact for me. I could not overthrow it; and to that extent, of course, there is a difference in regard to the position of the judge which I aimed at in Germany from the position of a judge in England. For me it was a fact that Hitler was the man who in Germany combined all power in his own person, but in order to make the dangers inherent in this concentration of power clear to Hitler, I emphasized two factors in particular in this memorandum.

First for one, a historical element. By referring to the Roman Empire, to the British Empire, and to other empires, I pointed out to him on the basis of history that: “Nothing brings about the self-destruction of a state more than the absence of law and a weak judiciary.” The second element with which I hoped to convince Hitler was a more nationalist element. I attempted to explain to him the picture which every human being makes himself of the position of a judge. I used the expression, “The original judge and arch judge,” and I told him that the essential characteristics of this arch judge consist of three conditions.

First, that it is a distorted picture if this judge has to ask another person what kind of a decision he should make. The independence of the judge and his freedom in issuing instruction was the most essential feature of a judge in contrast to a civil servant. The second element which I wanted to include in this picture in which I told him that he has to imagine a court on a market place was that a human being can really only imagine that there was just one judge. As soon as one has several judges in one case, one asks, “Well, who gives me a better justice?” I said that the symbol for the fact that there is only one law and one justice would be blurred. By saying so, of course, I meant that there should be as few judges as possible. The third element which I added to this picture was, and I quote: “The judge has a strong inner authority. He is the interpreter of the law who from the point of humaneness, wisdom, and experience must be superior to all other servants of the State.” The fact that Hitler, himself, was the highest legal reviewing authority in Germany was of course from my conception of the dignity and independence of the judiciary, a danger. The question exists anyhow as to whether this idea of the absolute independence of the judge is compatible with the concept of an authoritarian state.

After I was discharged, and after I had gathered the experience in Berlin during the 15 months that I was there, I absolutely denied that question. I said that those two concepts are not compatible with each other. At the time when I made this attempt, I believed that they were compatible, and that the separation of power which is necessary in every state for the purpose of controlling the people, in practice would be achieved by my program of having all influences on the judiciary eliminated.

* * * * * * *

Q. Dr. Rothenberger, would you now please tell the court how your appointment to the post of State Secretary in 1942 came about? In this connection I would refer to [1964-PS, Prosecution] Exhibit 65. That is the authority dated 20 August 1942.

A. On 4 August 1942 the Reich Minister and Chief of the Reich Chancellery, Lammers, suddenly asked me to come to Berlin for the purpose of a conference. Lammers told me the Fuehrer had read my memorandum. He had liked that memorandum, and he would like to have the plans of that memorandum carried into effect. I asked Lammers specifically as to whether Hitler had given him any further reasons. He told me what had impressed Hitler was the question of the position of the judge. His opinion of the judge of the civil servant type was very low, and he thought that civil servants and judges were strangers to practical life.

In reply to my question, Lammers said to me, “Hitler is convinced that these plans must be carried out.” I then said to Lammers that I thought during the war it was altogether impossible to put into effect my plans and I would ask to be allowed to wait with carrying out my plans until the end of the war, all the more so as I myself had not yet finished my preparatory work in Hamburg. Lammers replied that Hitler counted on an early conclusion of the war, and the preparation for carrying out the reform would need some time after all, and I was to utilize that time.

* * * * * * *

CROSS-EXAMINATION

* * * * * * *

MR. KING: Dr. Rothenberger, I would like to come back to Prosecution Exhibit 27, which is Document NG-075. This is your memorandum to Hitler, or rather your memorandum which eventually reached Hitler, and to which you attribute your appointment to the position of State Secretary. The purpose of examining certain phrases from this memorandum is to enable me better to understand what your new program for the independence of the judiciary was. I am sure you know that memorandum much better than I do. I want to read to you several paragraphs from it. You say in one place: “Law must serve the political leadership.” Then you say in another place on page 8 of the document, “He who is striving toward a new world order cannot move in the limitation of an orderly Ministry of Justice. To accomplish such a far-reaching revolution in domestic and foreign policy it is only possible if on one hand all outmoded institutions, concepts, and habits have been done away with, if need be in a brutal manner.” Then you say still further on, “The Fuehrer is the supreme judge, theoretically the authority to pass judgment is only his.” Then you say still further on: “A judge who is in a direct relation of fealty to the Fuehrer must judge like the Fuehrer.” All of these phrases which I read appear in that memorandum and based on them, I want to ask you this and perhaps several other questions. You have repeatedly said that the purpose of your program was to establish an independence of the judiciary. However, the essence of your program, as it seems clear to me from reading your memorandum, is that the Fuehrer is the supreme judge. As you say here, theoretically the authority to pass judgment is only his. A judge in a position of direct relation of fealty to the Fuehrer must judge like the Fuehrer. Now my question to you, Dr. Rothenberger, is simply this: When you speak of the independence of the German judiciary, how do you reconcile that with these statements that the Fuehrer is the supreme judge, and that only he can actually judge, and that all judges must reflect his thinking?

DEFENDANT ROTHENBERGER: During my direct examination I have already tried to explain the thoughts which made me write this memorandum. It is extraordinarily difficult to do so briefly, especially to state one’s attitude only in regard to two or three sentences which are taken out of their context. Therefore, I am of the opinion that the memorandum as such should speak for itself, and that I leave it up to the Tribunal to form its judgment about the actual thoughts contained in the memorandum. And if in spite of that I may answer that question only very briefly in a concrete manner, I have to say the following: In 1942 the authoritarian state as such was a fact in Germany. That is to say, Hitler was also the highest judicial authority, and if any chance or possibility still existed to remove all the damage which had occurred during the course of years and all the burdens with which the administration of justice was loaded by the Party and by the SS--or, as we used to say at the time, on the part of the thousand little Hitlers who every day jeopardized the independence of the individual judge--under those conditions the only possibility to bring about any amelioration at all was Hitler himself. That it was impossible to convince Hitler I, and later on, everybody realized. But at the time I believed that it was possible to convince him, and I had to seize that possibility as a last chance. And if it would have been possible to convince him, then in effect the independence of the courts would have been reestablished again. For in that case this direct relationship between Hitler and the judiciary which I asked for would have been established and all other influences which burdened every judge every day would have been eliminated.

Q. Dr. Rothenberger, may I interrupt you at this point? I think that you are entirely too modest about the success of your program. If you meant what you said in your memorandum, and I assume that you did mean what you said, then isn’t it true that your program was a complete success, since the final result was that the Fuehrer became the supreme judge? Isn’t that true?

A. The fact that after only 15 months I again left my office is probably the best proof of the fact that my program was a complete failure.

Q. Dr. Rothenberger, do you distinguish between the success of your program and your own failure to get along with people in the ministry? Isn’t it possible that those two factors are separable?

A. No. A second reason also speaks for the assumption that it was a complete failure--and that is the intervention of outside offices with the activity of the judges which I wanted to prevent; this did not stop at all after this memorandum was submitted, but rather became worse. The independence of the court and the lifting of the judiciary from the civil service, which I was striving for, did not become effective at all. I request the Tribunal to tell me whether I should go into more detail in regard to this problem, which of course is a fundamental problem, or whether I should not say any more about it now.

PRESIDING JUDGE BRAND: We will not interfere at this time.

MR. KING: Dr. Rothenberger, I am frankly puzzled by seemingly contradictory statements in your memorandum. Let’s go over it once more. You say, on the one hand, that you want an independent judiciary. You say, on the other, that the Fuehrer is the supreme judge, and all judges must act like the Fuehrer. Now, unless you meant that all judges must act in accordance with the wishes of the Fuehrer, your memorandum means absolutely nothing and is pure double-talk. If that isn’t what you meant--if you didn’t mean that the Fuehrer’s decisions should be the final decisions--just what do you mean by all that talk of the Fuehrer being the supreme judge?

DEFENDANT ROTHENBERGER: I said in my memorandum that theoretically the Fuehrer is the highest judge in Germany; I also expressed that the individual judge in his decision must be independent even in his relationship to the Fuehrer. What I attempted to achieve first was to eliminate all other influences on the judge and therefore to establish this direct connection between the Fuehrer and the judge. Therefore, my suggestion in order to say it clearly to put in place of the influence of Bormann or Himmler, the so-called “Judge of the Fuehrer,” who would influence the Fuehrer in the capacity of a judge, and would therefore not only try to direct the development in Germany into quite different channels in a legal respect but in every respect.

Q. Let me put this question to you. If, under your program, as you envisaged it in 1942, a judge came to a decision, and that decision was known not to be in accordance with the Fuehrer’s views, in your view whose opinion should have prevailed, as you intended it to work out?

A. The decision of the judge.

Q. Then what do you mean when you say the judge must judge like the Fuehrer?

A. The Fuehrer does not have the right to touch a decision made by a judge.

Q. Dr. Rothenberger, we know that that wasn’t so in practice, don’t we? We have seen instances where it didn’t work out that way, haven’t we?

A. Unfortunately, after I wrote this memorandum, especially here in this trial, and also when I was in Berlin already, I found out that the Fuehrer acted in a different way. The purpose of this memorandum, however, was merely the following: to convince the Fuehrer that the men who had influenced him so far and in that direction were wrong. My knowledge from Hamburg was not sufficient in order to know already at that time that the Fuehrer himself could not be convinced. But that is not only my own tragedy, but the tragedy of the entire German people.

Q. Did you ever consider the possibility that the Fuehrer in reading your memorandum read it literally and decided that when you said “The Fuehrer should be the supreme judge,” that you meant what you said? Did you ever consider that possibility?

A. Yes, I considered that possibility.

Q. Do you have any feeling that in practice it didn’t work out that way? In fact, the evidence adduced here at this trial tends to prove, don’t you believe, that by the end of the war the Fuehrer really became the supreme judge and interfered with all judicial decisions?

A. I saw that later, and if I had known that before, I would not have undertaken this daring attempt, because there was no hope for it from the very beginning. But at the time, I thought that as a jurist I was under an obligation to make this final attempt, because I just could not accept the conditions which existed.

Q. You knew what the Party platform was, did you not? You knew what Hitler had said in Mein Kampf, did you not?

A. About that problem, he did not say anything in a negative way in his Party platform and not in Mein Kampf either.

Q. Well, as a reasonable man, Dr. Rothenberger, you knew what his attitudes were on all of these questions, and if your program embodied having him become the supreme judge, you knew fairly well how he would judge on all these questions from your prior knowledge, did you not?

A. No. I can only emphasize again and again that as long as I saw the possibility of influencing him, I considered it my duty to make this attempt; otherwise I would have been a fool.

Q. No one denies that you did influence him, Dr. Rothenberger; the implication is that you did, and that you were completely successful.

A. I did not have any success. That is just it. Hitler could not be convinced.

Q. He became the supreme judge, did he not?

A. In effect, he interfered with the administration of justice, as we know now.

Q. All of the judges in Germany were in a position of fealty to the Fuehrer, were they not?

A. No fealty, no.

Q. What do you understand by “fealty”?

A. Dependence upon him.

Q. And you don’t think judges in Germany at the end of the war were dependent on Hitler?

A. I just wanted to prevent this fealty.

Q. You wanted to prevent it?

A. Yes.

Q. That is not what you said in your memorandum. You said in your memorandum, “A judge who is in direct relation of fealty to the Fuehrer must judge like the Fuehrer.” That doesn’t sound like you were trying to prevent it. That sounds like you were trying to induce it.

A. You do not distinguish between the dependence and fealty on the one hand, and an obvious natural relationship of trust and confidence which every German and therefore every judge too should have in the Fuehrer.

* * * * * * *

JUDGE HARDING: Dr. Rothenberger, with reference to the time you submitted your memorandum to Albrecht,[268] when did this speech of Hitler declaring himself the supreme law lord of Germany occur? What is the relationship between the time you submitted your memorandum and his speech?

DEFENDANT ROTHENBERGER: The Hitler speech was delivered on 26 April [1942].[269] When my memorandum reached Hitler’s hands, I cannot say.

Q. When did you submit it to Albrecht?

A. I can gather that only from the date which is below the memorandum and that is 31 March; in other words, I probably gave the memorandum to Albrecht during the month of April without knowing exactly when it was and also without knowing when Albrecht succeeded in putting it in Hitler’s hands. I don’t know that.

Q. It was submitted to Albrecht before you knew anything about this speech of 26 April?

A. Yes, that is certain.

* * * * * * *

3. FURTHER DEVELOPMENTS PRINCIPALLY WHILE THIERACK WAS REICH MINISTER OF JUSTICE (AUGUST 1942–1945)

a. “Special Treatment.” Further relations with officials of the Nazi Party, the Gestapo, the SD, and the SS

TRANSLATION OF DOCUMENT NG-059 PROSECUTION EXHIBIT 38

FILE NOTE CONCERNING A CONFERENCE OF 18 SEPTEMBER 1942 AT HIMMLER’S FIELD HEADQUARTERS BETWEEN HIMMLER, REICH MINISTER OF JUSTICE THIERACK, AND DEFENDANT ROTHENBERGER

RK 13227 B 21 Sept 1942

Field Headquarters, 19 September 1942

Subject: Judicial reform

1. Remark--On 18 September 1942 following an invitation by the Reich Leader SS, Dr. Thierack, Reich Minister of Justice, and Dr. Rothenberger, State Secretary, met at the Reich Leader’s field command post. They had a discussion, lasting 5½ hours, with the Reich Leader, in which also participated on the side of the Reich Leader, SS Gruppenfuehrer Streckenbach (Security Police) and SS Obersturmbannfuehrer Bender (SS judge with the Reich Leader SS and Chief of the German Police). The results of the discussion, about which State Secretary Dr. Rothenberger expressed greatest satisfaction, are to be summarized in minutes.[270]

[Notation in ink] Afterward the Reich Minister of Justice and the Reich Leader SS had a private conversation.[271]

2. Obediently submitted to the Reich Minister.

[Initial] L [Lammers] September, 22 [Initial] F [Ficker]

3. For the files. Justice 24

TRANSLATION OF DOCUMENT 654-PS PROSECUTION EXHIBIT 39

MEMORANDUM OF THE REICH MINISTER OF JUSTICE ON A CONFERENCE WITH HIMMLER, 18 SEPTEMBER 1942, CONCERNING “SPECIAL TREATMENT AT THE HANDS OF THE POLICE” WHERE “JUDICIAL SENTENCES ARE NOT SEVERE ENOUGH”, THE WORKING OF “ASOCIAL ELEMENTS” TO DEATH, AND OTHER MATTERS

Discussion with Reich Leader SS Himmler on 18 September 1942 at his field headquarters in the presence of Under Secretary Dr. Rothenberger, SS Major General Streckenbach, and SS Lieutenant Colonel Bender.

1. Correction [Handwritten insertion: “Lammers informed”] by special treatment at the hands of the police [durch polizeiliche Sonderbehandlung] in cases where judicial sentences are not severe enough. On the suggestion of Reichsleiter Bormann, the following agreement was reached between the Reich Leader SS and myself:

a. On principle, the Fuehrer’s time is no longer to be burdened with these matters.

b. The Reich Minister of Justice will decide whether and when special treatment [polizeiliche Sonderbehandlung] at the hands of the police is to be applied.

c. The Reich Leader SS will send the reports which he hitherto sent to Reichsleiter Bormann, to the Reich Minister of Justice.

d. If the views of the Reich Leader SS and those of the Reich Minister of Justice agree, the final decision on the case will rest with them.

e. If their views are not in agreement, Reichsleiter Bormann will be asked for his opinion, and he will possibly inform the Fuehrer.

f. In cases where the Fuehrer’s decision on a mild sentence is sought through other channels (such as by a letter from a Gauleiter) Reichsleiter Bormann will forward the report to the Reich Minister of Justice. The case will then be decided as described above by the Reich Leader SS and the Reich Minister of Justice.

2. Delivery of asocial elements [asozialer Elemente] while serving penal sentences to the Reich Leader SS to be worked to death [zur Vernichtung durch Arbeit]. Persons under security detention, Jews, gypsies, Russians, and Ukrainians; Poles with more than 3-year sentences; and Czechs and Germans with more than 8-year sentences, will be turned over without exception, according to the decision of the Reich Minister of Justice. First of all, the worst asocial elements among those just mentioned are to be handed over. I shall inform the Fuehrer of this through Reichsleiter Bormann.[272]

3. Administration of justice by the people--This is to be carried out step by step as soon as possible, first of all in the villages and the small towns of up to about 20,000 inhabitants. It is difficult to carry it out in large towns. I shall rouse the Party particularly to cooperate in this scheme by an article in the “Hoheitstraeger.” It is evident that jurisdiction must not be permitted to lie in the hands of the Party.

4. Decrees concerning the police and the administration of justice will in future be published after having been coordinated, for example, in cases where unmarried mothers attempting to procure abortion are not prosecuted.

5. The Reich Leader SS agrees that the cancellation of sentence, even for members of the police, will remain with the Reich Minister of Justice as laid down in article 8 of the law relating to the cancellation of sentence.

6. The Reich Leader SS has given full consent to the ruling I have planned on corporal punishment ordered by the Fuehrer.

7. I refer to the law concerning asocial elements and give notification of the claims of the administration of justice, e.g., in the classification of juveniles as asocial elements and their direction.

It likewise seems to me that the actual circumstances which serve to classify a person as asocial are not laid down in the law with sufficient clarity. The Reich Leader SS is awaiting our opinion and will desist from submission of the law until then.

[Handwritten] One thing is clear--the reduction of the age of discretion has been tentatively submitted to, and approved by the competent agencies.

8. The Reich Leader SS has agreed to a clause for the Juvenile Court Law, whereby the age of discretion can be reduced to 12 years and the age of limited discretion can be extended to over 18 years.

9. SS Lieutenant Colonel Bender, on the staff of the Reich Leader SS, is appointed by the Reich Leader SS as liaison officer for matters which apparently necessitate direct liaison with the Reich Leader SS. He can be contacted at any time by teleprinter at the field headquarters of the Reich Leader SS, and will also come to Berlin once every month to report to me. SS Captain Wanniger is appointed liaison officer for other matters; he is stationed at the Reich Security Main Office.

[Handwritten] Kuemmerlein[273]

10. The Reich Leader SS points out that in the administration of punishment many more special institutions should be set up, following the principle that incorrigible criminals should be confined separately, and that those capable of improvement should be separated according to the nature of their crimes (e.g., embezzlers, thieves, and those who committed acts of violence). This is recognized as being correct.

11. The Reich Leader SS demands that the penal register be kept by the police. Arguments against this are to be examined (cancellation, aggravation, and the use of an extract from the penal register). The question is to be further discussed with SS Major General Streckenbach.

12. The Reich Leader SS points out SS First Lieutenant, Judge at the Reich Supreme Court, Altstoetter, at present on active service as a major, as being reliable and also District Court President Stepp; he considers Attorney General Jung in Dresden unreliable.

13. Finally, the Reich Leader SS broaches the subject of the office of the public prosecutor and its transfer to the police. I rejected it flatly. There was no further discussion of this subject.

14. It is agreed that in consideration of the intended aims of the government for the clearing up of the eastern problems in future Jews, Poles, gypsies, Russians, and Ukrainians are no longer to be tried by the ordinary courts as far as punishable offenses are concerned, but are to be dealt with by the Reich Leader SS. This does not apply to civil lawsuits, nor to Poles whose names are registered for or entered in the lists of ethnic Germans.

[Initial] TH [Thierack]

TRANSLATION OF DOCUMENT NG-857 PROSECUTION EXHIBIT 434

LETTER FROM THIERACK TO THE PRESIDENT OF THE REICH SUPREME COURT, 29 SEPTEMBER 1943, PROPOSING SS GENERALS OHLENDORF AND CERFF AS GUEST SPEAKERS[274]

Berlin, 29 September 1943

The Reich Ministry of Justice T 712, M I a

To: The President of the Supreme Court of the Reich, Dr. Bumke 1. Leipzig C 1 Reichsgerichtsplatz 1

[Stamp] Out: 29 September 1943 [Handwritten initials illegible]

Dear Dr. Bumke,

I would appreciate it if, together with the Chief Public Prosecutor of the Reich, you would invite SS Brigadefuehrer Ohlendorf and SS Brigadefuehrer Cerff to speak before the members of the Supreme Court and before the public prosecution of the Reich. This plan has been suggested by the Reich Leader SS, and I welcome it. The two Brigadefuehrers can both be reached c/o the Reich Security Main Office in Berlin.

Heil Hitler!

Yours obediently [Typed] DR. THIERACK

2. After dispatch to State Secretary for information. [Initials illegible]

3. To be returned to ministerial office.

TRANSLATION OF DOCUMENT NG-219 PROSECUTION EXHIBIT 42

REPORT FROM THE GENERAL PUBLIC PROSECUTOR IN JENA TO THE REICH MINISTRY OF JUSTICE, 30 SEPTEMBER 1943, CONCERNING COOPERATION OF JUSTICE AUTHORITIES WITH THE SD AND INTEROFFICE MEMORANDUMS PERTAINING THERETO[275]

REICH MINISTRY OF JUSTICE

Business Office a-3

Subject: Cooperation of the justice authorities with the Security Service of the Reich Leader SS.

IV a 2745.43 g-sheet No. 1 [Stamp] Secret

Copy of an extract from the report regarding the situation by the general public prosecutor in Jena of 30 September 1943

[Handwritten] 4606/1-a-4, 1512/42

The reciprocity contained in the executive order of the Reich Ministry of Justice concerning the cooperation of the justice authorities with the SD (Security Service) of the Reich Leader SS [Himmler] of 3 August 1942--[published in] German Justice, page 521--is only very conditional. The [Ministry of] Justice works openly, and the Security Service secretly. So, as a general rule the [Ministry of] Justice is not at all informed of the work which is being carried out by the Security Service and is therefore also not in the position to request information. It is usually accidentally informed about such investigations. So it was in the case of Greiz, which was submitted to the Minister and during which an inspector of justice was asked about the attitude in the judicial circles regarding the judges’ letters. I furthermore remember a case of Sonneberg from which the conclusion could be drawn that the Security Service made investigations regarding the protection of war marriages through the courts.

Berlin, 6 October 1943

Mr. MD I, Mr. MD IV

For information. The Minister requests a report in this matter

[Illegible handwritten notes]

[Handwritten notes] Mr. [?] Malzan Mr. [?] Kremer

For information.

Are you informed about the above-mentioned cases of Greiz and Sonneberg?

[Signature] MIELKE 7 October

None of the cases are known to me.

[Initial] M 7 October

Nor to me!

[Initial] K 8 October

Mr. [illegible title] Kuemmerlein

Are the above-mentioned details known to you? I would be grateful if you could inform me about the whereabouts of the above-mentioned documents.

[Signed] MIELKE 8 October

[Marginal note] The cases are not known to me.

8 October [Signed] MAX LECHNER

To Oberregierungsrat Mielke:

The documents have been thoroughly searched for in the Office of the Ministry. None of cases mentioned are known.

[Signature] BEITZ 25 October

[Marginal note] To Oberregierungsrat Mielke. Oberregierungsrat Bender is the coordinator of the district Jena Department I (higher level, civil service). Doctor S. P. N. Friedrich is the deputy coordinator. The cases mentioned are not known to me. (I am an assistant to the general officials.)

[Signature illegible] 26 October

To Mr. Reinecke:

I would appreciate information on the coordinators in Department I.

[Signature] MIELKE 25 October

Registered

To Ministerialdirector Letz:

I would be grateful to you for information as to whether you are informed about the cases of Greiz and Sonneberg. The peculiar method of not answering special questions is generally known throughout the entire Reich. It is unbearable for people with character and it is an impossibility for decent people or members of the Party. In my opinion it would come to an end at once if one is quite candid and would tell them the whole truth about the P.K. I personally must persist in the demand for complete equality and the corresponding etiquette. I have just given orders to the Oberregierungsrat [illegible name] to raise objections against certain abuses in a suitable manner at the Reich Security Main Office.

[Signature] VOLLMER 27 October

[Marginal note] to IV a 2745/43 g

[Handwritten notes] To be submitted first to President Dr. Friedrich.

Are you acquainted with these cases (Greiz and Sonneberg)? Not known to me.

[Signed] Dr. Friedrich 28 October [Marginal note] to IV a 2745/43 g. Sealed!

To Ministerialdirector Dr. Vollmer:

The cases of Greiz and Sonneberg have not been known in Department I. Moreover, I know from documents, which the minister produces from time to time out of his private files, that the Security Service takes up special problems of the administration of justice with thoroughness and makes summarized situation reports about them. As far as I am informed, a member of the Security Service is attached to each judicial authority. This member is obliged to give information under the seal of secrecy. The procedure is secret and the person who gives the information is not named. In this way we get, so to say, anonymous reports. Reasons given for this procedure are of State political interest. As long as direct interests of the State security are concerned, nothing can be said against it, especially in wartime. Moreover, as far as for instance evaluation of personnel of less important nature, questions concerning the judiciary or general “reports on public opinion” are concerned, I do not regard the anonymity as harmless. The danger exists, that people will be trained to snoop around, that unjustified denunciations will occur and that an atmosphere of mistrust will be created. There can indeed be no question of cooperation between the [Ministry of] Justice and the Security Service curing such a procedure. On the other hand the minister may be interested to know how the [Ministry of] Justice is criticized outside the official channels of appeals. In any case the secret, one-sided Security Service reports cannot be a basis for the establishment of facts and certain conclusions. They may provide hints.

Berlin, 29 October 1943 [Signature] LETZ [Marginal note] to IVa 2745/43g

PARTIAL TRANSLATION OF DOCUMENT NG-327 PROSECUTION EXHIBIT 359

LETTER FROM LAMMERS TO THIERACK, 23 OCTOBER 1942, STATING THAT THE OPINION OF THE GAULEITER HAS TO ACCOMPANY CLEMENCY CASES SUBMITTED TO HITLER

The Reich Minister and Chief of the Reich Chancellery, Rk. 779 B g

[Stamp] Reich Ministry of Justice 25 October 1942

Berlin W 8, 23 October 1942 Voss Strasse 6 at present, Field Headquarters

SECRET

To the Reich Minister of Justice, Dr. Thierack

[Handwritten] has been submitted [Signed] EBERSBERG

Subject: Consultation of Gauleiter in clemency cases

Dear Mr. Thierack!

The Fuehrer ordered that in future in all cases submitted to him for clemency, the expression of opinion by the Gauleiter[276] has to be obtained. Details should be learned from the attached copy of my letter to the Minister of State and Chief of the Presidential Chancellery of the Fuehrer and Reich Chancellor, whom I requested to contact you.

Heil Hitler!

Very truly yours, [Signed] DR. LAMMERS

[Handwritten] taken care of IVa 1729/42g-1728/42g

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[277]

DIRECT EXAMINATION

* * * * * * *

DR. WANDSCHNEIDER (counsel for defendant Rothenberger): We are now coming to a group of problems which were set down in Exhibits 38 and 39.[278] The exhibits are concerned with a discussion between Himmler and Thierack, in the presence of Dr. Rothenberger, as is said at the beginning of the transcript of 18 September. Dr. Rothenberger, would you tell us, please, who was your main opponent outside the administration of justice?

DEFENDANT ROTHENBERGER: Himmler, as the Reich Leader SS. That he was my opponent I had known for many years. I gathered that on the one hand from the fact that at public demonstrations I had repeatedly in view against all measures which had been taken against the administration of justice at the instigation of Himmler.

In particular, I remind you of the measures described in the Schwarze Korps against the German judges. I remind you of his measures which amounted to a correction of sentences. It was natural that the view which I had expressed in public as to what those measures would lead to, that Himmler through the SD service would have been informed of that. For me it was a matter of course, that Himmler would have been informed of the contents of my memorandum to Hitler, and that was proved right during the discussion later on. About that discussion Himmler knew that I had warned Hitler of the development of the administration of justice and of the development of the Reich as a whole, a development towards becoming a pure power state.

In particular Himmler knew from the memorandum[279] that I had requested that the entire administration of penal justice was to lie exclusively in the hands of the judiciary. That that constituted a camouflaged attack on the administration of justice by the Gestapo was naturally obvious to Himmler. That view of mine, namely, that Himmler for that reason harbored great distrust toward me, was confirmed to me not in the course of the discussion, but it was confirmed to me by the results of that discussion; and it was confirmed without any doubt. I saw Himmler once in my life and for the following reason:

He had sent out an invitation. Thierack said to me that I was to go along with him because it was a first official visit. We had only just assumed office and this was supposed to be my first official call on Himmler. We had not heard before what points were to be discussed there. One could only rely on suppositions. My supposition was that the problems which for years had been an object of dispute between the administration of justice and the police would probably be mentioned in the course of this discussion. Among those problems there were, in particular, the following questions:

On the one hand, the question of the transfer of the prosecution to the police, which has been mentioned here a few times, but the significance of which, I believe requires some explanation. I mean, it is significant for the entire set of proceedings and trials in Germany. The German prosecution at this trial here has repeatedly been described as the most objective authority in the world. Naturally, that was an exaggerated expression. But contrary to the Anglo-American procedure, what is correct about that statement is that the public prosecutor, because he has to deal with all elements that speak in favor of the defendant as well, constitutes a very far-reaching protective element for the defendant as well.

This is therefore for the entire method of proceedings, the position of the judge and in particular also the position of the defense counsel--which for that reason, too, is an entirely different position than it is under Anglo-American procedure--of essential importance.

If Himmler would have gotten the prosecution into his hands, which he had wanted to do for years, that agency which hitherto had been objective would have been in Himmler’s hands. Himmler’s struggle against the administration of justice would have been carried into the courtroom. That explains my great misgivings against that demand of Himmler’s. For this reason, as far as I knew this problem would become acute, I considered it my duty, although formally it did not concern me, but because it was a basic question for the reputation of the judiciary as such, I tried with all means at my disposal to persuade Thierack before the discussions that on no account was he to give way on that point. I had all the more cause to do so because I had the feeling that Thierack wavered on that point. I did not know, I only heard that here, that actually on the occasion of the Elias case which has been mentioned here, in Czechoslovakia he in a certain way had already committed himself. I made particular use of this factor without Thierack--I told him that if the prosecution would no longer be under the administration of justice, you yourself, who directs the penal administration of justice, will lose the ground under your feet. What I said was, “you yourself will saw off the branch on which you are sitting.” That factor evidently did have some effect upon him; it evidently succeeded.

The second problem which would probably be broached by Himmler was the question of the community law concerning asocials, which has already been mentioned. I shall refer to that briefly later, because that problem was discussed during the conference.

There were two further points which I thought would be broached. They were old hobby horses of my own. I am referring to the question of the Schwarze Korps and that of the correction of sentences. Thierack himself said to me before the conference on the way there--we went there together--“Will you keep in the background at the conference, please, because, on the one hand, the problems will probably concern matters which do not affect you, that is to say, matters of the administration of penal justice; and furthermore, I do not want an argument to arise between us again, which is quite apparent to outsiders, such as occurred during our visit to Lammers a month ago.”

Q. What happened at the conference itself?

A. It is nearly 5 years ago now since that conference took place, but as it was very impressive I believe I can remember it fairly well. It was not a formal meeting, since only a very small circle of people attended. It was, in fact, an informal conversation, interrupted by a supper. Himmler was the main speaker. I noticed this manner of speaking was very much like that of Hitler’s.

PRESIDING JUDGE BRAND: Wouldn’t it be possible for you to concentrate a little more on the actual material features of the conversation?

DEFENDANT ROTHENBERGER: Yes.

Q. We don’t care how he spoke, or about his manner.

A. Yes, Your Honor.

To begin with, he made general remarks about the war situation, of which he took a favorable view. I do not remember now the sequence of the individual points which are mentioned in the minutes, but I do believe that he then immediately went over to the subject of the transfer of prisoners, that is to say, the transfer from the administration of justice to the police. That was a problem which was entirely new to me. He said that through his organizations he had had the facts established that the prisoners under the administration of justice, on the one hand, were badly overcrowded, and furthermore that in some cases at those prisons, work was still being performed which was not essential to the war effort. He mentioned handicraft and pasting together of paper bags. He himself, on the other hand, had constructed large armament works. He was of the opinion that at a time when every German, be it the soldier at the front or the man or woman in the homeland, was working for the war efforts, the prisoners too, in one form or another, should make their contribution toward the war effort.

When he had explained that to us in great detail, it seemed to me that Thierack’s attitude on that point was not altogether clear. On the contrary, I had the impression that Thierack had understanding for that request which Himmler had put forward.

No details were discussed as to what type of prisoner Himmler wanted transferred, but it was said in a general way that only prisoners with long terms would be considered for such transfer, since prisoners with short terms would have to be discharged again at an early date.

I myself kept silent on that point to begin with, because for one thing I did not feel certain on that question, and secondly, because Thierack had especially asked me to hold back. However, in the course of our talk--I do not remember whether it was immediately or whether it was later on--the conversation turned to the subject of the general relations between the administration of justice and the police. That conversation dealt mainly with the old arguments concerning the Schwarze Korps and Himmler’s correction of sentences. Himmler was of the opinion that the administration of justice had failed in various instances, and for that reason he had been compelled to intervene. Since Thierack, on that point too, did not take up a clear attitude in favor of the administration of justice, I considered it my duty to interfere. Naturally, I was cautious in my manner, but I was clear as far as the matter itself was concerned. I had just been appointed by Hitler and had the belief that Hitler was backing up my plans. I said that the problem of the police and the administration of justice could not be considered just from the point of view of one single sentence which might have been correct or incorrect, but that one must regard that problem from the general point of view of the reputation of the judiciary. I said that the reputation of the State as such was dependent upon the reputation of the judiciary.

In speaking of these things I referred to my memorandum and my opinion that Hitler had approved my memorandum on those points, too. I said that from that point of view I, too, considered it incorrect for the administration of justice to transfer prisoners to the police. If the prisoners were not being put to sufficient use for the war effort, the administration of justice itself would have to see to it that sufficient use would be made of such prisoners.

Himmler listened to my remarks with comparative calm. It seemed to me that he had understanding for what I was saying.

He said that he had never heard of these problems from that angle, and he said that in future he would instruct the Schwarze Korps to refrain from attacking the administration of justice; he would also stop the police from intervening in the case of individual sentences.

These two subjects had thus been concluded. The question of the transfer of prisoners seemed to me to remain undecided. Besides that point a few other problems were discussed, for example, the question of the asocial law.

Q. I wonder, would you for my convenience tell me the technical name of the asocial law, either by date or in any other way? What law are you referring to as the asocial law?

A. May it please the Court, that is not a law in the sense of ever having become a law. It is merely a draft which dealt with the question as to whether the police were to be allowed to arrest asocial elements. Have I made myself clear, Your Honor?

Q. In saying “the asocial law,” you didn’t mean that there was any law at all?

A. No, no, I did not. No, it never became law. I will explain that in a moment. I was familiar with that problem from my time in Hamburg. Yesterday I explained, as is evident from Document NG-387, Prosecution Exhibit 400,[280] that I had put forward the proposal that if such a law were to be issued at all, a judicial authority would have to be set up in order to decide as to who, in fact, was an asocial element. That same question was brought to my attention immediately when I assumed office in Berlin. I believe it was in my first or second week there when a Ministerialdirigent Rietsch came to see me. He said to me--Mr. Under Secretary, you must help us. Minister Thierack is prepared to agree to that law, and that would be impossible, because that law would give to the police alone the right to determine who is an asocial element. Since a large number of the criminal elements are also asocial elements, such a regulation, that is to say if the police were to have the right to determine who was asocial, that would mean that the penal courts would be completely eliminated. Together with Rietsch, before the conference at Himmler’s, I had had a lengthy conversation with Thierack on the matter, because this problem again constituted a fundamental question of the administration of justice. Thierack did not give his approval, even when Himmler broached that question at the conference and asked Thierack to give his consent, Thierack remained firm. That is evident from item No. 7 of the document. As I heard later on, negotiations were held between the Referenten, and the law never became a law in effect, at least not during my period of office, and I do not believe that it became effective afterwards. The further point which was discussed was the problem which I think has been discussed in almost too much detail here, that of the justice of the peace. It was astonishing and surprising to me that Himmler had any interest at all in that problem. He was fairly well informed about the historical foundations both abroad and in Germany, and it was equally surprising to me that he concurred in my opinion--I talked about that subject, my opinion being that the office of the justice of the peace was not to lie in the hands of the Party. That is evident from item No. 3 of the document.

Various other questions were discussed at length, questions which were largely of a technical nature, partly anyhow. I do not remember the order in which these questions came up for discussion. I am merely mentioning the question of age in regard to responsibility before the law [Strafmuendigkeit]. I believe that Himmler mentioned a few cases where children of only 13 years of age had committed punishable acts and where he was of the opinion that one had to punish them, whereas under the previously existing legislation a child only becomes punishable at the age of 14. Questions concerning the penal register were then discussed, concerning ordinances to be issued jointly by the administration of justice and the police. I do not remember for certain whether punishment by flogging was discussed in my presence. I think it is possible. I am certain that while I was there the question of the transfer of the prosecution was not touched upon at all. This document contains a reference under 13 where Thierack says “I flatly rejected Himmler’s demand for the transfer of the prosecution to the police.”

DR. WANDSCHNEIDER: Dr. Rothenberger, may I interrupt you before we continue? When you spoke about the correction of sentences you said that the correction of sentences, according to Himmler’s remarks, was to be stopped. The document of 18 September 1942 itself shows that beyond that a number of details were laid down as to what procedure was to be adopted in correcting sentences, concerning the relation between Himmler and Thierack and with the corresponding participation of Bormann. Were such particulars discussed in your presence?

DEFENDANT ROTHENBERGER: No. Himmler merely emphasized that a unilateral interference such as has occurred hitherto would no longer be permitted by him.

Q. Would you continue, please?

A. The last point which is contained in the document was also certainly not discussed at all. I am referring to the question of the transfer of the penal administration of justice concerning Jews, Poles, gypsies, Russians, and Ukrainians.

Q. Dr. Rothenberger, you know the transcript of 18 September, those minutes where it says that Himmler and Thierack led the discussion and that you were present. How can you explain it that those points which, according to you, were not mentioned in your presence must have been kept secret from you or deliberately cannot have been discussed in your presence?

A. The file note which Thierack wrote personally I saw for the first time here.[281] Today it is altogether clear to me how that file note came about.

Added to the file note in NG-059[282] is a notation signed by Ficker, Reich Cabinet Counsellor.

That notation confirms that following the conference which I attended, the Reich Minister of Justice and Reich Leader SS, I quote, “had a private conversation.” When I think it over as to why such a talk between the two alone took place, today I realize fully that Himmler and Thierack quite deliberately excluded me and misled me, in particular, concerning the most delicate points.

What their motives were, I naturally can’t say but in accordance with all the previous and subsequent events, immediately after the conference, I am bound to assume that Himmler and Thierack did not exactly regard me as their ally in such plans, and that during the first conference which I attended, they quite deliberately created the impression that they were making certain concessions. As to whether they, themselves, were not certain of themselves, as to whether Hitler really had a certain amount of understanding for my plans I cannot tell of course; but as far as the early period is concerned, that is possible. And now Thierack, I do not know when, for it cannot be seen from the file note (654-PS, Pros. Ex. 39), which bears no date, summarized the results of both discussions; that is to say, the conference which I attended and the following conversation between Himmler and Thierack alone, in this file note, without differentiating between them. It seems that a part of this file note was added by him only at a later time. I gather so from the original document, according to which some of the document was added later on by a different typewriter. That part concerns the last item, point 14, the question of the transfer of the administration of penal justice over Jews and Poles.

Q. Dr. Rothenberger, may I put another question to you in this connection? If I understood you rightly, you wanted to tell us that Thierack and Himmler were uncertain toward you and did not quite know where they stood with you. To what do you attribute that feeling that they had, that they did not quite know where they stood with you?

A. Mainly I think that feeling was caused by my memorandum. I assumed that Himmler knew that memorandum and that Himmler was not certain whether Hitler was really supporting the ideas of that memorandum.

Q. Did the unusual way in which you came to Hitler play any part in that?

A. No doubt, for Himmler and Thierack both knew that I had been appointed by Hitler himself in an unusual manner.

PRESIDING JUDGE BRAND: You have covered that.

DR. WANDSCHNEIDER: Thank you. May it please the Tribunal, may I continue with my examination?

PRESIDING JUDGE BRAND: Yes.

DR. WANDSCHNEIDER: What was your first impression after the conference?

DEFENDANT ROTHENBERGER: My first impression after the conference was favorable. Immediately after the conference, I told Reich Cabinet Councilor Ficker so. That too can be seen from Document NG-059, Prosecution Exhibit 38. I believed that that favorable impression was due to the fact that in regard to the main problems of the administration of justice, Himmler had not prevailed with his view. He had not asked to have the prosecution transferred. Concerning the correction of sentences and that of the Schwarze Korps, he had given assurances, in the problem of the asocial law, too, he had withdrawn his demand, and the question of the transfer of prisoners had at any rate remained open.

After the conference, the next morning in fact, I left by myself. Thierack remained behind--I do not know for how long he stayed. I went to Hamburg via Berlin to join my family in Hamburg, and there, too, I talked to a friend in a very positive way about this very important meeting which had concerned the administration of justice. When I returned to Berlin, the great disappointment began. Already after a few days, there was among the files which lay on my desk, a paper. That, too, was a file note by Thierack. It was a much briefer file note than the one here. As I remember it now, it concerned a conference with Goebbels. That file note indicated, in what form I do not remember now, that Goebbels had voiced to Thierack the idea of the extermination through work. That file note, was not addressed to me. It must have come into my possession by mistake.

When I read it, I could hardly comprehend that idea to start with. I could not comprehend what was meant by it. Feeling upset, I went upstairs to see Thierack immediately and asked him what it was all about. Thierack said to me with a certain amount of arrogance and condescension, “Do not get excited. It is correct that I talked to Himmler alone afterwards, that was the first time I heard of it, and in the course of that talk, this question, too, was discussed by Himmler and myself. But I rejected that demand on the part of Himmler with determination. I did that for humane reasons alone, and Himmler too understood that at the time everybody in Germany was needed.”

During that talk, Thierack took a paper out of his desk, and on this paper--which I did not read myself, but I could see it--Thierack wrote in the margin so that I could see it, in his green pencil, “Settled” or “Rejected.” I believe it was settled, as I can see now. Evidently, he wanted to confirm to me his assertion that this idea of extermination by work had been dropped by writing down that remark. I had only been in office for 3 weeks at that time, and I was still so innocent that I did not realize that those men might really carry out such an idea, and that they were deluding me.

Q. Dr. Rothenberger, in connection with this group of questions, a number of documents have been submitted about which you will have to give us your views. I now want to enumerate the various documents and to ask you to give us your views.

* * * * * * *

We are now going to deal with Exhibit 264,[283] document book 4-A, page 42, that is a letter from the Reich Ministry of Justice to the general prosecutors, dated 22 October 1942, it is signed by Crohne, and it was connected with the carrying out of the agreement of September 1942.

A. I never saw the letter either, which was natural, because it was a problem which concerned penal law and the administration of penalties. Such matters were not submitted to me, on principle.

Q. As Exhibit 268,[284] the prosecution submitted a document which was signed by Dr. Eichler, and is dated 1 April 1943; it concerns the transfer of Jews, Poles, etc., into concentration camp. Did you ever hear of such a letter?

A. No, I never saw that letter either.

Q. Finally, a gruesome letter from Thierack to Bormann, dated 13 October 1942, plays a part. That letter was read into the record and was not submitted as a separate document--if I remember correctly. The court knows it, did you ever see this letter from Thierack of 13 October 1942?[285]

A. No, I do not know that letter either.

* * * * * * *

Q. And then at the end of 1943, how did your leaving the Reich Ministry of Justice come about?

A. Yesterday I briefly mentioned the fact that as early as in April of 1943, after Thierack had tried to transfer me to the Reich Supreme Court in January but had stated that the time was not yet ripe for that, at that time I offered him my resignation which he rejected. Furthermore, I had mentioned that at the same time that did not keep him from starting investigation proceedings against me the same time of that year 1943 without my knowledge for the allegedly illegal procurement of furniture. That Thierack was primarily interested in getting rid of me in a manner which would give the impression to the outside world that I was being dishonorably discharged is proved by what I shall say briefly about my finally leaving the office.

Yesterday I also mentioned the fact that Thierack, as early as September 1942, kept my book for about 3 months. The German Judge--

PRESIDING JUDGE BRAND: You need not repeat what you said yesterday; we remember it. Go on to something new.

DEFENDANT ROTHENBERGER: Yes. After Thierack had finally turned over this manuscript to the Party Chancellery and after it had been examined there for about 6 months, about in August or September--I am not quite sure about that date any more--of 1943 an SD report was received in the Ministry. Thierack put that SD report to me, and he told me it could be seen from that SD report that a plagiarism was contained in that book. That book contained a short historical review of the position of the judge in the old Germanic and Franconian era, and several sentences concerning that era were allegedly taken from a book by a Professor Fehr. Professor Fehr, Thierack told me, was an emigree, who lived in Switzerland, and a democrat; and there was concern that one day the London broadcasting station might broadcast the information that the German reform of the administration of justice really emanated from an emigree who was a democrat and lived in Switzerland. He said that was extremely dangerous from the point of view of foreign policy, and that I had to clear it up.

I did not know the name “Fehr” at that time at all. As can be seen from the preface, a considerable number of my assistants in Hamburg had participated in the work on this book, and one of these assistants dealt with the historical part of the book. One year before, when no mention was made about the possibility of publishing that book, he had compiled that historical data for me, which I needed for a lecture that I was supposed to give in the Reich Ministry of Justice. The other day I stated that in August of 1941 I gave a lecture in the Reich Ministry of Justice about the segregation of the profession of judges from the usual civil servant class. That historical compilation was made for that purpose.

I had the matter clarified by that assistant, Dr. Brueckmann, and he said yes, that was correct, he had used several sentences from a book by Professor Fehr compiling the data, without having any opportunity at that time to know that it would lead to publication.

Thereupon, I told Thierack what the causes for that oversight had been. At no time did anybody, not even Thierack, make the assertion that there was any guilt on anyone’s part. But I told him the man who could be interested to see that some sentences of a general historic content such as could be found in any book, that such sentences would be also contained in my book would only be Professor Fehr. Therefore, I wrote a letter to Professor Fehr, explained it to him, and asked him if that should be necessary for an interview; and before that conference took place--it was intended to take place in January 1944--Thierack succeeded in having me dismissed, and that in the following manner: I was just on a duty trip at the beginning of December 1943. During that time he went to Lammers and reported to Lammers that an application had been made by professors of the city of Hamburg who, he said, had complained that I was still in office. That in other words, would have been colleagues of mine, because I myself was a professor at Hamburg at one time. He added that from the point of view of foreign policy one could no longer maintain the responsibility of keeping me in office, and therefore, he asked that Lammers should suggest my dismissal to Hitler. I was informed about that at the end of December 1943, that is to say, before that conference with Fehr was to take place. At the end of 1943 I was suddenly called on the telephone--I was at that time with my family, it was during Christmas--[and told] that I had to come to Berlin immediately and take Thierack’s place temporarily because he wanted to join his wife. Thierack called me into his office and told me, “Hitler has directed that you be dismissed.” Upon my question, “Why,” he answered that the matter with Fehr had gone so far on account of the application made by the professors from Hamburg that it was no longer bearable to keep me. I told him that he himself didn’t believe that, and I wanted to leave the room. Thereupon suddenly he became very friendly and soft and told me, why, of course the matter of that book was just the external pretense, but first of all, in the course of this year and a quarter, I had never succeeded in establishing good relations with the Party Chancellery and the SS. Moreover he said I was accused of having taken part in the funeral of Guertner, which I didn’t understand at all, how anybody could be so stupid to charge one with having attended the funeral of an extremely decent former Reich Minister of Justice. I replied if these are the real reasons, then I was proud of it. Before I left him he again lied to me by saying, yes, he would have liked very much to nominate me for the position of president of the Reich Supreme Court, but Lammers had raised opposition against that. Then a few days later I saw Lammers in order to inquire about the background of the story. Lammers told me just the opposite. It was he, he said, who tried to offer some office of some kind to me, but Thierack had been the person who rejected that. Through these circumstances the separation which had been pending for a long time actually took place, and without a new office, without gratitude, and without any compensation of any kind I left. And in accordance with that was the publication in all German newspapers where the following notice appeared, and I quote: “Change of office in the Reich Ministry of Justice. Upon the suggestion made by the Reich Minister of Justice the Fuehrer, after effecting the transfer of Under Secretary Rothenberger, into Wartestand [Civil Service inactive status] has appointed Ministerialdirektor Klemm, who up to that time was in the Party Chancellery, Under Secretary in the Ministry of Justice.”

* * * * * * *

b. Judges’ Letters Written by Thierack and Defendant Klemm

TRANSLATION OF DOCUMENT NG-500 PROSECUTION EXHIBIT 90

CIRCULAR LETTER FROM THIERACK TO JUDGES, 7 SEPTEMBER 1942, EXPLAINING THE ESTABLISHMENT AND FUNCTION OF THE JUDGES’ LETTERS

The Reich Minister of Justice 3110/2-IVa 4 1902

Berlin W 8, 7 September 1942 Wilhelmstrasse 65 Telephone: 110044 Long Distance: 116516

To:

1. The Presidents of the Reich Supreme Court and People’s Court

2. The Presidents of the District Courts of Appeal (except of Prague)

3. The Presidents of the District Courts (with extra copies for the local courts)

For information:

1. The Chief Reich Prosecutor at the Reich Supreme Court and People’s Court

2. The Attorneys General

3. The Chief Public Prosecutors

Subject: Judges’ Letters

I will, can, and must not tell the judge who is called to preside over a trial, how to decide an individual case. The judge must remain independent in order to be able to carry the full personal responsibility for his decisions. I therefore cannot order him to use a certain legal interpretation but only try to convince him how he can help the nation by correcting or regulating with the aid of the law a life that has gotten into disorder or is ripe to be brought into order.

In this respect the profession of the judge and that of the physician are akin--he gives aid to the compatriot who asks him for help and thus prevents damage to the community. The judge, like a physician, must be able to eliminate the seat of a disease or perform operations like a surgeon.

This conception of the duties of the administration of justice has already been accepted by the German jurists to a great extent. Its practical conclusions, however, have not been fully applied yet in the field of the administration of justice.

To aid the judge in fulfilling his high duty in the life of our people, I have decided to publish the “Judges’ Letters.” They shall be distributed to all German judges and public prosecutors. These judges’ letters will contain decisions, which I consider to be especially worthwhile mentioning on account of result or argumentation. With these decisions I intend to show how a better decision could or should have been found; on the other hand good, and for the national community important, decisions shall be cited as examples.

The judges’ letters are not meant to create a new casuistry, which would lead to a further ossification of the administration of justice and to a guardianship over the judges. They are rather aimed at telling how judicial authorities think National Socialist justice should be applied and thereby give the judge the inner security and freedom to come to the right decision.

The contents of these letters are confidential; the chief of an office shall keep them personally, and let every judge and public prosecutor take notice of them against receipt.

For the publication of the Judges’ Letters the collaboration of all the judges and prosecutors is needed. I expect suitable decisions from all branches of justice to be presented to me for publication. When published, neither the judge nor the tribunal pronouncing the sentence will be named.

I am convinced that the Judges’ Letters will help essentially to adjust the administration of justice uniformly along National Socialist lines.

[Typed] [Signed] DR. THIERACK [Certified]: [Signed] MASSMUND

[Stamp] As Chief Secretary of the The Reich Ministry of Justice Ministerial Chancery

PARTIAL TRANSLATION OF DOCUMENT NG-298 PROSECUTION EXHIBIT 81

THE FIRST ISSUE OF THE JUDGES’ LETTERS, 1 OCTOBER 1942

RICHTERBRIEFE [Judges’ Letters] Communications of the Reich Minister of Justice, Issue No. 1, 1 October 1942

Confidential

German Judges

According to ancient Germanic interpretation of the law, the leader of the nation has always been its supreme judge. When the leader therefore invests another person with the authority of a judge, this means that the latter not only derives his judicial power from the leader and is responsible to him, but also that leadership and judgeship have related characters.

The judge is therefore also the guardian of national self-preservation. He is the protector of the values of the nation and helps in the annihilation of the unworthy. He regulates those functions of life, which are considered diseases in the body of the nation. Justices vested with absolute authority are essential for maintaining a true national community.

On account of this task, the judge is the direct assistant of the leadership of the State. This position renders him prominent, but also shows the limits of his tasks which cannot, as a liberal doctrine assumed, lie in the supervision of the leadership of the State. For, if a state does not have an organization which grants the leadership to the best, the administration of justice cannot substitute this selection by its activity.

The judge is the embodiment of the wide-awake conscience of the nation. Any state is bound to fall if honesty and common sense do not form the standard of values in the national community. It is the task of the judge to see that this is done. In rendering judgment he must always show the people his adherence to this rule.

These tasks place the judge in the center of the administration of justice. They show the profession of judges as one of the earliest professions--to be compared with that of the farmer and the soldier. These tasks can only be fulfilled by men who are mentally free and honest, and who possess a high sense of responsibility, shouldering this responsibility gladly, and conforming by their inner and outer bearing to the picture of a judge as the German people see it. The judges must therefore become a corps of judges, which represent an elite of the nation. But this must not lead to the judge keeping aloof from the people; on the contrary he has to live with and among his people and know its needs and sorrows in order to be able to help.

Such a corps of judges will not slavishly cling to the letter of the law. It will not anxiously look for cover by the law, but aware of its responsibility, it will find within the bounds of the law a decision which shall be the best guide for the life of the community.

The war for instance makes demands on a judge, which are totally different from those in quiet peace times. The judge has to adapt himself to these changes. He can only do this when he knows the intentions and aims of the State leadership. The judge must therefore always be in close contact with the leadership of the State. This is the only way to guarantee the performance of his high task for the good of the community, and it prevents the administration of justice--detached from its real problems in the life of the people--from being considered as a body for its own ends. From this ensues the meaning and necessity for the guidance of the administration of justice.

Guidance in the administration of justice does not mean to impose upon the judges a certain view of the law. The judge must remain independent, otherwise he will no longer be judge. But the State can and must lay down the general line of policy, which judges must follow, if the administration of justice shall fulfill its obligations.

I have therefore decided to issue Richterbriefe which will be sent to all German judges and public prosecutors. These Judges’ Letters shall mainly contain decisions which I deem to be especially worthy of interest, because of their findings or argumentation. By these decisions I want to show how better findings could and ought to have been arrived at; on the other hand, good decisions which are essential to the community shall be held out as exemplary.

There is yet another consideration, which caused me to issue these “Judges’ Letters”--The outlined view of the judge’s tasks has carried its point with most of the German lawyers, its practical effects on the administration of justice, however, has not yet been totally realized and cannot have been fully realized yet in view of the traditional training of lawyers. Therefore, I want to help the judge by means of the Judges’ Letters to accomplish his high duties in the life of our nation. I want to impress upon him how he must help and protect the community.

The Judges’ Letters are not intended to create a new cult of decisions, which would lead to further formalism in the administration of justice and to subjecting the judges to tutelage. They are only to give an idea of how the leadership of justice wishes to apply National Socialist law, in order to give the judge self-confidence and freedom to find the right decision.

The contents of the letters are confidential; they are handed to each judge and public prosecutor by the chief against receipt.

I am convinced that the Judges’ Letters will essentially contribute to the creation of a uniformly directed German corps of judges.

Berlin, 1 October 1942

[Signed] DR. THIERACK Reich Minister of Justice

1. PUBLIC ENEMIES, ESPECIALLY BLACK-OUT OFFENDERS[286]

Sentences imposed by several courts in the years 1941–1942

1. A 19-year-old laborer who had been employed by the Reichsbahn [Reich Railroad] since 1941, stole, soon after his appointment in the winter of 1941–1942, during black-out hours, luggage and parcels from the luggage vans of long distance trains, and parcels from mail vans. There were in total 21 charges against him.

The Special Court sentenced him to 4 years’ imprisonment as a public enemy.

2. A 34-year-old lathe operator attempted black-out purse snatching at the end of 1941. In the darkness he approached a woman in the street and snatched her handbag off her arm. He was followed and arrested. He has six previous convictions against him, among which was theft, inflicting bodily harm, and killing by negligence. He had been sentenced in respect of the bodily harm, because in 1931 he had together with a Communist knocked down a National Socialist with a fence pole.

The Special Court did not legally appraise the act as street robbery but as theft, because the woman carried the handbag only loose on her arm, so that the culprit did not have to use force. It regarded him nevertheless as a public enemy, and expressed the view, that the community should be specially protected against him. Yet the sentence imposed was but 2 years’ imprisonment.

3. A 29-year-old laborer, who was a shirker and had several previous convictions against him, tried in 1941 to commit black-out purse snatching. He had just been discharged from the hospital as a malingerer and wanted to provide himself with money. He followed two women in the darkness in the street and reached for the purse while passing them, but he could not pull it off, because it was held tightly. In answer to cries for help, some men hurried to the scene and got hold of the culprit.

The Special Court sentenced him to death as a public enemy, and added, that persons needed special protection during the black-out in order to retain the feeling of safety in the country for the people.

4. An 18-year-old culprit W., who had no previous convictions against him raped a soldier’s wife during the black-out in 1941. After having visited an inn, he accosted, about midnight while on the way home with his 19-year-old friend P., a young woman who was going home from work at that late hour. She rejected the men and said that her husband was a soldier at the front and that she wished to go home without being molested. W. hit a man, who was standing nearby and who witnessed the incident, several times in the face without cause. Then he dragged the woman into a lane, hit her, and raped her on a bench, breaking her resistance by pretending to have a revolver on him. P. was waiting nearby in the meantime but did not interfere.

The Special Court sentenced W. as a public enemy to death for rape. P. was convicted to 5 years’ imprisonment for aiding and abetting the criminal.

Opinion of the Reich Minister of Justice

At a time when the best men of the nation are risking their lives at the front, and the nation is untiringly working for victory, there is no room for criminals who destroy this will of the community. The lawyers therefore must realize that during the war it is their duty to exterminate the traitors and saboteurs on the home front. The law offers enough expedients for this. The home country is responsible to the front for peace, quiet, and order in the land. This high responsibility lies not least of all, in the hands of the judge. In principle, every crime counts more gravely in wartime than in peace. The special struggle, however, is against the “public enemies” a concept closely confined by the law. When a judge after careful examination of the punishable offense and of the personality of the accused decided that a criminal is to be considered a “public enemy,” this serious decision must also be expressed with full severity by the sentence. It is self-evident that a thief who steals goods and property from fellow citizens after the terror raids of our enemies deserves death only. But any other culprit too who commits crimes by taking advantage of the circumstances of war sides with the enemy. His faithless character and his challenge therefore deserve the severest penalties. This applies especially to the cowardly black-out criminal. “I do not want,” so the Fuehrer said, “a German woman who may go home from work at night time, to have to watch anxiously that no good-for-nothing or criminal will hurt her, for the soldier has the right to demand that his family, his wife, and his kin at home are protected.”

It can be said that the majority of the German judges have fully recognized the demands of the hour. The death sentence which was pronounced by the Special Court on the only 18-year-old criminal who raped a soldier’s defenseless wife, also meted out to the shirker who snatched handbags, justly puts the rights of the people in the foreground. There are, however, still cases in which personal consideration of the perpetrator is placed above the interests of the absolute protection of the community. This is shown by the comparison of the present judgments. The cunning handbag robbery at night by the previously convicted perpetrator and the twenty-one thefts of parcels by the 19-year-old worker are not justly punished with 2 and 4 years in the penitentiary. The decisive element here is not whether the taking of the handbag is legally to be considered theft or robbery--which, incidentally does not depend on whether it was carried loosely or pressed tightly to the body--or whether the sexual criminal has done any particular harm. The fact that in wartime he assaults in a cowardly and cunning manner a defenseless woman and that he endangers the security in the blacked-out streets puts him on a level with the traitor. The safeguarding of our community demands that in wartime in such cases punishment should serve, above all, as a deterrent. Here prevention is always better than cure. Every punishment of a “public enemy” which is too mild will sooner or later be detrimental to the community and carries with it the danger of disease-like spreading and gradual disintegration of our defense. It is always better, the judge exterminates such a bacillus in good time than having to face helplessly a contaminated multitude later on. In the fourth year of war the criminal must not gain the impression that the community relaxes in combating him; he must feel always anew that the German judge fights the internal enemy with the same determination as the soldier fights the external enemy on our fronts.

2. SEXUAL CRIMES COMMITTED AGAINST CHILDREN AND MINORS

Several Verdicts from the Year 1941–1942

* * * * * * *

The Opinion of the Reich Minister of Justice

* * * * * * *

3. APPLICATION FOR COFFEE RATIONS BY JEWS

Decision of a Local Court of 24 November 1941

In autumn 1940 a special coffee ration was distributed to the population of the town B. Among others a large number of Jews applied for this coffee ration which, however, they did not receive as they were excluded from the distribution per se. The food authorities saw in this conduct an offense against the distribution regulations and imposed fines on the Jews. Thereupon several hundred Jews appealed against them and asked for a court decision, so that about 500 identical cases were pending simultaneously with the local court in B. The judge informed the food authorities that in his opinion the imposing of fines could not be upheld for legal reasons--one of which was the statute of limitations--and recommended rescinding them. The food authorities did not share this legal opinion of the judge and refused to rescind the fines but suggested to the court that it mention only the point of limitation in case the fine should be set aside. Thereupon the court rescinded the fine in one case; the other cases were to be dealt with according to prescribed procedure and with reference to this decision.

This ruling, in seven sections and covering 20 pages, contains verbose interpretations of the factual and legal position. The introduction tries to justify in long tirades the length of the reasoning. Then it is set forth in detail that the Jews had been able to register with their grocers before the official announcement of the impending coffee distribution, since the distributors had been informed in advance by their respective economic groups. “The contrary interpretation on the part of the food authorities was absolutely incompatible with the established facts,” as the food authorities had “overlooked” various factors. After an entirely immaterial description of the attitude of the individual grocers toward the Jews after the announcement of the decree, the document deals in detail with the investigations undertaken by the food office. The ruling continues that the court had tried in vain to cause the public prosecutor to take over the pending cases and deal with them in the regular manner, but that it had also refused on the grounds that no punishable act had been committed by the Jews, or, at least, that it falls under the statute of limitations. After again dealing with the fruitless efforts of the court to have the food office withdraw the fines, a series of factual and legal questions are declared irrelevant, but nevertheless discussed in detail beforehand. The following nine pages of the ruling deal with the examination of the legal question whether the registration of the Jews must be regarded a punishable act according to the distribution regulations. They arrive at the conclusion that this is not the case and that it would be wrong to prove it “by means of an abstruse interpretation of the law.” The long interpretation culminates in the summarizing statement that the Jews had not committed a punishable act.

Opinion of the Reich Minister of Justice

The ruling of the local court, in form and content amounts to pilloring a German administrative authority by the Jews. The judge should have put himself the question: How will the Jews react to this 20-page-long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority without losing one word about the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which under any circumstances avoided harming the prestige of the food office and thus putting the Jew expressly in the right. The freedom from punishment for the unauthorized coffee registration was, even according to the law then in force, definitely doubtful. The fact that Jews were not entitled to a supply of genuine coffee was self-evident even if it was not specially mentioned in the official decree. Registration had taken place by presentation of a coupon of the ration card and by having this card stamped. If, considering the special circumstances of this case, this had been construed as an abuse of the right to draw rations, it could have resulted in an affirmation of the punishable character of their act. The impudent, provoking conduct of the Jews would have made it a “particularly serious case.” In this case an offense could legally have been assumed. To such an offense a longer statute of limitations would have applied.

A legal view of this kind on the part of the food office need not have been regarded as “untenable,” “fabricated,” or “abstruse.”

Apart from this it was not necessary to point out to the Jew that he was only one of many members of his race who also had complained. Just as superfluous was the information that the food office in the preceding negotiations had refused to withdraw the fines and that the local prosecutor, through its refusal to take up the case, had also shown its opposition to the food office. These points were irrelevant to the ruling. The Jew could perforce only gain the impression of a dissension between the various authorities. Instead of this a few sentences of the ruling, dealing merely with the statute of limitations, would have been sufficient if the judge denied the punishable character of the offense.

The voluminous argument of the case would not even have been necessary if the case had involved a German. The order of the Fuehrer in the decree of 21 March 1942 on the simplification of the law that “court rulings must be given in short and concise form and must be limited to the absolutely essential” was already a wartime necessity. The German fellow citizen does not expect verbose and learned statements from the judge. The various ancillary and incidental considerations which guide the judge in his decision do not interest him. He wants to be informed by a few easily understandable words on what grounds he was found right or wrong.

4. VIOLATION OF FOREIGN-EXCHANGE REGULATIONS BY A JEW

Verdict by a District Court of 26 May 1942

The defendant, a 36-year-old Jew, had in 1936 taken possession of his deceased father’s textile firm. In 1938 he emigrated to Holland. In 1941 he was arrested in Amsterdam.

The defendant is guilty of a number of cases of illicit dealings. His activities began when he, as the chief heir of his father, ostensibly renounced his inheritance in favor of his sister who was a foreigner with the intention of depriving the German foreign currency control of the entire domestic and foreign fortune; simultaneously he made an agreement with his sister that everything should remain as it was. From their holdings in a firm in Holland which, as a subterfuge, were transferred to a dummy, the Jew and his fiancee received about 100,000 Dutch guilders in 5 years, which were not offered to the Reich Bank. He also disposed of the proceeds from various houses without a permit. As for the Dutch firm, which was practically his own, he deceived the Reich Bank for several years by pretending that he had nothing to do with it, and that moreover it was in the red and unable to repay a loan. In doing so he cheated the German authorities by producing forged balance sheets. Finally, after the Aryanization of his firm, he tried to persuade the new owners, former employees of his, through reduction of his claim by 80,000 RM, to bring 40,000 RM across the border to Holland without a permit. When his property was registered as “Jewish property” the defendant concealed considerable assets. He defended himself mainly by asserting that all these offenses were only the continuation of his father’s violations of foreign currency regulations and that he was under the influence of his sister.

“For the reason given by the defendant” the district court did not find it a grave offense in the sense of article 42 of the Foreign Exchange Regulation of 4 February 1935, nor of article 69 of the Foreign Exchange Regulation of 12 December 1938. It sentenced the defendant to a total of 2 years’ imprisonment, making allowance for the pretrial detention and to a fine of 9000 RM.

The verdict, in the accompanying opinion, discusses first of all facts that might be extenuating and mentions that the defendant had not previously been convicted; he had acted under a certain coercion, owing both to his father’s doings and to his sister’s obstinacy. One offense by necessity led to the next. Through his confession he had considerably facilitated clearing up the facts. On the other hand, the long duration of his offenses, his fraudulent conduct toward the German authorities, and the requests he made of his former employees were cited as demanding a heavier punishment.

Opinion of the Reich Minister of Justice

The court applies the same criteria for imposing punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people. Not only is he of different but of inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the meting out of punishment. Here, where a profiteering transaction typical of the defendant as Jew and to the disadvantage of the German people had to be judged, the verdict in awarding the punishment must take into consideration in the first place that the defendant had deprived the German people for years of considerable assets. He had, as innumerable members of his race have done before him, ruthlessly and for deliberate selfish reasons violated the most vital German interests by profiteering and fraud. He has abused Germany’s hospitality, which had enabled him and his father to pile up a huge fortune, and finally has not hesitated to instigate German men who depended on him economically to serious violations of foreign currency regulations, violations which endangered their very existence. From these general points of view of the German people the question had to be clarified whether this was a particularly serious case; it did not suffice here to rely solely on the rather unconvincing statements of the defendant himself, who could not have been under coercion for 4 years, but acted in his own interests and on his own initiative. This typical Jewish parasitical attitude required the most severe judgment and heaviest punishment. The reflections of the Jew and his family, in this respect, are of very minor importance.

5. CONCEALMENT OF THE REQUIRED DESIGNATION AS JEW

Verdict of a Local Court of 24 April 1942

A Jewish proprietress of a boarding house had failed to apply for the addition of the surname Sara in the official telephone directory 1940 and 1941. The local court sentenced her to a fine of 30 RM, or an alternative of 10 days’ imprisonment. In the opinion it says: According to the ruling of the local court, Jewesses are obliged to add the name Sara to their names in the telephone directory. Therefore, the Jewess is to be fined. The reason for the mild sentence was the fact that sometimes individual judges had not ruled in conformity with the local court.

Opinion of the Reich Minister of Justice

The verdict contains no grounds for the sentence. The reference to a ruling of the district court does not free the judge from offering an opinion of its own; on the contrary, it rather gives the impression as if the judge had half-heartedly and reluctantly submitted to the authority of the district court. The verdict should give the essence of the grounds in a short and concise form. Here the essence is the following: when she registers in the official telephone directory, the defendant enters into general legal and commercial life as the proprietress of a boarding house. The registration in the telephone directory is in the nature of the subscriber’s visiting card for telephonic business relations. Application for change of name is therefore absolutely necessary in order to avoid mystification.

Moreover the grounds for awarding the punishment are not sufficiently set forth. The verdict must make a clear decision--if the court finds an action punishable, then it has to award the punishment appropriate for this action regardless of whether other courts have, because of incorrect deductions, acquitted the culprit. The idea that the defendant did not have to expect a sentence with certainty because the court rulings, owing to deviating verdicts, were not yet uniform does not justify leniency. The court which is lenient because of one single wrong judgment actually compromises with the defendant. But what she did was a typically Jewish camouflage in her business dealings. It is surprising that people are only gradually realizing this.

TRANSLATION OF DOCUMENT NG-315 PROSECUTION EXHIBIT 82

EXTRACTS FROM ISSUE NO. 3 OF THE JUDGES’ LETTERS, 1 DECEMBER 1942, SUMMARIZING TWO CASES AND GIVING IN EACH CASE THE OPINION OF THE REICH MINISTER OF JUSTICE

* * * * * * *

13. FORGERY OF A TESTIMONIAL BY A CLERK

Judgment of a local court of November 1942

A 19-year-old, so far unpunished clerk, who had worked in a firm of machine tool makers wanted to be employed in a larger enterprise. For this purpose she made herself out a testimonial of her present firm in which she confirmed that she was efficient and able to cope with an “independent leading position.” She forged the signature of her chief by tracing it from the signature folder and copying it with ink. This brazen forgery was immediately discovered when the testimonial papers were submitted to the new firm, to which she had been referred by the labor office.

The prosecution sees in the action of the part of B. severe forgery of documents (pars. 267 and 268 of the Reich Criminal Code) on account of the fact that the forgery was committed for monetary gain. The proposed penalty was 2 months’ imprisonment and a fine of 30 reichsmarks.

The local court saw in this offense the given facts as contained in the former paragraph 363 of the Reich Criminal Code which provided imprisonment or a fine up to 150 reichsmarks for forgery of testimonials for the purpose of improvement of one’s position. As this ruling, however--this is what it says in the judgment--has been rescinded through the law of 4 September 1941 and has been substituted by the new paragraph 281 of the Reich Criminal Code (misuse of identity papers)--which however does not apply in this case as the testimonial is not a document of identification--the court has only to regard the action of B. either as a grave forgery of a document according to paragraphs 267 and 268 of the Reich Criminal Code or “again to apply the provision of paragraph 363 of the Reich Criminal Code despite its having been cancelled and to consider it still in existence in accordance with the sound sentiments of the people and in accordance with the will of the legislator insofar as the provisions of paragraph 281 of the Reich Criminal Code are not complied with.” The court assumed the alleged second possibility. “Working on the principle that nowadays the judge is no longer obliged to adhere slavishly to the exact letter of law, the court found the accused guilty of having forged a testimonial according to paragraph 363 of the Reich Criminal Code.”

The sentence was 3 weeks’ arrest.

On passing sentence the judge remarked that the convicted person may be placed on probation, which was later granted.

Opinion of the Reich Minister of Justice

It is correct that nowadays the judge should no longer have to adhere strictly to the letter of law in a slavish way. This freedom in applying the law should, however, not lead the judge to base judgment on a law, which the legislator has cancelled. Moreover, the manner in which paragraph 363 of the Reich Criminal Code is applied assumes a law which is still in existence. Paragraph 363 of the Reich Criminal Code was cancelled because particularly during the war it was no longer possible to counter all forgeries of certificates generally with the purpose of furthering one’s advancement merely by light contravention punishment. The many opportunities of changing one’s job frequently these days offer the temptation to facilitate this change of position through such forgeries of testimonials. Such temptation must therefore be countered by a threat of more severe penalty than was provided by the former paragraph 363.

This generally more severe measure applied to such cases does not, however, prevent from justly taking into consideration the particular circumstances of individual cases within the framework of now existing law codes, if the offense as in this instance is really a mild one. The judge sensed correctly that B.’s offense corresponded to the degree of guilt of the former paragraph 363. He could have provided for this also under existing laws.

=B.= is a yet young and inexperienced girl of whom one may assume that she was not entirely conscious of the extent of her deed. This impression is confirmed by the primitive means of the forgery. =B.= endeavored to leave her present firm in order again to work in a larger enterprise. For this reason she wished to make her recent activity appear to the best advantage. It cannot simply be assumed that she thought of a better paid position in doing so, especially as it is not so simple to secure such a position under wage scales in force at present. In consequence, it could be rejected that she sought a monetary gain. Thus only an ordinary document forgery could be dealt with in accordance with paragraph 267 of the Reich Criminal Code. As the penal code did not demand imprisonment, having regard to the special circumstances of this case, the judge could have imposed a fine according to paragraph 27b of the Reich Criminal Code.

The payment of this fine would have more forcibly brought home to the still young =B.= the antisocial action of this deed rather than an imprisonment, which the judge immediately postponed.

14. REFUSAL BY A SCHOOL CHILD TO GIVE THE GERMAN SALUTE

Decree by the Court of Guardians of 21 September 1940

An 11-year-old girl is conspicuous in school through continuously refusing the German salute. She bases this on her religious convictions and cites in explanation some passages from the Bible. In matters concerning the Fuehrer she appears altogether disinterested.

The parents, who also have a 6-year-old daughter, approve of this behavior of the child and obstinately decline to influence the child to the contrary. They also refuse to give the German salute and point to the passage in the Bible, “Do nothing with an upraised hand for it displeases the Lord.” They adhere to this in spite of advice by the court and the director of the school. The mother refuses altogether to discuss it with the child. The father is willing to do so, but says that the child should decide herself. The parents prove themselves to be adversaries of the National Socialist State also in other respects. They possess no swastika flag. They did not enter their child for the Hitler Youth: they were expelled from the National Socialist Public Welfare Association, because they will not support the collections, despite an adequate income of the man. Nevertheless they deny being adversaries of the movement. The juvenile board suggested that the parents should be deprived of the right to bring up the two children on account of their attitude.

The guardianship court refused to carry out this proposal and merely made an order for supervision by a probation officer.

In the explanation, the court stated that it had not been proved that the parents were adversaries of the National Socialist movement or that they really had fought against it; they were merely “not sympathetic to the movement and not willing to promote it.”

It was stated furthermore that “the parents are only in so far responsible for their attitude toward the National Socialist movement as they act contrary to the relevant penal laws.” The parents must realize that the children must be brought up in the National Socialist spirit and that the schools have instructions to educate them in that spirit. If the parents are not willing to bring up their children in that spirit themselves, or if they believe that their religious views do not allow them to bring up their children in that spirit, the least that must be demanded from them is not to oppose National Socialist education at school. Owing to the fact that the child is well brought up in other respects and that--judging from the court’s personal impression--the parents are “of absolutely reliable character,” it may be assumed that in future they will not give the school any trouble with respect to education.

The court of appeal rescinded the decision of the guardianship court and deprived the parents of the right to look after their children, as they are not fit to bring them up.

Opinion of the Reich Minister of Justice

The judge at the guardianship court in his decision misunderstood the principles of National Socialist education of youth.

Today, the education of German youth is based on the home, the school, and the Hitler Youth (law regarding the Hitler youth of 1 December 1936). They have to cooperate and each of them has to carry out that part of the educational task allotted to him by the community. The aim of this joint work consists in educating the young people in body, in mind, and morally in the National Socialist spirit for service to the nation and for the community.

This aim can be reached only by joint cooperation of the home, the school, and the Hitler Youth. Any opposition to and any deviation from this education endanger the common aim. An essential part of this education as well as a particular responsibility have been laid into the hands of the parents. They are united with the child by ties of blood. The child lives close to them and constantly looks to the habits and the example of the parents. To educate means to guide. To guide means to set an example by your way of life. The child models his way of life on the example of his parents. What the child hears and sees there, especially in early youth, it becomes accustomed to by degrees and accepts it as a rule of life. Therefore, the educational aim of the National Socialist State can only be achieved if the parents, conscientiously and aware of their responsibility, give their child in thought and deed a model example for its behavior in the community life of our nation. To this education of German man or woman belongs also the imparting of respect and awe for the symbols of the State and the movement at an early stage. Here, too, the community expects active cooperation on the part of the parents. A reserved neutral attitude is as harmful as attacking the National Socialist idea. Thus, indifference to the training of a patriotic member of the national community means neglect of duty on the part of the parents and endangers the educational aim for the child, even if this is not immediately apparent in each case. For this reason, it is not enough that in the present case the parents will not oppose the school in the future, they are supposed to cooperate actively in their children’s education as a whole. Thus, the responsibility of the parents does not start where its violation becomes punishable. The child is often being endangered if the parents consciously oppose the educational work of the community. That was the case here. Who continues to refuse the German salute on account of erroneous religious beliefs, who separates himself from the great social work of construction of national socialism without any reason, and who purposely withholds his children from the Hitler Youth and never takes advice, of him it can no longer be said that he merely “does not sympathize” with the movement and does not promote it. He attacks it by his opposition and is its adversary. This is proved by his convictions and by his inner attitude.

Thus, the judge of the guardianship court ought to have deprived them of the right to look after their children simply by consideration of the fact that parents, who openly profess the ideas of the “Jehovah’s Witnesses,” are not fit to educate their children in the spirit of national socialism.

TRANSLATION OF DOCUMENT NG-498 PROSECUTION EXHIBIT 93

LETTER FROM THIERACK TO PRESIDENTS OF VARIOUS DISTRICT COURTS OF APPEAL, 17 NOVEMBER 1942, CONCERNING MANNER OF ACQUAINTING JUDGES AND PROSECUTORS IN ALSACE, LORRAINE, AND LUXEMBOURG WITH THE JUDGES’ LETTERS

The Reich Minister of Justice m Rb./34/42

Berlin W 8 17 November 1942 Wilhelmstrasse 65 Tel. 110044 Long distance: 116516

To the Presidents of the District Courts of Appeal and the Attorneys General in Karlsruhe, Cologne, and Zweibruecken

Subject: Judges’ Letters.

May I ask you to make it a habit to give the judges and prosecutors in Alsace, Lorraine, and Luxembourg, too, an opportunity to acquaint themselves with the Judges’ Letters. In cases where judges and prosecutors are suspected of political unreliability, they are to be excluded in a suitable manner from the list of subscribers to the Judges’ Letters.

[Typed] [signed] DR. THIERACK Certified:

[Signed] BEITZ Clerk

[Seal] Reich Ministry of Justice

PARTIAL TRANSLATION OF KLEMM DOCUMENT 33 KLEMM DEFENSE EXHIBIT 33

ANNOUNCEMENT OF MARTIN BORMANN, PARTY CHANCELLERY CHIEF, 2 DECEMBER 1942, REQUESTING GAULEITER TO INFORM THE PARTY CHANCELLERY OF THEIR OPINIONS ON THE JUDGES’ LETTERS AND OF GOOD AND BAD VERDICTS[287]

p. 377 ff. Judges’ Letters

R. 187/42 2 December 1942

Party Comrade Dr. Thierack, in his capacity as Reich Minister of Justice, appeals to all German judges and public prosecutors, by way of confidential Judges’ Letters, to bring German justice in line particularly with the political exigencies of justice. I will see to it that the Judges’ Letters are passed on to the Gauleiter, and I request them to give their opinions, where necessary, on all proposals and suggestions made by the Reich Minister of Justice in these Judges’ Letters.

Furthermore, I request the Gauleiter to inform the Party Chancellery of good and bad verdicts, as far as they come to their knowledge, and as far as they may be used in the Judges’ Letters. We will then discuss the relevant parts with the Reich Minister of Justice.

* * * * * * *

TRANSLATION OF DOCUMENT NG-676 PROSECUTION EXHIBIT 178

LETTER FROM DEFENDANT KLEMM TO THE PRESIDENT OF THE STUTTGART COURT OF APPEAL, 5 JULY 1944, STATING SENTENCES IN THAT AREA WERE TOO LENIENT, PARTICULARLY IN CASES IN WHICH DEFENDANT CUHORST PRESIDED[288]

COPY

The Reich Ministry of Justice Berlin W 8, 5 July 1944 IV secret I 5045/44

To the President of the District Court of Appeal (Oberlandesgerichtspraesidenten) and to the Attorney General in Stuttgart

Subject: Practice [Rechtsprechung] of the District Court of Appeal (Oberlandesgericht) Stuttgart in cases of defeatism

For some time now the practice of the criminal senate of the District Court of Appeal Stuttgart has given me cause for grave thoughts with regard to matters of defeatism. In the majority of cases the sentences are considerably too mild, they do not sufficiently bear in mind the thought of the protection of the people which must govern the punishment of defeatism, and are in an incompatible disproportion to the sentences which are in similar cases passed by the People’s Court and by other district courts of appeal. I would refer especially to the following sentences which lately attracted my attention:

1. Criminal case against Friedr. Linder--OJs. 205/43--, sentence of the 2d criminal senate of 7 January 1944 (President of the Senate Dr. Kiefer, District Court of Appeal Counsellor (Oberlandesgerichtsrat) Dr. Stuber, and Hegele, presiding officer of a chamber at the court of appeal (Landgerichtsdirektor)). You made a report under date of 28 April 1944 on this case on the sentence. In view of the danger and of the frequency of the statements made, I must maintain the interpretation already expressed in my decree of 15 March 1944--IV secret I 5045 b/44--that the defendant, a foreigner, deserved a severe sentence of penal servitude. I have therefore directed the files to the Chief Reich Prosecutor at the People’s Court to examine the question whether the extraordinary objection should be applied against the sentence.

2. Criminal case against Karl Unger--OJs. 203/43. Sentence of the 1st penal senate of 22 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, and Oberlandesgerichtsrat Eckert).

The defendant is an old active Communist who apparently remained an activist also after the assumption of power and who has not given up his former opinions. His age and the illness, to which you refer in your statement of 17 May 1944, did not prevent him again to make malicious Communistic oral propaganda at an especially dangerous time. I must, in these circumstances, consider the sentence passed of 2 years’ penal servitude, as being much too mild. I have therefore directed this case also to the Reich Chief Prosecutor at the People’s Court.

3. Criminal case against August Jooss for aiding and abetting the enemy--OJs. 41/44--judgment of the 1st penal senate of 14 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Dr. Bohn).

The foul defeatist statements made to the French civilian worker were dangerous to such a degree that even the mentally deficient defendant must have known about the consequences, and they show a frightening measure of lack of national dignity. The sentence passed of 2 years’ penal servitude must in these circumstances be described as inadequate.

4. Criminal case against Johann Kornmayer--OJs. 31/44. Sentence of the 1st penal senate of 24 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Dr. Bohn, and Oberlandesgerichtsrat Dr. Stuber).

The reasons aggravating the punishment which were appropriately stated in the sentence should have resulted in sentencing the defendant, an old Marxist, to a considerably higher sentence than 3 years’ penal servitude.

5. Criminal case against Paul Friebel--OJs. 32/44--sentence of the 1st penal senate of 4 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Hegele, and Oberlandesgerichtsrat Eckert).

The defendant spoke in an especially critical period, in favor of a capitulation after the Italian example. I cannot accept the sentence of 1 year’s prison term as a sufficient punishment.

6. Criminal case against Clothilde Radspieler--OJs. 26/44--sentence of the 2d senate of 9 March 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Payer).

The sentence passed of 1 year’s prison term is not in proportion with the particularly dangerous remarks made, even taking into account the mitigating reasons of the personality of the defendant.

7. Criminal case against Heinrich Brechtel--OJs. 221/43--sentence passed by the 1st penal senate on 24 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, and Oberlandesgerichtsrat Eckert).

There are considerable doubts about the negation of the inner facts of the case, the defeatism, in view of the political past of the defendant and the undisputable meaning of his remarks. In any case the sentence of 1 year’s prison term cannot be regarded as sufficient in the case of this old Marxist who saw a new light dawn after the fall of the Duce and who openly expressed his hostility towards the State.

8. Criminal case against August Meier--OJs. 14/44--sentence of the 1st penal senate of 26 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Dr. Bohn, and Oberlandesgerichtsrat Dr. Stuber).

In this case also the especially dangerous remarks of the defendant made to the wife of a soldier and to a soldier have been punished with a sentence of 1 year’s prison which sentence is in no way satisfactory. I intend, also in the cases 3 to 8, to submit the files to the Reich Chief Prosecutor at the People’s Court for examination of the question whether the extraordinary veto should be applied against the sentences passed.

9. Criminal case against Maximilian Seebacher--OJs. 196/43--judgment of the 2d penal senate of 10 February 1944 (President of the Senate Dr. Kiefer, Oberlandesgerichtsrat Dr. Sick, and Oberlandesgerichtsrat Dr. Stuber).

In the case of this defendant who, as a former Marxist, openly expressed his hope for an overthrow by violence, a severe penal servitude sentence would have been appropriate in place of the 2 years’ prison. In this case, however, for the reasons mentioned in your statement of 27 and 28 April 1944, I shall put aside my objections and refrain from further action.

10. Criminal case against Leo Graf--OJs. 22/44--judgment of the 1st senate of 22 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, and Oberlandesgerichtsrat Eckert).

This defendant who had repeatedly propagated the abdication of the Fuehrer, would have deserved a considerably severer sentence than the 10 months of prison term passed. For the reasons stated by you, Attorney General, in your report of 8 May 1944, the sentence passed may, however, be accepted as just adequate.

11. Criminal case against Alois Baum--OJs. 22/43 of the 1st penal senate of 25 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, Oberlandesgerichtsrat Eckert).

This defendant, particularly as an old Party member, should have shown more self-discipline. The annoyance about his treatment at the post office was certainly not sufficient reason to make such foul defeatist remarks. In view of the danger of these remarks, the sentence of 2 years’ prison term demanded by the representative of the prosecution would at least have been appropriate. In view of the serious physical ailment of the defendant I shall, however, refrain from any further action.

12. Criminal case against Karl Peter--OJs. 28/44--sentence of the second penal senate of 18 April 1944 (President of the Senate Dr. Kiefer, Oberlandesgerichtsdirektor Dr. Sick, and Oberlandesgerichtsrat Dr. Stuber).

The sentence of 2 years’ penal servitude passed on this defendant appears to me precariously mild. Even if he be a mentally somewhat deficient boaster he has, in an attitude of hostility toward the State, continually incited others in an especially hateful manner. I shall, however, refrain from submitting the files to the Reich Chief Prosecutor.

At the meeting at Kochem I requested the President of the Senate to explain, in what manner in the fifth war year cases of defeatism should be tried. I believe that I may now expect that the District Court of Appeal (Oberlandesgericht) Stuttgart will also pass judgments accordingly. It is indispensable that you, President of the Oberlandesgericht and you, Attorney General, will in future direct your special attention to these criminal cases. I further request you, Attorney General, to report to me until further notice when submitting indictments for defeatism, what sentence you intend to demand in the main trial so that I may point out possible objections with regard to the measure of punishment.

As deputy Certified: [Typed signature] KLEMM

Typed signature] GRUNDMANN First Judicial Secretary

PARTIAL TRANSLATION OF DOCUMENT NG-627 PROSECUTION EXHIBIT 474 (Also Rothenberger Document 73 Rothenberger Defense Exhibit 7)

LETTER OF DEFENDANT KLEMM TO THE PRESIDENT OF THE HAMBURG DISTRICT COURT OF APPEAL, 1 MARCH 1945, STATING THAT SENTENCES IN CASES OF “UNDERMINING THE MILITARY EFFICIENCY” OF GERMANY HAVE BEEN TOO LENIENT

The Reich Minister of Justice IV g-23-3118/45

Berlin W 8, 1 March 1945 Wilhelmstrasse 65 Telephone: 41 00 44 Long distance 11 65 16

(Stamp)

Hanseatic District Court of Appeal Received: 9 March 1945

To the President of the District Court of Appeal and the Attorney General in Hamburg

Subject: Too lenient sentences and sentences proposed by the prosecution in cases of undermining the military efficiency

I have observed for quite some time that the sentences passed and to some extent also the sentences proposed by the prosecution at the Hamburg District Court of Appeal in cases of undermining the military efficiency (offenses under par. 5, art. 1, No. 1, Extraordinary War Penal Ordinance) are dangerously lenient and below the Reich average. With unusual frequency I have had to decide therefore to propose extraordinary objection to sentences pronounced by the District Court of Appeal. Recent sentences submitted to me which appear to be too mild, cause me to draw your attention to the particularly lenient sentences passed in the following cases:

1. O. Js. 184/44 (IV g-23-3118/45) against Bastian u.T.[289]

* * * * * * *

The judge in charge as well as the deputy of the attorney general must proceed from the fact that public undermining the military efficiency is punishable by death, according to article 5, paragraph 1 of the extraordinary war penal ordinance;[290] only in less serious cases may the death penalty be waived. Therefore, the death penalty has to be demanded not only if an especially serious case is under consideration, but an offense of average gravity is sufficient to render the provisions of article 5 of the ordinance applicable. Only those cases can be considered less serious, where the gravity of the offense is below average. The jurisdiction of the Reich Supreme Court has developed the principle that a less serious case can be considered as such only “if the facts of the case distinguish it fairly clearly from the usual type of the punishable act in question, in favor of the accused and if the over-all assessment of the circumstances, especially the offender’s personality and the circumstances which might have induced him to commit the offense, justify a deviation from the regular jurisdiction” [handwritten: “usual punishment”]. This principle also applies to cases of undermining the defensive power with the reservation that on account of the particular danger in wartime far less importance can be attributed to extenuating circumstances arising from the personality of the criminal than in connection with other crimes.

* * * * * * *

It is justified that the sentences should go by the effect of the remarks. In some sentences remarks can be found like, “Serious harm has not resulted from his action.” I doubt whether in such cases the repercussions of the remarks have been followed up to the end. Their effect on the audience can be determined through their interrogation; however, it is difficult to determine whether this audience has passed on the remarks, and what impression they made on third and fourth persons. Reasons of this type are therefore only justified if extensive investigations with definite results have been instituted.

In the sentences cited above there are among the reasons for the award of punishment, statements about the personality of the offender, the extenuating consequences of which are doubtful, for instance--

“Especially hard life.”

“Uprooted by the Russian revolution.”

“Lets himself go frequently because of his rather surly nature.”

“He has been a good comrade.”

“People with a disorder of the stomach, as we know from experience, are inclined to be disgruntled.”

“He may have been annoyed about a certain phrase in the radio lecture in question.”

“He had to suffer under the Jewish boycott movement during his activities abroad.”

(That should rather be a reason for more severe punishment).

“The accused has been happily married to her husband, a veteran of the movement. She maintains she also got along very well with her husband as far as political matters were concerned.”

(That, too, in consideration of the grave utterances--OJs. 275/44--should not serve as an extenuating but as an aggravating reason, as on account of living together with a veteran of the movement, the woman should have been better educated than others in National Socialist sentiment and thought.)

Please discuss the sentences as well as my opinion about them in the proper way with the judges and public prosecutors in question, and see to it that in all cases of undermining the military efficiency the required severe punishment will be meted out in your area, too.

Acting KLEMM

Certified: [Signed] SCHREIBER Clerk

[Stamp]

Reich Ministry of Justice Chancellery of the Minister

EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[291]

DIRECT EXAMINATION

* * * * * * *

DR. SCHILF (counsel for defendant Klemm): Now we have finished with the group of questions which concern the Party Chancellery. Now, we are coming to the last phase, that is, your work as Under Secretary of the Reich Ministry of Justice.[292] The Tribunal knows when you became Under Secretary. Now, I am asking you, did you, yourself, have any influence on your appointment to be Under Secretary in January 1944?

DEFENDANT KLEMM: No, I did not. During the last 3 months of 1943 I heard Thierack say to me that he was thinking it over whether he should propose me to be his Under Secretary; then, I heard nothing more. I only told the head of my department at the Party Chancellery about that remark of Thierack’s.

* * * * * * *

Q. Mr. Klemm, we shall now discuss the subject of Judges’ Letters and also the so-called Guidance Letters [Lenkungsbriefe]. You know that the prosecution submitted a very extensive amount of evidence in regard to this subject.

First I want to ask you about the Judges’ Letters. In what manner did you participate in Judges’ Letters?

For the information of the Tribunal, I would like to cite the documents that are concerned with this question. They are Exhibits 81 through 86, 90, and 94 to 96 inclusive. The NG numbers are given on the list which I have submitted. Since the documents do not have to be discussed individually, I believe it is sufficient to refer to exhibit number.

Please answer my question, Mr. Klemm.

A. The Judges’ Letters had already been issued for more than a year at the time when I became Under Secretary. I cannot say anything about the history of their origin. My participation was limited to having a carbon copy of the finished Judges’ Letters submitted to me in draft form. Thierack was given a copy at the same time. When looking it over, I had to start from the point of view of not only the selection of the cases which had to be treated and the subjects, but also of the fundamental opinion of Thierack which had already been laid down by him in advance. Technical changes would have been of little avail, since Thierack looked at these drafts word for word and changed them considerably. He regarded the Judges’ Letters as his own exclusive province.

Moreover, of the letters which the prosecution has submitted here, I myself participated only in the Judges’ Letters, Document NG-321, Prosecution Exhibit 86.[293] All of the other letters date from the time prior to which I was Under Secretary.

Q. The prosecution regards the Judges’ Letters, from the point of view of their contents as well as their form, as an illegal pressure exercised on judges and jurisdiction at that time. It asserts that it was a serious intervention into the independence of judges. When you were concerned with the Judges’ Letters, did you consider that effect? Did you fear it, or did you support it, or did you see those matters from a different point of view than the prosecution asserts here?

A. I wish to say the following about that. The thought never occurred to me that the impression could be created at all which the prosecution today raises as a charge. The sentences were incorporated into the Judges’ Letters anonymously, that is to say, without stating the name of the court, without stating the name of the condemned person or even the name of the judge, or the time. Through that, it was intended to be emphasized, especially by this means, that the question of general interest and not the individual case was at stake, nor the praise or the blame of a judge. By the manner in which these matters were incorporated into the Judges’ Letters, in particular, the judge could not feel himself being addressed directly, as usually occurs in legal journals, in which these sentences are published in the legal press with the full naming of the court, the file number and the date, and then there usually follows the discussions of the opinion.

That the Judges’ Letters were confidential was not due to the fact that they had to be afraid of showing themselves in public, or that something that was incorrect was supposed to be covered up. The reason was rather the following; the truthful presentation of the case, and they were not hypothetical cases reported in the Judges’ Letters, but those which had actually occurred. Thus, I am saying that the truthful presentation of a case could not always keep the judicial decisions anonymous, but it was intended to avoid--also to the advantage of the person who was condemned--that he not all over again be exposed to public criticism. Furthermore, it was also intended to prevent that the public may learn of the wide and general criticism of one court by another.

The National Socialist press, in its total character, was exclusively hostile to the administration of justice, and the administration of justice in particular had to suffer the most unbelievable attacks in the Nazi press. The press would have jumped at these Judges’ Letters in order to criticize the administration of justice, and would have said, “The offices of the administration of justice themselves state how wrong the attitude of the administration of justice is.” Above all, however, it was intended to be avoided that the Judges’ Letters would be interpreted in an entirely wrong direction--that is, through the general public--in clemency pleas, that in a false lay comparison, by referring to Judges’ Letters, a claim for a pardon would be raised.

In addition to that, the Judges’ Letters were intended to be the basis for a friendly discussion between the highest authorities of the administration of justice and the individual judge. Judges and prosecutors were requested expressly--by the Judges’ Letters themselves--to address requests in regard to the Judges’ Letters directly to the Minister of Justice, and they were told that they were not forced to go through channels. Every judge and prosecutor was supposed to be a direct collaborator in these Judges’ Letters, and in this direct way letters reached the Ministry of Justice.

* * * * * * *

Q. We can now interrupt the subject of the Judges’ Letters. May I inform the Tribunal I intend to submit more evidence in my document book in regard to this subject. Now we come to two so-called guidance letters which bear your name, Document NG-676, Prosecution Exhibit 178 and Document NG-627, Prosecution Exhibit 474.[294] These letters concern information issued by the Reich Minister of Justice which you signed as Thierack’s deputy. Witness, the first went to the president of the district court of appeals in Stuttgart. That is Exhibit 178. The second one is to the president of the district court of appeals in Hamburg. That is Exhibit 474. The contents of these documents show that undermining of military efficiency was the subject. The sentences by these courts of Stuttgart and Hamburg were criticized as being too lenient by the minister--that is by you--because they were signed by you as deputy. Please describe to the Tribunal how these two letters came about.

A. Undermining of military efficiency was regarded as particularly dangerous. The reason for it was the experiences which Germany had in 1918 when the German armies were far in enemy territory and through the failure at home sufferable peace was prevented. Therefore, undermining of military efficiency was already in 1939 introduced by law as a subject for penalty. Care was to be taken that the will for tenacity and the inner strength and hope and faith in a sufferable end of the war would be maintained. In view of the successes which the German Wehrmacht had the first years of this war and also during the middle of the war, we hardly heard anything about reverses at that time with the exception of Stalingrad. Thus, this crime never occurred. Only toward the end of the war when the military situation got worse, the prosecution had to send the indictment and the opinion to the Ministry of Justice. These matters were handled in the Referat, the department of Franke, in order to get a uniform picture of the jurisdiction. It was also important to pay attention to the fact that the penalties were uniform in the different districts of the Reich.

If it happened that in individual cases there were considerable misgivings against the legal evaluation or the extent of the penalty, the files were submitted to the Oberreichsanwalt, the Chief Reich Prosecutor, for review as to whether a further means of legal recourse was necessary. The misgivings, however, referred not only to sentences that were too lenient, but also to sentences that were too severe. Only in the latter case it was simpler. One could help by means of a clemency plea. I here have to insert that neither the minister nor I, myself, saw the opinions in cases in regard to the undermining of military efficiency with the exception of those cases in which the execution of a death sentence which had been issued was pronounced or cases in which the Referent or department chief requested the introduction of a legal recourse. A longer observation of the sentences in the Referat, or department, could then show that a certain district deviated from the generally recognized principles in its sentences, especially from the principles recognized by the Reich Supreme Court.

PRESIDING JUDGE BRAND: Mr. Klemm, I think you fully explained the reasons why you desired to have uniformity. Now this particular exhibit indicates that in this particular instance you complained of sentences being too mild. You have explained the reasons which underlay your theory in the matter, and I think you have covered it sufficiently. We must avoid such continuous repetition, Mr. Schilf.

DR. SCHILF: Mr. Klemm, therefore let us go concretely to the contents of these two letters. How did it happen that these two letters as such were written? I believe it will be necessary to bore the Tribunal with that still because your name is under this letter.

PRESIDING JUDGE BRAND: Counsel, you are not boring the Tribunal, nor is the witness. But we have the substance before us at this moment of these letters and you need not ask the witness what the substance of those letters were. We are here to try the case fairly and we don’t want counsel to worry about boring us, but we do want counsel to worry about undue explanations and too long explanations. Ask your next question.

DR. SCHILF: Please state the practical cause how these letters happened to be written. Due to the decision of the court, you do not have to discuss the contents any more.

DEFENDANT KLEMM: The method for writing such letters had already been established long before I entered the Ministry of Justice. If cases accumulated in one district, the president of the district court of appeal who was concerned received a letter so that in future cases a general just sentencing, as it happened in the entire Reich, would take place.

PRESIDING JUDGE BRAND: Why did you write this particular letter? Just ask him why he wrote the particular letter shown in Exhibit 178.

DEFENDANT KLEMM: These cases had been collected in the Referat--in the Department--and then they were reported to the minister and the minister determined whether such a guidance letter was supposed to be written. In these two cases of Stuttgart and Hamburg, Franke and Vollmer, the department chief, reported to the minister about the jurisdiction exercised by these district courts of appeal and suggested to compile the most extreme cases and to call them to the attention of the presidents of the district courts of appeal. The minister approved of this suggestion and in addition to that determined that I had to sign these letters. That in these letters, the first person singular “I” was always used, is the accepted official style. To that extent I may refer to Exhibits 48, 94, 95, 96, and 99 in which simply Referenten and associates also write in the first person singular, although the letter bears the letterhead of the Reich Minister of Justice, and they sign it personally.

DR. SCHILF: Mr. Klemm, in regard to the two guidance letters to Hamburg and Stuttgart, were the judges who pronounced these sentences and who had aroused the disfavor of Thierack supposed to be called to account personally, or were measures supposed to be taken against them?

DEFENDANT KLEMM: That was not supposed to be done in any case. It would have been neither in accordance with the intentions of the Ministry nor was it the meaning of such a guidance. The president of the district court of appeals in Hamburg, who was requested at the end of the guidance letter to speak to the judges in the appropriate manner, that was what it says literally in the letter, could handle it directly. As the official superior, he did not use this letter at all; but within the framework of a community of work within the NS lawyers league, that is, on a purely comradeship basis and not as a superior, he spoke about these matters. Even less could the president of the district court of appeals in Stuttgart issue measures to the individual judges personally, or reproach them, because this letter was expressly addressed to him. At the end it says that “you, Mr. president of the district court of appeal should call direct and special attention to these problems.” There is also a circular letter by the Ministry of Justice which is known and which emphasizes again and again that the independence of the judges should not be touched.

Q. But in the Stuttgart case the names of the participating judges were listed. What was the purpose of that?

A. Of the twelve sentences which are mentioned in the Stuttgart letter, nine had been pronounced when different members were sitting in the court. For that very reason the names were listed to show that the issue was not the failure of one individual judge, but that the general jurisdiction of the district court of appeals of Stuttgart in matters of undermining military efficiency was not in accordance with the wishes of the Reich level and the needs of the time.

Q. In that connection the name of the codefendant Cuhorst is mentioned. Did you know at the time the then President Cuhorst?

A. No, his name did not mean anything to me.

Q. Did you know that the then Senate President Cuhorst was also president of the Special Court of Stuttgart; and, were the guidance letters supposed to criticize the jurisdiction of the Special Court at Stuttgart?

A. I did not know the jurisdiction of the Special Court of Stuttgart at all. That the same person was presiding judge of the Special Court and president of the senate of the district court of appeal was not known to me at the time.

* * * * *

Q. One final question in that context. In the two so-called guidance letters, especially in the one to Stuttgart, mention is made of the fact that an extraordinary objection was supposed to be raised. Do you know anything about whether that was done?

A. The sentences were not sent to the Oberreichsanwalt with a request to raise the extraordinary objection, but with the instruction to examine whether it would be worthwhile to raise an extraordinary objection. In neither of those cases, neither in the guidance letter to Hamburg or to Stuttgart, the problem was the changing of prison sentences to death sentences, but the questions were merely prison terms and whether they should be increased but still remain prison sentences. Thus, the Oberreichsanwalt was not instructed to raise an extraordinary objection. As far as I know, at the time, the Oberreichsanwalt in the cases which were sent to him for examination refused to register an extraordinary objection; and, as far as I know, the minister was satisfied with those results of the examination.

Q. With that we have concluded the question of the Guidance Letters.

* * * * * * *

c. Lawyers’ Letter Written by Thierack

PARTIAL TRANSLATION OF DOCUMENT NG-260[295] PROSECUTION EXHIBIT 87

EXTRACTS FROM LAWYERS’ LETTER NO. 1 SIGNED BY REICH MINISTER OF JUSTICE THIERACK, 1 OCTOBER 1944

Lawyers’ Letters

Information of the Reich Minister of Justice

Confidential

Number 1, dated 1 October 1944

LAWYERS OF GERMANY

The German people, on the threshold of the sixth year of war, face tremendous war tasks.

The Fuehrer has ordered that all resources of the armed forces and armament industry be used to the utmost in order to master these problems.

In pursuance of these measures dictated by total war, the administration of law will also be curtailed and simplified to a great extent. The further mobilization of German lawyers into the armed forces and armament industry cannot be balanced only by curtailment and simplification. Above all it necessitates the utmost concentration of those elements which will have to carry on with our future administration of justice. Every lawyer who in the future will still be entrusted with his office must always be aware that the administration of German justice has, now more than ever, the direct duty of securing the frontiers and the waging of war, especially in view of the new tasks, which will arise through the increasing totalization of the war. Thus, the German lawyers have become the rear guard of the fighting forces. The complete concentration of all resources which this involves and which is expected especially from the senior members who take the place of their younger colleagues, presupposes unified direction and rigid execution of the work of all lawyers regardless whether they are judges, public prosecutors or attorneys.

In the hour, when our people have entered upon the decisive battle for its right to live, each lawyer must concentrate all his attention solely on this battle for freedom. Everything that does not directly serve this battle must now be put aside and everything that serves this struggle must be done with the least possible expenditure of time and work and in the simplest fashion. When the life of our people is at stake, all other individual interests must be pushed aside. For some time now there has no longer been any room for petty quarrels. Things which yesterday had some importance are perhaps quite unimportant today. Legal affairs not immediately connected with the war, must also be dealt with in the shortest and most economical way. The only aim of judges, public prosecutors, and lawyers is to preserve the life of our people.

The lawyer who is very often the first to deal with troubles and needs of his fellow countrymen is today entrusted with a particularly responsible task. Affairs which are not absolutely important in waging war, he must keep away from the law courts; however, legal cases of importance in respect to the war are to be dealt with quickly but not less conscientiously as the need of the hour demands. This task cannot be accomplished with good intentions only. Above all he must be thoroughly acquainted with the various plans and intentions of the administration of justice in the various branches of law.

I know that the lawyers are waiting for such a reorganization of their work and that such a regulation of the administration of justice will be welcomed especially by the conscientious members. Therefore, I have decided to introduce in these fateful hours, at a time of total war, a new chapter in our administration of justice by publishing the Lawyers’ Letters which are to supplement the Judges’ Letters, published two years ago.

These Lawyers’ Letters serve a double purpose. They are to inform lawyers of the aims of the administration of justice by means of publication of the verdicts of law courts in various branches of law, which are of importance in conducting the war, and they are to demonstrate the policy of the court in order to save unnecessary work in regard to remonstrances, complaints, or legal remedies of all kinds, for which there is no longer any room today. On the other hand they are to regulate the general relations of lawyers toward each other in their own profession, and also toward the judges and public prosecutors in order to develop close collaboration among all administrators of justice, and thus avoid future friction, complaints, or quarrels on this subject as far as possible in order to mobilize all forces for the actual legal work. The harder the times and the more stringent the restrictions, the closer cooperation should be among all administrators of justice in their common task.

Therefore, the Lawyers’ Letters, just as Judges’ Letters are to be a close link between the administrators of justice and its personnel; and thus, judges, public prosecutors, and lawyers are to be more closely connected by a general reorganization of their work. These are not orders, but signposts to help master the great tasks which lie ahead of us.

I expect that no German lawyer fails to recognize the seriousness of the hour and the magnitude of the task. I expect the complete mobilization of all resources for tasks that war puts before us, including our people’s struggle for freedom. I know that we shall win this battle, if we work together and fight like one man.

With this in mind, I hope these Lawyers’ Letters are a means of unifying and strengthening the fighting spirit of German lawyers.

The letters are not to remain mere words but should take shape in actions!

[Signed] DR. THIERACK

Berlin, 1 October 1944

Conduct of Lawyers in Penal Cases

1. The defense counsel selected by a citizen of the Protectorate who was sentenced to 12 years’ penal servitude and 10 years’ loss of civil rights directed a letter to his client in the penitentiary, wherein he held out the prospect of obtaining a mitigation of the sentence by means of a request for clemency. Among other things the letter states:

“Today I have a personal request. Of your own accord, you offered to recommend me to other well known Czech families, in which some members met with a similar fate. You also informed your wife of this offer at the last discussion we had together with her. Therefore, I wrote to Prague, but received the answer several times that likely clients needing defense counsel are not known. Had I been acquainted with this fact, I would have asked you during our many conferences to give me the addresses * * *.

“During the proceedings I was able to prove by many documents, that you are not at all hostile toward Germany but definitely pro-German. I also believe that you will find the right attitude toward the new Greater Germany after this difficult experience and wish you the best for the future.

“With the kindest regards and Heil Hitler!

“yours, “signature”

2. An attorney defended a woman, who together with her sister was accused of keeping contact with prisoners of war which was forbidden. Both women were accused of having received French prisoners of war in their home, of having entertained them and exchanged caresses with them.

Among other things the defense counsel said in his final statement:

“We too, would be glad if kindness were shown to our German prisoners of war in foreign countries, and we do not consider those foreigners, who are kind to our German prisoners, liable to punishment.”

3. Several Czech businessmen had to vindicate themselves before a Special Court because of offenses against the penal order for protecting the rationing of consumer goods (receiving butter they were not entitled to). Their counsel said in his final plea,

“I feel impressed by these defendants who like true German men and good family fathers shouldered a responsibility which was really one for their wives.”

In order to show the pro-German attitude of a defendant, the defense counsel read parts of a speech which one of the defendants made on some occasion with regard to the aims of national socialism. He interrupted the reading and cried, “I could almost believe I hear my Fuehrer speak.”

4. A factory owner had obtained a great deal of food for the canteen of his factory from the black market and had used part of it for himself. Therefore, he was sentenced to 2½ years of penal servitude for violating regulations for war economy. In his plea the defense counsel pointed to the fact that the food was of benefit to the workers, and thus also armament and the armed forces. He finished his speech with the words--“And now, then, condemn the defendant!”

In answer to the reproach of the presiding judge he declared that he could formulate his plea in other words and demanded the acquittal of the defendant.

5. Counsel took charge of the defense of a woman shopkeeper, who had in several cases sold new bicycle tires and high tension batteries to customers without purchase certificates in exchange for butter, meat, sausage, and bacon. She was sentenced to 2 years’ imprisonment and a fine of 1,000 reichsmarks because of continued offenses against the penal order protecting the rationing of consumer goods and the prohibition of bartering.

The defense counsel said in his final speech:

“The defendant is not to be blamed for getting additional food in an illegal way. She is very corpulent and therefore surely needs more than other people. One need only look at that body to see that it needs a considerable amount of food. The food is insufficient even for normal persons. Reich Minister of Health Dr. Conti himself declared, that the food rations are not sufficient.”

The lawyer has repeatedly given cause for measures of controlling him because of his professional conduct. To date, 16 statements of objection and disapproval have been made against him because of insulting expressions to the court, to colleagues and parties, and because of charging of inadmissible special fees, etc.

6. A mother and her daughter were indicted by a Special Court because of offenses against paragraph 4 of the decree dealing with people violating the national emergency orders. The daughter as the head clerk of a firm had stolen a large number of food ration coupons and clothing cards and had given them to her mother. The latter loosened the coupons from the paper and kept them for future use. The food bought with those tickets was often served at their home parties.

In his final speech the defense counsel expressed himself somewhat in the following manner:

“The indicted daughter was the brain of the firm. The rooms expanded, the house expanded. According to that quotation it is but natural that the daughter has given parties and invited guests. The mother is a busy modest housewife, and both are ladies of good family. The fact that the mother loosened the coupons so neatly and guarded them so carefully shows her to be a good and orderly housewife, who proved her orderliness even in this work.”

The defense counsel came to the conclusion, that both women had earned the sympathy of the court and a reward for having confessed. Neither defendant, he finally said, did wrong; there is no criminal guilt.

7. A basket maker who was defended by a counsel was sentenced to 3 weeks’ imprisonment and 14 days’ detention for resistance against the police and for insulting and gross misconduct. In a drunken state he had tried to cross a train track at a point where it was forbidden to cross and was offensive toward railway officials who tried to prevent him from doing so. In town he had molested pedestrians and resisted arrest by the police. The court had sentenced him to imprisonment because the defendant had previously been punished at 4 different times for attacking superiors, and because prior to that he was sentenced to imprisonment for absence without leave while in the army.

His defense counsel petitioned for clemency, asking that the prison sentence be changed into a fine, and in so doing he pointed out that the defendant, who makes deliveries with his own team would be badly affected economically by the prison term; that he was released from the army because of imbecility and that, therefore, his offense was not so bad. He lodged a complaint against the refusal of the public prosecutor and in his argument he said, among other things, the following:

“The case was taken much too tragically. Under prevailing circumstances incidents which were punished with minor fines in peacetime are now often looked upon as capital offenses. This is due to the general nervousness by which the courts are undoubtedly influenced. However, this is only temporary just as the immense number of private charges. There is a lack of humor, preventing us to see these things at their true value.”

8. A woman was charged with insulting another woman. She had called out to the other woman who had shortly before lost one of her sons at the front: “They shot one of your boys, we hope they shoot the others, too.”

In his appeal the defense counsel said:

“Without intending to minimize the heinousness of her words, as they are stated in the indictment, the question of whether the expression is an insult must be examined. The expression contains--so it goes on to state--a malediction, a curse, and is certainly wounding to the feelings of a relative, particularly of a mother, very gravely, but thereby it does not amount to defamation. It is not an expression slighting a person, and therefore it is not an insult.”

The defense counsel adhered to this contention in his final speech although the president had pointed out to him that his standpoint about the punishable nature of the expression was not tenable.

When the insulted mother was questioned as a witness during the proceedings, she started to cry when the president asked her about her son, and took out two pictures of her son in uniform and showed them to the judge; whereupon the defense counsel declared that she was obviously hysterical. After being sharply rebuked by the president, the defense counsel answered in the same sharp way that he quite understood the grief of the woman, but he doubted the credibility of her words. The word “over-excited” was also used.

* * * * * * *

Opinion of the Reich Minister of Justice

The problematic nature of the position of the attorney at law which rests upon the premise that the lawyer acts, on the one hand, on principle as the representative of an individual citizen who appoints and remunerates him, on the other hand, as an agent of administration of justice and lawyer of the community which has assigned him to and entrusts him with his function, has long been especially apparent in criminal jurisdiction. The evolution of civil right from the purely “private right” of the past--when the individual pursued his right more or less for his own sake--to the civic right of our time in which the citizen also administers his “private rights” as trustee of the community has indeed also changed and reformed the task and position of the lawyer. This modification did not, however, become so obvious because in their widest sense the pursuit of justice and the administration of justice in the domain of civil right still command, at least outwardly and notwithstanding the sway of the community’s influence, a form which does not make the dual position of the lawyer with its inward conflict of duties so conspicuously prominent as has always been the case in the domain of criminal jurisdiction. A penal suit according to our present idea of penal law is no longer a matter of two parties contending for their rights. Here, it is not a “private citizen,” threatened in his freedom, who disputes against a “juridical person” called the State opposed to him on a level of equality or against the State attorney before an independent judge for the rectification of a claim raised against him by the State, but a citizen who vindicates his conduct before the community and its leadership to which he owes loyalty and consideration, against the suspicion of breach of loyalty or of contempt. Here it is not rights of freedom which are fought for but social obligations which are assessed. Here it is not mere compliance with the law that is examined; it is the honest collaboration, the loyalty, and the worthiness or unworthiness of the personality of the individual citizen which are weighed and determined for the community. Here it is not so much a matter of the rights of the community with regard to the individual as they have been given it by the voice of the citizen, but rather that the individual has as many rights and obligations as the community has conferred and imposed upon him.

It is evident that such a viewpoint must involve far-reaching effects on the position and task of the lawyer as the criminal defense counsel, even if outwardly criminal procedure does not essentially differ in its form from the former criminal trial. As defense counsel, the lawyer has shifted closer to the State and community. He is incorporated into the community of the administrators of justice and has lost his former position as unilateral representative of the interests of the defendant. Whoever is not ready to accept this clearly and absolutely and is not prepared and able consistently to act accordingly ought not to don the robe of a German lawyer nor take a place at the defense counsel’s bench. Not only would he be at disagreement with himself, not only would he fall from one conflict into another, but he would also though often unconsciously do harm rather than service to the administration of justice and last but not least also compromise the reputation of those of his colleagues who think and act differently. It is obvious that as defense counsel the lawyer has found it so much more difficult than the judge and the public prosecutor to achieve this mental change. However, this must never convey the delusion that merely the thorough and successful striving to acquire this professional frame of mind and a thorough devotion to this professional aspiration clears the way to the fulfillment of the difficult as well as responsible and gratifying office of defense counsel. What the issues involved in the individual sphere by this altered role of the criminal defense counsel are, will often be discussed in these Judges’ Letters in the future. The fact remains, at all events, that the qualification of the lawyer as criminal defense counsel, for which the bar has now been fighting for over 10 years with varying success, will ultimately depend upon whether and to what extent it succeeds in its attempt to attain this new role not only ostensibly but also in a really moral sense and to unite nonetheless, this enhanced position of obligations towards the community with the obligations towards the individual citizens in such a way that the community gets its right while the individual citizen who entrusts himself to a lawyer is not abandoned or perhaps even betrayed.

That this struggle of the bar is to this day by no means ended is daily shown anew by incidents of professional routine, apart from the cases mentioned.

I know full well that many lawyers shrink before this struggle for their new adjustment which calls at the same time for an honest pledge, because they deem it to be disloyal to their clients and therefore keep aloof from penal cases.

My appeal is not meant for them. For whoever shuns moral obligations or does not have the strength to see the fight through could never indeed perform useful work as a criminal defense counsel.

However, the motives which have formerly induced and are still inducing many others to shun criminal cases are very diverse. There is no question here of those lawyers who from inclination or calling handle civil cases only, and who in this and other spheres as lawyers in economic cases, for instance, mostly in an exclusively advising and managing capacity perform the most valuable legal work without this ever becoming known to the courts or the public. Of these I do not wish to make criminal counsel for it would be entirely amiss to take them away from their important tasks and give them another one for which they feel no moral calling. Aside from this there is, however, quite a number of lawyers who decline to work on a criminal case because they generally consider criminal cases of secondary order because they are “less juristic.” One ought not to put questions of hierarchy of this sort between criminal law and civil law at all. The opinion that criminal jurisdiction and thereby also counsel for criminal cases are of secondary importance--which is occasionally expressed even today--can only be upheld by someone who interprets the concept “juristic” by abstract constructions and logic reasoning thus trying to maintain a concept “juristic” which has long been given up in civil law also.

Whoever realizes that law is of vast significance to the life of the community, conscious of the problem facing a lawyer in the serving of his nation and its ways of life, recognizing the high ethical value of such legal work, and measuring the importance of each individual case for the community, will not underestimate the defense of the life and freedom of a fellow citizen in a criminal case; but rather consider it more vital and important than the contesting of property rights or other legal questions which perhaps are of secondary concern to the community. And whoever has come to realize that a serious and responsible defense cannot be conducted nowadays, with the knowledge of a few sections of the penal code or even with rhetoric swing and an elegant appearance, but that in addition to this a profound knowledge of modern criminal law and the entire legal sphere is essential not to overlook criminal biology in its widest sense to which belongs above all an extensive understanding of politics, and intuition will agree that, nowadays, the defense counsel in his own “juridical value” does not occupy a secondary rank any more than the judge or prosecutor. On the contrary the best lawyers are barely good enough to be defense counsels or judges particularly when taking into consideration the vital importance of criminal law in wartime. Just as I fill the judges’ seats only with the best today--the same principle applies to civilian law as far as the judges in the divorce courts are concerned who similarly decide the fate of human beings--so only the best lawyers should be admitted as defense counsel.

The measures required for the mobilization of all forces for total war which must lead to further curtailment in the administration of justice will automatically cause some lawyers, hitherto engaged on civil cases only, now and again to occupy themselves with criminal cases, insofar as personnel shortage necessitates this. For these lawyers, more than for their colleagues (who up till now have been for the greater part, or exclusively working on penal cases), it is necessary that they approach their new work from the very beginning with a clear inner attitude and professional conscience which will also give them the necessary assurance in their appearance and work which is a primary asset for successful legal work.

They need not fear to be called upon to do legal work of a secondary nature. He who takes the job of a defense counsel in penal cases of importance to the war, also contributes to the war effort. This means today, however, that he is expected to make a considerable war effort. In cases where the State permits the use of defense counsel, it does not want to see court statisticians but sincere and responsible fighters of the law who seek justice side by side with the judge and the prosecutor. Penal cases have always demanded particularly exacting work, due to the fact that the long sessions involve both physical and mental strain, and require in every case a higher personal effort than the most difficult civil cases, in which the main work can be completed in the office and at the desk.

One of the main objections raised today by lawyers, and by no means by the worst ones, concerning taking the job of defense counsel which can only be approached with complete frankness can be found in results of the guidance of practicing law. The defense counsel, they say, only seldom has the opportunity to succeed, in getting through his deviating opinion due to the close collaboration of judge and prosecutor, for instance, in the introduction of evidence, or to find sufficient attention in his final plea so that sometimes it may appear that the verdict has already been pronounced prior to the main proceedings. The lawyer’s success in any case is often rather minor, and the lawyer very easily attains a secondary position compared to the judge and the prosecutor.

This contains both truth and untruth.

He who is seeking “success” as defense counsel in penal cases must first ascertain what is understood by it. It should go without saying that a conscientious lawyer does not only see success where he manages to reduce the sentence proposed by the prosecutor, to find loopholes in the law for his client following the old tradition, or where he otherwise succeeds in exploiting the case to his client’s advantage. He who only has this conception of the entire affair, not only misunderstands the tasks of a defense counsel, and not only lives in penal conceptions of the past which have been overcome by the introduction of paragraph 2 of the Reich Penal Code and by the law itself, but he also lowers the value of his own work. The success of a defense must already be apparent in the consciousness of having done everything possible as a coresponsible lawyer in order to lead justice to a successful conclusion.

More than that the defendant could not demand and if he did--which is humanly understandable since he cannot be arbiter on his own behalf--then the defense counsel should not support him.

As far as the secondary position compared to that of the judge and the prosecutor is concerned which might be feared by quite a few, I can only answer: Everyone achieves a rank in his life and profession which he works and fights for through his accomplishments and personality. The duty of a defense counsel is not limited to his activity in the main proceedings as many believe. His chief task begins much earlier while cooperating at the elucidation of the state of the case, the production of evidence to be introduced in court, and numerous interviews prior to the trial.

* * * * * * *

The defense counsel as a result of his dual position as a defense counsel of one person on the one hand and as an administrator of justice for a community on the other hand will repeatedly face the danger of the fact that the accused whom he is defending depends upon him, making him forget that he is not the mouthpiece of his client but an independent administrator of justice. If, for instance, a defense counsel submits applications only upon request of the defendant, or if he proposes the hearing of character witnesses though he himself does not doubt the credibility of the hitherto heard witnesses, if he adds more lengthy letters of the defendant to his brief as appendices only to comply with the defendant’s wish, this indicates either a lack of the required self-criticism or of the necessary energy toward his client in carrying out his office as defense counsel.

* * * * * * *

The cases mentioned in this first Lawyers’ Letters, some of which have led to reprimands and disciplinary measures are only a small part of the vast material at my disposal. They really speak for themselves. At the same time they show how much work remains to be done, if we are to solve the tasks which the increased totalizing of war puts to us. If we succeeded in releasing only part of the manpower--represented by lawyers at present engaged in examinations and court of honor proceedings--for really important and war essential legal work, a considerable contribution would have been made. To attain this is not only the goal of the judicial administration. Lawyers themselves should collaborate in this with self-discipline, which I particularly expect from now on.

If there are any difficulties, doubts, wishes, and troubles, every lawyer may report these to me either himself or through his chamber so that these questions may be discussed and cleared as far as possible in these Lawyers’ Letters.

As for the cases reported to me this is briefly to be said:

(1) The letter of the defense counsel to a traitor in a penitentiary speaks for itself. Not only is the unconcealed wooing of clients repulsive, but especially the inconceivable lack of dignity and the servility with which this German lawyer addresses a declared marked enemy of the state, calling him “Dear Sir,” wishing him “all the best for the future,” and after mentioning “his esteemed wife” closes with “best regards and Heil Hitler, yours.”

Surely it cannot be expressed more clearly that one is unqualified for the legal profession.

(2) The lawyer, whose plea was that “we would be glad if our German prisoners of war would be shown a kindness” shows a total lack of understanding of the seriousness and significance of this offense. It is not the business of German women “to show kindness” to prisoners of war, but they should behave as German women. Decency and honor should bar the least contact with prisoners of war who are still our enemies. What should women who have resisted the temptation to which the defendant fell say if they hear a lawyer express such views?

(3) As for the defense counsel, who was “impressed” by the attitude of the Czech industrialists who had bought butter without ration tickets because the defendants “like real German men they took the blame for their wives who were really responsible,” all that can be said is that he knows very little about the tasks of a German lawyer. Here again the lack of tact and understanding was not that he tried to minimize the offense. He obviously knows nothing about the situation of ethnic Germans in the Protectorate and about the interests of the German people. To mention a speech by one of the Czech defendants in one breath with a speech by the Fuehrer was--no matter how it was meant--outrageous. Such a thing cannot be excused as an “awkward mistake.” Lack of instinct is a feature of one’s character.

(4) The lawyer who pleaded for a factory owner, accused of an offense against wartime economy, was it is true right in pointing out that the defendant also thought of his workers when he acquired food illegally. As far as this was a fact he even had to point it out. But in disregarding the fact, that the defendant as the sentence of 2½ years penal servitude shows bought considerably for his own benefit, he has violated his duty as defense counsel. Furthermore, in trying to influence and mislead the court by saying “and now condemn the accused” thus demanding the acquittal of the defendant, he went far beyond the limits of a possible and legitimate defense. This suggestion had to give everybody and not least the defendant, too--to whom he should have explained his offense--the impression that the sentence was unfair and as such contrary to the interest of the people. This type of plea does not serve, but damage the administration of law.

(5) The next two cases also show that some defense counsel have not yet, in the fifth year of war, recognized the importance of criminal proceedings to war economy. To excuse black market activities with the obesity of the accused can scarcely have been meant seriously and can, of course, not meet with success--except for the bad impression counsel makes. This again cannot excuse the temporary lapse, because counsel has, by saying incorrectly and tactlessly later on that the Reich health leader himself describes the food rations as insufficient, revealed that he himself disagrees with our laws and government. The 16 objections and reprimands brought up against him so far confirm the picture, which he has given of himself in this case.

(6) To defend parties and dinners given by the two “better class women” with the help of stolen ration cards by saying that business, so to speak, required such parties is just as stupid as it is to expect the court to find the defendants not guilty of an offense. Such statements not only show considerable lack of understanding of the importance of criminal cases in the field of the law of war economy, but they should never be made at all in a court of law.

(7) Humor should certainly not be suppressed especially in difficult times, but only where it is appropriate. But it is inconceivable for a defense counsel to reproach a court or the prosecution for their lack of humor, because a defendant who indulges in a drunken brawl annoys people and resists the police received a well earned punishment. The defense counsel would have done better to consider that in the fifth year of war one should not burden judges and prosecutors with uncalled for petitions for mercy and complaints; about the latter there is still much to be said. He would have done better to make it clear to his client who had already repeatedly made himself unfavorably conspicuous, how to conduct himself in these times instead of backing him up by his false statements.

(8) If in this case the defense counsel raises legal doubts against the assumption of an insult to the mother, he can thus only intend to obtain an acquittal. Therefore as a representative of the law he takes the view that in such cases according to our law there is no protection of the honor of soldiers killed in action and their relatives. This attitude and his subsequent conduct at the trial, in which he called the gravely afflicted mother of the dead soldier “hysterical and highly strung,” when facing the judge she naturally re-experienced her pain and sorrow, revealed, even had the mother been very excited, a rare absence of any feeling for the community and human compassion. He who tries to cover such a criminal deed, particularly as a representative of the law, puts himself ideologically on a level with the defendant.

* * * * * * *

d. The Withholding of Criminal Proceedings against Persons Participating in “Lynch Justice” against allied Fliers

TRANSLATION OF KLEMM DOCUMENT 68a KLEMM DEFENSE EXHIBIT 68a

DECREE OF HIMMLER TO ALL HIGHER SS AND POLICE LEADERS, 10 AUGUST 1943, CONCERNING “CONTROVERSIES BETWEEN GERMAN CITIZENS AND PARACHUTED ENGLISH AND AMERICAN TERROR FLIERS”

Personal Staff Diary Nr. 48/16/42 g Bra/Bn To: All Higher SS and Police Leaders

[Stamp] Personal Staff Reich Leader SS Archive SECRET File Nr. Secret/121/21

By order of the Reich Leader SS I am sending you enclosed a decree with the request to bring it to the attention of all commanders of the police and Security Police who are to inform orally all their subordinate agencies of its contents.

In addition, the Reich Leader SS requests that the competent Gauleiter be orally informed of this decree.

[Signed] BRANDT SS Obersturmbannfuehrer

1 Enclosure

Der Reich Leader SS Rf/Bn 48/16/42 g

[Stamp] Personal Staff Reich Leader SS Archive File Nr. Secret/121/21 Field Command Post, 10 August 1943

Secret

It is not the task of the police to interfere in controversies between German citizens and parachuted English and American terror fliers.

[Signed] H. HIMMLER

PARTIAL TRANSLATION OF DOCUMENT NG-149 PROSECUTION EXHIBIT 110

VARIOUS MEMORANDUMS FROM THE FILES OF THE HIGH COMMAND OF THE ARMED FORCES, 6 JUNE–5 JULY 1944, CONCERNING THE TREATMENT OF “TERROR FLIERS”

1. Memorandum of General Warlimont, 6 June 1944[296]

Matter for Chiefs!--(only through officers)

Deputy Chief of the Operations Staff of the Armed Forces, No. 771793/44 Top Secret Chief matter

Field Headquarters, 6 June 1944

Top Secret

3 copies--1st copy

Subject: Treatment of enemy terrorist airmen

Notes on a report

1. In the afternoon of 6 June, SS Obergruppenfuehrer Kaltenbrunner[297] informed the Deputy Chief of the Operations Staff of the Armed Forces, in Klessheim, that this question had been discussed a short time previously between the Reich Marshal, the Reich Minister for Foreign Affairs, and the Reich Leader SS. In the course of this conference, and in opposition to the original suggestion of the Reich Minister for Foreign Affairs, who wanted to include any kind of terror attack against our own civilian population--thus bomb attacks on cities too--an agreement was reached, according to which only machine-gun attacks directly aimed at the civilian population and its property, should be considered as constituting criminal acts in this sense. Lynch justice should be considered as being the rule. Sentencing by court martial and transfer to the police, on the contrary, had not been discussed.

2. The Deputy Chief of Armed Forces Operations Staff set forth--

a. In pursuance of the broad outlines sketched by Reich Minister Dr. Goebbels and various press reports which point in the same direction the main task now consists in making public a case of this kind which has been unexceptionally confirmed stating the name and the unit of the concerned airman, the place where it happened, and other details in order to establish accordingly the seriousness of the German intentions in the face of incredulous enemy propaganda, and above all in order to achieve the desired deterrent from further assassinations of our own civilian population. Accordingly, the question is to be put whether such a case is in the files of the SD, or whether the necessary facts are at hand in order to fabricate such a case with the necessary details.

Obergruppenfuehrer Kaltenbrunner answered both questions in the negative.

b. Deputy Chief Operations Staff of Armed Forces points out that besides lynch justice the procedure too of a segregation of any such enemy airmen who are suspected of having committed criminal acts of this nature, their admission into the airmen reception camp Oberursel, and upon confirmation of suspicion their transfer to the SD for special treatment should be prepared.

In this connection, the Operations Staff of the Armed Forces is in contact with the High Command of the Air Force, in order to establish the directives with which, in such cases, the commander of Oberursel camp would have to comply.

SS Obergruppenfuehrer Kaltenbrunner declares that he agrees absolutely with his suggestion and with the taking over of the segregated individuals by the SD.

c. Concerning the publicity question, an agreement is reached that until further notice an agreement between High Command of the Armed Forces/Operations Staff of the Armed Forces, High Command of the Air Force, and the Reich Leader SS should be arrived at in any case in order to establish the form of publication.

The cooperation of the Foreign Office is to be secured through the Operations Staff of the Armed Forces.

3. In the course of a conference with Colonel von Brauchitsch (of the High Command of the Air Force) held on 6 June, it was established that the following acts are to be considered as terrorist acts justifying lynching:

a. Low level machine-gun attacks on civilian population, on single individuals as well as on gatherings;

b. Attacks on own (German) airplane crews dropping by parachute;

c. Machine-gun attacks on passenger trains of the regular public service;

d. Machine-gun attacks on hospitals, field hospitals, and hospital trains clearly marked with the Red Cross sign.

The facts listed under 3 are to be communicated to the commander of the airmen reception camp at Oberursel. If any such facts are proved by interrogation, the prisoners are to be delivered to the SD.

Colonel von Brauchitsch said that another report about these matters to the Reich Marshal was not necessary.

[Signed] Warlimont

Distribution:

Chief High Command Armed Forces copy 1 through Chief Operations Staff Armed Forces Deputy Chief Operations Staff Armed Forces Ktb. copy 2 Qu. (draft) copy 3

* * * * * * *

2. Letter from Field Marshal Keitel to the German Foreign Office, 14 June 1944

Fuehrer Headquarters, 14 June 1944

Top Secret

The Chief of the High Command of the Armed Forces Operations Staff Armed Forces/Qu. (Adm. 1) Nr. 771793/44 top secret Chief matter

3 copies--2d copy Chief matter: only through officer.

To the Foreign Office, c/o Ambassador Ritter[298] Salzburg

In connection with home and foreign press reports concerning the treatment of terrorist airmen who are falling into the hands of the population an unambiguous fixation is needed of the concept of what facts constitute a criminal act in this sense. At the same time the procedure should be established as to the publication of such cases which have led either to a lynching by the population or--in case of apprehension of terrorist airmen by armed forces or police--to a special treatment by the SD.

In agreement with the Commander in Chief of the Air Force [Goering], I intend to write the communication a draft of which is attached which should be an instruction to the commander of the airmen reception camp at Oberursel. It concerns such cases in which, according to an investigation made in this camp, it is found suitable to segregate the culprit, owing to confirmation of suspicion, and to transfer him to the SD.

Previous to any publicity in the press, by radio, etc., it must be insured that name, unit, place of crime, and other detailed circumstances present a perfectly clear picture which publication may effect the intended result of deterring from further murders. In this connection, the formulating of publication should make allowance for the circumstance that enemy protests of all kinds are to be expected. Therefore, and in agreement with the chief of the Security Police and the SD and with the director of censorship, it is intended that prior to any publication and until further notice an agreement is to be reached between the High Command of the Air Force, the Operations Staff of the Armed Forces, the Foreign Office, and the SD, in order to settle facts, date and form of publication.

You are requested to confirm, if possible not later than 18th instant, that you agree with the above principles as well as with the procedure intended for publications.

1 enclosure

3. Letter from Goering’s Office to Keitel, 19 June 1944

The Reich Marshal of Greater Germany Adjutant’s Office Adj. Off. No. 7605/44 secret Command matter

Berlin WC, the Leipziger Str. No. 9 Tel. 420044 Headquarters, June 19th, 1944

Subject: Treatment of enemy terrorist airmen

Reference: Your letter No. 771793/44 top secret chief matter II, Ang. Operations Staff Armed Forces/Qu. (Admin. 1) of June 15th, 1944

2 copies--copy No. 1

To the Chief of the High Command of the Armed Forces, Field Marshal Keitel

The Reich Marshal [Goering] has noted with reference to the above-mentioned letter:

“The reactions on the side of the population are not in our hands anyhow. However, it should be prevented as far as possible that the population takes steps against other enemy airmen to which above facts do not apply. In my opinion, above-mentioned facts always can be dealt with by a tribunal, as in this case acts of murder are concerned, which the enemy has prohibited his airmen from committing.”

Acting: [Signed] TESKE Lieutenant Colonel, GSC

4. Draft Letter from the German Foreign Office to Field Marshal Keitel, 20 June 1944

Ambassador Ritter No. 444

Carbon Copy

Secret Reich Matter Salzburg, 20 June 1944

[Handwritten] Draft

To the Chief of the High Command of the Armed Forces Your letter of 15 June 1944 No. Operations Staff Armed Forces/Qu. No. 772991/44.....II.ed.

Subject: Treatment of enemy terrorist airmen.

The Foreign Office agrees to the intended measures as a whole, notwithstanding the clearly palpable objections from the viewpoint of foreign policy and international law.

Examination in detail should differentiate between cases of lynching and cases of special treatment by the SD.

I. In cases of lynching, a sharply defined establishment of criminal facts according to paragraphs 2–4 of the letter of June is not very important. First, a German authority is not directly responsible; death has already taken place before some German authority deals with the matter. Further, the circumstances will be such, as a rule, that it will not be difficult to represent the case in a suitable manner on publication. Accordingly, in cases of lynching, the principal aim will be to deal suitably with the individual case on publication.

[Handwritten marginal note] only this was the aim of our letter.

II. The procedure suggested for special treatment by the SD[299] with subsequent publication, would only be defensible if Germany would openly repudiate at the same time, and in this connection, the obligations under international law which are in force now and which Germany still recognizes. When an enemy airman has been apprehended by the armed forces or by the police and been transferred to the airmen reception camp Oberursel, his legal status has become eo ipso that of a prisoner of war. Concerning the criminal prosecution and sentencing of prisoners of war and the carrying-out of death sentences against prisoners of war, definite rules have been established by the Prisoners-of-War Convention of 27 July 1929, such as, e.g., article 66, which provides that a death sentence may be carried out no sooner than 3 months after notification of the death sentence to the protecting power; in article 63: sentencing of a prisoner of war only by the same courts and according to the same procedure as applicable to members of the German Armed Forces. These regulations are so precisely worded that it would be hopeless to try to veil any infraction thereof by a clever form of publication of individual cases. On the other hand, the Foreign Office cannot recommend a formal renunciation of the prisoner of war convention on this occasion.

[Handwritten marginal note] this is already being prevented by the intended segregation.

[Handwritten marginal note] No--owing to segregation and the special treatment immediately following.

A way of escape would be the following, viz, that suspect enemy airmen should not be allowed at all to have the legal status of prisoner of war; that means that one should tell them immediately on capture, that they were not to be considered as prisoners of war but as criminals, that they be handed over, not to authorities competent for prisoners of war such as a prisoner of war camp, but to the authorities competent for the prosecution of criminal acts, and that they then be sentenced in special summary judicial proceedings. If, during the interrogation under these proceedings, the circumstances prove that this special procedure is not applicable to the case on hand, then in individual cases the concerned airmen could afterwards be given the legal status of prisoners of war, by transfer to the airmen reception camp at Oberursel. Of course, even this opening would not prevent Germany from being blamed for infractions against valid agreements, and perhaps not even the taking of reprisal measures against German prisoners of war. Anyway, such an opening would enable us to keep to a clear viewpoint and free us of the necessity of either openly repudiating valid agreements or of making use, on publication of every single case, of excuses which nobody will believe. Of the facts mentioned under 2–4 of the letter of 13 June, the facts mentioned under 1 and 4 are legally unobjectionable. The facts under 2 and 3 are legally not unobjectionable. However, the Foreign Office is prepared to disregard that.

[Handwritten marginal note] yes, this too is possible.

It would perhaps be advisable to summarize the facts under 1, 3, and 4 by saying that any attack of an airman on civilian population committed with machine guns is to be treated as a criminal act. The individual acts listed under 1, 3, and 4 would then merely form particularly remarkable instances. Nor does the Foreign Office see any reason why such attacks should not be punished, when committed upon civilian population in ordinary dwellings, in motor cars, in river vessels, etc.

The Foreign Office proceeds from the fact that German airmen are, as a general rule, forbidden, when attacking England, to make use of machine guns against the civilian population. As far as the Foreign Office is informed, such a prohibition was issued some time ago by the Commander in Chief of the Air Force. A general publication could point out the fact that such a prohibition is in force.

III. The above considerations warrant the general conclusion that the cases of lynching ought to be stressed in the course of this action. If the action is carried out to such an extent that its purpose, viz, the deterring of enemy airmen, is actually achieved which the Foreign Office approves of, then the machine gun attacks of enemy airmen upon the civilian population ought to be given publicity in quite another manner than has been the practice up to now, if not in home propaganda, then at any rate in foreign propaganda. The competent local German authorities, probably the police stations, should be instructed to send at once, in every case of such an attack, a short and true report mentioning details concerning place, time, number of killed and wounded, to a central office in Berlin. This central office ought then to transmit these reports at once to the Foreign Office for use.

As such machine gun attacks on the civilian population also have taken place in other countries, e.g., in France, Belgium, Croatia, Rumania, the competent German offices or the governments of those countries ought to be asked to collect in the same way news about attacks on the civilian population and to make propagandistic use of these in foreign countries in cooperation with the German authorities.

IV. In the letter of 15 June the intention has been mentioned that any publication should, until further notice, be proceeded by an agreement, i.e., with the Foreign Office. The Foreign Office attaches special importance to this and insists also that such an agreement take place not only until further notice, but during the entire duration of the action.

BY ORDER

[typed and crossed out] Signed: RITTER

5. Notes of General Warlimont, 30 June 1944

Operations Staff of Armed Forces No. 006988/44 secret command matter

30 June 1944

Top Secret

3 copies--copy No. 1

Subject: Treatment of enemy terrorist airmen

[Pencil note] We must, at least, act. What more do we need?

Notes on a Report

I. Enclosed draft of a reply letter of the Reich Minister of Foreign Affairs to the Chief of the High Command of the Armed Forces, which has been transmitted to the Operations Staff of the Armed Forces through Ambassador Ritter, is submitted.

On 29 of this month Ambassador Ritter states by phone, that the Reich Minister for Foreign Affairs has approved this draft but has instructed Minister Sonnleitner to report to the Fuehrer the point of view of the Foreign Office prior to the sending of the letter to the Chief of the High Command of the Armed Forces. Only if the Fuehrer approves of the principles established by the Foreign Office, is the letter to be sent to the Chief of the High Command of the Armed Forces.

II. The Reich Marshal agrees with the formulation transmitted from the High Command of the Armed Forces concerning the concept of terrorist airmen and with the proposed procedure.

[Signed] WARLIMONT

Distribution: Chief High Command Armed Forces through Deputy Chief Operations Staff Armed Forces, copy No. 1 Ktb. (files), copy No. 2 Qu. (adm. 1) copy No. 3

6. Notes of General Warlimont’s Office, 5 July 1944

Operations Staff Armed Forces Qu. (Adm. 1)

5 July 1944

Top Secret

Notes

Concerning “Terrorist Airmen”

In the noon situation conference of 4 July, the Fuehrer decreed as follows:

According to press reports, the Anglo-Americans intend for the future, as a reprisal action against “V 1,” to attack from the air also small places without any economic or military importance. If this information is true, the Fuehrer desires publication through radio and press that any enemy airman who participates in such an attack and is shot down during it cannot claim to be treated as a prisoner of war, but will be killed as soon as he falls into German hands. This measure is to apply to all attacks on smaller places, which are not military, communications, nor armament objectives, etc., and which accordingly have no significance from the point of view of the war.

For the time being, no measures are to be taken, but only to be discussed between the armed forces and the Foreign Office.

TRANSLATION OF DOCUMENT NG-364 PROSECUTION EXHIBIT 108

SECRET CIRCULAR FROM MARTIN BORMANN TO NAZI PARTY LEADERS, 30 MAY 1944, CONCERNING “PEOPLE’S JUSTICE AGAINST ANGLO-AMERICAN MURDERERS”

German National Socialist Workers’ Party

Party Chancellery

The Chief of the Party Chancellery

Fuehrer’s Headquarters, 30 May 1944 [Stamp] 9 June 1944

[Stamp] Secret

[Initial] TH [Thierack]

Circular 125/44 Secret (not for publication)

Subject: People’s justice against Anglo-American murderers

During the past weeks English and North American fliers have repeatedly been strafing children playing on playgrounds, women and children working in the fields, ploughing peasants, vehicles on the highway, trains, etc., from a low height, thus murdering in the most despicable manner defenseless civilians--especially women and children.

It has happened several times that members of the crew of such aircraft who had bailed out or made a forced landing, were lynched on the spot by the highly indignant population immediately after their arrest.

No police or criminal proceedings have been taken against citizens who have taken part herein.

[typed] [signed] M. BORMANN

Distribution: Reichsleiter Gauleiter Verbaendefuehrer Kreisleiter[300]

Certified [Signed] FRIEDRICHS

30 May 1944

To all Gauleiter and Kreisleiter!

[Initial] TH [Thierack]

Subject: Circular 125/44 Secret

The Chief of the Party Chancellery requests that the Kreisleiter inform the Ortsgruppenleiter only verbally of the contents of this circular.

[typed] signed FRIEDRICHS[301] Certified [Signature illegible]

TRANSLATION OF DOCUMENT 635-PS PROSECUTION EXHIBIT 109

LETTER FROM LAMMERS TO REICH MINISTER OF JUSTICE THIERACK, 4 JUNE 1944, CONCERNING “PEOPLE’S JUSTICE AGAINST ANGLO-AMERICAN MURDERERS,” AND ENCLOSING BORMANN’S CIRCULAR TO NAZI PARTY LEADERS ON THIS SUBJECT

The Reich Minister and Chief of the Reich Chancellery Reich Chancellery 681 E secret

[Stamp] Secret

Berlin W 8, 4 June 1944 Vosstrasse 6 [Stamp] at present at Field Headquarters

To the Reich Minister of Justice, Dr. Thierack Subject: People’s justice against Anglo-American murderers

[Initial] KL [Klemm]

[Handwritten note] Department IV. Circular Decree with the addition that such cases are to be submitted to me, when they arise, for an examination of the question of quashing proceedings.

[Initial] TH [Thierack]

Dear Dr. Thierack,

The Chief of the Party Chancellery informed me about his secret circular letter,[302] a copy of which is enclosed, and requested me to inform you as well. I herewith comply with this and beg you to consider how far you want to inform the Courts and the prosecuting authorities of it. The Reich Leader SS and Chief of the German Police has, as I was further told by Reichsleiter Bormann, so instructed his police leaders.

Heil Hitler!

Yours very devoted [Signed] DR. LAMMERS

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS HANS HAGEMANN[303]

DIRECT EXAMINATION

DR. SCHILF (counsel for defendant Klemm): What was the last position you held in the administration of justice?

* * * * * * *

WITNESS HAGEMANN: I was attorney general [Generalstaatsanwalt] at Duesseldorf.

Q. Since when had you been attorney general at Duesseldorf?

A. Since 1937.

Q. Herr Hagemann, can you remember that in 1944, the Reich Minister of Justice, Thierack, had issued a so-called circular directive[304] to all attorneys general which contained an instruction to the effect that in cases where the German population had exercised lynch justice the prosecution had been instructed to report to the Ministry about such cases?

A. Yes, I remember such a decree.

Q. Can you tell the Tribunal what the text was?

A. No, I cannot tell you that. I can tell you the contents and what it said was that in such cases a report had to be made to the Minister.

Q. Did that decree say anything to the effect that the Minister intended to quash all such cases?

A. I don’t remember that passage, but it is possible that it did contain such a passage. Generally speaking, all I remember is the fact that a report had to be made on such cases, and if such a case had been pending with me I would have had a look at the decree, and I would have read it through. However, as no such case ever occurred with me, I don’t exactly remember the text because it never became topical for me.

Q. Witness, would you kindly make a little longer pause after I finish my question?

A. Yes, I will.

Q. Was that circular decree a so-called secret decree?

A. Yes, it was.

Q. And how did you keep it? Where did you keep it?

A. Secret decrees were entered in the register by my senior clerk who was in charge of the registry. After that, they were put in the safe.

Q. Witness, in your district--that is to say, within the area of the court of appeals of Duesseldorf--in the fall of 1944, a case is supposed to have occurred where an SA leader shot down two or three Canadian fliers who had been taken prisoners.

A. Yes, I remember that case perfectly well.

Q. Would you please give the Tribunal an account of that case?

A. In September of 1944 parachutists made an attack near Arnhem. In the course of that attack some paratroopers drifted away, and came down near the border between Holland and Germany. There, two Canadian soldiers were taken prisoner, and an SA leader shot and killed them. That is the general outline of the case. I did not hear it from the Chief Public Prosecutor at Cleve who had taken charge of the case, but I heard it from a judge at the court of appeals who informed me of the matter. Thereupon, I told the Chief Public Prosecutor in Duesseldorf to investigate the matter and immediately make a report to me. He returned; I ordered some additional investigations, and I myself made investigations, too. I interrogated witnesses, for example. I believe the best thing would be for me to tell the Tribunal what the results of all those investigations were.

The two Canadian soldiers had been taken prisoner close to the frontier. Two customs officials took them back. The Canadian soldiers were unarmed and, as I think is the custom with prisoners of war, they held up their hands as they walked along. The two customs officials took them back like that, until they got to Kranenburg, a little place on the German-Dutch frontier. At Kranenburg that SA leader was standing in the street--his name was Kluettgen; next to him stood the Kreisleiter of Cleve, whose name was Hartmann. When Kluettgen saw those two prisoners coming along he told them to halt; he drew his pistol from his pocket and shot at the two Canadian soldiers. Kluettgen was so cold-blooded that when at first his revolver was jammed he put it right, and then shot those two soldiers down. As I found out later, at that time or soon after, he said, “Now I have got two; I now only need another two or three.” I can’t vouch for the latter figure, I don’t know exactly what he meant. However when he said, “Now I need another two or three,” he meant this: In an air raid, I believe, Kluettgen had lost five close relatives, and it became evident that that killing was just vengeance for his relatives whom he had lost in that air raid. That is to say, if I may put it that way, he acted in a modification of the old saying “An eye for an eye and a tooth for a tooth.” He just changed it and made the “eye for eye” into “number for number.”

That clarified the SA Leader Kluettgen’s position, but the part played by the Kreisleiter who had been standing next to Kluettgen, remained unclear. I believe I can remember that the Kreisleiter had said something that wasn’t quite above-board, something like, “That’s right,” or “just do away with them,” or something like that. However, it was possible to interpret the words in various ways. It is just possible that he had meant to say, “Kluettgen should shoot them,” or “Take those two away,” because somebody said afterwards that after those two people had been killed, the Kreisleiter had said that that was not what he had intended to happen.

That was the outcome of the investigations.

Now, as to the proceedings that were instituted.

The Chief Public Prosecutor had ordered the police to arrest Kluettgen, but the police refused to carry out the order. Later on, when I was interned, I heard from a Gestapo official that there had been general instructions issued to the police to the effect that men from the Ortsgruppenleiter upward were to be arrested and proceedings instituted against them only if the Party Chancellery approved, and similar instructions had been issued for people in the SA and the SS. Generally speaking, I did not encounter any difficulties when making investigations. The SA gave its consent for me to interrogate several people. The Kreisleiter, however, refused to make a statement until we obtained the approval, and it was the Party Chancellery which had to give that approval; that is to say, it was Bormann. Although an application was made for such consent, it never arrived.

I made a report to the Ministry about the case. Naturally, I had to make a report because it was an important case, and reports had to be made to the Ministry about all important cases.

I told the Ministry, over the telephone, about the fact that proceedings had been instituted, and I believe it was Dr. Mettgenberg to whom I spoke over the telephone. I told him as much as I knew at that time. Afterwards I made a written report, that I intended to clear up the matter, and I eventually managed to clear it up. I also told the Ministry that I needed its support in order to obtain permission for the Kreisleiter to make a statement.

The Ministry was altogether in agreement with the way I had handled the case. I received written instructions. I understood them to want me to clear up the case completely.

There was no question of quashing the proceedings. Not one word was said of that.

PRESIDING JUDGE BRAND: One moment please, Witness. Tell us, please, what did you mean by clearing up the case? Did you mean prosecute and convict? Or what did you mean?

WITNESS HAGEMANN: What I meant first, was to establish the facts and once they were established to suggest to the Ministry that an indictment should be filed against Kluettgen and, if necessary, also against the Kreisleiter. I could not make a final suggestion at that stage because I did not yet know what part the Kreisleiter had played. That is to say, the Ministry agreed that I should carry out my plan to clear up the case, but because no approval was received from the Party Chancellery to interrogate the Kreisleiter, we could not close the proceedings.

There were, of course, also great difficulties of transportation. The further the war was brought into the country, the more difficult it was to have any correspondence with Berlin.

Q. What was the date of this case?

A. I am afraid I cannot tell you the exact date. I think one should be able to find out from the history of the war. It was that parachute attack near Arnhem. I think I am pretty certain it was in September. May I say that is the way I remember the case now. The files are in existence.

Q. It was in 1944?

A. Yes, 1944. I did something which, as far as I know, I never did in any other case. I had two copies made of that file, one original file and a copy of it. I gave the original to my senior clerk, and I told him to keep it, not to leave it in the courthouse at night but to take it home with him, and to take it with him to the air-raid shelter in case of an alert. I kept the duplicate myself, and whenever the alert came I took it with me to the air-raid shelter to make sure that if anything happened to either my senior clerk or to myself, one file would always be available, so that there should be no difficulty in prosecuting the case. I was convinced that this was an important case not only from the point of view of guilt and expiation in the individual concrete case, but also that was bound to be of importance for the German armed forces, for, although I was not a soldier, I could well imagine that if the Allied forces should come to hear that the German administration of justice had not prosecuted that case, they would take retaliation measures against German soldiers, or at least might do so. In that event, soldiers who were innocent in this connection might have suffered for what Kluettgen, and possibly also the Kreisleiter Hartmann, had done.

What may be of interest, is the reaction of the German population in Kranenburg. There were some German civilians standing in the street when this happened, who quite openly showed their indignation.

Q. Was any indictment filed against the one who actually did the shooting?

A. No, that was not done, because we had to wait. The role the Kreisleiter played--

Q. Please answer this question. Did you have any difficulty with the securing of the evidence concerning the actual shooting? As you have told us you apparently had plenty of evidence as to that one person.

A. Yes, against this one man I had the evidence, but as it was possible that another man was involved--the Kreisleiter--it was important that we should not just indict one man and deal with him alone, but to indict them together. We always did that in principle.

Q. Well, let me ask you this. Was that a matter of German law, that when you knew one man had committed a crime you didn’t prosecute him because perhaps someone else might have helped him?

A. But we did intend to indict him. We only wanted to await the result of the investigations concerning the other person, so that we could indict them both, because if we only indicted one, the proceedings against the other one would have been confronted with a great many difficulties. That was the way in which we proceeded, I should say, almost regularly.

PRESIDING JUDGE BRAND: Very interesting.

DR. SCHILF: Herr Hagemann, I would like to ask one more question. The President has asked you whether you were confronted with any difficulties in prosecuting one person. I am referring to Kluettgen now.

WITNESS HAGEMANN: Yes.

Q. May I ask you to tell us whether you had an opportunity to talk to Kluettgen yourself, or to interrogate him?

A. I asked the legal adviser of the SA, if possible, to make Kluettgen come to see me. At first, Kluettgen had worked near Kranenburg, but afterwards the SA had sent him to the district of Aix-la-Chapelle [Aachen]. He had some special transport mission there, and when he came to Duesseldorf on one of those transportation errands, he came to see me in my apartment one Saturday evening. I was ill; that is why I was at home. I had a short talk with him, and I was not favorably impressed with him. He told me that he had killed those two Canadians because he had been afraid that foreign civilian workers who were loafing around in that district might have set those Canadians free. I wanted to refute that statement, and I did refute it by the testimony obtained from witnesses. However, that motive would have been quite indifferent for the legal evaluation of the case.

As regards the clearing up of the case, it seemed important to me to convict the man and prove to him that that motive could not have been true.

Q. Witness, you have said that the order from the Chief Public Prosecutor at Duesseldorf to the police, to arrest Kluettgen, had not been complied with, and now you say Kluettgen came to see you. Did you, as attorney general, not have the possibility to arrest Kluettgen immediately?

A. No, I did not have that possibility. It was a Saturday evening, I was alone in my apartment, and I had no weapons.

Q. You said that Kluettgen had been transferred to the Aix-la-Chapelle district, and you said that the agency for which Kluettgen worked had done that. In carrying out your investigations, did you find any indications that that was done intentionally in order to remove Kluettgen from your jurisdiction?

A. I did not find indications, and I certainly did not find any proof, but the possibility exists. However, it is also quite possible that Kluettgen was transferred from the Kranenburg district because the population was excited.

Q. Could you just tell the Tribunal approximately when the Allied troops arrived in Duesseldorf or Aix-la-Chapelle, the district where Kluettgen was staying at the time.

A. Yes. I can’t tell you exactly when the Allied troops arrived in Aix-la-Chapelle, but they arrived in Oberkassel, on the left bank of the Rhine, at the beginning of March, and as far as I remember, they got to Duesseldorf in April.

Q. Up to that time proceedings were continued, were they?

A. Yes.

Q. And later on, after you had received the support from the Ministry, no instructions to the contrary were issued to you?

A. No contrary instructions were issued to me. The matter was concluded. All that was missing was an interrogation of the Kreisleiter.

Q. And, in accordance with your suggestion, they would then have been indicted?

A. Well, I couldn’t make a suggestion because I didn’t really know what was the matter with Hartmann yet, but if I had found out, I would then have suggested the indictment of Kluettgen and possibly of the Kreisleiter too. However, as far as the Kreisleiter was concerned, that depended upon those investigations which had not yet been made.

Q. I suppose these facts which you have described to the Tribunal can be gathered from the files which you have mentioned?

A. Yes.

Q. May I ask you when you saw the files for the last time?

A. In the spring of this year.

Q. What has been done with the files?

A. I gave them to the attorney general, Dr. Junker, in Duesseldorf in person.

Q. And presumably they are still there?

A. Yes, I am quite sure they must be.

PRESIDING JUDGE BRAND: I would like to ask a question. The case was pending for investigation from September 1944 until March 1945? Is that what you meant to say?

WITNESS HAGEMANN: Yes.

PRESIDING JUDGE BRAND: Thank you.

DR. SCHILF: Mr. Hagemann, did you ever hear--

PRESIDING JUDGE BRAND: Just a moment. One question.

JUDGE HARDING: What else did the Ministry do about it?

WITNESS HAGEMANN: Well, naturally I don’t know what steps the Ministry took, but I assume that the Ministry tried to get the Party Chancellery to give its consent for the Kreisleiter to be interrogated; again and again I suggested to the Ministry to take such a step.

Q. But you heard nothing further from the Ministry, is that right?

A. No, no, I heard no more later on, because--well, I don’t really know why they didn’t write again. I have already told you that transportation difficulties were great, and that it became more and more difficult to keep in touch by letter or by telegram. For example, since the middle of March--or anyway I think it must have been since the middle of March--we were still in a sort of cauldron, we in Duesseldorf were cut off on all sides from the outside world.

PRESIDING JUDGE BRAND: In March 1945?

WITNESS HAGEMANN: Excuse me. What is it you mean? What happened in March 1945? You mean it was then that Duesseldorf became a cauldron? You mean it was then that we became cut off in Duesseldorf?

Q. Yes.

A. Yes, I think it must have been in March 1945, but naturally the difficulties had been great before that time, I mean the transportation difficulties, and they grew worse and worse.

DR. SCHILF: Mr. Hagemann, did you ever hear that that man Kluettgen was recently sentenced to death by an American Military Tribunal?[305]

WITNESS HAGEMANN: Yes, Dr. Haensel told me that a few days ago. He told me that he had read in the paper that Kluettgen had been sentenced to death in Dachau by an American Military Tribunal.

* * * * * * *

CROSS-EXAMINATION

MR. LAFOLLETTE: After you communicated with Dr. Mettgenberg about your trouble with the case, did you ever get an answer back from him?

WITNESS HAGEMANN: You’re now referring to the first case, are you? You’re referring to the Kluettgen case, are you?

Q. Yes, I’m referring to the Kluettgen case.

A. Yes, I talked to him over the telephone and then I received an order from the Ministry to the effect that they agreed with my plan to clear up the matter and that in particular the Kreisleiter was to be interrogated. I was also instructed that I should make a further report and that probably further directives would be issued to me. Naturally, I had to wait for the instructions from the Minister. Whether it was Dr. Mettgenberg who had signed that order or whether it was Dr. Vollmer who was then ministerial director, I naturally can’t tell you, for of course I was interested in the case as such but not in the man who signed it.

Q. And before you could do any more, you had to wait for instructions from the Ministry in all cases where Allied fliers had been shot; is that right?

A. Well, that is the way I remember that circular decree but that is the only case that occurred in my area, and the instructions were to the effect to clear up the matter.

DR. SCHILF: I have no further questions.

PRESIDING JUDGE BRAND: The witness is excused.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[306]

DIRECT EXAMINATION

* * * * * * *

DR. SCHILF (counsel for defendant Klemm): We now come to the next charge of the indictment. You are personally made responsible in the indictment for having assisted in the so-called lynch justice on the part of the German population exercised on bailed-out Allied fliers during the war. May it please the Tribunal, the documents which were introduced against the witness in that connection are NG-364, Prosecution Exhibit 108; 635-PS, Prosecution Exhibit 109; and NG-149, Prosecution Exhibit 110.[307] According to Exhibit 108 which we already discussed a few days ago, Bormann had sent a secret letter from the Fuehrer Headquarters to the Nazi Party which was addressed to Gau and Kreisleiter. He spoke about lynch actions which had already been taken by the people and it says further, and I quote: “no police or criminal proceedings have been taken against citizens who have taken part herein.” He is speaking in the past tense. Exhibit 109 shows correspondence between Lammers and Thierack. Lammers informs Thierack about this circular letter sent out by Bormann. First, I want to ask you, in what relationship did you see these statements of Bormann to the Kreisleiter and Gauleiter to Thierack at the time?

DEFENDANT KLEMM: According to the text of Lammers’ letter, Exhibit 109, there must have been an enclosure in this letter.

Q. At the time[308] did you obtain knowledge of Exhibit 109 and the enclosure, as you call it, Exhibit 108?

A. Yes, I saw Lammers’ letter and I must have seen this circular letter of Bormann’s together with it.

Q. Bormann spoke about three of those cases which had occurred in the past. Bormann stated that penal prosecution did not take place. When you saw these two letters--when these Exhibits 108 and 109 were submitted to you--did you know anything about it, that is that in the past the administration of justice, that is the courts abstained from penal prosecution against members of the German population?

A. I consider that that is absolutely impossible. If penal prosecution would have been abstained from, this could have been done only by quashing the trial, and for such a quashing Hitler was competent exclusively or the Minister of Justice to the extent to which this right had been delegated to him by Hitler. This can be seen from the clemency regulations which have already been introduced as a document here, in part. I cannot remember such a case being discussed, and I cannot find anything in these reports about it either. I looked at them with that in mind.

Q. If you say that at the time when you received this letter you did not know any past cases, how should one understand Bormann’s letter? He is speaking of the past and says that penal prosecutions did not take place.

A. This can only be explained as follows: According to the letter, before it was sent out, such cases must have occurred. Himmler had already in 1943 instructed his police not to interfere in disputes between the German population and terror fliers which had been shot down.[309] This was already brought out in the IMT trial. This sentence which Bormann used in his circular letter can be explained in my opinion only as follows, namely: that the police did not forward denunciations to the administration of justice and that in this way a penal prosecution did not take place, but only because the administration of justice did not hear anything about these matters. From the hint that Lammers gives in this letter that Himmler had already informed his police also on the basis of Bormann’s circular letter, it is quite clear to me that such denunciations to the administration of justice were also not to be made in the future. But, of course it could happen that the administration of justice found out about such cases on its own and took them up, but incidentally, that Hitler backed this action himself is in my opinion shown in Exhibit 110.

Q. Mr. Klemm, Exhibit 108 and 109 bear your initials. I now want to ask you, were these statements submitted to you before they were submitted to Thierack or after that?

A. I received these documents after Thierack had seen them and after he had already made his notation on them.

Q. This notation by Thierack reads as follows: “IV R-V with the addition that such cases for the purpose of examination in regard to quashing shall be submitted to me,” that is “to me” Thierack, that is Thierack’s notation. What do you have to say about that? How did you understand that notation?

A. The prosecution submitted this document with a supplementary sheet and this says, at least in the German edition of the document, handwritten note on the right upper corner, signed “Klemm.” That is not right. There isn’t any handwritten notice in the upper right hand corner at all but merely a “Kl,” my initials. Below the initials, that is, about the upper one third of the page, there is the notation which has just been quoted which was written by Thierack. The handwritten note is without doubt in Thierack’s handwriting. If the original were available and not merely a photostat, one would be able to see that this note was written with a green pencil. That was the color in which ministers had to sign, according to the business regulations for the highest Reich authorities. Whereas in a purple pencil only my initials are on this document.

Every one of the defendants here, if he has been in the ministry, would be able to testify whether that was my handwriting or not.

PRESIDING JUDGE BRAND: What is the exhibit number on that again?

DR. SCHILF: Exhibit 109, Your Honor, 109; 635-PS. But may I remark it is a later sheet. The prosecution submitted Exhibit [108 and Exhibit] 109 at two different times in two parts.

Now, Mr. Klemm, I want to ask you--

DEFENDANT KLEMM: I want to make an additional explanation. The figure “IV” means department IV. “R-V” means “Rundverfuegung”, circular order, with the addition that such cases are to be submitted to me, that is Thierack, and are to be submitted not for quashing but for the purpose of examining the question of quashing if they were pending. Thus, a quashing was not considered from the very beginning.

Q. Did this instruction issued by Thierack have any possibility of inciting the population to lynch Allied fliers, or how did you look at it at the time?

A. After the Minister had issued this instruction to Department IV and thus had arrogated the decision in regard to this to himself, I no longer had a possibility to undertake anything in the matter. This circular order was issued with the stamp “secret” on it if it was sent out at all, and I don’t know that. And one cannot talk about inciting the population for the reason that the population did not hear about it at all. However, after Bormann had informed the Party in this manner and after Himmler had issued his instructions to the police, it was the duty of Thierack to take some measures in regard to the prosecutions in the country. I have already stated that the administration of justice was unwilling, and Thierack was unwilling too, to grant freedom from prosecution without any conditions like that. Thus, if the administration of justice wanted to carry out a trial, the Minister had to assert his authority and to protect the local prosecutors against any elements of the Party or the police who would like to prevent such a penal prosecution. If a proceeding was to be quashed, however, only the Minister himself could do that, because of the regulations by law. What were the consequences of this circular order in the administration of justice, I can no longer remember. It may be one or two very special cases were quashed. I do not know whether there were more such cases.

Q. You said that the administration of justice and Thierack, too, turned against Bormann’s methods. Can you cite examples for this?

A. The Party did not only require that those people who participated in lynchings should not be punished, but on the contrary, it wanted to have severely punished those people who treated fliers who had been shot down in a humane manner; and they wanted to have them punished with the aid of the regulations regarding the forbidden contact with prisoners of war. We did not concur with either of those measures. In a case which took place in Magdeburg, the Party attempted to achieve the most severe punishment of a couple which had given food to an enemy flier who had been shot down and who had received a piece of candy from him. This was stopped. We had received a report according to which a couple was arrested because they had allowed an Allied flier who had been shot down, into their apartment. The Canadian--I believe he was a Canadian flier--had been taken prisoner during the air raid, that is, before the all clear signal, by a civilian, and the civilian took him into his apartment. In this apartment the flier received something to drink and the Canadian offered the wife a piece of candy. At first the woman refused it. When he offered it the second time, however, she accepted it. She then put the piece of candy away and said, “That is for the children.” The Party had achieved it with the local administration of justice that the married couple was arrested and that an indictment would be filed for illicit contact with prisoners of war in a very serious case. When I heard about this report--I shall shorten this description somewhat--I reported this case very emphatically to Dr. Thierack, and during the very same night he called up the Chief Public Prosecutor in Magdeburg and instructed him to have the married couple released immediately the next morning.

Q. Mr. Klemm, that is sufficient. I shall submit an affidavit about this incident. I only want to ask you now, those were cases in which Germans were prosecuted because they were supposed to have treated Allied prisoners of war too leniently. Can you also cite the opposite cases where the Reich administration of justice prosecuted Germans who participated in lynchings?

A. Around the turn of the year 1944–1945 in Kranenburg that is the district of the district court of appeals, Duesseldorf, the following case occurred. An SA leader had, during the course of the air war, lost three very close relatives of his due to bombing. One noon he passed the town hall in Kranenburg. There was a guard standing, and with him he had two captured paratroopers. This SA leader went over to him and shot the two captured paratroopers. We prosecuted that case and even though the police as well as the Party offices offered considerable resistance, these discussions were advanced energetically. I do not know the final outcome, because later on due to the events of the war this territory was occupied by the Allied troops.

Q. May it please the Tribunal, may I say briefly I have the approval of the Court already to submit these files of the General Public Prosecutor of Duesseldorf. I do not have them here as yet. When I receive them, I shall then submit them in evidence.

Mr. Klemm, briefly in regard to Exhibit 110, which you have already mentioned, “terror fliers,” secret military matter, that is how it is called; and a note. Did you find out anything about that?

A. These are Wehrmacht files and a correspondence with the Foreign Office, and the problem was to not let terror fliers obtain the status of prisoners of war.

Q. Let me interrupt you; you do not have to discuss it. Did you find out about the matter at the time?

A. The administration of justice neither took part in this case nor did we know anything about it.

Q. The prosecution, furthermore, submitted document 1676-PS, Prosecution Exhibit 417.[310] It is an article which appeared in the Voelkischer Beobachter on 28–29 May 1944. The prosecution asserts that from this article of Goebbels’ in the German press, one can read an indictment of the population to administer lynch justice. Did you find out about this article at the time?

A. I did not have knowledge of this article at the time. It was not the cause for Thierack’s circular letter, which was issued for quite different reasons; as I just described, it was issued for legal considerations. Moreover, according to the affidavit in Document NG-1306, Prosecution Exhibit 440, the issuance of this circular letter must have occurred at a time which shows that it could have had no connection with this article in the newspaper.

* * * * * * *

CROSS-EXAMINATION

* * * * * * *

MR. LAFOLLETTE: * * * Now we will consider the matter of the Allied fliers. That document is Exhibit 108 and 109.[311] NG-364, Prosecution Exhibit 108 was the circular letter from Bormann dated 8 June [30 May] 1944, and Exhibit 109 is Document 635-PS. You testified yesterday--I mean Friday morning--that the notation by Thierack was on Exhibit 108 [Exhibit 109] reading, “IV circular with the addition that such cases are to be submitted to me when they arrive for an examination of the question in quashing.” That was on there when the document reached you. We are in agreement on that, are we not?

A. It was an instruction to Division IV to draft such a circular decree with these contents for the purpose of examining whether the case should be quashed.

Q. Yes. Now then, you also said, “From the hint that Lammers gives in this letter--that is Exhibit 109--that Himmler had already informed his police also on the basis of Bormann’s circular letter, it is quite clear to me that such denunciations to the administration of justice were also not to be made in the future but of course it could happen that the administration of justice found out about these on its own and took them up, but incidentally Hitler backed that action itself.” Do you recall, did you do anything after 4 June 1944 when you received this notation from Thierack about this subject of quashing sentences or did you let the matter drop?

A. I was not able to do anything, since the minister had ordered that this circular decree would be drafted and these cases had to be reported too, because according to the circular letter by Bormann to the Party and according to the information by Lammers that Hitler had instructed the police, the public prosecution had to get into difficulties if it found out about such a case, and if it started an investigation.

Q. Did you personally take any steps to see that there would be no prosecutions against anyone who followed Bormann’s instructions?

A. I know for sure, and I have already described, that we did carry out a proceeding against the party and the police. We continued investigations, and furthermore, I testified that I cannot recall with certainty any more whether, on the other hand, one or two cases in which there was a special situation was quashed. I cannot recall that any more with certainty.

Q. But you yourself gave no instructions to prosecutors on this line because that was Thierack’s order, wasn’t that right?

A. Yes, that was Thierack’s order that the public prosecutors were supposed to report on these matters; after they had reported, the Minister had to decide whether the investigation and the case were to be continued or whether the proceedings should be quashed. This means that the instructions for the purpose of examination were for the purpose of examining whether the proceedings should be quashed.

* * * * *

D. The Making and Application of Special Measures Concerning Nationals of Occupied Territories, Minority Groups and Races, and Alleged “Asocials”

1. INTRODUCTION

Under National Socialist ideology and practice a large number of German nationals were considered inferior or objectionable on racial and political grounds. After Hitler came to power in January 1933, German nationals were subjected to various discriminatory laws and practices, including protective custody in the hands of the police (usually the Gestapo or Secret State Police) or confinement in concentration camps. After Germany occupied the territory of neighboring countries, these practices were extended to non-German nationals. As the war progressed, the intensity of discrimination and persecution increased.

In the Justice case, one of the most important issues was the manner in which German criminal law was extended to the occupied countries. German penal legislation and special legislation applicable to Poles, Jews, and others was introduced in that part of western Poland usually referred to as the “Incorporated Eastern Territories.” Evidence concerning this aspect of the case appears below in section D2. (A similar type of question arose in cases where persons who were not Germans were compelled to work in Germany and accused of treason, of undermining Germany’s defensive strength, or of being public enemies. See section E, below.) In the occupied western areas the application of the Night and Fog decree was the principal measure involving the judicial process which affected the life and liberty of non-German nationals. Evidence concerning this matter appears below in section D3.

2. JEWS, POLES, GYPSIES, AND OTHERS

PARTIAL TRANSLATION OF DOCUMENT NG-629 PROSECUTION EXHIBIT 28 [Also Rothenberger Document 3 Rothenberger Defense Exhibit 3]

EXTRACTS FROM A REPORT[312] ON A CONFERENCE OF DEFENDANT ROTHENBERGER AND VARIOUS COURT PRESIDENTS, 1 FEBRUARY 1939, CONCERNING “RACE POLLUTION,” EXCLUSIONS OF JEWS FROM EMPLOYMENT, AND “THE LEGAL TREATMENT OF JEWS”

Report on the conference of [court] presidents on 1 February 1939

Present: Senator Dr. Rothenberger, Attorney General Dr. Drescher, Vice President Letz, District Court Presidents Korn and Dr. Ruether, Bremen, Local Court President Dr. Blunk, Local Court Directors Schwarz, Boehmer, Hansen, and von Lehe, Senior Judges of Local Court Gersdorf and Stender, Chief Public Prosecutor Lohse, Bremen, Oberlandesgerichtsrat Dr. Segelken and the undersigned.[313]

Senator Dr. Rothenberger and the attorney general reported on the discussions at the meeting of the presidents of the courts of appeal and attorneys general with the Reich Minister of Justice.

* * * * * * *

II a. The Chief Public Prosecutor then spoke again on the treatment of women in cases of race defilement. The Fuehrer refuses an extension of culpability according to the blood protection law [Blutschutzgesetz].

Concerning complicity he pointed out the contradictory opinions of police and justice. The public prosecutors are to work according to the following directives:

If a woman merely denies the intercourse she will not be prosecuted. On the other hand, if the woman was an active accomplice--if she concealed the race defiler for instance--she will be prosecuted. If, at the same time, there are other offenses (perjury) complicity is to be omitted from the indictment. In such cases, however, a report is to be made to the Reich Minister of Justice.

Senator Dr. Rothenberger pointed out once more that it is the Fuehrer’s desire that the woman should not be punished. If, by mistake however, any person should be indicted or if according to the results of the main proceedings punishment because of complicity may be expected, the proceedings are to be quashed in all circumstances. He urged that the judges be instructed accordingly.

II b. The Chief Public Prosecutor then discussed the problem of prosecuting women for failing to register illegitimate births. In this case the Fuehrer is against punishment according to article 169 for mere concealment of the identity of the father; because he considers that in most cases the woman’s motive should be respected. The woman will be prosecuted, however, if she gives false information concerning the father’s identity.

Senator Dr. Rothenberger completed this statement by saying that it was the Fuehrer’s express wish that the woman be exempted from punishment; the Fuehrer had not yet made a final decision in the matter of false statements. It should therefore be arranged that in such cases the indictment be temporarily postponed according to article 169. If necessary, a legal regulation may be expected in the near future.

III. Concerning the extent of the cases tried in accordance with the gangster decree, the Chief Public Prosecutor reports that up to now 15 cases have been tried by special court in the Reich territory, most of them in Hamburg. Care must be taken that accomplices do not escape punishment through the carrying out of the trial before a Special Court. The complete verdict must, on principle, be submitted before the death sentence is carried out.

Senator Dr. Rothenberger declared that it would be advisable to make the fullest possible use of the possibilities of the gangster decree. The Hamburg cases were considered suitable in Berlin. The Ministry had now realized that summary courts of the Hamburg type offer the only proper solution; they will therefore be maintained.

Insofar as Berlin exerts pressure concerning the speed with which the verdicts are delivered, this pressure must not go beyond the field of the administration of justice and affect the judges. The verdict must be submitted before the death sentence is carried out. In his opinion a typewritten report on the oral verdict, as prescribed for Hamburg, is sufficient.

He considers that the publication of sensational reports in the press on such trials is extremely undesirable; there was general agreement on this. Senator Dr. Rothenberger promised that he would personally contact the competent authorities in order to stop such reports in the future.

* * * * * * *

V. The Chief Public Prosecutor then reported briefly that civil servants with Jewish blood are on principle excluded from employment and that it is necessary to make a report on exceptions.

No pressure is to be put on civil servants to induce them to subscribe to the Party newspapers.

VI. Senator Dr. Rothenberger then stated the ministry’s opinion on various special questions concerning the legal treatment of Jews.

(1) In cases where a Jew asks a bailiff to execute a sentence against an Aryan, the bailiff is not authorized to refuse to do so.

(2) Aryan tenants of a Jewish landlord are obliged to pay rent.

(3) Jews enjoy protection against eviction and tenant’s protection to the same extent as Aryans.

(4) The order suspending execution also applies to Jews in accordance with the laws in effect. There may be exceptions in individual cases, when it is purely a matter of opinion, for example when a radio is seized.[314]

(6) The fact that a debtor is a Jew should as a rule be a reason for arresting him. However, it depends upon the individual case.

(7) Security for the costs of litigation must not be demanded from a Jew to a larger extent than from anybody else.

(8) Naturally, a Jew may be heard as a witness, but extreme caution is to be exercised in weighing this testimony. Senator Dr. Rothenberger requested that no verdict should be passed in Hamburg, when a sentence would exclusively be based on the testimony of a Jew.

Senator Dr. Rothenberger then requested the presiding and supervising judges to accordingly and urgently call the attention of the judges concerned to the questions dealt with.

TRANSLATION OF DOCUMENT NG-590 PROSECUTION EXHIBIT 198

LETTER FROM THE REICH MINISTRY OF JUSTICE, SIGNED BY DEFENDANT METTGENBERG, TO THE PRESIDENT OF THE DISTRICT COURT AND THE CHIEF PUBLIC PROSECUTOR IN HAMBURG, 1 APRIL 1939, CONCERNING THE REDESIGNATION OF JEWISH NAMES IN CRIMINAL PROCEEDINGS

Carbon Copy

The Reich Minister of Justice III g^9 93/39

Berlin, 1 April 1939

[Stamp]

Hanseatic Court of Appeal Received: 15 April 1939

Through the President of the Court of Appeal and the Attorney General, to 1412 Bls 1938--

To the President of the District Court and the Chief Public Prosecutor Hamburg

Document reference made for: 400 1a

Subject: Criminal Case against the former physician Albert Israel Leopold for race defilement 11 K Ls 108/38

In the indictment of 17 October 1938 as well as in the verdict of 14 December 1938, Leopold’s profession is given as a physician, although his permit expired on 30 September 1938 pursuant to article 1 of the fourth ordinance of the Reich Citizenship Law of 25 July 1938 (Reichsgesetzblatt I, p. 969). This applies also to the report of the Chief Public Prosecutor to the Reich Minister of the Interior of 6 February 1939. In this connection also the given name Israel should have been added to the first name Albert pursuant to article 2, section 1 of the second ordinance of 17 August 1938 for the implementation of the law concerning changes of family names and first names.[315]

I ask you to take the necessary steps and especially to take care that in criminal cases against Jews which were filed prior to 1 January 1939 the names given will be rectified as far as this has not already been done.

BY ORDER

[typed] Signed: DR. METTGENBERG

1. 1 copy to the president of the district court with the request to make further use of it.

2. 2 copies to the attorney general

3. Wegl

19 April 1939

PARTIAL TRANSLATION OF DOCUMENT NG-880 PROSECUTION EXHIBIT 459

LETTER FROM MINISTRY OF JUSTICE, SIGNED BY DEFENDANT SCHLEGELBERGER, TO MINISTER OF INTERIOR AND THE FUEHRER’S DEPUTY, 3 FEBRUARY 1940, TRANSMITTING DRAFTS OF DECREES FOR INTRODUCING GERMAN LAW INTO INCORPORATED EASTERN TERRITORIES, AND A MEMORANDUM OF THE REICH CHANCELLERY INITIALED BY LAMMERS AND DEFENDANT KLEMM

The Reich Minister of Justice 3200/4 1a-9-312

Berlin W 8, 3 February 1940 Wilhelmstrasse 65 Telephone 110044, Long distance 11 6516

Urgent

To:

a. The Minister of the Interior

b. The Fuehrer’s Deputy[316]

Berlin W 8 Wilhelmstrasse 64

Subject: Introduction of the German Court Constitutional Law, and German Criminal Law in the Incorporated Eastern Territories

To a. In reply to communication dated 19 January 1940. I East 40/40 4024

Enclosures: 3 drafts

I request agreement as soon as possible to the drafts enclosed--

(a) An order concerning the abolition of the district court of appeal at Marienwerder, and the modification of the court district.

(b) An order concerning the court organization and court constitution in the Incorporated Eastern Territories.

(c) An order concerning the taking effect of legal regulations in the sphere of the administration of criminal law in the Incorporated Eastern Territories.[317]

An additional draft concerning the introduction of legal regulations in the sphere of the administration of civil law will be dispatched at the same time.

I have likewise asked the Reich Minister of Economics and the Reich Minister for Public Enlightenment and Propaganda for their agreement with regard to article 1, I, Nos. 8, 10, and 11 of draft (c). Furthermore, I have asked for the agreement of the Reich Protector for Bohemia and Moravia concerning article 1, II, No. 2 of draft (c). The organization of the courts in the Incorporated Eastern Territories was completed several months ago, and German courts are working everywhere there and applying German law, without this application of law having found its legal basis. The Reich governor of the Reich Gau Wartheland in a letter dated 11 December 1939 told me that it is now desirable for the application of German law by German courts to receive a legal basis. Likewise the Reich governor of the Reich Gau Danzig/West Prussia had me informed that it would conform to his wishes if the German law were henceforth introduced legally in the Incorporated Eastern Territories. The introduction of German law is also necessary, because the regulation for the prevention of acts of violence in the Incorporated Eastern Territories, prepared by the Ministry of the Interior, tacitly implies the application of German criminal law and court constitutional law.

I note the following concerning the individual drafts:

1. Draft (a)--In this draft I have summarized those regulations from the draft of an order concerning court organization in the Incorporated Eastern Territories which I had dispatched together with a letter dated 26 October 1939--Ia-9-1961, according to which the district court of appeal at Marienwerder is to be abolished. At the same time the draft contains the measures necessary in this connection, and those for the relevant delineation of the court districts in the territory of the former Free City of Danzig.

2. Draft (b)--This draft regulates the court organization in the Incorporated Eastern Territories, with the exception of the territory of the former Free City of Danzig; at the same time it introduces court constitutional regulations, valid in the old Reich, into these parts of the territory.

3. Draft (c)--Reference to article 1--The temporary modifications of the law concerning criminal procedure contained in article 1, II, Nos. 1 and 2, are expressly desired by both Reich governors, and are essential with regard to the special circumstances in the Incorporated Eastern Territories.

The modification of the regulation of the Special Court dated 21 March 1933[318] provided for in article 1, IV, entitles the Special Courts in the Incorporated Eastern Territories temporarily to assume the character of a civilian court martial to a still greater extent.

Reference to articles 5 and 7--As, according to article 5, the execution of punishment is provided for to a certain extent on the basis of Polish verdicts, a reopening of the trial must be rendered possible for which German law is applicable. In addition there is a necessity to carry out anew legally closed Polish criminal proceedings in cases which have to be given special consideration. However, this should only occur in accordance with my order as set forth in article 5, section 2.

Reference to article 6--The regulation shall make it possible that dangerous habitual criminals and dangerous sexual criminals be rendered harmless by the subsequent order for protective custody or castration.

Reference to article 10--Thus, the actual German criminal law is also declared applicable to those crimes which were committed before the decree became effective in the Incorporated Eastern Territories. But in accordance with article 1, II, number 1, prosecution need not be enforced; also the public prosecutor only prosecutes if public interest requires subsequent punishment.

In consideration of the fact that the introduction of German law in the Incorporated Eastern Territories is imperative for reasons of legal security, may I request that the affair be expedited?

As deputy [Signed] DR. SCHLEGELBERGER

Enclosure c

_Order regarding the Coming into Force of Legal Regulations in the Field of Administration of Justice in Penal Law within the Annexed Eastern Territories February 1940_

By virtue of article 8 of the decree of the Fuehrer and Chancellor regarding the formation and administration of the Incorporated Eastern Territories of 8 October 1939 (Reich Law Gazette I, p. 2042) in the version of the decree of 2 November 1939 (Reich Law Gazette I, p. 2135) the following is decreed regarding the administration of justice in penal law within the annexed Incorporated Eastern Territories excepting the territory of the former Free City of Danzig:

Article 1

Coming into force of regulations of criminal law

It is ordered that within the sphere of administration of justice in criminal law the following laws and orders as well as the regulations decreed for the purpose of changing and supplementing them and the introductory, regulatory, and temporary regulations, in as much as it is not ruled otherwise:

I

1. The Criminal (Penal) Code for the German Reich.

2. The law against the criminal use of explosives which are dangerous to the public of 9 June 1884 (Reich Law Gazette, p. 61).

3. The law regarding the punishment of deprivation of electrical work of 9 April 1900 (Reich Law Gazette, p. 228).

4. The ordinance of the Reich President against unauthorized use of vehicles and bicycles of 20 October 1932 (Reich Law Gazette I, p. 496).

5. The law to ward off political illegal actions of 4 April 1933 (Reich Law Gazette I, p. 162).

6. The law to guarantee law and order of 13 October 1933 (Reich Law Gazette I, p. 723).

3200/4 Ia 2 312

I.P.O. 845

7. The law concerning insidious attacks against the State and the Party and for the protection of the Party uniform and insignia of 20 December 1934 (Reich Law Gazette I, p. 1269)[319].

8. The law against economic sabotage of 1 December 1936 (Reich Law Gazette I, p. 999)[320].

9. The law against highway robbery by means of car traps of 22 June 1938 (Reich Law Gazette I, p. 651).

10. The order on extraordinary measures concerning radio of 1 September 1939 (Reich Law Gazette I, p. 1683)[321].

11. Article 1 of the war economy decree of 4 September 1939 (Reich Law Gazette I, p. 1009)[322].

12. The order against public enemies of 5 September 1939 (Reich Law Gazette I, p. 1679)[323].

13. The Articles 1 and 4 of the ordinance for the protection against juvenile major criminals of 4 October 1939 (Reich Law Gazette I, p. 2000).

14. The order supplementing penal provisions for the protection of the Military Efficiency of the German people of 25 November 1939 (Reich Law Gazette I, p. 2319)[324].

15. The order against violent criminals of 5 December 1939 (Reich Law Gazette I, p. 2378)[325].

II

The Reich Code of Criminal Procedure, but for the present with the following provisos:

1. Article 152, paragraph 2 of the Reich Code of Criminal Procedure (compulsory prosecution) and the regulations of articles 172 to 177 of the Reich Code of Criminal Procedure (proceedings to enforce legal action) do not apply. The public prosecutor prosecutes acts which he deems necessary to be punished in the public interest.

2. The regulations of articles 374 to 394 and 395 to 406 of the Reich Code of Criminal Procedure (private prosecution, concurring action) only apply, if the injured person is a German national, racial German, national of the Protectorate Bohemia and Moravia or of a state which is not at war with Germany. The regulations of Reich law according to which an office of the state is authorized to join in the bringing of a civil action as coplaintiff remain unaffected.

3. Reopening [of proceedings] to the previous status [Wiedereinsetzung in den vorigen Stand] in case of failure of appearance at set term [Versaeumung einer Frist] (articles 44 to 47 of the Reich Code of Criminal Procedure) has to be granted even if the person failing to appear was prevented from appearing through no fault of his own.

III

1. The law concerning the indemnification of persons acquitted in the retrial of 20 May 1898 (Reich Law Gazette, p. 345).

2. The law concerning the compensation for innocently suffered pretrial detention of 14 July 1904 (Reich Law Gazette, p. 321).

3. The law concerning restricted information from the penal record and the canceling of penal entries of 9 April 1920 (Reich Law Gazette, p. 507).

4. The juvenile court law of 16 February 1923 (Reich Law Gazette I, p. 135).

5. The penal register order in the version of 17 February 1934 (Reich Law Gazette I, p. 140).

6. The law concerning interrogation of members of the National Socialist German Labor Party and its formations of 1 December 1936 (Reich Law Gazette I, p. 994).

7. The regulation concerning fees for witnesses and experts in the version of 21 December 1925 (Reich Law Gazette I, p. 471).

8. The law concerning court costs in the version of 5 July 1927 (Reich Law Gazette I, p. 152), insofar as it refers to penal matters.

9. The regulation concerning fees for attorneys at law in the version of 5 July 1927 (Reich Law Gazette I, p. 162), insofar as it refers to penal matters.

IV

1. The order of the Reich government concerning the formation of Special Courts of 21 March 1933 (Reich Law Gazette I, p. 136).[326]

2. Parts I, III, and IV of the order concerning the extension of the competency of Special Courts of 20 November 1938 (Reich Law Gazette I, p. 1632), but for the present with the following measures:

Article 16, paragraph 2 of the order of the Reich government concerning the formation of Special Courts of 21 March 1933 (Reich Law Gazette I, p. 136) does not apply. The Special Court will decide upon a reopening of the proceedings.

Article 2

Temporary annulment of the existing law

The penal law which at present has been valid in the annexed Incorporated Eastern Territories, except the area of the hitherto Free City of Danzig and which opposes the new law or which regulates the same subject, is canceled with the coming into force of the new law.

Article 3

Application of the new law

Insofar as a regulation coming into force cannot be applied directly, it has to be applied according to the meaning.

If a regulation coming into force refers to a regulation not yet valid in the annexed Incorporated Eastern Territories, this reference has to be interpreted according to the law valid there.

Article 4

Application of the law hitherto valid

The general regulations of the Criminal (Penal) Code for the German Reich have to be applied directly or according to meaning to criminal offenses which have to be judged according to the law valid up to now.

Insofar as a regulation of the law hitherto valid remains in force for the time being refers to a regulation which is going to be abolished, the corresponding regulation of the new law has to take its place.

Article 5

Reopening of the procedure

The reopening of the procedure against valid judgments of foreign courts is determined by the law coming into force.

The Reich Minister of Justice can order that procedures which have been finished by a valid judgment of foreign courts are to be reopened.

Article 6

Supplemental order of security and improvement measures

Part 5, Nos. 2 and 3 of the law against dangerous habitual criminals and concerning security and improvement measures of 24 November 1933 (Reich Law Gazette I, p. 995) is valid, with the proviso that * * * takes the place of 1 January 1934 as key date.

Article 7

Execution of sentence [Strafvollstreckung]

Punishments or other measures which have been passed as valid by a foreign court are only being executed if in each case the public prosecutor orders the execution. It is he who orders the way and the amount of the punishment or any other measure to be executed.

Article 8

Execution of sentence [Strafvollzug]

The execution of imprisonment sentences and the security and improvement measures concerning deprivation of liberty is determined by the principles of execution of sentence under the Reich law (part I of the order concerning the execution of terms of detention and security and improvement measures, which are connected with confinement of 14 May 1934, Reich Law Gazette I, p. 383).

Article 9

Fines

Legally passed fines are payed over to the Reich Treasury.

Article 10

Validity

The penal laws defined in article 1 under I and the articles 1 to 15 of the Juvenile court law of 16 February 1923 (Reich Law Gazette I, p. 135) apply also to criminal offenses that have been committed in the annexed Incorporated Eastern Territories before the coming into force of the order with the exception of the area of the hitherto Free City of Danzig.

Article 11

Authorization

The Reich Minister of Justice is authorized to issue the regulations and temporary regulations necessary for the carrying-out and completion of this order. He may administratively adjudicate upon cases of doubt which arise from the introduction of the new law.

Article 12

Effective date of the order

This order comes into force on...................., 1940.

Berlin,...................., February 1940

The Reich Minister of the Interior The Reich Minister of Justice

Berlin, 14 February 1940

Reference: Reich Chancellery 2573 B

Subject: Introduction of the German civil and commercial law in the Incorporated Eastern Territories

1. Comment--The Minister of Justice transmits a letter addressed to the Supreme Reich Agencies containing two drafts of the orders concerning the introduction of the German civil and commercial law in the Incorporated Eastern Territories. He asks for the submission of wishes for possible alterations. The drafts provide for the introduction of the entire civil and commercial law in the Incorporated Eastern Territories, excluding only the tenant protection law, the hereditary farm law, and the law for the clearance of debts and reduction of interest. Fundamentally, the German law as applicable in the Reich proper must be introduced; it will, however, be adapted by special supplementary regulations for the districts formerly under the jurisdiction of Austrian law.

The Minister of Justice justifies this by stating that the judges de facto already apply the German law, since they are in practice unable to interpret the Polish law. Although it was suggested during a conference of the under secretaries in the autumn of this year that more discretion should be used when introducing the German law for the present, the competent Reich governors now deem the introduction necessary; Reich Governor Greiser expressed this also in writing, as may be seen from the letter from the Minister of Justice, dated 3 February 1940, a copy of which is enclosed. The Minister of Justice asks that the introduction be effected at an early date.

No comments are necessary.

2. Duly submitted to the Reich Minister.

[Initial] L [Lammers] 16 February

3. To be filed.

[Initial] KL [Klemm] 14 February [Initial] F [Ficker] February 13

TRANSLATION OF DOCUMENT NG-1612 PROSECUTION EXHIBIT 519

DECREE OF 13 JUNE 1940 CONCERNING ORGANIZATION OF COURTS IN THE INCORPORATED EASTERN TERRITORIES

1940 REICHSGESETZBLATT, PART I, PAGE 907

By virtue of the decree of the Fuehrer and Reich Chancellor concerning organization and administration of the eastern territories of 8 October 1939 (Reichsgesetzblatt I, p. 2042), the following is hereby ordered:

Article 1

The courts in the Incorporated Eastern Territories shall render judgments in the name of the German people.

Article 2

The following statutes shall take effect in the incorporated territories:

1. The German law on the organization of courts.

2. The law on the jurisdiction of courts, with respect to changes in the division of courts, of 6 December 1933 (Reichsgesetzblatt I, p. 1037).

3. The decree concerning a uniform organization of courts, of 20 March 1935 (Reichsgesetzblatt I, p. 403).

4. The law concerning the distribution of functions in the courts of 24 November 1937 (Reichsgesetzblatt I, p. 1286).

5. The decree concerning qualifications for the offices of judge, public prosecutor, notary public, and attorney, of 4 January 1939 (Reichsgesetzblatt I, p. 5).

6. Decree concerning preparation for the offices of judge and public prosecutor, of 16 May 1939 (Reichsgesetzblatt I, p. 917).

7. Decree concerning measures in the organization of courts and the administration of justice, of 1 September 1939 (Reichsgesetzblatt I, p. 1658), and the implementing orders issued hitherto on 8 September and 4 October 1939 (Reichsgesetzblatt I, pp. 1703, 1944).

8. Decree concerning simplification of the legal examinations of 2 September 1939 (Reichsgesetzblatt I, p. 1606).

Article 3

This decree shall take effect as of 15 June 1940.

Berlin, 13 June 1940

DR. GUERTNER Reich Minister of Justice

FRICK Reich Minister of the Interior

TRANSLATION OF SCHLEGELBERGER DOCUMENT 60 SCHLEGELBERGER DEFENSE EXHIBIT 26

DECREE OF 6 JUNE 1940 ON THE INTRODUCTION OF GERMAN PENAL LAW IN THE INCORPORATED EASTERN TERRITORIES[327]

1940 REICHSGESETZBLATT, PART I, PAGE 844

On the basis of articles 8 and 12 of the decree of the Fuehrer and Reich Chancellor on the organization and administration of the Incorporated Eastern Territories of 8 October 1939 (Reichsgesetzblatt I, p. 2042), the following is decreed on the administration of criminal law in the Incorporated Eastern Territories:[328]

* * * * * * *

Article II

_Special regulations with regard to criminal law for the Incorporated Eastern Territories_

Section 8

(1) Anyone committing an act of violence against a member of the German armed forces or their auxiliaries, the German police including their auxiliary forces, the Reich labor service, or a German authority, or office, or organization of the NSDAP will be punished with the death penalty.

(2) In less serious cases, particularly when the perpetrator has allowed himself to be carried away by excusable violent excitement, a sentence of hard labor for life or for a certain period of time, or imprisonment is to be imposed.

Section 9

Anyone who willfully damages the equipment of German authorities, or things which further the work of the German authorities or serve the public welfare will be punished with the death penalty, and in less serious cases with hard labor for life or for a certain period of time, or with imprisonment.

Section 10

Anyone who instigates or incites disobedience of a decree or order issued by German authorities will be punished with the death penalty, and in less serious cases with hard labor for life or for a certain period of time or imprisonment.

Section 11

Anyone who commits an act of violence against a German on account of his being a member of the German ethnic community will be punished with the death penalty.

Section 12

Whoever willfully commits arson (arts. 306 to 308 of the Reich Penal Code) will be punished with the death penalty. [Page 846]

Section 13

Whoever conspires to commit a crime punishable in accordance with sections 8 to 12 [herein] or enters into serious negotiation thereon, and offers to commit such a crime or accepts such an offer will be punished with the death penalty, and/or in less serious cases with hard labor for life or for a certain period of time or imprisonment.

Section 14

(1) Anyone who receives authentic information of the project or carrying out of a crime punishable in accordance with sections 8 to 12 at a time when the carrying out or the success can still be averted and omits to give the authorities or person threatened due warning will be punished with the death penalty, and/or in less serious cases with hard labor for life or for a certain period of time or imprisonment.

(2) If the person upon whom it is incumbent to give warning, and who omits to do so is a relative of the perpetrator punishment can be waived if he has earnestly tried to restrain his relative from committing the act or to prevent its success.

Section 15

(1) Anyone who has failed to comply with the surrender obligation as stipulated in the decree of the Commander in Chief of the Army of 12 September 1939 (Ordinance Gazette for the Occupied Territories in Poland, p. 8) or is otherwise caught in unauthorized possession of a firearm, a hand grenade, or explosives will be punished with the death penalty; the same applies for the unauthorized possession of ammunition or other implement of war if by their nature or quantity public security is endangered.

(2) A sentence of hard labor or imprisonment will be passed if the perpetrator subsequently makes the delivery voluntarily, before the case has been brought before the court or an inquiry against him has been instituted. In this case punishment may even be waived.

(3) The person who has authentic cognizance of illegal possession of weapons, ammunition, explosives, or implements of war and fails to inform the official authorities accordingly without delay will receive capital punishment, in less severe cases hard labor for life or for a certain period or a term of imprisonment.

Section 16

(1) The provisions of sections 8 to 15 are not applicable to--

1. German nationals, ethnic Germans and nationals of the Protectorate of Bohemia and Moravia.

2. Nationals of states which are not participating in the present war against Germany.

(2) The Reich governors and provincial presidents are authorized to exempt from the regulations of sections 8 to 15 other ethnic groups too.

* * * * * * *

Berlin, 6 June 1940

Reich Minister of the Interior FRICK

Reich Minister of Justice DR. GUERTNER

TRANSLATION OF DOCUMENT NG-144 PROSECUTION EXHIBIT 199

LETTER FROM DEFENDANT SCHLEGELBERGER TO LAMMERS, 17 APRIL 1941, CONCERNING “PENAL LAWS FOR POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES”

[Handwritten] submitted (last time) Reich Chancellery 4.79 blb BBT 740 to 419/140

[Stamp] Reich Chancellery 5850 B 17 Apr. 1941 One Enclosure The Reich Minister of Justice 9170 Eastern Territories 2-II a 2 996/41

Berlin W 8, 17 April 1941 Wilhelmstr. 65 Telephone 11 00 44 Long distance 11 65 16

To: The Reich Minister and Chief of the Reich Chancellery

Subject: Penal laws against Poles and Jews in the Incorporated Eastern Territories

[Handwritten] see statement of 22 April

Reply to letter of 28 November 1940 Reich Chancellery 17 428 B 1 Enclosure

I worked on the premise that special conditions in the Incorporated Eastern Territories also require special measures for the administration of the penal laws against Poles and Jews. As soon as the decree issued on 5 September 1939 by the Commander in Chief of the Army had introduced the Special Courts in the Incorporated Eastern Territories, I tried to make these courts, with their particularly prompt and energetic procedure, centers for combating all Polish and Jewish criminals. That I succeeded is shown by the very impressive numbers of cases dealt with by the Special Courts during the first 10 months of their activity in the Incorporated Eastern Territories. The Special Court in Bromberg, for instance, has sentenced 201 defendants to death, 11 to penal servitude for life, and 93 to terms of penal servitude amounting to 912 years in all, thus an average 10 years’ penal servitude for each individual. Only crimes of lesser significance were indicted at the local courts. On the other hand, the criminal courts were eliminated as far as possible as an appeal to the Reich Supreme Court against their judgment is permitted, and I wanted to prevent courts which were not entirely familiar with the special conditions in the eastern territories--even though it be the highest court in Germany--from giving a decision in these matters.

The aim of creating a special system of law [Sonderrecht] for Poles and Jews of the eastern territories was systematically pursued by the decree of 6 June 1940,[329] which formally introduced the German penal law applied in the eastern territories from the very beginning. In the sphere of the code of criminal procedure, compulsory prosecution no longer exists; the public prosecutor prosecutes only such acts which he thinks it necessary to punish in the public interest. The procedure of compulsory prosecution (arts. 172, et seq., of the Code of Criminal Procedure) was rescinded as it seems intolerable that Poles and Jews should in this way compel the German prosecutor to issue an indictment. Poles and Jews were also prohibited from raising private actions and accessory actions.

In article II of the introductory decree [of 6 June 1940], special cases for action [Sondertatbestaende] were annexed to the special system of law in the sphere of legal proceedings--cases which had been agreed upon with the Reich Minister of the Interior because they had become necessary. It was intended from the beginning that such special cases for action should be increased as soon as necessity arose. The decree for the execution and completion of the introductory decree mentioned in the letter from the Fuehrer’s deputy was meant to meet the requirements which had become known in the meantime; whereas the decrees mentioned also in said letter concerning the introduction of the right of extradition, and of the law concerning the use of weapons by persons entitled to the protection of forestry and game laws, are only remotely connected with the criminality of Poles and Jews, and are intended exclusively to develop the general coordination of law in the eastern territories. I shall try to bring about an agreement with the Fuehrer’s deputy in regard to both the last mentioned decrees, as well as the decree for the execution of the law for the cancellation of sentences, and the decree concerning criminal records.

On being informed of the Fuehrer’s intention to discriminate basically in the sphere of penal law between the Poles (and probably the Jews as well) and the Germans, I prepared--after preliminary discussions with the presidents of the district courts of appeal and the attorneys general of the Incorporated Eastern Territories--the attached draft[330] concerning the administration of the penal laws against Poles and Jews in the Incorporated Eastern Territories and in the territory of the former Free City of Danzig.

This draft amounts to a special system of law both in the sphere of actual penal law and that of criminal procedure. In this connection, the suggestions made by the Fuehrer’s deputy were taken into consideration to a great extent. Paragraph (3) of No. 1 contains a statement of facts in general terms, through which penal proceedings can be taken in future against any Pole or Jew belonging to the eastern territories who is guilty of punishable activities directed against the German race, and every kind of punishment is provided. This ordinance is supplemented by No. 1, paragraph (2), which is already contained in the preliminary ordinance, and which threatens the death sentence in cases of violence committed against a German by reason of his belonging to the German ethnic group. Furthermore, the cases in No. 1, paragraph (4) which are also contained in the preliminary ordinance, are only complements, which would perhaps no longer have been necessary in view of the new general statement of facts, but which I have included in order not to arouse a false impression that the scope of the acts liable to punishment according to this draft is more restricted than in the existing legislation. Finally, No. 2 makes it clear that a Pole will in any case also be punished for such acts as are punishable if committed by a German. Furthermore, the ordinance admits a wider application of the law in a manner appropriate to the requirements of the eastern territories. (Art. 2, Penal Code.)

I have already been in agreement with the opinion held by the Fuehrer’s deputy, that a Pole is less sensitive to the imposition of an ordinary prison sentence. Therefore, I had taken administrative measures to insure that Poles and Jews be separated from other prisoners and that their imprisonment be rendered more severe. No. 3 goes still further and substitutes for the terms of imprisonment and hard labor prescribed by Reich law other prison sentences of a new kind, viz, the prison camp and the more rigorous prison camp. For these new kinds of punishment, the prisoners are to be lodged in camps outside of prisons and are to be employed there on hard and very hard labor. There are also administrative measures which provide for special disciplinary punishment (imprisonment in an unlighted cell, transfer from a prison camp to a more rigorous prison camp, etc.).

The new kinds of punishment in No. 3 apply to all offenses committed by Poles and Jews, thus also to cases when the criminal commits a crime specified by the Penal Code. On the other hand, No. 3, paragraph (3), insures that the minimum penalty prescribed by German penal law and a mandatory penalty may be lessened if the crime was directed entirely against the criminal’s own nation.

The part concerned with procedure contains first the special regulations of the preliminary decree existing up to now. In addition, Poles and Jews sentenced by a German court are not to be allowed in the future any legal remedy against the judgment; neither will he have a right of appeal, or be allowed to ask for the case to be reopened. All sentences will take effect immediately. In future, Poles and Jews will also no longer be allowed to object to German judges on the grounds of prejudice; nor will they be able to take an oath. Coercive measures against them are permissible under easier conditions. Furthermore, an important point is that according to No. 10, paragraph (2), the locally competent court of appeal decides concerning a nullity plea, which insures that no court outside the eastern territories has anything to do with proceedings against Poles and Jews. Further, No. 12 gives the court and the prosecution an independent position, meeting all requirements, with regard to the law concerning the constitution of the courts and the Reich law of criminal procedure.

No. 13 makes the factual special legislation against Poles and Jews and the elimination of compulsory prosecution apply also in cases where the Polish or Jewish criminal does, in fact, reside in the eastern territories, but the crime has been committed in another part of greater Germany.

In my opinion, a special penal law against Poles and Jews in such a form would neither restrict the liberty of action of German offices and officials, nor allow Poles and Jews to profit from its introduction insofar as they would be able then to lodge unwarranted actions and complaints against German officials. Factual penal law provides for such an increase in severity in the penalties threatened that these will act as the strongest possible deterrent. Any hole in the law through which a Polish or Jewish criminal might slip is also closed. In the sphere of criminal procedure, the draft shows clearly the difference in the political status of Germans on one side and Poles and Jews on the other.

The introduction of corporal punishment, as discussed by the Fuehrer’s deputy, has not been included in the draft, either as a criminal sentence or a disciplinary measure. I cannot agree to this form of punishment as in my judgment it would not correspond to the level of civilization of the German people.

Criminal proceedings based on this draft will accordingly be characterized by the greatest possible speed, together with immediate execution of the sentence, and will therefore in no way be inferior to civilian court martial proceedings. The possibility of applying the most severe penalties in every appropriate case will enable the penal law administration to cooperate energetically in the realization of the Fuehrer’s political aims in the eastern territories.

I intend to have the draft submitted to the Ministerial Council for the Defense of the Reich for approval. I should like, however, to discuss the matter verbally with you prior to that, and to request you if possible to get the Fuehrer’s decision as to whether he agrees with the essentials of the intended regulations.

Acting Minister of Justice [Signed] SCHLEGELBERGER[331]

TRANSLATION OF DOCUMENT NG-331 PROSECUTION EXHIBIT 343

DRAFT OF A PROPOSED ORDINANCE CONCERNING PENAL LAW FOR POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES, PREPARED BY DEFENDANT SCHLEGELBERGER AND SUBMITTED TO THE CHIEF OF THE REICH CHANCELLERY ON 17 APRIL 1941[332]

_Ordinance concerning the administration of justice regarding Poles and Jews in the Incorporated Eastern Territories_ Of....................1941

The Ministerial Council for Reich Defense decrees the following law:

1. Substantive Penal Law

I

(1) Poles and Jews living in the Incorporated Eastern Territories have to conduct themselves according to the German laws and to the instructions issued for them by the German authorities. They have to refrain from every act detrimental to the sovereignty of the German Reich or to the prestige of the German people.

(2) They will be punished by death if they commit an act of violence against a German on account of his membership in the German ethnic community.

(3) They will be punished by death, in less severe cases with an imprisonment, if they manifest an attitude hostile to Germany by hateful or inflammatory activity. Especially, if they talk in a way which is inimical to Germany or if they tear down or damage public announcements posted by German authorities or offices. Also, if they lower or damage the prestige or the welfare of the German Reich or the German people by their conduct in general.

(4) They will be punished by death, in less severe cases with imprisonment--

1. If they commit an act of violence against any member of the German armed forces or its auxiliaries, the German police including its auxiliaries, the Reich labor service, a German authority or office or an organization of the NSDAP;

2. If they deliberately cause damage to installations of the German authorities, or offices, or to things which are used in the course of their work or are established for the public interest;

3. If they encourage or stimulate disobedience against a decree or ordinance issued by the German authorities;

4. If they enter a conspiracy for committing any action punishable according to paragraphs 2, 3, and 4 No. 1–3. Also if they enter into earnest conferences about such actions or declare themselves willing to commit such or if they accept any such offer. Or, if they get reliable information about such an action or plan at a time when danger still can be averted and fail to report it in time to the authorities or to the threatened person;

5. If they are found in illegal possession of a firearm, of a hand grenade, of a weapon for stabbing or hitting, of explosives, munitions, or other war equipment. Also, if they receive reliable information about a Pole or Jew being in illegal possession of such things and fail to report this fact without delay to the authorities.

II

Poles and Jews will also be punished if they violate the German penal laws or if they commit an action which deserves punishment according to the basic principles of German penal law, in accordance with the requirements of national existence in the Incorporated Eastern Territories.

III

(1) Punishment will be meted out to Poles and Jews in the form of prison terms, fines, or confiscation of property. Prison terms will be meted out in the form of prison camp terms ranging from 3 months up to 10 years. In serious cases prison terms will consist of aggravated prison camp terms ranging from 2 to 15 years.

(2) The death penalty will be imposed whenever the law threatens such punishment. Also in cases where the law does not provide for the death sentence, this penalty will be imposed, if the committed action testifies to an exceptionally vicious character or if for other reasons the crime is a very serious one. In such cases the death penalty will be permissible also in the case of juvenile criminals.

(3) A lesser punishment than the minimum term of a penalty as prescribed by the German penal code and any degree of punishment mandatorily prescribed are not to be imposed except in cases where the crime is directed exclusively against the ethnic group of the perpetrator himself.

(4) Any fine which cannot be collected will be replaced by a prison camp term ranging from 1 week to 1 year.

2. Penal Procedure

IV

The public prosecutor will prosecute crimes committed by Poles and Jews, the punishment of which he thinks necessary in the public interest.

V

(1) Poles and Jews are to be judged by the Special Court or by the district judge.

(2) The public prosecutor is authorized to bring about indictment in all matters before the Special Court. He may file a suit before the district judge if no severer punishment than 5 years prison camp or 3 years aggravated prison camp is to be expected.

(3) The competency of the People’s Court remains untouched.

VI

(1) Each sentence has to be executed immediately. The public prosecutor, however, may appeal to the Oberlandesgericht from sentences passed by the district judge. The period set for motions in arrest of judgment is 2 weeks.

(2) Also, the public prosecutor alone is entitled to the right of complaining. Complaints are decided upon by the Oberlandesgericht.

VII

Poles and Jews cannot refuse German judges as being prejudiced.

VIII

(1) Arrest and preliminary custody are always permissible if there is a strong suspicion of the accused having committed the crime.

(2) In the course of the preliminary proceedings the public prosecutor also may order arrest and the use of other permissible means of coercion.

IX

Poles and Jews serving as witnesses do not take the oath during proceedings. To all untrue, unsworn evidence presented in court regulations regarding perjury and unwittingly false oath are to be applied, according to their sense, to false depositions in court not made under oath.

X

(1) The reopening of the proceedings can only be ordered by the public prosecutor. Request for reopening of the proceedings contrary to a sentence passed by the Special Court are decided upon by the latter.

(2) The nullity plea is up to the public prosecutor, it is decided upon by the Oberlandesgericht.

XI

Poles and Jews neither can file private suits nor bring about action as coplaintiffs.

XII

The proceedings are conducted by court and public prosecutor on the basis of the German law for penal procedure in full accordance with their sense of duty. They may deviate from the regulations given in the law about the constitution of courts and in the legal principles for Reich penal proceedings, in all cases where it seems practical for the carrying through of the proceedings rapidly and energetically.

3. Civilian Court Martial Proceedings

XIII

As far as the Incorporated Eastern Territories are concerned, the Reichsstatthalter (Oberpraesident), with the consent of the Reich Minister of the Interior and the Reich Minister of Justice, for the area under his jurisdiction or single parts of it, may order that Poles and Jews be sentenced, until further notice, by a civilian court martial. This will take place in cases of serious violence committed against Germans as well as on account of other crimes which seriously endanger the German construction work.

As sentence, sentence of death will be imposed by the civilian court martial. The civilian court martial may also refrain from punishment and may instead pronounce transfer to the Secret State Police.

All details regarding the members of the civilian courts martial and their procedure will be settled by the Reichsstatthalter (Oberpraesident), with the consent of the Reich Minister of the Interior.

4. Extent of the Area of Jurisdiction

XIV

(1) The regulations I to IV of this ordinance will equally affect Poles and Jews, who had their place of residence, or permanent abode, within the territory of the former Polish state on 1 September 1939, and who have committed the crime within any other territory of the German Reich outside the Incorporated Eastern Territories.

(2) In addition, the court of the place of residence or abode at the respective time, is locally competent. For that court the regulations, given under V-XII, also apply.

(3) Paragraphs 1 and 2 are not applicable to crimes which are sentenced by courts of the Government General.

5. Concluding Regulations

XV

Poles in the sense of the ordinance are all proteges and stateless persons who belong to the Polish racial community.

XVI

Article II of the ordinance of 6 June 1940,[333] concerning the introduction of German penal law into the Incorporated Eastern Territories, (Reich Law Gazette I, p. 844) does not apply any more to Poles and Jews.

XVII

The Reich Minister of Justice, in full accord with the Reich Minister of the Interior, is authorized to issue the legal and administrative instructions necessary for the carrying through and supplementation of this ordinance. Dubious questions, regarding the administrative procedure, are to be decided by him.

XVIII

This decree comes into force on the fourteenth day after its publication.

Berlin, the....................1941

The Chairman of the Ministerial Council for the Defense of the Reich

The Plenipotentiary General for the Administration of the Reich

The Reich Minister and Chief of the Reich Chancellery

TRANSLATION OF DOCUMENT NG-130 PROSECUTION EXHIBIT 200

FILE NOTE OF THE REICH CHANCELLERY, 22 APRIL 1941, CONCERNING SCHLEGELBERGER’S DRAFT OF A PROPOSED DECREE ON PENAL LAW FOR POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES

Berlin, 22 April 1941

Reich Chancellery 5850 B

Subject: Penal Law for Poles and Jews in the Incorporated Eastern Territories

1. Note--The Minister of Justice transmits a draft of a decree of the ministerial council on criminal law applicable to Poles and Jews in the Incorporated Eastern Territories and in the city of Danzig.[334] Through the decree of 6 June 1940 the German criminal law has been introduced in the eastern territories to its fullest extent. On 20 November 1940 the Fuehrer’s deputy, in a detailed statement, took the position that this was a mistake, in as much as the Poles would thereby be placed under the German criminal law. The Fuehrer’s deputy demanded that a special criminal law and a special criminal procedure be provided for Poland. The particulars are contained in the note of 26 November 1940.

The proposals, contained in the draft of the decree of the Minister of Justice and explained in the letter accompanying it, are far-reaching in compliance with the wishes of the Fuehrer’s deputy.[335] The draft establishes a draconic special criminal law for Poles and Jews, giving a wide range for the interpretations of the facts of the case, with the death penalty applicable throughout. The conditions of imprisonment are also much more severe than provided for in the German criminal law. (Instead of imprisonment in jail or in penitentiary--prison camps and special prison camps.) Beside this special criminal law, in a subsidiary way, the German criminal law is applicable. (II.) Provisions of criminal law which might be used to obstruct the procedure have been eliminated (the opportunity of the defendant for an appeal, compulsory indictment, the challenge of a judge, compare also art. XII, S. 2). The Minister of Justice differs only in two points from the suggestions of the Fuehrer’s deputy--

a. The Fuehrer’s deputy considered it more appropriate to authorize the Reich governors [Reichsstatthalter] (and therefore also the two provincial presidents) to introduce the special criminal law, whereas the Minister of Justice provides for its introduction by a Reich decree.

b. The Fuehrer’s deputy considers the introduction of corporal punishment--the Minister of Justice declines to do so. The Minister of Justice intends to introduce this draft and have it passed by the ministerial council. Under Secretary Schlegelberger desires to discuss this matter first with the Reich Minister and would be pleased if the Reich Minister would secure the Fuehrer’s decision concerning the principal features of the intended regulation.

[Illegible handwriting] [Initial] F [Ficker]

[Stamps] resubmitted office 3/5

2. Submitted to the Reich Minister.

[Initial] L [Lammers]

25 April

This matter should be first discussed with Under Secretary Schlegelberger, [Handwritten] who would be ready to come to [Hitler’s] headquarters. On information of Ministerial Counsellor Schaefer, (Reich Ministry of Justice), Under Secretary Schlegelberger will at this meeting also have some information on the Governor General’s attitude.[336]

[Initial] L [Lammers] 3 May

[Stamp] Resubmitted Office 5/5

[Initial] L [Lammers] 12 May

[Stamp] Resubmitted Office 12/5

1. A report to the Fuehrer is not to be considered. First of all a discussion with Under Secretary Schlegelberger is necessary.

[Initial] L [Lammers] 13 May

[Stamp] Resubmitted Office 20/5/41

[Initial] L. [Lammers] 22 May

In the meantime an opinion of the Reich Leader H [Himmler] has been received.

TRANSLATION OF DOCUMENT NG-136 PROSECUTION EXHIBIT 345

MEMORANDUMS OF THE REICH CHANCELLERY, 27 MAY 1941, CONCERNING CRIMINAL LAW TO BE INSTITUTED IN THE INCORPORATED EASTERN TERRITORIES, INCLUDING COPIES OF LETTERS TO DEFENDANT SCHLEGELBERGER, BORMANN, AND HIMMLER

[Handwritten] see Rk. 8621 B. To Rk. 7592 B, 7760 B

Fuehrer Headquarters, 27 May 1941

After the report to the Reich Minister

Subject: Civilian court martial and right of pardon in the Warthegau. Administration of criminal law in the Incorporated Eastern Territories

1. Remarks:

[Handwritten marginal note.] To Rk 7592 B:

It may be pointed out in completion that a ruling in regard to the Warthegau will bring about not only a corresponding ruling for the Gau Danzig-West Prussian but also for the new territories of East Prussia and Silesia. Thus, for example, in the last named territories the right of pardon for capital crimes also must be transferred to the Provincial president.

[Handwritten marginal notes.] Rk 7760 B1b blue[337]

In the meantime a letter from the Reich Leader SS (signed Heydrich) on this subject has been received here. The Reich Leader SS agrees to the special penal code for Poles in material matters--as provided for in the draft of the decrees submitted by the Minister of Justice--but in addition he asks for civilian court martial under police jurisdiction and requests that this be presented to the Fuehrer when the Reich Minister makes his intended report.

[Handwritten marginal notes.] pink yellow

The introduction of civilian courts martial in the Incorporated Eastern Territories is an old desire of the Reich Leader SS and was proposed in the draft of a decree of the ministerial council of the General Plenipotentiary for the Reich administration, dated 21 February 1940--compare Rk 3215 B-40--; see note of 27 February 1940. The introduction was rejected at the time on the basis of objections made by the Reich Marshal to civilian courts martial--compare Rk. 5026 B of 21 March 1940.

[Handwritten marginal note.]

Justice 3 (Copy number 2) (copy number 2) (to Rk 7411 h40 letter 13) (Justice 12) pale violet

The Fuehrer’s decision corresponds to the desire of the Reich Leader SS as far as the Warthegau is concerned in the meantime. It is not considered advisable to report this to the Reich Leader SS unless the minister in charge has been notified of the Fuehrer’s decision. The Reich Leader SS further requests a copy of the comments of the Minister of Justice dated 17 April 1941--Rk. 5850 B.[338] He should be referred to the Minister of Justice concerning this request.

[Handwritten marginal note.] pale violet

[Initial] F [Ficker]

The Reich Minister and Chief of the Reich Chancellery Fuehrer Headquarters, 27 May 1941 Rk. 7760B

[Handwritten notes] see Rk 8621 B No. 934 29/5 2/4 written Ho 2/3 read Ho Hi/ 4/ forwarded Ho 28/5 2/3 forward 29.5. Km to 2 m. 1 photo copy of Rk 7760 B to 3 m. 1 copy of 2 and 1 photo copy of Rk 7760 B

Urgent!

2. To the Reich Minister of Justice. (Copy for 2.)

Subject: Administration of criminal law in the Incorporated Eastern Territories

In reference to your letter of 17 April 1941 --9170 Eastern Territory 2-II a-2-996/41

[Handwritten marginal note.] pale violet

The Gauleiter and Reichsstatthalter Greiser reported to the Fuehrer that an increasing number of acts of sabotage were committed in his Gau by Poles. In the Landkreis Lódz it even happened a few days ago that while the Reichsstatthalter was speaking in an old Swabian settlement, a German policeman was stoned to death in a neighboring village. In this case the Reichsstatthalter, according to his report to the Fuehrer, gave orders that not only the culprits but 12 hostages as well should be executed on the spot and under the eyes of the entire village population, who were assembled at the spot. In view of these sabotage acts the Reichsstatthalter asked the Fuehrer for authority to reestablish civilian courts martial. He proposed to appoint the local representative of authority as president, with police officer and a security police leader as members of the court. No sentences other than death or concentration camp are to be given by these civilian courts martial. There must be no possibility of appeal. The Fuehrer decided that Gauleiter and Reichsstatthalter Greiser be given authority as requested to set up the civilian courts martial which he had proposed.

The Reichsstatthalter further reported to the Fuehrer that he had asked you to delegate to him the right of pardon in regard to Poles punished by the courts. The Fuehrer has decided that this desire of the Reichsstatthalter is also to be complied with.

I beg to inform you of these decisions taken by the Fuehrer and to ask you to take the necessary implementing steps without delay. I leave it to you to consider whether it is advisable to include this ruling on the basis of the above-mentioned decisions of the Fuehrer, in whole or in part, in the draft of the decree which you have prepared concerning the administration of criminal law against the Poles and Jews in the Incorporated Eastern Territories and in the territory of the former Free City of Danzig. I ask you to report to the Fuehrer, for my attention, on the measure you have taken. [Handwritten] as soon as possible

A photo copy of a letter received here from the Reich Leader SS and Chief of the German Police in the Ministry of the Interior is enclosed for your information.[339] May I leave it to your discretion to send to the Reich Leader SS and Chief of the German Police a copy of your comments, as requested in the last sentence of the letter.

[In margin] Bzf. Photo copy of Rk. 7760 B

(Name of the Reich Minister)

3. To Reichsleiter Martin Bormann, at present Obersalzberg.

Subject: Administration of criminal law in the Incorporated Eastern Territories

In answer to the letter of 24 May 1941--Bo/Si--.

Esteemed Mr. Bormann!

For your information I beg to submit herewith a copy of my letter of today’s date to the Reich Minister of Justice, concerning the establishment of civilian courts martial and the transference of the right of appeal in the Reichsgau Wartheland.

Bzf. copy of 2. also photo of Rk 7760 B

Heil Hitler!

Respectfully (Name of the Reich Minister)

4. To the Reich Leader SS and Chief of the German Police, Reich Ministry of the Interior,

Berlin SW 11 Prinz-Albrecht-Strasse 8

Subject: Administration of criminal law in the Incorporated Eastern Territories

Reference: Letter of 16 May 1941-S-II A 2 (new) No. 127/41-173-1

I have forwarded a photo copy of your letter of 16 May 1941 to the Reich Minister of Justice for his information. I have asked him to forward to you a copy of his comments as requested in the last sentence of your letter.

(name of the Reich Minister)

5. After sending it off Min. Dir. Kritzinger for information.

6. Follow up after 1 month.

[Initial] L [Lammers] (name of the Reich Minister)

[Initial] F [Ficker] 27 May

PARTIAL TRANSLATION OF DOCUMENT NG-1615 PROSECUTION EXHIBIT 521

DECREE OF 31 MAY 1941 CONCERNING THE INTRODUCTION OF THE NUERNBERG RACIAL LAWS IN THE INCORPORATED EASTERN TERRITORIES

1941 REICHSGESETZBLATT, PART I, PAGE 297

By virtue of article 8 of the Decree of the Fuehrer and Reich Chancellor, of 8 October 1939 (Reichsgesetzblatt I, p. 2042), it is hereby ordered:

Article 1

In the Incorporated Eastern Territories the following are applicable:

(1) The Reich Citizenship Law of 15 September 1935[340] (Reichsgesetzblatt I, p. 1146).

(2) Article 2, paragraph 2; article 4, paragraphs 1 and 3; article 5; article 6, paragraph 1; and article 7 of the first amendment of the Reich Citizenship Law of 14 November 1935 (Reichsgesetzblatt I, p. 1333).

* * * * * * *

Article 3

In the Incorporated Eastern Territories the Law for the Protection of German Blood and German Honor of 15 September 1935[341] (Reichsgesetzblatt I, p. 1146), and the first decree concerning the execution of this law of 14 November 1935 (Reichsgesetzblatt I, p. 1334), as well as the decree supplementing the first executive decree for the Law for the Protection of German Blood, of 16 February 1940 (Reichsgesetzblatt I, p. 394) shall be applicable.

Article 4

(1) This decree shall take effect 1 week after promulgation.

(2) Part I, article 7 of the Decree concerning the introduction of the German Criminal Law in the Incorporated Eastern Territories, of 6 June 1940[342] (Reichsgesetzblatt I, p. 844), shall be applied to violations of the provisions for the Protection of German Blood and German Honor.

Berlin, 31 May 1941

The Reich Minister of the Interior As deputy: DR. STUCKART[343]

The Chief of the Party Chancellery M. BORMANN

The Acting Reich Minister of Justice DR. SCHLEGELBERGER[344]

PARTIAL TRANSLATION OF DOCUMENT NG-715 PROSECUTION EXHIBIT 112

SECOND EXECUTIVE DECREE, 31 MAY 1941, FOR THE EXECUTION OF THE LAW FOR THE PROTECTION OF GERMAN BLOOD AND HONOR

1941 REICHSGESETZBLATT, PART I, PAGE 297

By virtue of article 6 of the Law for the Protection of German Blood and German Honor of 15 September 1935 (Reichsgesetzblatt I, 1935, p. 1146), the following is hereby decreed:

Article 1

The protection afforded to German blood or to blood racially related to German blood by the Law for the Protection of German Blood and German Honor of 15 September 1935 (Reichsgesetzblatt I, p. 1146), and its first executive decree of 14 November 1935 (Reichsgesetzblatt I, p. 1334), as amended by the supplementing decree of 16 February 1940 (Reichsgesetzblatt I, p. 394), shall not extend to former Polish nationals, unless they have acquired German nationality or have been entered in the list of German nationals [deutsche Volksliste] by virtue of the decree of the Fuehrer and Reich Chancellor concerning the organization and administration of the eastern territories of 8 October 1939 (Reichsgesetzblatt I, p. 2042).

Article 2

(1) This decree shall be applicable in the Incorporated Eastern Territories, too.

(2) It shall take effect one day after promulgation.

Berlin, 31 May 1941.

The Acting Reich Minister of the Interior As deputy: DR. STUCKART

The Chief of the Party Chancellery M. BORMANN

The Acting Reich Minister of Justice DR. SCHLEGELBERGER

TRANSLATION OF DOCUMENT NG-505 PROSECUTION EXHIBIT 71

CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO THE PRESIDENTS OF THE COURTS OF APPEAL AND ATTORNEYS GENERAL, 24 JULY 1941, ENTITLED “MILD SENTENCES AGAINST POLES”

The Reich Minister of Justice 9170 Eastern territories 2-III 4 1137.41

Berlin W 8, 24 July 1941 Wilhelmstrasse 65

1. To the Presidents of the Courts of Appeals and the Attorneys General (with the exception of Prague).

2. Through the Reich Protector of Bohemia and Moravia to--

The Presidents of the Courts of Appeals and the Attorney General in Prague.

Subject: Mild sentences against Poles

Attached: 1 compilation 8 additional copies for the Chief Public Prosecutors

Despite my constant allusions to this matter during conferences and in individual instructions, I am time and again notified of sentences by which Poles in the Reich proper are given entirely insufficient prison sentences for sexual and other serious crimes. Such sentences reveal an incomprehensibly lenient attitude toward the Polish nation which confronts us with implacable enmity. They constitute a danger to the security of the German people and justify the reproach that the administration of criminal law has not proved adequate to the necessities of war.

To make this point clear, the attachment lists a few of such sentences against Polish criminals which have been changed by special instructions or which I had to have altered by way of the nullity plea.

I want to express my firm expectation that the officials of the justice administration will not fail to recognize the serious danger this constitutes for our people; and, last but not least, for the stability of the administration of criminal law. I, therefore, expect that from now on measures will be taken against Polish criminals in the Reich proper with all the necessary firmness and with the heaviest sentences in accordance with article 4 of the decree against public enemies.[345] Elements clearly criminal and sexual criminals of Polish nationality must, as a rule, be punished by death. That the application of article 4 of the decree against public enemies is principally justified in the case of crimes committed by Poles in the Reich proper has been recognized by the Reich Supreme Court in its decision C 258. 41 of 19 June 1941 with the following explanations:

“If * * * it is noted that entire groups of culprits * * * possess fewer inhibitions with regard to certain crimes than the German people in general, the protection of law and order demands greater watchfulness as to the resulting dangers. The demand for retribution and the deterrent effect would be seriously impaired if the administration of justice would grant such culprits any right of obtaining mild penalties.

The established fact that the defendant, a Pole, sexually assaulted a German girl should have caused * * * the court to examine the question of whether or not the characteristics of a crime, as defined in article 4 of the decree against public enemies, were present. There is reason to assume that the defendant in his assault on a juvenile female fellow worker made use of the absence, caused by war conditions, of male workers who might otherwise have been able to come to her aid, and that the circumstances of his crime, in addition, are of such reprehensible kind that they reveal a criminal possessing the essential characteristics of a public enemy * * *.”

In addition to this, it must be considered that Poles are now entering Germany only as a result of the wartime shortage of German labor and that as a result of the decrease of police forces, likewise due to the war, the necessary police supervision over Poles which would have been possible under normal peacetime conditions is no longer guaranteed.

The Acting Minister [Typed signature] DR. SCHLEGELBERGER[346]

Certified: [Signed] BIERWITH Administrative Assistant [Ministerialskanzleiobersekretaer]

[Stamp]

Ministry of Justice Office of the Minister

-------------------------------+---------------+---------------------+--------------------------+------------------+------------------------------- Tribunal handing down | | | | Sentence handed | the sentence | Perpetrator | Crime | Penalty | down on | Remarks -------------------------------+---------------+---------------------+--------------------------+------------------+------------------------------- Jury at the district court of |Maziarz |Attempt to rape two |1 year, 3 months, of hard |23 September 1940 |Shot because of resistance Bielefeld. | | German women. | labor, lunatic asylum. | | on 16 November 1940. | | | | | Penal chamber of the district |Wojcieck |Sexual crime |1 year of imprisonment. |21 October 1940 |Nullity plea, sentence was court of Lueneburg. | | committed by | | | repealed and referred back | | violence. | | | by Reich Supreme Court | | | | | because section 4 of the | | | | | decree against public enemies | | | | | has not been applied. | | | | | Penal chamber of the district |Wojtas |Attempt to rape wife |1 year of imprisonment. |5 November 1940 |Shot because of resistance court of Guestrow. | | of employer. | | | on 1 March 1941. | | | | | Penal chamber of the district |Czaika |Sexual crime against |2 years of hard labor. |20 December 1940 |Shot because of resistance court of Prenzlau. | | a child. | | | on 10 March 1941. | | | | | Penal chamber of the district |Wojitarowicz |Sexual offense |2 years of hard labor. |17 January 1941 |Shot because of resistance court of Rostock. | | against a child. | | | on 17 February 1941. | | | | | Penal chamber of the district |Chlabicz |Numerous burglaries |10 years of hard labor, |5 February 1941 |Transfer to Gestapo has court of Cottbus. | | committed during | security detention. | | been ordered. | | the black-out after| | | | | having escaped from| | | | | the penitentiary. | | | | | | | | Jury at the district court of |Dziubczyk |Rape. |6 years of hard labor. |28 February 1941 |Shot because of resistance Munich. | | | | | on 8 March 1941. | | | | | Jury at the district court of |Franz |Sexual offense |8 years of hard labor. |4 April 1941 |Transfer to Gestapo has Bielefeld. | Golembiowski | against a child. | | | been ordered. | | | | | Penal chamber of the district |Aplas |Attempt to rape. |1 year and 6 months of |16 July 1940 |Transfer to Gestapo has court of Stargard | | | hard labor. | | been ordered. (Pomerania). | | | | | -------------------------------+---------------+---------------------+--------------------------+------------------+-------------------------------

PARTIAL TRANSLATION OF DOCUMENT NG-715 PROSECUTION EXHIBIT 112

DECREE OF 4 DECEMBER 1941 CONCERNING THE ADMINISTRATION OF PENAL JUSTICE AGAINST POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES[347]

1941 REICHSGESETZBLATT, PART I, PAGE 759

The Ministerial Council for the Defense of the Reich herewith decrees:

1. Substantive Criminal Law

I

(1) Poles and Jews in the Incorporated Eastern Territories are to conduct themselves in conformity with the German laws and with the regulations introduced for them by the German authorities. They are to abstain from any conduct liable to prejudice the sovereignty of the German Reich or the prestige of the German people.

(2) The death penalty shall be imposed on any Pole or Jew if he commits an act of violence against a German on account of his membership in the German ethnic community.

(3) A Pole or Jew shall be sentenced to death, or in less serious cases to imprisonment, if he manifests anti-German sentiments by malicious or inciting activities particularly by making anti-German utterances, or by removing or defacing official notices of German authorities or agencies, or if he, by his conduct, lowers or prejudices the prestige or the well-being of the German Reich or the German people.

(4) The death penalty or, in less serious cases, imprisonment, shall be imposed on any Pole or Jew--

1. If he commits any act of violence against a member of the German armed forces or its auxiliaries, of the German police force or its auxiliaries, of the Reich labor service, of any German authority or agency or of an organization of the NSDAP;

2. If he purposely damages installations of the German authorities or agencies, objects used by them in performance of their duties, or objects of public utility;

3. If he solicits or incites another person to disobey any decree or regulation issued by the German authorities;

4. If he conspires to commit an act punishable under paragraphs (2), (3), and (4), subparagraphs 1 through 3, or if he enters into serious negotiations about committing such an act, or if he offers to commit such an act, or accepts such an offer, or if he obtains credible information of such act, or of the intention of committing it, and fails to notify the authorities or any person threatened thereby at a time when danger can still be averted; and

5. If he is found to be in unlawful possession of a firearm, a hand grenade, or any weapon for stabbing or hitting, of explosives, ammunition or other implements of war, or if he has credible information that a Pole or a Jew is in unlawful possession of such an object, and fails to notify the authorities forthwith.

II

Punishment shall also be imposed on Poles or Jews if they act contrary to German criminal law or commit any act for which they deserve punishment in accordance with the fundamental principles of German criminal law and in view of the interests of the State in the Incorporated Eastern Territories.

III

(1) Penalties provided for Poles and Jews are--imprisonment, fine, or confiscation of property. The term of imprisonment is to be not less than 3 months and not more than 10 years in a penal camp; for more serious offenses, imprisonment consists of 2 to 15 years in a penal camp in which a more severe regimen is enforced.

(2) The death sentence shall be imposed in all cases where it is prescribed by the law. Moreover, in those cases where the law does not provide for the death sentence, it shall be imposed if the act shows a particularly base attitude or is particularly serious for other reasons; in these cases the death sentence may also be passed upon juvenile offenders.

(3) The minimum penalty or a fixed penalty prescribed by German criminal law cannot be reduced unless the criminal act is directed against the offender’s own people exclusively.

(4) If a fine cannot be recovered, it shall be substituted by imprisonment in a penal camp from 1 week to 1 year.

2. Criminal Procedure

IV

The public prosecutor shall prosecute a Pole or a Jew if he considers that punishment is in the public interest.

V

(1) Poles and Jews shall be tried by a Special Court or by the local court.

(2) The public prosecutor can file the indictment with a Special Court in all cases. He can file the indictment with the local court if the punishment to be imposed is not likely to be heavier than 5 years in a penal camp, or 3 years in a more rigorous penal camp.

(3) The jurisdiction of the People’s Court remains unaffected.

VI

(1) Every sentence will be carried out without delay. The public prosecutor may, however, appeal from the sentence of the local court to the court of appeal. The appeal has to be lodged within 2 weeks.

(2) The right to lodge complaints is also reserved exclusively to the public prosecutor. Complaints will be decided upon by the court of appeal.

VII

Poles and Jews cannot challenge a German judge on account of alleged partiality.

VIII

(1) Arrest and temporary detention are allowed whenever there are good grounds to suspect that a punishable act has been committed.

(2) During the preliminary investigations, the public prosecutor may also order arrest and any other coercive measures permissible.

IX

Poles and Jews are not sworn in as witnesses in criminal proceedings. If the unsworn deposition made by them before the court is false, the provisions as prescribed for perjury and false sworn statements shall be applied accordingly.

X

(1) Only the public prosecutor may apply for the reopening of proceedings. In a case tried before a Special Court, the decision on an application for the reopening of the proceedings rests with this court.

(2) The right to lodge a nullity plea rests with the attorney general. The decision on the plea rests with the court of appeal.

XI

Poles and Jews neither can file private suits nor bring about action as coplaintiffs.

XII

The court and the public prosecutor shall conduct proceedings within their discretion according to the principles of the German Law of Criminal Procedure. They may, however, dispense with the provisions of the Judicature Act and the Law of Criminal Procedure, whenever this may be expedient for the rapid and more efficient conduct of proceedings.

3. Civilian Court Martial Proceedings

XIII

(1) Subject to the consent of the Reich Minister of the Interior and the Reich Minister of Justice, the Reich governor (or provincial governor) may, until further notice, enforce martial law in the Incorporated Eastern Territories, either in the whole area under his jurisdiction or in parts thereof, upon Poles and Jews guilty of grave excesses against Germans or of other punishable acts which seriously endanger the German work of reconstruction.

(2) The courts established under martial law impose the death sentence. They may, however, dispense with punishment and refer the case to the Secret State Police (Gestapo).

(3) Subject to the consent of the Reich Minister of the Interior, the constitution and procedure of the courts established under martial law shall be regulated by the Reich governor.

4. Extent of Application of this Decree

XIV

(1) The provisions contained in sections I-IV of this decree apply also to those Poles and Jews who, on 1 September 1939, were domiciled or had their residence within the territory of the former Polish state, and who committed the punishable act in any part of the German Reich other than the Incorporated Eastern Territories.

(2) The case may also be tried by the court within whose jurisdiction the former domicile or residence of the perpetrator is situated. Sections V-XII apply accordingly.

(3) Paragraphs 1 and 2 do not apply to punishable acts tried by the courts in the Government General.

5. Concluding Regulations

XV

Within the meaning of this decree, the term “Poles” includes protected and stateless persons who belong to the Polish racial community.

XVI

Article II of the decree of 6 June 1940, concerning the introduction of German Criminal Law in the Incorporated Eastern Territories (Reichsgesetzblatt I, p. 844) no longer applies to Poles and Jews.[348]

XVII

The Reich Minister of Justice is authorized to issue rules and administrative regulations concerning the execution and implementation of this decree and to decide in all cases of doubt, in agreement with the Reich Minister of the Interior.

XVIII

This decree shall come into force on the fourteenth day after its promulgation.

Berlin, 4 December 1941

The President of the Ministerial Council for the Defense of the Reich REICH MARSHAL GOERING

The Plenipotentiary for the Administration of the Reich FRICK

The Reich Minister and Chief of the Reich Chancellery DR. LAMMERS

SCHLEGELBERGER DOCUMENT 61 SCHLEGELBERGER DEFENSE EXHIBIT 27

EXTRACTS FROM AN ARTICLE BY DR. ROLAND FREISLER, UNDER SECRETARY IN THE REICH MINISTRY OF JUSTICE, JANUARY 1942, CONCERNING CRIMINAL JURISDICTION FOR POLES[349]

The German Criminal Code for Poles by Dr. jur. Roland Freisler, State Secretary of the Reich Ministry of Justice, member of the Presidency of the Academy for German Law.

* * * * * * *

II

The objective Criminal Jurisdiction for Poles

* * * * * * *

It is not contradictory to justice if criminal jurisdiction for Poles is different from the German criminal jurisdiction. Even if one people within a state can be subject to one [system of] law only, it is yet quite possible that for another nationality within the same state another [system of] law is applicable. Whether this condition should be brought to bear must be determined by the necessities of the State. It is essential of course that the other national group can perceive the law in force for its members in order to be able to abide by it.

For there must be a standard whereby it can regulate its behavior. By this standard the conduct of its nationals can be judged fairly. There is nothing contrary to justice if the one criminal law in its general aspect is milder, the other, viewed as a whole is severer. After all there is justice in a sphere of severity as well as in a sphere of leniency.

If the administration of criminal justice for Poles devotes exactly the same care to the investigation of the facts of a case, as does the administration of criminal justice for Germans, viz, avoiding everything which even very remotely might resemble a judgment on suspicion, if, besides, it judges the established facts just as conscientiously according to the law applicable to Poles, as it judges the established facts in the case of Germans according to the general German penal law, and if, finally, it endeavors to render the right judgment in the award of punishment within the compass of the penal law applicable for Poles, as within the compass of the penalties pursuant to the general German penal law for Germans, the criminal jurisdiction for Poles is just, regardless of the different evaluation of actions of Germans and Poles, which might be necessary in many cases. The political task of the administration of criminal jurisdiction is not at all incompatible with justice.

The directives for arriving at a just decision, especially in the case of the law pursuant to Number II, in the criminal jurisdiction for Poles are deprived by viewing the German people and Reich as a whole in regard to the necessities of the State, the judicial comprehension of which is given by the political aim of German work in the Incorporated Eastern Territories. Looking at the individual Poles who have been committed for trial it follows from the general, legally established subordination law to which he is subject pursuant to Number I, and which should dominate and guide his whole conduct. By considering both points, i.e., State necessity and the duty of subordination, no divided result can be arrived at in any individual case, because the duty of subordination of the Pole in the Incorporated Eastern Territories is a State necessity, and because on the other hand the extent of this duty of subordination in itself is determined by the aim of the German construction work, i.e., by State necessity.

The German administration of criminal jurisdiction for Poles exercised in the fulfillment of the Polish task of the German folkdom in the Incorporated Eastern Territories will be characterized by justice just as it is in every other German administration of justice.

* * * * * * *

The penal code for Poles has only one form of detention--the punitive camp. Therefore, this takes the place of confinement in a fortress, imprisonment, penal servitude as provided by the general German penal code. In the penal registers the punitive camp term will be recorded as “penitentiary” [Zuchthaus]. This does not mean, however, that it will be like penitentiary [service] in every respect. Thus not every term in a punitive camp will be regarded as “penitentiary”; only a term of increased severity in a punitive camp in the meaning of the regulations for the noninclusion of the period of detention in custody in the term of imprisonment for the duration of the war, will be regarded as “penitentiary.” However, where no special ruling is applicable, it will have to be concluded from the recording of the term in a punitive camp in the penal register that its legal status is that of penitentiary [service], as far as this can be applied to the State legal status of a Pole.

The judge may also pronounce a sentence of detention of increased severity in a punitive camp. In doing so, however, he does not choose another method of punishment. Legally the sentence of increased severity term in a punitive camp has to be considered as being the same as pronouncement of punishment of increased severity in a legal system, which allows the judge the possibility of sentences of increased severity.

* * * * * * *

From the much increased minimum duration of terms of increased severity in a punitive camp (2 years) and from its increased limit (15 years) it follows that the judge is expected to make use of it in serious cases, which is also especially emphasized in the decree.

In case of death sentences the same methods of execution are in force, as applied by the German Criminal (Penal) Code.

By adding fines, confiscation of property, imprisonment, and capital punishment the penal code for Poles intends to complete the punitive methods applicable to Poles.

III

Law of procedure against Poles

d. Preliminary proceedings.

* * * * * * *

By the general principle of every German administration of criminal jurisdiction, viz, that it must serve to establish actual facts and their true judgment--a principle which is adhered to without exception and unalterably the freedom of judgment in the arrangement of the preliminary proceedings finds its unchangeable limit (the same has to be said with regard to the trial). From this it follows as a matter of course that the public prosecutor in the preliminary proceeding will have to examine all evidence, extenuating as well as aggravating, and investigate it.

It is just as self-evident that in the place of preliminary proceedings by the public prosecutor and the decision of the public prosecutor concerning the indictment and abatement there can be no Klageerzwingungsverfahren[350] on the part of a private person in consideration of the principle of liberty of decision with regard to prosecution or nonprosecution, just as prosecuting authority no private person can appear as prosecutor, replacing the public prosecutor neither independently nor as coprosecutor; consequently the Pole can be neither plaintiff nor coplaintiff. In order to avoid any misinterpretation in this direction this has been expressly stated already in the decree establishing a penal code. In the decree establishing the penal code for Poles it is stated expressly: “The public prosecutor prosecutes crimes of Poles and Jews * * *.” (Number IV) “Poles and Jews can take neither civil action nor act as coplaintiffs.” (Number XI). From the first of these two legal provisions it follows also that against the Pole no civil action nor action as a coplaintiff can be taken; the public prosecutor alone is competent to prosecute.

If the liberty of decision in determining the procedure as well as the main trial is stressed time and again, on the other hand it must nevertheless be emphasized that the establishment of the true facts of the case is the purport and the rendering of a just verdict the aim of every criminal proceeding against Poles. Therefore, nothing may be disregarded which may serve to establish the truth and to arrive at a just verdict. For this it is essential that the accused is heard,--as long as he does not use this possibility granted him for propaganda--and that he can defend himself in connection with the accusation, that he may offer evidence of any kind, that he can express himself with regard to the findings of the evidence heard, and that he may have the last word. In cases where difficulties arise from difference of language it is of course essential that the possibility of understanding is secured, if necessary with the help of an interpreter. The judge and all the officials of the administration of justice always and without exception will speak German. Likewise all evidence, as far as it is not declared with certainty as being unsuitable right away, must be fully investigated.

The giving of the opportunity to the public prosecutor and the judge to use their own discretion in the arrangement of proceedings was possible only because it may be assumed that no German public prosecutor and no German judge in any proceeding conducted by him will ignore these principles.

Should that happen, however, in an isolated case, it is to be expected that the public prosecutor will appeal against a decision arrived at during a trial exhibiting such fundamental defects with the legal measures at his disposal. The senates of the four district courts of appeal, which are the highest authority in Polish matters, guarantee that they display in these cases by the way in which they deal with appeals that such high principles may not be left out of consideration and that they express this clearly in the reasons given for the verdict, although this is not absolutely necessary for the establishment of the sentence itself, because it is not a revised judgment but a sentence on appeal * * *.

f. Execution of a sentence.

* * * * * * *

Even if every sentence can be carried out immediately nevertheless it is self-evident that the authority carrying out sentences will not proceed to the execution if in a specific case the possibility exists that the condemning verdict can undergo a substantial change by legal measures to the advantage of the condemned person or even be changed into acquittal. It is completely self-evident that the severest penalty will not be put into effect before it has the force of law; this is also impossible because the decision of the supreme authority as to the execution or nonexecution can only be brought about after the sentence becomes valid. It has also to be expected that the executing authority will stay the execution of the penalty if that authority or the public prosecutor--perhaps because of new evidence--later arrives at the conclusion that the condemning sentence cannot be upheld, or at least reckons with the not too distant possibility of such a result of an appeal or of a retrial.

The decree contains no specification that the court of appeal, or court of retrial, or its president can order a stay of execution of a sentence. The legislator believed he could abstain from such a specification, because the attorney general will see to it in the way of administration that such a stay is brought about at the suggestion of the president. It is not necessary that everything should be ordered in the way of legislation that can be safeguarded in the way of administration.

g. Legal means--The public prosecutor can “lodge an appeal against sentences passed by the judge of a local court with the district court of appeal. The period of time within which an appeal is to be lodged is 2 weeks.” (Number VI) The extension of the time limit is explained not only by the poor rail and postal communications which are sometimes even worse in the Incorporated Eastern Territories than in other parts of the Reich. Its explanation is to be found above all in the fact that it is also the duty of the public prosecutor to examine whether an appeal is to be lodged on behalf of the condemned person. The condemned person will quite often suggest this to him. The public prosecutor will then require a certain amount of time in order to examine whether the new statements and evidence, which the defendant has perhaps given him when he suggested such an appeal. For that the summary examination of evidence offered will often be necessary and will take a few days. Just when the public prosecutor is confronted with the question whether he is to lodge an appeal on behalf of the condemned person he will do well to hold himself more than ever aloof from the bad custom of lodging an appeal “as a precaution.” For in this case he would raise false hopes and in addition, even if he does not subsequently maintain the appeal, would in the eyes of the condemned divest the judgment of some of its authority. He must therefore have time for a summary examination. From this resulted the extension of the time limit for the lodging of an appeal.

TRANSLATION OF DOCUMENT NG-665 PROSECUTION EXHIBIT 346

SUPPLEMENTARY DECREE, 31 JANUARY 1942, CONCERNING THE ADMINISTRATION OF PENAL JUSTICE AGAINST POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES

1942 REICHSGESETZBLATT, PART I, PAGE 52

Pursuant to article XVII of the decree concerning the Administration of Penal Justice against Poles and Jews in the Incorporated Eastern Territories of 4 December 1941[351] (Reichsgesetzblatt Part I, page 759), the following is decreed:

Article I

Articles I to III of the decree of 4 December 1941 (Reichsgesetzblatt I, p. 759) may be equally applied with the consent of the public prosecutor to offenses committed before the decree came into force.

Article II

(1) The court may rule in every case that Poles and Jews be interrogated by a commissioned or requested judge; article 251, paragraph 2, of the Reich Code of Criminal Procedure and article 252, paragraph 3, of the Austrian Code of Criminal Procedure will remain unchanged.

(2) This regulation equally applies to Poles and Jews who, on 1 September 1939, resided or were abiding in the territory of the former Polish State and who are interrogated as witnesses in other parts of the German Reich.

Berlin, 31 January 1942

The Acting Reich Minister of Justice DR. SCHLEGELBERGER

The Reich Minister of the Interior As deputy: PFUNDNER

PARTIAL TRANSLATION OF DOCUMENT NG-1106 PROSECUTION EXHIBIT 462

EXTRACT FROM THE MINUTES OF A CONFERENCE BETWEEN DEFENDANT ROTHENBERGER AND THREE JUDGES OF THE HAMBURG COURTS, 23 JANUARY 1942, CONCERNING THE EXEMPTION OF DESTITUTE JEWS FROM COURT FEES

Notes on a discussion held on 23 January 1942

* * * * * * *

II. Present: Senator Dr. Rothenberger, Local Court Judge Dr. Schwarz, Presiding Judge Korn of the District Court, Judge Dr. F. Priess of the District Court of Appeal

[Marginal note] copy made out for: 3715-1b 1/17 a-c extract

The senator [the defendant Rothenberger] reported that the question of the Armenrecht[352] concerning Jews has come into the foreground again. With the district court there were two cases pending. He requested that contacts with the judges of the district court and of the local court be taken up at once so that a uniform line is followed to the effect that the Jews be denied the benefits of the Armenrecht. It would be entirely out of the question that Jews be granted the benefits of the Armenrecht subsequent to the present development. This would apply especially to Jews who had been evacuated, but in his opinion also to those who had not been evacuated. With regard to the matter it had to be considered whether or not any material claims of the Jews could still be answered in the affirmative. Concerning this question, it might, however, be practical to maintain a certain reserve.

Presiding Judge Korn of the district court had raised certain objections to the denial, because up to now it was lacking any legal basis.

Hamburg, 27 January 1942

For information--1. To Councillor of the Local Court for information and further action (with regard to II)

2. To High Judicial Inspector Bellair for further action 27 January 1942

[Illegible initials] 323-1b 2/1

TRANSLATION OF DOCUMENT NG-589 PROSECUTION EXHIBIT 372

UNDATED REPORT FROM THE DISTRICT COURT IN HAMBURG CONCERNING GRANTING OF BENEFITS FOR DESTITUTE PERSONS TO A JEW, TOGETHER WITH TWO LETTERS OF DEFENDANT ROTHENBERGER AND AN INTEROFFICE MEMORANDUM, 13 FEBRUARY-22 MAY 1942

Excerpts from the File Prenzlau against Behrens and Lundin-- 2 0.84/41

The Jewish plaintiff Israel Prenzlau proposed that Armenrecht be granted him in an intended lawsuit against Karl Behrens and Paul Lundin in consideration of a claim which is supposed to have arisen from the withdrawal of the Jewish co-associate from the G.m.b.H. [limited liability company].

On 30 June 1937 the plaintiff withdrew from the Prenzlau, Behrens, and Lundin G.m.b.H. The firm is now continuing its business as a trading company with unlimited liability of the partners. At the time of the withdrawal, it had not yet been ascertained that a former employee had defrauded the firm for the amount of 80,000 reichsmarks. He maintains that he retains his share of the claim against Hahn, or rather those firms which by default have rendered possible the loss to the G.m.b.H. of so large an amount. The defendants, in the course of the Armenrecht proceedings, have offered 3,000 reichsmarks in settlement of the claim, subject to approval by the Gau economic adviser. The Gau economic adviser, after only a preliminary short comment, gave the following interpretation on 6 November 1941:

“In reply to your inquiry I state my point of view in detail.

“In a lawsuit between a German national and a Jew I consider the settling of a dispute by legal measures inadmissible for political reasons. The German national as party in the lawsuit, pursuant to his clearly defined legal standard derived from his political training since 1933, can expect that the court will decide the case by a verdict that is to meet a conclusive decision on the case. What is expected is a decision which was arrived at not from purely legal points of view, as result of a legal trend of thoughts, but which is an expression of the way in which National Socialist demands, concerning the Jewish question, are realized by German lawyers. Evading this decision by a compromise might mean encroaching upon the rights of a fellow citizen in favor of a Jew. This kind of settlement would be in contradiction to the sound sentiments of the people, I therefore consider it as inadmissible.”

The defendants thereupon refused a settlement with the plaintiff and now deny they owe him anything.

On 6 December 1941 the district court [Hamburg] granted Armenrecht. Subsequently, action was brought in as follows:

1. To disclose to the plaintiff what the payments have been, which have been made so far to the parties entitled to redress pursuant to the claim against Hahn.

2. To pay defendant 22 percent of the total amounts received, with 4 percent interest from the day the action was filed.

The court intends now to issue a conclusion based on evidence.

3715-1b 1 17 13 February 1942

To the President of the District Court Hamburg 1 Document

With regard to the pending case Prenzlau against Behrens and Lundin I do not intend to approach the economic adviser of the Gau for the time being, seeing from the documents that the ultimate beneficiary of the claim--the son of the plaintiff--emigrated in the year 1938 and his property has therefore surely been confiscated. I fail to understand why the court granted Armenrecht to the assignee, a Jew, without first consulting the authority for sequestration of property. The cession most probably will become meaningless as it was transferred in trusteeship by the son to the father shortly before his emigration.

Please discuss the matter with the judge.

[Typed signature] DR. ROTHENBERGER

Written: 13 February 1942 Read: Mailed: 14 February 1942

Note

The senator discussed in Berlin the question of granting Armenrecht to Jews. A ruling will probably be issued shortly. Every case coming on hand must first be submitted to the senator. President Korn and President Dr. Segelken have been informed by me to this effect.

Hamburg, 24 February 1942

[Illegible initial]

[Handwritten notes] Local Court Judge Dr. Bartsch for information. 25 February 42 Seen 25 February 1942 [Signed] SEN

22 May 1942

3715-1b/1/17/

To the President of the District Court Hamburg

Subject: Granting of Armenrecht to Jews

Reference: Your letter A.R. 53/42

1 Document

I hereby return the document Prenzlau against Behrens and Lundin 2648/41-20 H 28/41 sent to me with report of 7 May.

With his circular ordinance of 5 March 1942--3715 IV b 3 332, with which you are familiar, the Reich Minister of Justice has annulled his circular ordinance of 23 June 1939--3740 IV b 1118, stating that the granting of Armenrecht to Jews could be taken into consideration only in such cases where the carrying out of the lawsuit is in the common interest. In consequence thereof I consider it adequate that the Armenrecht granted to plaintiff Prenzlau be cancelled.

Please have this taken into consideration by the court in a form which you deem appropriate.

[Typed signature] DR. ROTHENBERGER

22 May 1942 Written: 22 May 1942 Read: Mailed: 23 May 1942

TRANSLATION OF DOCUMENT 4055-PS PROSECUTION EXHIBIT 401

LETTER FROM DEFENDANT SCHLEGELBERGER TO LAMMERS, 12 MARCH 1942, EXPRESSING CONCERN ABOUT CONTEMPLATED ANTI-JEWISH MEASURES; REPLY FROM LAMMERS, 18 MARCH 1942; LETTER FROM SCHLEGELBERGER TO SEVEN GOVERNMENT AND PARTY AGENCIES ON “THE FINAL SOLUTION OF THE JEWISH PROBLEM,” 5 APRIL 1942; FILE NOTE ON SITUATION OF BERLIN JEWS, 21 NOVEMBER 1941

Berlin, 12 March 1942

The Acting Reich Minister of Justice

Dear Reich Minister Dr. Lammers:

I have just been informed by my Referent about the result of the meeting of 6 March regarding the treatment of Jews and descendants of mixed marriages. I am now expecting the official transcript. According to the report of my Referent, decisions seem to be under way which I am constrained to consider absolutely impossible for the most part. Since the results of these discussions are to constitute the basis for the decision of the Fuehrer, and since a Referent from your Ministry participated likewise in these discussions, I urgently desire to discuss this matter with you on time. As soon as I have received the transcript of the meeting, I shall take the liberty in calling you to ask you if and when a discussion may take place.

With sincerest regards and Heil Hitler!

Yours devotedly [Typed signature] DR. SCHLEGELBERGER

To the Reich Minister and Chief of the Party Chancellery Dr. Lammers, Berlin

01/108 The Reich Minister and Chief of the Reich Chancellery

Berlin W 8 Vosstrasse 6 18 March 1942

Pk 3614 B at present Fuehrer Headquarters

Under Secretary Professor Dr. Schlegelberger, Acting Reich Minister of Justice

Subject: Total solution [Gesamtloesung] of the Jewish question

In reply to the letter of 12 March 1942

Dear Dr. Schlegelberger:

I will be very glad to comply with your request and to discuss this question with you. I shall probably be visiting Berlin again toward the end of the month and will then have you informed about a suitable date.

Heil Hitler!

yours sincerely, [Signed] DR. LAMMERS

The Acting Reich Minister of Justice

Berlin W 8, 5 April 1942 Wilhelmstrasse 65

Secret Reich Matter

IV b 40 g RE

To:[353]

1. The Chief of the Party Chancellery Attention: SS Oberfuehrer Klopfer

2. The Reich Minister of the Interior Attention: Under Secretary Dr. Stuckart

3. The Chief of the Security Police and the SD SS Obergruppenfuehrer Heydrich

4. The Deputy for the Four Year Plan Attention: Under Secretary Neumann

5. The Foreign Office Attention: Under Secretary Luther

6. The Reich Minister for the Occupied Eastern Territories Attention: Gau Leader and Under Secretary Dr. Meyer

7. The Race and Settlement Main Office of the Reich Leader SS Attention: SS Gruppenfuehrer Hofmann

Subject: Final solution [Endloesung] of the Jewish problem

1. The final solution of the Jewish problem presupposes a clear-cut and permanently applicable definition of the group of persons for whom the projected measures are to be initiated. Such a definition applies only when we desist from the beginning from including descendants of mixed marriages of the second degree in these measures. The measures for the final solution of the Jewish problem should extend only to full-blooded Jews and descendants of mixed marriages of the first degree, but should not apply to descendants of mixed marriages of the second degree.[354]

2. With regard to the treatment of Jewish descendants of mixed marriages of the first degree, I agree with the conception of the Reich Minister of the Interior which he expressed in his letter of 16 February 1942, to the effect that the prevention of propagation of these descendants of mixed marriages is to be preferred to their being thrown in with the Jews and evacuated. It follows therefrom that evacuation of those half-Jews who are no more capable of propagation, is excluded from the beginning. There is no national interest in dissolving the marriages between such half-Jews and a full-blooded German.

Those half-Jews who are capable of propagation should be given the choice to submit to sterilization or to be evacuated in the same manner as Jews. In the case of sterilization, as well as in that of evacuation of the half-Jew, the German-blooded partner will have to be given the opportunity to effect the dissolution of the marriage. I see no objection to the German partner’s obtaining the possibility of divorcing his or her sterilized or evacuated partner in a simplified procedure without [having to observe] the limitation of article 53 of the marriage law.

3. An exception might be worthy of consideration with respect to those half-Jews whose descendants are becoming members of the German national community, and who are finally absorbed by it. If these descendants are to be incorporated into the German national community as full fledged members--which has to be the aim in case of a genuine final solution of the Jewish question--it seems advisable to protect them from being treated as inferiors or from having feelings of inferiority which could arise easily out of the knowledge and the bad conscience that their immediate ancestors have been affected by the planned defensive measures of the national community. For this reason, it should be considered whether or not half-Jews whose living descendants are not half-Jews should be spared from evacuation as well as sterilization.

4. I have no scruples against facilitation of divorce of marriages between racial Germans and Jews. This facilitation should also be extended to marriages with persons who are considered as Jews. The divorce will have to be granted upon the request of the German-blooded partner in a simplified procedure. I have considerable scruples about compulsory divorces, for instance, on motion of the public prosecutor. Such compulsion is unnecessary because the partners will be separated in any case by the deportation of the Jewish partner. An enforced divorce, moreover, is without avail, because, though it cuts the marriage ties, it does not cut the inner tie between the partners; moreover, it does not relieve the German partner from the scorn to which he is exposed by clinging to his marriage. Finally, a clinging to marriage on the part of the German-blooded partner is to be expected only in the case of older marriages which have endured throughout many years. In cases in which the Jewish partner, as a rule, is not evacuated but confined to an old people’s ghetto, the German-blooded partner who disclaims his membership in the German community should not be prohibited from being admitted to the ghetto.

[Typed signature] DR. SCHLEGELBERGER

Note--In view of the present position of the Jews, discussions are pending in the building whether Jews are to be deprived of the right to participate in a lawsuit and whether some other ruling is to be made concerning their representation before court. The decisive factor is whether the immediate removal of all Jews can be counted upon. About 77,000 Jews live in Berlin alone. About 7,000 of these have been removed so far. The Labor Exchange for Jews, 15 Fontane-promenade--Government Counsellor Epphaus--and the Secret State Police (Dept. Burgstrasse--official in charge, Pruefer) have “reserved” the Jews, who at present are difficult to replace, who are working in armament factories and other war essential concerns. Furthermore, Jews living in privileged mixed marriages have not so far been removed. On the other hand, all Jewish legal consultants [Konsulenten] in Berlin have been ordered to leave. These Jews are today “reserved.” Accordingly, it must be assumed that a considerable number of Jews will remain on Reich territory, and particularly in Berlin, for some time to come.

Berlin, 21 November 1941

[Typed signature] LUTTERLOH Ministerialdirigent

Senior Government Counsellor Dr. Gramm Please inform the Under Secretary.

PARTIAL TRANSLATION OF DOCUMENT NG-270 PROSECUTION EXHIBIT 155

EXTRACTS FROM AN ARTICLE IN STREICHER’S[355] “DER STUERMER,” 2 APRIL 1942, CONCERNING THE KATZENBERGER TRIAL AND JUDGMENT

Der Stuermer

DEATH TO THE RACE DEFILER

A Trial before the Nuernberg Special Court

Race defiler Katzenberger--13–14 March 1942--page 2, column 1

* * * * * * *

The prosecutor reads the charge. The Jew Katzenberger had committed “race defilement” with the now 31-year-old business proprietress Irene S., of Nuernberg, of German blood, from 1932 until the year 1940 (!) by exploiting this woman’s financial difficulties. He did not even shrink back from exploiting--for his Talmudic practices--the conditions caused by the war and the absence of the husband S. who has been conscripted for military service. Irene S. is charged with attempting to withhold the deserved punishment from the Jew by committing perjury in the pretrial interrogation.

How Katzenberger defends himself (p. 2, col. 1)

* * * * * * *

How will Katzenberger try to deceive the Court and escape avenging justice?

The Jew Katzenberger developed special tactics of his own. He pretends not to have engaged in “race defiling,” but to have entertained merely “fatherly” relations with Irene S. * * * Only out of “pure fatherly” sentiment has he thrown cigarettes to her through the window and given her lots of shoes.

* * * * * * *

Before the verdict (p. 2, col. 4)

After the presentation of evidence has been concluded, the prosecutor rises. With sharp words he characterizes the defendant as a criminal, who did not even shrink back from exploiting war conditions for his shameless activities. As a race defiler and public parasite in the sense of the law, Katzenberger has forfeited his life. Therefore, the death sentence should be pronounced against him. The other defendant, Irene S., should be sentenced to 2 years’ hard labor and loss of civil rights for 2 years.

* * * * * * *

In his final statement the Jew Katzenberger eventually tries at least to save what can be saved.

Once more he tries to act the “benefactor,” in order to appeal to the pity of the judges. With an impudence which only a Jew can muster, he characterizes all that has been presented against him, as “backstairs’ gossip” and finally even wants to claim Frederick The Great as his principal witness. But the president does not permit a Jewish race defiler to soil the figure of the great Prussian King. The court then adjourned for deliberation.

Sentenced to death! (p. 3, col. 1)

When the court reenters the courtroom to announce the verdict one can already see from the earnest looks of the judges that the fate of the Talmudic criminal has been sealed.

As a race defiler and public parasite Katzenberger is sentenced to death.

The codefendant Irene S. gets 2 years’ hard labor and loss of civil rights for perjury. President of the District Court of Appeal R. points to words in the findings of the verdict, which prove to what extent the German judges are imbued with the tremendous importance of the racial laws. The president brands the depravity of the defendant and stamps him as an evil public parasite. “Racial defilement is worse than murder! Entire generations will be affected by it into the remotest future!” President of the district court of appeal R. in his speech also refers to the guilt of Jewry in this war. “If today German soldiers are bleeding to death, then the guilt falls upon that race which from the very beginning strived for Germany’s ruin, and still hopes today that the German people will not emerge from this struggle.” In the case of Katzenberger the court had to pronounce the death sentence. The physical destruction of the perpetrator was the only possible atonement.

The end (p. 3, col. 1)

With the findings of the verdict the sentence of the Special Court has become effective.

Why the “Stuermer” describes the Katzenberger trial in detail (p. 3, col. 2)

* * * * * * *

The Jew Katzenberger was sentenced to death as a race defiler and public parasite. This sentence (it is not the first of this kind in the Reich) was pronounced in Nuernberg and thus honors the city whose name was bestowed upon the racial laws of 15 September 1935. For the “Stuermer” however, this sentence signifies a special satisfaction, because it was the “Stuermer” which, in a special edition of the year 1938, had demanded the death penalty for race defilers.

* * * * * * *

If today Jewish race defilers are really sentenced to death, then this proves that the “Stuermer” has been a good prophet for many years.

Race defilers are public parasites (p. 3, col. 4)

* * * * * * *

Jewish race defilers therefore will have to take care in the future. They do not risk their freedom only but also their heads and necks. The patience of the German people has become exhausted. It does not treat Jewish public parasites more tenderly any longer than the public parasites from our own ranks. In this sense the Katzenberger trial has received a significance which goes far beyond the Nuernberg courtroom.

Everything for the German people (p. 3, col. 4)

The world Jewry will discover that Germany knows how to defend herself with the severe measures against Jewish race defilers. Now it will again write using the old long-tried tactics, about the “medieval conditions” prevailing in Germany. It will again glorify those “poor, deplorable, harmless Jews,” who become the victims of National Socialist legislation. It will give vent to spite and malice toward Germany.

TRANSLATION OF DOCUMENT NG-154 PROSECUTION EXHIBIT 152

OPINION AND SENTENCE OF THE NUERNBERG SPECIAL COURT IN THE KATZENBERGER CASE, 13 MARCH 1942, IN WHICH DEFENDANT ROTHAUG WAS PRESIDING JUDGE[356]

Sg No. 351/41

Verdict

In the name of the German People

The Special Court for the district of the Court of Appeal in Nuernberg with the District Court Nuernberg-Fuerth in the proceedings against Katzenberger, Lehmann Israel, commonly called Leo, merchant and head of the Jewish religious community in Nuernberg, and Seiler, Irene, owner of a photographic shop in Nuernberg, both at present in arrest pending trial the charges being racial pollution and perjury--in public session of 13 March 1942, in the presence of--

The President--Dr. Rothaug, Senior Judge of the District Court;

Associate Judges--Dr. Ferber and Dr. Hoffmann, Judges of the District Court;

Public Prosecutor for the Special Court--Markl; and

Official Registrar: Raisin, clerk, pronounced the following verdict:

Katzenberger, Lehmann Israel, commonly called Leo, Jewish by race and religion, born 25 November 1873 at Massbach, married, merchant of Nuernberg; Seiler, Irene, née Scheffler, born 26 April 1910 at Guben, married, owner of a photographic shop in Nuernberg, both at present in arrest pending trial have been sentenced as follows:

Katzenberger--for an offense under section 2, legally identical with an offense under section 4 of the decree against public enemies in connection with the offense of racial pollution to death and to loss of his civil rights for life according to sections 32–34 of the criminal (penal) code.

Seiler--for the offense of committing perjury while a witness to 2 years of hard labor and to loss of her civil rights for the duration of 2 years.

The 3 months the defendant Seiler spent in arrest pending trial will be taken into consideration in her sentence.

Costs will be charged to the defendants.

Findings

I

1. The defendant Katzenberger is fully Jewish and a German national; he is a member of the Jewish religious community.

Spotted a typo or a problem in this chapter? Tell us