VI. Final Regulations (part 2 of 4)

VI. Final Regulations (part 2 of 4)

As far as his descent is concerned, extracts from the birth registers of the Jewish community at Massbach show that the defendant was born on 25 November 1873 as the son of Louis David Katzenberger, merchant, and his wife Helene née Adelberg. The defendant’s father, born on 30 June 1838 at Massbach, was, according to an extract from the Jewish registers at Thundorf, the legitimate son of David Katzenberger, weaver, and his wife Karoline Lippig. The defendants’ mother Lena Adelberg, born on 14 June 1847 at Aschbach, was, according to extracts from the birth register of the Jewish religious community of Aschbach, the legitimate daughter of Lehmann Adelberg, merchant and his wife, Lea. According to the Thundorf register, the defendant’s parents were married on 3 December 1867 by the district rabbi in Schweinfurt. The defendant’s grandparents on his father’s side were married, according to extracts from the Thundorf register, on 3 April 1832; those on his mother’s side were married, according to an extract from the register of marriages of the Jewish religious community of Aschbach, on 14 August 1836.

The extracts from the register of marriages of the Jewish religious community at Aschbach show, concerning the marriage of the maternal grandparents, that Bela-Lea Seemann, born at Aschbach in 1809, was a member of the Jewish religious community. Otherwise the documents mentioned give no further information so far as confessional affiliations are concerned that parents or grandparents were of Jewish faith.

The defendant himself has stated that he is certain that all four grandparents were members of the Jewish faith. His grandmothers he knew when they were alive; both grandfathers were buried in Jewish cemeteries. Both his parents belonged to the Jewish religious community, as he does himself.

The court sees no reason to doubt the correctness of these statements, which are fully corroborated by the available extracts from exclusively Jewish registers. Should it be true that all four grandparents belonged to the Jewish faith, the grandparents would be regarded as fully Jewish according to the regulation to facilitate the producing of evidence in section 5, paragraph 1 together with section 2, paragraph 2, page 2 of the ordinance to the Reich Civil Code of 14 November 1935 Reichsgesetzblatt, page 1333. The defendant therefore is fully Jewish in the sense of the Law for the Protection of German Blood.[357] His own admissions show that he himself shared that view.

The defendant Katzenberger came to Nuernberg in 1912. Together with his brothers, David and Max, he ran a shoe shop until November 1938. The defendant married in 1906, and there are two children, ages 30 and 34.

Up to 1938 the defendant and his brothers, David and Max, owned the property of 19 Spittlertorgraben in Nuernberg. There were offices and storerooms in the rear building, whereas the main building facing the street was an apartment house with several apartments.

The codefendant Irene Seiler arrived in 1932 to take a flat in 19 Spittlertorgraben, and the defendant Katzenberger has been acquainted with her since that date.

2. Irene Seiler, née Scheffler, is a German citizen of German blood.

Her descent is proved by documents relating to all four grandparents. She herself, her parents, and all her grandparents belong to the Protestant Lutheran faith. This finding of the religious background is based on available birth and marriage certificates of the Scheffler family which were made part of the trial. As far as descent is concerned therefore, there can be no doubt about Irene Seiler, née Scheffler, being of German blood.

The defendant Katzenberger was fully cognizant of the fact that Irene Seiler was of German blood and of German nationality.

On 29 July 1939, Irene Scheffler married Johann Seiler, a commercial agent. There have been no children so far.

In her native city, Guben, the defendant attended secondary school and high school up to Unterprima [eighth grade of high school], and after that, for 1 year, she attended the Leipzig State Academy of Art and Book Craft.

She went to Nuernberg in 1932 where she worked in the photographic laboratory of her sister Hertha, which the latter had managed since 1928 as a tenant of 19 Spittlertorgraben. On 1 January 1938, she took over her sister’s business at her own expense. On 24 February 1938, she passed her professional examination.

3. The defendant Katzenberger is charged with having had continual extra-marital sexual intercourse with Irene Seiler, née Scheffler, a German national of German blood. He is said to have visited Seiler frequently in her apartment in Spittlertorgraben up to March 1940, while Seiler visited him frequently, up to autumn 1938, in the offices of the rear building. Seiler, who is alleged to have got herself in a dependent position by accepting gifts of money from the defendant Katzenberger and by being allowed delay in paying her rent, was sexually amenable to Katzenberger. Thus, their acquaintance is said to have become of a sexual nature, and, in particular, sexual intercourse occurred. They are both said to have exchanged kisses sometimes in Seiler’s flat and sometimes in Katzenberger’s offices. Seiler is alleged to have often sat on Katzenberger’s lap. On these occasions Katzenberger, in order to achieve sexual satisfaction, is said to have caressed and patted Seiler on her thighs through her clothes, clinging closely to Seiler, and resting his head on her bosom.

The defendant Katzenberger is charged with having committed this act of racial pollution by taking advantage of wartime conditions. Lack of supervision was in his favor, especially as he is said to have visited Seiler during the black-out. Moreover, Seiler’s husband had been called up, and consequently surprise appearances of the husband were not to be feared.

The defendant Irene Seiler is charged with having, on the occasion of her interrogation by the investigating judge of the local Nuernberg Court on 9 July 1941, made deliberately untrue statements and affirmed under oath that this contact was without sexual motives and that she believed that to apply to Katzenberger as well.

Seiler, it is alleged, has thereby become guilty of being a perjuring witness.

The defendants have said this in their defense--

The defendant Seiler--When in 1932 she arrived in the photographic laboratory of her sister in Nuernberg, she was thrown completely on her own resources. Her sister returned to Guben, where she opened a studio as a photographer. Her father had recommended her to the landlord, the defendant Katzenberger, asking him to look after her and to assist her in word and deed. This was how she became closely acquainted with the Jew Katzenberger.

As time went on, Katzenberger did indeed become her adviser, helping her, in particular, in her financial difficulties. Delighted with the friendship and kindness shown her by Katzenberger she came to regard him gradually as nothing but a fatherly friend, and it never occurred to her to look upon him as a Jew. It was true that she called regularly in the storerooms of the rear house. She did so after office hours, because it was easier then to pick out shoes. It also happened that during these visits, and during those paid by Katzenberger to her flat, she kissed Katzenberger now and then and allowed him to kiss her. On these occasions she frequently would sit on Katzenberger’s lap which was quite natural with her and had no ulterior motive. In no way should sexual motives be regarded as the cause of her actions. She always thought that Katzenberger’s feelings for her were purely those of a concerned father.

Basing herself on this view she made the statement to the investigating judge on 9 July 1941 and affirmed under oath, that when exchanging those caresses neither she herself nor Katzenberger did so because of any erotic emotions.

The defendant Katzenberger--He denies having committed an offense. It is his defense that his relations with Frau Seiler were of a purely friendly nature. The Scheffler family in Guben had likewise looked upon his relations with Frau Seiler only from this point of view. That he continued his relations with Frau Seiler after 1933, 1935, and 1938, might be regarded as a wrong [Unrecht] by the NSDAP. The fact of his doing so, however, showed that his conscience was clear.

Moreover, their meetings became less frequent after the action against the Jews in 1938. After Frau Seiler got married in 1939, the husband often came in unexpectedly when he, Katzenberger, was with Frau Seiler in the flat. Never, however, did the husband surprise them in an ambiguous situation. In January or February 1940, at the request of the husband, he went to the Seiler’s apartment twice to help them fill in their tax declarations. The last talk he ever had in the Seiler apartment took place in March 1940. On that occasion Frau Seiler suggested to him to discontinue his visits because of the representations made to her by the NSDAP, and she gave him a farewell kiss in the presence of her husband.

He never pursued any plans when being together with Frau Seiler, and he therefore could not have taken advantage of wartime conditions and the black-out.

II

The court has drawn the following conclusions from the excuses made by the defendant Katzenberger and the restrictions with which the defendant Seiler attempted to render her admissions less harmful:

When, in 1932, the defendant Seiler came to settle in Nuernberg at the age of 22, she was a fully grown and sexually mature young woman. According to her own admissions, credible in this case, she was not above sexual surrender in her relations with her friends.

In Nuernberg, when she had taken over her sister’s laboratory in 19 Spittlertorgraben, she entered the immediate sphere of the defendant Katzenberger. During their acquaintance she gradually became willing, in a period of almost 10 years, to exchange caresses and, according to the confessions of both defendants, situations arose which can by no means be regarded merely as the outcome of fatherly friendliness. When she met Katzenberger in his offices in the rear building or in her flat, she sat often on his lap and, without a doubt, kissed his lips and cheeks. On these occasions Katzenberger, as he admitted himself, responded to these caresses by returning the kisses, putting his head on her bosom and patting her thighs through her clothes.

To assume that the exchange of these caresses, admitted by both of them, were on Katzenberger’s part the expression of his fatherly feelings, on Seiler’s part merely the actions caused by daughterly feelings with a strong emotional accent, as a natural result of the situation, is contrary to all experience of daily life. The subterfuge used by the defendant in this respect is in the view of the court simply a crude attempt to disguise as sentiment, free of all sexual lust, these actions with their strong sexual bias. In view of the character of the two defendants and basing itself on the evidence submitted, the court is firmly convinced that sexual motives were the primary cause for the caresses exchanged by the two defendants.

Seiler was usually in financial difficulties. Katzenberger availed himself of this fact to make her frequent gifts of money, and repeatedly gave her sums from 1 to 10 reichsmarks. In his capacity as administrator of the property on which Seiler lived and which was owned by the firm he was a partner of, Katzenberger often allowed her long delays in paying her rental debts. He often gave Seiler cigarettes, flowers, and shoes.

The defendant Seiler admits that she was anxious to remain in Katzenberger’s favor. They addressed each other in the second person singular.

According to the facts established in the trial, the two defendants offered to their immediate surroundings, and in particular to the community of the house of 19 Spittlertorgraben, the impression of having an intimate love affair.

The witnesses Kleylein, Paul and Babette; Maesel, Johann; Heilmann, Johann; and Leibner, Georg observed frequently that Katzenberger and Seiler waved to each other when Seiler, through one of the rear windows of her flat, saw Katzenberger in his offices. The witnesses’ attention was drawn particularly to the frequent visits paid by Seiler to Katzenberger’s offices after business hours and on Sundays, as well as to the length of these visits. Everyone in the house came to know eventually that Seiler kept asking Katzenberger for money, and they all became convinced that Katzenberger, as the Jewish creditor, exploited sexually the poor financial situation of the German-blooded woman Seiler. The witness Heilmann, in a conversation with the witness Paul Kleylein, expressed his opinion of the matter to the effect that the Jew was getting a good return for the money he gave Seiler.

Nor did the two defendants themselves regard these mutual calls and exchange of caresses as being merely casual happenings of daily life, beyond reproach. According to statements made by the witnesses Babette and Paul Kleylein, they observed Katzenberger to show definite signs of fright when he saw that they had discovered his visits to Seiler’s flat as late as 1940. The witnesses also observed that during the later period Katzenberger sneaked into Seiler’s flat rather than walking in openly.

In August 1940, while being in the air-raid shelter, the defendant Seiler had to put up with the following reply given to her by Oestreicher, an inhabitant of the same house, in the presence of all other inhabitants: “I’ll pay you back, you Jewish hussy.” Seiler did not do anything to defend herself against this reproach later on, and all she did was to tell Katzenberger of this incident shortly after it had happened. Seiler has been unable to give an even remotely credible explanation why she showed this remarkable restraint in the face of so strong an expression of suspicion. Simply pointing out that her father, who is over seventy, had advised her not to take any steps against Oestreicher does not make more plausible her restraint shown in the face of the grave accusation made in public.

The statements made by Hans Zeuschel, assistant inspector of the criminal police, show that the two defendants did not admit from the very beginning the existing sexual situation as being beyond reproach. The fact that Seiler admitted the caresses bestowed on Katzenberger only after having been earnestly admonished, and the additional fact that Katzenberger, when interrogated by the police, confessed only when Seiler’s statements were being shown to him, forces the conclusion that they both deemed it advisable to keep secret the actions for which they have been put on trial. This being so, the court is convinced that the two defendants made these statements only for reason of opportuneness intending to minimize and render harmless a situation which has been established by witnesses’ testimony.

Seiler has also admitted that she did not tell her husband about the caresses exchanged with Katzenberger prior to her marriage--all she told him was that in the past Katzenberger had helped her a good deal. After getting married in July 1939 she gave Katzenberger a “friendly kiss” on the cheek in the presence of her husband on only one occasion, otherwise they avoided kissing each other when the husband was present.

In view of the behavior of the defendants toward each other, as repeatedly described, the court has become convinced that the relations between Seiler and Katzenberger which extended over a period of 10 years were of a purely sexual nature. This is the only possible explanation of the intimacy of their acquaintance. As there were a large number of circumstances favoring seduction no doubt is possible that the defendant Katzenberger maintained continuous sexual intercourse with Seiler. The court considers as untrue Katzenberger’s statement to the contrary that Seiler did not interest him sexually, and the statements made by the defendant Seiler in support of Katzenberger’s defense the court considers as incompatible with all practical experience. They were obviously made with the purpose of saving Katzenberger from his punishment.

The court is therefore convinced that Katzenberger, after the Nuernberg laws had come into effect, had repeated sexual intercourse with Seiler, up to March 1940. It is not possible to say on what days and how often this took place.

The Law for the Protection of German Blood defines extra-marital sexual intercourse as any form of sexual activity apart from the actual cohabitation with a member of the opposite sex which, by the method applied in place of actual intercourse, serves to satisfy the sexual instincts of at least one of the partners. The conduct to which the defendants admitted and which in the case of Katzenberger consisted in drawing Seiler close to him, kissing her, patting and caressing her thighs over her clothes, makes it clear that in a crude manner Katzenberger did to Seiler what is popularly called “Abschmieren” [petting]. It is obvious that such actions are motivated only by sexual impulses. Even if the Jew had only done these so-called “Ersatzhandlungen” [sexual acts in lieu of actual intercourse] to Seiler, it would have been sufficient to charge him with racial pollution in the full sense of the law.

The court, however, is convinced over and above this that Katzenberger, who admits that he is still capable of having sexual intercourse, had intercourse with Seiler throughout the duration of their affair. According to general experiences it is impossible to assume that in the 10 years of his tête-a-tête with Seiler, which often lasted up to an hour, Katzenberger would have been satisfied with the “Ersatzhandlungen” which in themselves warranted the application of the law.

III

Thus, the defendant Katzenberger has been convicted of having had, as a Jew, extra-marital sexual intercourse with a German citizen of German blood after the Law for the Protection of German Blood came into force, which according to section 7 of the law means after 17 September 1935. His actions were guided by a consistent plan which was aimed at repetition from the very beginning. He is therefore guilty of a continuous crime of racial pollution according to sections 2 and 5, paragraph 11 of the Law for the Protection of German Blood and German Honor of 15 September 1935.

A legal analysis of the established facts shows that in his polluting activities, the defendant Katzenberger, moreover, generally exploited the exceptional conditions arising out of wartime circumstances. Men have largely vanished from towns and villages because they have been called up or are doing other work for the armed forces which prevents them from remaining at home and maintaining order. It was these general conditions and wartime changes which the defendant exploited. As he continued his visits to Seiler’s apartment up to spring 1940, the defendant took into account the fact that in the absence of more stringent measures of control his practices could not, at least not very easily, be seen through. The fact that her husband had been drafted into the armed forces also helped him in his activities.

Looked at from this point of view, Katzenberger’s conduct is particularly contemptible. Together with his offense of racial pollution he is also guilty of an offense under section 4 of the decree against public enemies. It should be noted here that the national community is in need of increased legal protection from all crimes attempting to destroy or undermine its inner solidarity.

On several occasions since the outbreak of war the defendant Katzenberger sneaked into Seiler’s flat after dark. In these cases the defendant acted by exploiting the measures taken for the protection in air raids and by making use of the black-out. His chances were further improved by the absence of the bright street lighting which exists in the street along Spittlertorgraben in peacetime. In each case he exploited this fact being fully aware of its significance, thus during his excursions he instinctively escaped observation by people in the street.

The visits paid by Katzenberger to Seiler under the cover of the black-out served at least the purpose of keeping relations going. It does not matter whether during these visits extra-marital sexual intercourse took place or whether they only conversed because the husband was present, as Katzenberger claims. The motion to have the husband called as a witness was therefore overruled. The court holds the view that the defendant’s actions were deliberately performed as part of a consistent plan and amount to a crime against the body according to section 2 of the decree against public enemies. The law of 15 September 1935 was promulgated to protect German blood and German honor. The Jew’s racial pollution amounts to a grave attack on the purity of German blood, the object of the attack being the body of a German woman. The general need for protection therefore makes appear as unimportant the behavior of the other partner in racial pollution who, however, is not liable to prosecution. The fact that racial pollution occurred at least up to 1939–1940 becomes clear from statements made by the witness Zeuschel to whom the defendant repeatedly and consistently admitted that up to the end of 1939 and the beginning of 1940 she was used to sitting on the Jew’s lap and exchanging caresses as described above.

Thus, the defendant committed an offense also under section 2 of the decree against public enemies.

The personal character of the defendant likewise stamps him as a public enemy. The racial pollution practiced by him through many years grew, by exploiting wartime condition, into an attitude inimical to the nation, into an attack on the security of the national community during an emergency.

This was why the defendant Katzenberger had to be sentenced, both on a crime of racial pollution and of an offense under sections 2 and 4 of the decree against public enemies, the two charges being taken in conjunction according to section 73 of the penal code.

In view of the court the defendant Seiler realized that the contact which Katzenberger continuously had with her was of a sexual nature. The court has no doubt that Seiler actually had sexual intercourse with Katzenberger. Accordingly the oath given by her as a witness was to her knowledge and intention a false one, and she became guilty of perjury under sections 154 and 153 of the penal code.

IV

In passing sentence the court was guided by the following considerations:

The political form of life of the German people under national socialism is based on the community. One fundamental factor of the life of the national community is the racial problem. If a Jew commits racial pollution with a German woman, this amounts to polluting the German race and, by polluting a German woman, to a grave attack on the purity of German blood. The need for protection is particularly strong.

Katzenberger practiced pollution for years. He was well acquainted with the point of view taken by patriotic German men and women as regards racial problems and he knew that by his conduct the patriotic feelings of the German people were slapped in the face. Neither the National Socialist Revolution of 1933, nor the passing of the Law for the Protection of German Blood in 1935, neither the action against the Jews in 1938, nor the outbreak of war in 1939 made him abandon this activity of his.

As the only feasible answer to the frivolous conduct of the defendant, the court therefore deems it necessary to pronounce the death sentence as the heaviest punishment provided by section 4 of the decree against public enemies. His case must be judged with special severity, as he had to be sentenced in connection with the offense of committing racial pollution, under section 2 of the decree against public enemies, the more so, if taking into consideration the defendant’s personality and the accumulative nature of his deeds. This is why the defendant is liable to the death penalty which the law provides for such cases as the only punishment. Dr. Baur, the medical expert, describes the defendant as fully responsible.

Accordingly, the court has pronounced the death sentence. It was also considered necessary to deprive him of his civil rights for life, as specified in sections 32–34 of the penal code. When imposing punishment on the defendant Seiler, her personal character was the first matter to be considered. For many years, Seiler indulged in this contemptible love affair with the Jew Katzenberger. The national regeneration of the German people in 1933 was altogether immaterial to her in her practices, nor was she in the least influenced when the Law for the Protection of German Blood and Honor was promulgated in September 1935. It was, therefore, nothing but an act of frivolous provocation on her part to apply for membership in the NSDAP in 1937 which she obtained.

When by initiating legal proceedings against Katzenberger the German people were to be given satisfaction for the Jew’s polluting activities, the defendant Seiler did not pay the slightest heed to the concerns of State authority or to those of the people and decided to protect the Jew.

Taking this over-all situation into consideration the court considered a sentence of 4 years of hard labor as having been deserved by the defendant.

An extenuating circumstance was that the defendant, finding herself in an embarrassing situation, affirmed her--as she knew--false statement with an oath. Had she spoken the truth she could have been prosecuted for adultery, aiding, and soliciting. The court therefore reduced the sentence by half despite her guilt, and imposed as the appropriate sentence 2 years of hard labor. (Sec. 157, par. I, No. 1, of the Penal Code.)

On account of the lack of honor of which she was convicted, she had to be deprived of her civil rights too. This has been decided for a duration of 2 years.

Taking into consideration the time spent in arrest pending trial: Section 60, Penal Code. Costs: Section 465, Code of Criminal Procedure.

[Signed] ROTHAUG

DR. FERBER

DR. HOFFMANN

Certified:

Nuernberg, 23 March 1942

The Registrar of the Office of the Special Court for the district of the Nuernberg Court of Appeal with the District Court Nuernberg-Fuerth

[Stamp]

District Court [Illegible signature]

Nuernberg-Fuerth Justizinspektor

PARTIAL TRANSLATION OF DOCUMENT NG-129 PROSECUTION EXHIBIT 355

LETTER FROM DEFENDANT SCHLEGELBERGER AND GREISER, REICH GOVERNOR OF THE WARTHEGAU (POLAND) TO LAMMERS, 15 DECEMBER 1941, STATING THAT GREISER’S AUTHORITY CONCERNING THE EXECUTION OF DEATH SENTENCES AND PARDONING OF POLES AND JEWS IS NO LONGER RESTRICTED

Berlin, 15 December 1941

II a-2-3020/41

To the Reich Minister and Chief of the Chancellery of the Reich

Subject: Letter of the cosignatory Reichsstatthalter of the Reichsgau Wartheland, dated 13 November 1941

Since the cosignatory Reichsstatthalter of the Reichsgau Wartheland has been notified by the cosignatory Reich Minister of Justice, that until further notice, that is for the duration of war, the delegation of authority to the Reichsstatthalter in the Reichsgau Wartheland to order the execution of death penalties against Poles and Jews, as well as for pardoning of Poles and Jews who have been sentenced to death, is no longer restricted, the contents of the communication of 13 November is of no further consequence.

[Signed] SCHLEGELBERGER

[Signed] GREISER

Rk 1000 B

TRANSLATION OF DOCUMENT NG-128 PROSECUTION EXHIBIT 354

LETTER FROM THE PROVINCIAL PRESIDENT OF UPPER SILESIA TO LAMMERS, 26 JANUARY 1942, REQUESTING THE POWER OF AMNESTY FOR POLES AND JEWS SENTENCED TO DEATH

BK 1279 28 January 1942 [Initial] FI [Ficker]

Provincial President Of the Province of Upper Silesia O. P. I b 3

[Handwritten] on hand RM 1,000 B 1ob BBT 145 Katowice, 26 January 1942 Hindenburgstrasse Telephone: 34 921 [Initial] Ma 28/1 [Initial] Gg

[Illegible initial] 28/1

To the Chief of the Reich Chancellery Reich Minister Dr. Lammers Reich Chancellery Berlin

Dear Reich Minister:

The decree of 4 December 1941, 1b (Reich Law Gazette I, p. 759), concerning penal measures against Poles and Jews in the Incorporated Eastern Territories aims at punishing quickly and effectively criminal acts committed by Poles and Jews within the Incorporated Eastern Territories. Its success, however, is doubtful as long as it is necessary to obtain a decision from the Reich Minister of Justice before granting amnesties [Gnadenrecht] to Poles and Jews sentenced to death. In view of the peculiar criminal and political situation in Upper Silesia, which is marked by the growing Polish resistance movement, such delays--especially in wartime--are intolerable.

I therefore request you to take steps to have transferred to the power of granting amnesties--at least for the duration of the war--to Poles and Jews within the province of Upper Silesia who have been legally sentenced to death.

I should like to point out especially that according to an article in the periodical “Deutsches Recht,” 1941, (p. 2472), the Gauleiter and Reichsstatthalter in the Reichsgau Wartheland [Greiser][358] has already been granted similar powers.

Heil Hitler!

Yours N 89 Justice 12 [Signed] BRACHT

TRANSLATION OF DOCUMENT NG-126 PROSECUTION EXHIBIT 356

LETTER FROM DEFENDANT SCHLEGELBERGER TO LAMMERS, 26 MAY 1942, TRANSMITTING A COPY OF SCHLEGELBERGER’S DECREE DELEGATING THE RIGHT TO PARDON POLES AND JEWS TO REICH GOVERNORS AND PROVINCIAL PRESIDENTS

[Stamp]

Reich Chancellery 7996B-2 June 1942

[Initial] FI [Ficker]

1 enclosure

Reich Minister of Justice 9170 East /2--IIa-2-1054/42

Berlin W 8, 26 May 1942 Wilhelmstrasse 65 Telephone: 11 00 44 Long distance: 11 65 16

[Initial] KR [Kritzinger]

To the Reich Minister and Chief of the Reich Chancellery

Subject: Delegation of the right of pardon in the case of Jews and Poles

Reference: Letter of 16 March 1942--Reich Chancellery 2477 B.

1 enclosure

I enclose for your information a copy of my decree of 28 May 1942, by which I, in agreement with the Reich Minister and the Chief of the Presidential Chancellery, delegated the exercise of the right of pardon in the case of Poles and Jews sentenced by general courts in the Incorporated Eastern Territories to the Reich governors and provincial presidents of these provinces for the duration of the war.

The Acting Minister [Signed] DR. SCHLEGELBERGER

[Handwritten notes] 1. Submitted to the Reich Minister.

[Initial] L [Lammers] 6 June

2. File!

[Initial] KR [Kritzinger] 3 June [Initial] F [Ficker] 2 June

[Decree delegating Right to pardon Poles and Jews to Reich Governors and Provincial Presidents]

I delegate for the duration of the war the exercise of the right to pardon Poles and Jews sentenced by the general courts in the Incorporated Eastern Territories (including the Special Courts), as far as the Fuehrer has delegated it to me and no other delegation has yet been made by me, to the Reich governors (attorneys general) each for his respective province, in the Reich provinces of Wartheland and Danzig-West Prussia and the provincial presidents of the provinces of Upper Silesia and East Prussia.

Berlin, 28 May 1942

The Acting Reich Minister of Justice [Signed] DR. SCHLEGELBERGER

(Seal)

to 9/70 East /2--II a-2-1054/42 7886 B 341357

TRANSLATION OF DOCUMENT NG-744 PROSECUTION EXHIBIT 500

LETTER FROM THE REICH MINISTRY OF JUSTICE, SIGNED BY FREISLER, TO PRESIDENTS OF DISTRICT COURTS OF APPEAL AND OTHERS, 7 AUGUST 1942, CONCERNING “POLES AND JEWS IN PROCEEDINGS AGAINST GERMANS”

The Reich Minister of Justice 4110-IV a-4-1586

Berlin W 8, 7 August 1942 Wilhelmstrasse 65 Telephone: 11 00 44 Long distance: 11 65 16

To the Presidents of the District Courts of Appeal, Attorneys General at the District Courts of Appeal

For information to: (a) The Presidents of the Reich Supreme Court and of the People’s Court,

(b) The Chief Reich Prosecutors at the Reich Supreme Court and at the People’s Court.

Subject: Poles and Jews in proceedings against Germans

Enclosures: Copies for the Presidents of the District Courts, Chief Public Prosecutors, Local Courts, and Public Prosecutors at the Local Courts

The Penal Ordinance for Poles of 4 December 1941[359] (Reichsgesetzblatt I, p. 759) was intended not only to serve as a criminal law against Poles and Jews, but beyond that also to provide general principles for the German administration of law to be adopted in all criminal proceedings against Poles and Jews irrespective of the role which the Poles and Jews play in the individual proceedings. The regulations of article IX, for instance, according to which Poles and Jews are not to be sworn in apply to proceedings against Germans as well.

I have found that the special legal status of the Poles and Jews who are subject to the penal ordinance for Poles is not always taken into account. Reference is therefore made to the following points:

1. Proceedings against Germans should be carried on whenever possible without calling Poles and Jews as witnesses. If, however, such a testimony cannot be evaded, the Pole or Jew must not appear as a witness against the German during the trial, he must always be interrogated by a judge who has been appointed or requested to do so, (art. II, par. 1 of the Order for Execution of 31 Jan. 1942[360]--(Reichsgesetzblatt I, p. 52)).

2. Evidence given by Poles and Jews during proceedings against Germans must be received with the utmost caution especially in those cases where other evidence is lacking. I request that the Fuehrer order published in my circular decree of 3 September 1941-4103-II a-2-2041/41 concerning the interrogation of enemy subjects be applied to Poles and Jews as well.

3. Proceedings against Germans on the basis of charges preferred by Poles and Jews are only justified if sufficient proof is available that such a charge is well founded and if paragraph 153 of the Code of Criminal Procedure appears to be nonapplicable right from the beginning. As a rule, a thorough interrogation of the person preferring charges will have to take place first. The public prosecutor will also limit his application to the police in the same way. Coercive measures against the accused German as well as his official interrogation should in every case be undertaken only if the suspicion that the German has committed a serious offense has been sufficiently substantiated.

No information about the result of the proceedings is to be given to a Pole or Jew who has preferred charges against a German.

As deputy: [typed] Signed: DR. FREISLER

Certified.

[Signed] KANNIESS Senior clerk of Ministerial Chancellery

[Stamp]

Reich Ministry of Justice Office of the Minister

TRANSLATION OF DOCUMENT 662-PS PROSECUTION EXHIBIT 263

NOTES OF THE REICH MINISTRY OF JUSTICE ON A CONFERENCE OF 9 OCTOBER 1942 ON TRANSFER OF CONVICTS AND “ASOCIALS” IN VARIOUS CATEGORIES TO THE AFRICA BRIGADE, SPECIAL COMMANDOS IN THE EAST, AND TO HIMMLER

Copy

Conference on 9 October 1942

SECRET

I. AFRICA BRIGADE

The Fuehrer has ordered the formation of an Africa Brigade composed of members of the age groups 1908 and younger who had hitherto been classified as unworthy of military service. The military unworthy assigned to the brigade in the African theater should be given the opportunity to redeem themselves, and thereby obtain permanent military worthiness. Those called up by virtue of the Fuehrer’s orders are to be classified as military worthy for the duration of their military service.

For the execution of the Fuehrer’s order, the High Command of the Armed Forces has issued the order of 2 October 1942--Az 12 i 10.34 AHA/Ag/E (Ia)--Nr.550/42 g Kdos (top secret). Accordingly, the following will be called up:

1. Military unworthy German citizens of the age group 1908 or younger who have been sent to the penitentiary for 3 years or less and have not been penalized for the same or similar offenses either before or after the original offense.

2. Military unworthy German citizens of the same age group who have been sentenced to the penitentiary for 3 to 5 years for a first offense, and have no previous or later sentences.

3. Military unworthy German citizens of the same age group who have been sentenced to the penitentiary for 3 years (ref. par. 1) and who still are serving their sentences, in case they have served 1 year with good conduct.

Concerning paragraphs 1–3, those called up must be fit for field and tropical service. Individuals with homosexual tendencies, or who were punished for high treason, or have been ordered to be held in custody for security reasons, or to be castrated are not to be called up. For those unfit to serve who have been sentenced to and have served up to 1½ years in the penitentiary and have otherwise served sentences for only minor offenses, the restoration of military worthiness will continue as a rule through the pardon channels. These may, as usual, be placed in various units of the army.

The measures necessary in the administration of justice according to this order are put into effect--

Pardon proceedings instigated by the local recruiting authorities on behalf of those sentenced who belong to the age groups of 1908 and younger will not as a rule be continued. The armed forces replacement offices concerned will be informed by the pardoning authorities, to desist from further processing of these requests by order of the High Command of the Armed Forces. Exceptions are proceedings against those, who have been sentenced up to 1½ years’ penitentiary (see above). These proceedings will be acted upon in the manner heretofore customary, and if need be, presented to the Reich Minister of Justice for decisions.

The attorneys general will issue a report on the number of convicts who are still in confinement who come under this category for induction. They will simultaneously compile lists which will contain personal particulars of those persons sentenced (name, birth-date and town, occupation, sentence, expiration date, behavior, etc.). The list will be sent to the army office concerned. The named prisoners will await the army’s call.

II. SPECIAL COMMANDOS IN THE EAST

The Reich Marshal has expressed the wish to have convicts made available to be used as special commandos in the East, and to carry out sabotage behind the enemy’s lines. He refers to convicts who strayed off the straight and narrow and have not committed especially dishonorable deeds, for whose person and deed one may have human understanding. Especially suited are poachers who out of a passion for hunting have trespassed, and smugglers who have risked their lives in battle on the borders against the custom officials.

The poachers are already being turned over to the Reich Leader SS for special duties. The number of smugglers who come under consideration is exceptionally small. A telephonic questioning of the 13 district attorneys located on the borders of the Reich, disclosed only 2 suitable smugglers in confinement and three are being investigated. In the case of the latter, the citizenship is doubtful. There are no similar groups of convicts for this task who could make any difference in amounts. Under these circumstances it appeared practical to give the attorneys general the general task of obtaining the convicts, appropriate for this purpose, and reporting them. Prerequisites are, voluntary enlistment, physical fitness for military service, age 18 to 45 years, confinement of at least 1 year for a deed not especially dishonorable. The following are exceptions:

a. Foreigners, stateless persons, those of non-German blood.

b. Persons who have been punished because of homosexuality or high treason, or against who imprisonment for security reasons or castration has been ordered.

The appropriate request to the attorneys general has been made. The reports are expected before 25 October 1942. They are being checked in the Reich Ministry of Justice. The names of those convicts appearing suitable according to this will be made known to the Reich Marshal. Insofar as they fulfill also the prerequisites for induction into the Africa Brigade, a corresponding reference will be necessary.

III. DELIVERY OF ASOCIAL CONVICTS

[Asoziale Strafgefangen]

Persons in penal institutions designated as asocial persons by judicial decision are to be turned over to the Reich Leader SS.

1. Persons in custody for reasons of security--Persons in custody for reasons of security who are in German penal institutions will be put at the disposal of the Reich Leader SS. The execution of sentence will be regarded as interrupted by the delivery.

In detail the following principles should govern proceedings:

a. Persons under court martial sentences will not be delivered. Prisoners sentenced by former Polish courts or by courts of the Government General, will be transferred; before this, however, agreement with the Governor General will be obtained. The workhouse according to Austrian law is not equivalent to security custody [Sicherungsverwahrung].

b. Whether women are also to be delivered is still doubtful. This question will be discussed with SS Gruppenfuehrer Streckenbach. In this regard it will have to be a fundamental point from the beginning that in the case of female Poles, Jews, and gypsies no doubt about the delivery can exist.

c. Foreigners are not affected. Poles, Russians, Ukrainians, Jews, gypsies do not rank as foreigners, however, Latvians, Estonians, do. Czechs sentenced by German courts will be handled like Germans.

d. The sick will be delivered, as soon as they are able to be transported. The question whether prisoners in penal institutions who according to the opinion of the institution are insane should be delivered will be discussed with SS Gruppenfuehrer Streckenbach.

e. The delivery of persons in custody for security reasons will take place as a matter of basic principle also in the case of such prisoners who on account of age or for other reasons no longer seem dangerous. An exception will be made only in the case of persons in security custody, in whose case the institution is convinced that because of their favorable development they can be released within a predictable time. These cases will be laid before section XV for individual checking.

f. Persons sentenced who are still serving penitentiary sentences, but who in addition have been sentenced to security custody, will be put at the disposal of the Reich Leader SS.

g. When delivering prisoners it must be taken into account that the production of industries important to defense should suffer no stoppages. Insofar as necessary workers to replace them must be trained first.

h. The question, to whom the delivery will be made, will be discussed with SS Gruppenfuehrer Streckenbach.

i. In the immediate future only persons who have received final judgment will be taken; the decision on future sentences is in abeyance. For the reception of persons sentenced later, individual institution will be designated, the number of which is to be limited as much as possible.

2. Jews, gypsies, Russians, and Ukrainians will be delivered to the Reich Leader SS without exception.

3. Poles--Ethnic Poles who are subject to the Polish criminal law regulations or have been delivered to the Polish penal authorities and who have more than 3 years’ sentence to serve will be delivered to the Reich Leader SS.

Poles with smaller sentences will remain in custody of the prison system. After serving their sentences they will be reported by name to the police just the same.

4. Penitentiary prisoners--Penitentiary prisoners of the German and Czech ethnic groups, who are sentenced to a punishment of over 8 years, will be individually checked to see whether they are according to their personality, asocial, i.e., whether they will be worthless forever to the nation. If the answer to this question is affirmative, they will be delivered to the Reich Leader SS.

The check-up will be undertaken in section XV (Vice President of the People’s Court Engert, Oberregierungsrat, Hupperschwiller, Chief Public Prosecutor Meyer). Vice President Engert will regulate the technical execution. The decisions in individual cases are incumbent upon him. Special cases will be reported to the Reich Minister of Justice.

The guiding principles for those in security custody (III, 1) are valid, and furthermore the following is to be observed in this regard.

On the treatment of Czechs sentenced by courts in the Protectorate a conversation with the Reich Protector is necessary. The question whether Alsatians and Lorrainers who have been sentenced in Alsace and Lorraine should be taken must be cleared by negotiation with the chiefs of the civil administration.

Persons originally sentenced to death whose sentences have been commuted to penitentiary sentences over 8 years fall under the scope of the action, insofar as they are regarded as asocial. Under this requirement those sentenced persons are also included who have close relatives in the field, and prisoners for whom, because of their commitment in the removal of aerial bombs, a later commutation is contemplated.

On the treatment of persons sentenced who are lodged in curative or medical institutions, negotiations with SS Gruppenfuehrer Streckenbach must be undertaken.

[typed] Signed: DR. CROHNE 13 October

TRANSLATION OF DOCUMENT NG-558 PROSECUTION EXHIBIT 143

LETTER FROM REICH MINISTER OF JUSTICE THIERACK TO BORMANN, 13 OCTOBER 1942, CONCERNING THE “ADMINISTRATION OF JUSTICE AGAINST POLES, RUSSIANS, JEWS, AND GYPSIES”

T 459 The Reich Minister of Justice

Berlin, 13 October 1942 [Handwritten] Dispatched 13/10. [Initials] KUE [Kuemmerlein]

To Reichsleiter Bormann Fuehrer Headquarters

Subject: Administration of criminal justice against Poles, Russians, Jews, and gypsies

Dear Reichsleiter:

With a view to freeing the German people of Poles, Russians, Jews, and gypsies, and with a view to making the eastern territories incorporated into the Reich available for settlements of German nationals, I intend to turn over criminal proceedings against Poles, Russians, Jews, and gypsies to the Reich Leader SS. In so doing I work on the principle that the administration of justice can only make a small contribution to the extermination[361] of members of these peoples [Angehoerige dieses Volkstums auszurotten]. Undoubtedly the administration of justice pronounces very severe sentences on such persons, but that is not enough to constitute a material contribution toward the realization of the above-mentioned aim. Nor is any useful purpose served by keeping such persons in German prisons and penitentiaries for years, even if they are utilized as labor for war purposes as is done today on a large scale.

I am, on the other hand, of the opinion that considerably better results can be accomplished by surrendering such persons to the police, who can then take the necessary measures unhampered by any legal criminal evidence. I start from the principle that such measures seem entirely justified in wartime, and that certain conditions which I consider essential are fulfilled. These conditions consist in the prosecution of Poles and Russians by the police only if they resided until 1 September 1939 in the former state territory of Poland or the Soviet Union; and secondly, that Poles who were registered as being of German descent will continue to be subjected to prosecution by the administration of justice as before.

On the other hand, the police may prosecute Jews and gypsies irrespective of these conditions.

But no changes whatsoever are to be made in regard to the prosecution of other foreign nationals by the administration of justice.

The Reich Leader SS, with whom I discussed these views, agrees with them. I also informed Dr. Lammers.

I submit this matter to you, dear Reichsleiter, with the request to let me know whether the Fuehrer approves this view. If so, I would then make my official recommendations through Reich Minister Dr. Lammers.

[Handwritten] After one week. [Initial] Kue [Kuemmerlein] 10/19, 10/26

Heil Hitler!

yours [Initial] TH [Thierack]

PARTIAL TRANSLATION OF DOCUMENT NG-787 PROSECUTION EXHIBIT 507

LETTER OF THE REICH MINISTRY OF JUSTICE TO LEADING JUDGES AND PROSECUTORS, 4 APRIL 1944, TRANSMITTING A REPORT OF THE REICH STATISTICAL BUREAU ON “CRIMINALITY IN THE GREATER GERMAN REICH IN THE YEAR 1942,” EXCLUSIVE OF CASES HANDLED BY THE PEOPLE’S COURT

The Reich Minister of Justice 4206 III a-4-446

Berlin W 8, 4 April 1944 Wilhelmstrasse 65 Phone: 110044 out of town: 116516

To the Presidents of the Reich Supreme Court and the People’s Courts

To the Presidents of the Districts Courts of Appeal and the Chief Reich Prosecutors at the Reich Supreme Court and the People’s Court, as well as the Public Prosecutors at the Courts of Appeal

Subject: Development of criminality

1 enclosure: 1 copy each of the enclosed report regarding criminality in the Greater German Reich in the year 1942

I am enclosing one copy of the report regarding criminality in the Greater German Reich. Please acknowledge and treat confidentially.

By order:

[Typed] Signed: GRAU Certified: [Signed] SEEMANN [Stamp] Judicial Clerk

Reich Ministry of Justice Ministerial Chancellery [Handwritten] To Under Secretary Dr. Klemm

Reich Statistical Bureau

Keep under lock and key Only for official use. Publication not permitted

Criminality in the Greater German Reich in the year 1942

1. Total result

Since 1 January 1942 the Reich statistics of criminality comprise territorially the area of the Greater German Reich with the exception of the Alpine and Danube Gaue where the criminal law of the Reich as the exclusive basis of the statistics of criminality in the Reich, has not yet been introduced in its totality. As to persons, the statistics of criminality in the Reich enumerate separately--

a. German nationals and aliens (aliens too will be enumerated separately from 1 January 1943 on).

b. Members of the Protectorate.

c. Poles and Jews sentenced on the basis of the Penal Ordinance for Poles.

d. Other racial Jews.

Taking these individual groups together, a total of 457,129 persons were sentenced[362] with legally binding effect in the Greater German Reich for crimes and offenses against laws of the Reich (not counting sentences for crimes and offenses against laws of the Reich falling under the jurisdiction of the People’s Court) that is, 9.4 percent more than in the year 1941 (417,923). The number of persons convicted with legally binding effect amounts to 417,001--91.2 percent of the total number of persons accused; 1941 [amounted] to 377,072--90.2 percent. Punishment was inflicted on 372,502 persons convicted (1941: 346,105)--89.3 percent (91.8 percent) and punishment and corrective measures on 2,449 (3,082)--0.6 percent (0.8 percent).

Of 29,305 (1941: 30,540) persons sentenced 6.4 percent (7.3 percent) were acquitted. In addition corrective measures were decreed in the case of 139 (134) defendants who were acquitted, in the case of 487 (495) corrective measures were decreed independently, and in the case of 35 (54) persons a motion to decree corrective measures independently was refused.

In 10,162 cases (2.2 percent) compared with 9,628 (2.3 percent) in the previous year, proceedings were quashed by the court.

In the year reported on 84,318--20.2 percent of the total number of persons convicted, compared with 92,546--24.5 percent in the year 1941, were persons who had been previously convicted of crimes or offenses against laws of the Reich.

Total number of persons convicted--

------------------------------------+---------------+--------------- | 1941 | 1942 +-------+-------+-------+------- |Number |Percent|Number |Percent ------------------------------------+-------+-------+-------+------- I. Crimes and offenses in violation | | | | of the Reich Penal Code |232,888| 61.8 |240,473| 57.7 | | | | II. Crimes and offenses in violation| | | | of other laws of the Reich |144,184| 38.2 |176,528| 42.3 ------------------------------------+-------+-------+-------+------

Thus, the proportion of crimes and offenses in violation of the Reich Penal Code decreased from 1941 to 1942, whereas the proportion of those in violation of other laws of the Reich increases as a result of the growing number of violations of wartime penal legislation.

Detailed information concerning the extent of criminal acts in 1942, important for reasons of criminal policy as well as numerically compared with the previous year, is furnished in the chart [1] below.

-----------------------------+---------------------------+--------------------------- | 1941 | 1942 +--------------+------------+--------------+------------ | Total number | Persons | Total number | Persons | of persons | previously | of persons | previously | sentenced | convicted | sentenced | convicted | | among them | | among them -----------------------------+--------------+------------+--------------+------------ Sexual crimes and offenses | | | | against morality | 13,591 | 4,544 | 10,588 | 3,074 Thereunder-- | | | | Sodomy and bestiality | 3,963 | 1,522 | 2,790 | 936 Indecent assault on | | | | persons under 14 | | | | years of age | 4,374 | 1,364 | 3,415 | 964 Murder | 187 | 50 | 153 | 42 Manslaughter | 151 | 37 | 118 | 25 Abortion | 2,993 | 482 | 3,193 | 425 Slight, dangerous, and | | | | serious bodily injury | 13,353 | 3,439 | 10,024 | 2,215 | | | | Larceny, also in the case | | | | of repeated offenses | 77,556 | 21,675 | 89,656 | 21,188 | | | | Aggravated larceny, also | | | | in the case of repeated | | | | offenses | 12,192 | 3,936 | 15,587 | 3,776 | | | | Embezzlement | 10,987 | 4,129 | 10,179 | 2,968 | | | | Robbery, also in the case | | | | of second offenders and | | | | extortion equivalent to | | | | robbery | 300 | 104 | 186 | 59 | | | | Extortion | 512 | 182 | 353 | 102 | | | | Receiving stolen goods, | | | | also in the case of | | | | repeated offenses | 10,956 | 2,329 | 14,778 | 2,619 | | | | Simple fraud, also in the | | | | case of repeated offenses | 16,258 | 8,005 | 12,551 | 5,266 | | | | Forgery of Public Documents, | | | | etc. | 8,052 | 2,075 | 9,952 | 2,069 | | | | Arson | 121 | 23 | 119 | 20 | | | | Major and minor crimes by | | | | breach of official duties | 2,208 | 354 | 2,471 | 311 | | | | Crimes and offenses against | | | | the law concerning | | | | dealings with food, etc. | | | | (Adulteration of foods) | 3,433 | 668 | 2,801 | 557 | | | | Law concerning fire arms | 1,626 | 304 | 1,317 | 206 | | | | Law for the protection of | | | | German blood and German | | | | honor (race pollution) | 189 | 86 | 109 | 46 | | | | Decree against people’s | | | | parasites | 3,822 | 1,941 | 6,349 | 2,602 | | | | Decree concerning Crimes of | | | | Violence | 282 | 149 | 263 | 131 -----------------------------+--------------+------------+--------------+------------

Thus, we find an increase, to a more or less considerable degree, in the following crimes: abortion (+6.7 percent), larceny and aggravated larceny (+15.6 percent and +27.8 percent resp.), and receiving of stolen goods (+34.9 percent). The three last named criminal acts, the most important of which are directed against property, constitute approximately 50 percent of all crimes and offenses against the Reich Criminal Code recorded for this year. The same offenses constituted only 43.2 percent of the total in 1941. Cases of forgery of public instruments also show an increase (+23.6 percent), partly in consequence of the forging of the numerous identity cards and papers necessitated by the government control of economy. Offenses by breach of official duties, likewise, have increased in number (+11.9 percent). The increase of cases pertaining to the decree against people’s parasites is particularly noticeable (+66.1 percent).

On the other hand, all categories of sexual crimes have decreased in number (-22.3 percent), particularly unnatural sexual offenses (-29.6 percent) and indecent assault on persons under 14 years of age (-21.9 percent). Decreases are also recorded for the various types of willful bodily injury (-24.9 percent), for the two capital crimes, murder and manslaughter (-18.2 percent and -21.9 percent resp.), among the crimes against property, embezzlement (-7.4 percent), for both robbery and extortion equivalent to robbery (-38 percent) as well as extortion (-31.1 percent) to a considerable extent, and, furthermore, for fraud (-22.8 percent). The decline in the number of convictions arising from crimes of violence (-6.7 percent) is also notable.

Sentences imposed in 1942 (1941) (this covers both fines and imprisonment) are as follows: 2,199 (1,085) death sentences, 20,104 (15,981) limited sentences of penitentiary [Zuchthaus] (including severe penal camp), 194,386 (162,768) sentences of imprisonment (including ordinary penal camp) and 162,158 (170,254) fines.

A comparison between this and last year’s criminal statistical data for individual groups cannot be drawn because of the introduction of a revised system of enumeration, previously mentioned, that went into effect 1 January 1942. Until then the Reich criminal statistics had not yet provided such an analysis of individual groups.

2. Ethnic members of the German national community and foreigners

a. Sentences

In 1942 a total number of 378,670 persons, both ethnic members of the German national community as well as foreigners were legally sentenced within the Greater Reich for crimes and offenses against Reich laws (not including sentences for crimes and offenses against Reich laws falling within the jurisdiction of the People’s Court). Of these, 341,540, or 90.2 percent were legally convicted. Penalties alone were imposed on 297,324, or 87.1 percent of those convicted, whereas both penalties and measures of security and reform were imposed on 2,332 or 0.7 percent. The number of convicted persons, punishment for whom was set aside in accordance with the juvenile court law amounts to 2,911 or 0.8 percent. However, for the vast majority of these cases measures of reform were ordered and these amounted to 10,233 according to this year’s record. Juvenile detention was ordered in the case of 37,717 defendants, which means 11 percent of all convicted ethnic members of the German community (and foreigners), and 71.9 percent of the total number of juveniles within this particular group who were subject to a penalty. In addition, prison sentences of indefinite duration were imposed on 1,256 juveniles.

For the recorded year 26,544 defendants or 7 percent of the total number, were acquitted. Besides, in 135 instances acquittal was granted along with measures of security and reform, in 475 cases such measures alone were imposed, and in 35 cases motions for measures of security and reform were rejected.

Proceedings were quashed by courts in 9,941 cases, representing 2.6 percent of the total of persons brought to trial.

212,410 or 62.2 percent of the total of convictions of German nationals (including foreigners) in 1942, represent crimes and offenses in violation of the Reich Penal Code and 129,130 or 37.8 percent represent crimes and offenses in violation of other laws of the Reich.

b. Personal Data on Convicted Persons

Of convicted German nationals (and foreigners) 116,754 or 34.2 percent in 1942, were female and 52,423 or 15.3 percent were juveniles (ranging in age from 14 to 18). The age group of 18 to 21, normally representing the heaviest criminal quota, participates in the total of convictions only with a number of 34,401 delinquents or 10.1 percent, due to the drafting of many of these age brackets. The number of persons already previously convicted for crimes and offenses against laws of the Reich amounts to a total of 77,322 or 22.6 percent of whom 18,478 or 23.9 percent had more than 4 previous convictions. 36,419 of the convicted persons or 10.7 percent were foreigners, of whom 3,064 or 8.4 percent represented juveniles.

c. Individual Criminal Acts

Chart 1 A[363] affords a view into the criminal structure of 1942. According to this, the various acts of theft form, as previously, the greater part of the total of convictions (91,476 or 43.1 percent; all of whom are persons convicted for crimes and offenses in violation of the Reich Penal Code). If one disposes of insult as a petty and civil offense (13,516 or 6.4 percent), there follows--though at a greater interval--the other two significant offenses against property, i.e., fraud (11,567 or 5.4 percent) and receiving stolen goods (12,115 or 5.7 percent). The fifth place is accorded to sexual offenses (10,205 or 4.8 percent) among which the indecent assaults on persons under 14 as well as sodomy and bestiality (32.7 percent and 26.2 percent resp.) represent comparatively the greater share of all sexual crimes and offenses. Then follow again two offenses against property, i.e., embezzlement (9,328 or 4.4 percent) and forgery of documents (8,628 or 4.1 percent).

In major crimes, murder participates with 117 convictions; manslaughter with 101, and robbery together with extortion equivalent to robbery with 147 delinquents.

If one arranges the above discussed, numerically significant criminal acts in accordance with convicted adults and juveniles the following results: Of the total number of adult and juvenile persons convicted for crimes and offenses in violation of the Reich Penal Code, the percentage is as follows:

--------------------------------+----------+------------ | Adults | Juveniles --------------------------------+----------+------------ Petty larceny | 33.8 | 49.3 Aggravated larceny | 3.8 | 17.5 Embezzlement | 4.8 | 2.7 Receiving stolen goods | 6.4 | 2.5 Fraud | 6.0 | 2.8 Forgery of Public Documents | 4.1 | 3.8 Sexual crimes and offenses | 4.7 | 5.1 --------------------------------+-----------------------

In petty and aggravated larceny together, the number of crimes represent approximately two-thirds for juveniles and slightly less than four-tenths for adults.

Due to enactment of laws pursuant to war exigencies, the following other crimes and offenses deserve mentioning: They are arranged in order of the number of their convictions.

Persons convicted with legally binding effect

Penal ordinances relating to the rationing of consumer goods of 5 April 1940 18,565

Decree amending the penal code for the protection of the military power of the German nation of 25 November 1939 9,263

Amongst them: prohibited contact with prisoners of war (article 4) 9,103

War Economy Decree of 4 September 1939 8,097

Decree against people’s parasites of 5 September 1939 5,029

Decree, subject: special measures concerning foreign broadcasts of 1 September 1939 985

Decree relating to crimes of violence of 5 December 1939 194

d. Sentences pronounced

Chart No. 2[364] gives the particulars about the sentences pronounced.

According to it, in 1942, 1,061 death sentences were pronounced, among them 18 against juveniles. 15,830 defendants were sentenced to terms in penitentiary for definite periods of time, of them 6,543 or 41.3 percent to a period of 3 years and more, 56 terms in penitentiary for a definite period of time were pronounced against juveniles.

Of the total number of terms of imprisonment amounting to 143,685--in the year reported on short-term sentences formed 41.5 percent of them, these of medium length 47.3 percent, long-term imprisonments 10.3 percent, and these of undefined length 0.9 percent.

Fines were imposed in 141,464 cases. Detention was pronounced in 378 cases.

In 1942 juvenile arrest was pronounced against 37,717 juveniles, i.e., against 71.9 percent of the total number of juvenile delinquents, among them were 25,562 arrests or 67.8 percent for a definite period of time. The proportion of chronologically defined terms of imprisonment of more than 2 weeks to the total number of arrests is 51.5 percent. 12,155 or 32.2 percent of the juveniles were sentenced to weekend incarceration, and among them 23.6 percent to the loss of three and four of their weekly off-times.

Of the protective and reformative measures described in article 42a of the Reich Penal Code, the following have been decreed with legally binding effect in 1942:

Placing into a lunatic asylum 906 Placing into a reformatory institution for alcohol addicts 90 Placing into a workhouse 400 Protective custody 1,414 Sterilization of dangerous sexual offenders 152 Ban on the exercise of trade or profession 298

In greater detail in the period reported on protective and reformative measures were decreed e.g., in the case of convictions for indecent assault on persons under 14 years of age; 232 times or 7.0 percent of the persons convicted for the offenses in question; for repeated petty larceny, 334 times or 7.4 percent; for repeated aggravated larceny, 195 times or 25.1 percent; and for repeated fraud, 271 times or 20.2 percent.

3. Other Groups of Persons

The following gives detailed particulars concerning the number of Protectorate Nationals, Poles and Jews, as well as racial Jews brought to trial in Greater Germany (exclusive of the Alpine and Danube Gaue) in 1942.

-----------------------------------------+-------------+---------+------ |Protectorate | Poles |Racial | Nationals |and Jews | Jews -----------------------------------------+-------------+---------+------ Persons brought to trial | 13,060 | 63,786 | 1,613 Juveniles brought to trial | 482 | 5,169 | 44 Percentage of persons brought to trial | 3.7 | 8.1 | 2.7 | | | Convicted persons | 12,117 | 61,836 | 1,508 Percentage of persons brought to trial | 92.8 | 96.9 | 93.5 | | | Acquitted | 871 | 1,816 | 74 Percentage of persons brought to trial | 6.7 | 2.8 | 4.6 | | | Persons previously convicted | 2,493 | 4,237 | 266 Percentage of total convicted | 20.6 | 6.9 | 17.6 Persons with more than 4 previous | | | convictions among these | 766 | 593 | 43 Percentage of previously convicted | 30.7 | 14.0 | 16.2 -----------------------------------------+-------------+---------+------

The figures given above concerning the convictions of Poles and Jews, refer exclusively to convictions according to the Penal Ordinance for Poles, that is to say, mainly to such crimes which have been committed in the Incorporated Eastern Territories. However, crimes are also included which have been committed in other districts of the German Reich by Jews and Poles, who on 1 September 1939 had their residence or permanent abode in the territory of the former Polish state (No. XIV of the Penal Ordinance for Poles).[365]

Contrary to expectations, the quota of Poles and Jews previously convicted is low; this can first of all be explained by the fact that some of the criminal records were destroyed in the eastern territories; furthermore that during the fighting in autumn 1939, the Poles opened the doors of the penitentiaries and released dangerous criminals who, in most cases, turned criminals again and were brought before the German summary courts; a great number of those retaken, against whom fresh violations of the law could not directly be proved, were sent to concentration camps as a preventive measure. In both instances, therefore, persons who had previous convictions were thus omitted from the census of criminal statistics. Taking these points into consideration, the quota of Poles and Jews previously convicted has still to be regarded as comparatively high.

Particulars concerning the most important punishable actions, committed by the above mentioned groups of persons which have led to a conviction, can be obtained from chart I B.

With regard to the penalties imposed upon them by the courts a total of 1,138 Protectorate Nationals, Poles, and Jews, as well as Jews by race were sentenced to death during the current year according to chart 2. These figures include 930 Poles and Jews sentenced under the crimes ordinance for Poles. The total number of penal servitude sentences, imposed for limited periods of time, against Protectorate Nationals and Jews by race amounts to 2,237 and the jail sentences amount to 7,321. By virtue of the criminal ordinance for Poles the sentence of penal camp for hard labor was imposed in 2,017 cases and that of regular penal camp in 43,180 cases.

The total fines imposed, amount to 20,694.

85 defendants had their property confiscated.

* * * * * * *

Chart 2

Punishments meted out in the year 1942 on account of crimes and offenses against Reich laws

---------------------------+---------------------------------------------- | Punishments[366] meted out to-- | +----------------+------------+---------+------ Sentences |German Nationals|Inhabitants |Poles[367] |(and Foreigners | of the | and |Racial | Total of this |Protectorate| Jews | Jews | total to | | | | juveniles | | | ---------------------------+--------+-------+------------+---------+------ | | | | | Death sentences | 1,061 | 18 | 186 | 930 | 22 | | | | | Penal servitude sentences: | | | | | For life | | | | | For a certain length of | | | | | time, in toto | 15,850 | 56 | 2,112 | | 125 For less than 3 years | 9,307 | 18 | 1,294 | | 56 For 3 years and more | 6,543 | 38 | 818 | | 69 | | | | | Total of jail sentences |143,885 | 9,695 | 6,875 | | 646 Of them-- | | | | | For less than 3 months | 59,736 | 2,520 | 2,595 | | 348 For 3 months up to | | | | | 1 year | 88,012 | 5,315 | 3,020 | | 218 For one year and more | 14,881 | 504 | 1,051 | | 80 For an undetermined | | | | | length of time | 1,256 | 1,256 | 9 | | | | | | | Severe penal camp total of | | | | | sentences imposed | | | | 2,017 | Of them-- | | | | | For less than 5 years | | | | 1,257 | For 5 years or more | | | | 760 | | | | | | Ordinary penal camp total | | | | | of sentences imposed | | | | 43,180 | Of them-- | | | | | For less than 1 year | | | | 32,540 | For 1 year or more | | | | 10,640 | | | | | | Confiscation of property | | | 4 | 78 | 3 | | | | | Fines |141,464 | 2,021 | 3,037 | 16,939 | 718 | | | | | Confinement in a fortress | | | | | | | | | | Arrest | 378 | 31 | 54 | | 4 | | | | | Arrest of juveniles in | | | | | toto | 37,717 |37,717 | 134 | | namely: for a certain | | | | | period in toto | 25,562 |25,562 | | | of this, for more than | | | | | 2 weeks | 13,165 |13,165 | | | | | | | | Total of weekend | | | | | imprisonments | 12,155 |12,155 | | | Of this, [those with] | | | | | 3 and 4 pass privileges| 2,866 | 2,866 | | | ---------------------------+--------+-------+------------+---------+------

PARTIAL TRANSLATION OF DOCUMENT NG-715 PROSECUTION EXHIBIT 112

THIRTEENTH REGULATION UNDER THE REICH CITIZENSHIP LAW, 1 JULY 1943[368]

1943 REICHSGESETZBLATT, PART I, PAGE 372

Under article 3 of the Reich Citizenship Law of 15 September 1935 (Reichsgesetzblatt I, p. 1146), the following is ordered:

Article 1

1. Criminal acts committed by Jews shall be punished by the police.

2. The decree concerning penal law for Poles [Polenstrafrechtsverordnung] of 4 December 1941[369] (Reichsgesetzblatt I, p. 759) shall no longer apply to Jews.

Article 2

1. The property of a Jew shall be confiscated by the Reich after his death.

2. The Reich may, however, grant compensation to the non-Jewish legal heirs and persons entitled to sustenance who have their domicile in Germany.

3. This compensation may be granted in the form of a lump sum, not to exceed the ceiling price of the property which has passed into possession of the German Reich.

4. Compensation may be granted by the transfer of titles and assets from the confiscated property. No costs shall be imposed for the legal processes necessary for such transfer.

Article 3

The Reich Minister of the Interior with the concurrence of the participating supreme authorities of the Reich shall issue the legal and administrative provisions for the administration and enforcement of this regulation. In doing so he shall determine to what extent the provisions shall apply to Jewish nationals of foreign countries.

Article 4

This regulation shall take effect on the seventh day of its promulgation. In the Protectorate Bohemia and Moravia it shall apply where German administration and German courts have jurisdiction; article 2 shall also apply to Jews who are citizens of the Protectorate.

Berlin, 1 July 1943

The Reich Minister of the Interior FRICK

Chief of the Party Chancellery M. BORMANN

Reich Minister of Finance COUNT SCHWERIN VON KROSIGK

Reich Minister of Justice DR. THIERACK

PARTIAL TRANSLATION OF DOCUMENT NG-151 PROSECUTION EXHIBIT 204

SELECTIONS FROM CORRESPONDENCE PRECEDING ISSUANCE OF THIRTEENTH REGULATION UNDER REICH CITIZENSHIP LAW, 3 AUGUST 1942–21 APRIL 1943, INVOLVING LIMITATIONS UPON LEGAL RIGHTS OF JEWS, THEIR PUNISHMENT BY POLICE, AND RELATED MATTERS[370]

1. Letter from the Reich Ministry of Justice to several leading Reich authorities, 3 August 1942

Direct Reich Chancery 10939 B Reich Minister of Justice III a-2 1637 42 1506/5

Carbon Copy

Berlin W 8, 3 August 1942

Urgent Letter

To the a. Reich Minister of the Interior b. Reich Leader SS and Chief of the German Police c. Reich Minister for People’s Enlightenment and Propaganda d. Foreign Office e. Chief of the Party Chancellery, Munich f. Reich Protector for Bohemia and Moravia

Subject: Restriction of legal rights [Rechtsmittel][371] for Jews in criminal cases

1 Enclosure

Enclosed I submit the draft for an ordinance concerning the restriction of legal rights for Jews in criminal cases with the request to state your opinion in regard to it.

I have emphasized the importance in war of this ordinance, because it indirectly serves national defense. The dissatisfaction which is apparent in wide circles of the German population with regard to the fact that legal rights in criminal cases are still afforded to Jews and that they are still given the right to appeal to the courts in cases of sentences inflicted by the police is liable to weaken the determination of the German people to defend itself in this contest which has been imposed on it.

As Deputy: [typed] signed: DR. FREISLER

2. Draft enclosed with the letter of the Reich Ministry of Justice of 3 August 1942

Copy

[Handwritten] 1508/05

_Ordinance concerning the restriction of legal rights for Jews in criminal cases_ Of....................1942

The Ministerial Council for the defense of the Reich decrees with force of law:

Article 1

Jews are not entitled to make use of the right of appeal, revision (appeal for nullification pursuant to the former Austrian law which has remained in force), and complaint against decisions in criminal cases.

Jews cannot appeal to courts for a decision against sentences inflicted by the police.

In cases where an appeal for legal rights has been filed already or a decision by a court proposed at the time this ordinance is being enforced, those are considered as cancelled.

Berlin,....................1942

The President of the Ministerial Council for the Defense of the Reich,

[Handwritten] GFM [General-Feldmarshall] Reich Minister and Chief of the Reich Chancellery

To IIIa-2 1637.42 344528

3. Letter from the Reich Ministry of the Interior to the Reich Ministry of Justice, 13 August 1942

Reich Chancery 11452B 15 August 1942 [Initial] FI [Ficker] Reich Minister of the Interior

Berlin, 13 August 1942 NW 7, Unter den Linden 72 Telephone: 12 00 34 12 00 37

Ib 1200/42 1508/06 7035

Use this reference in your reply. Reference 15/8

Urgent Letter

S.Ang. of 21/8

To the Reich Minister of Justice

Subject: Restriction of legal rights for Jews

Referring to your letter of 3 August 1942 RK. 11405 B im Gg. 1b-III-2 1637.42

The same considerations which have prompted your suggestion to deny legal rights to Jews in criminal cases also apply to administrative matters. I would like to ask you, therefore, to extend the draft of an ordinance concerning the restriction of legal rights for Jews in criminal cases at the same time also to administrative matters, giving it about the following tenor:

Ordinance concerning the restriction of legal rights for Jews Of....................1942.

The Ministerial Council for the Defense of the Reich decrees with force of law:

Article 1

Jews are not entitled to make use of the right of appeal in criminal or administrative cases.

They cannot appeal, as is otherwise admissible, to the courts for a decision against a decision taken.

Nor can they enter a protest which otherwise might be admissible.

Article 2

In cases where an appeal for legal rights or a protest has been filed already they are considered as canceled.

Article 3

This ordinance is enforced 7 days after its announcement. It is valid also in the Protectorate of Bohemia and Moravia and the Incorporated Eastern Territories.

Berlin,....................1942

The President of the Ministerial Council for the Defense of the Reich

Delegate General for the Reich Administration

Reich Minister and Chief of the Reich Chancellery

Copies to the supreme Reich authorities, except the Reich Minister of Justice with the request to state their opinion by 21 August 1942, in case of difference of opinion. Otherwise agreement will be assumed.

As deputy: [signed] DR. STUCKART

4. Letter from the Reich Ministry of Justice, signed by the defendant Schlegelberger, to the Reich Ministry for People’s Enlightenment and Propaganda, 13 August 1942

The Acting Reich Minister of Justice Copy

III a 2 1706.42 Berlin, 13 August 1942 [Handwritten] 1508/06

Urgent Letter

To the Reich Minister for People’s Enlightenment and Propaganda

Berlin

Subject: Restriction of legal rights for Jews

Referring to urgent letter of 12 August 1942[372] R 1400/23.7.42/122/1.9.

I. I thought of meeting at first the most urgent need within the compass of my sphere of activity, viz, that of adjusting the administration of justice from a legal point of view, and moreover I had prepared a corresponding draft for the other administration of justice belonging to my sphere of activity. However, I did not want to take the initiative to make suggestions concerning matters which are beyond the sphere of my department.

The draft enclosed in your urgent letter includes all supreme authorities of the Reich, especially that of the Reich Minister and all ministers whose sphere of work is connected with matters of administrative law. While, as far as the sphere of activity of these ministers is concerned I still adhere to the opinion that I should refrain from making suggestions on my part, I declare that I have no objections against an extension of my draft to matters of administrative law and to decisions by administrative authorities.

II. 34529 114058

II. On the assumption that an extensive regulation of the situation of the Jews with regard to legal and administrative decisions is desired, it seems necessary to me that the question of the admissibility for a Jew to testify on oath be legally regulated too, and this regulation had best be included in the same decree.

Therefore, I furthermore suggest that the decree should provide that the Jew is not admissible to testify on oath. Thereby the taking of an oath or the furnishing of an affidavit by Jews is in general impossible.

In my opinion, however, the fact that the Jew is not permitted to take an oath should not make the Jew have a better legal position than the person who is authorized to take an oath. Therefore, I further suggest to include a regulation according to which the testimony of a Jew which could have been made under oath--if it had been given by a person who is permitted to take an oath--should be treated like testimony given under oath as far as criminal cases are concerned. My idea in this connection is that the chiefs of the supreme authorities of the Reich should order administratively that it should be pointed out to the Jew that he could be legally prosecuted if he commits an offense against his duty to give true testimony, but I do not propose to make this a prerequisite of being liable to punishment.

In my opinion, comprehensive settlement of the problem requires furthermore the exclusion, for reasons of foreign policy, of all Jews from the regulations of this decree who are citizens of a foreign nation.

Therefore, under the assumption that the persons participating in the comprehensive solution of the problem and those supreme authorities of the Reich which are in charge of specialized sectors agree, I would suggest to give the following wording to the decree:

Decree concerning the restriction of legal rights for Jews and their inadmissibility to take an oath.

dated....................1942

The Ministerial Council for the Defense of the Reich orders the following to be enforced as a law:

Article 1

Jews are not entitled to lodge a plea for appeal, revision, and complaint (nullity plea and appeal under the still valid parts of Austrian law) against the decisions of the courts.

Jews cannot apply for a judicial decision against penal measures inflicted by the police.

Article 2

Jews cannot make use of the legal rights provided against decisions made by the administrative authorities.

Article 3

Insofar as legal right has already been exercised or an application for legal decision has been requested when this law comes into effect, they are considered to be withdrawn.

Article 4

Jews are not entitled to take an oath.

Article 5

The regulation concerning perjury and false oath applies to untrue statements of Jews not made under oath, if a person entitled to take an oath could have been sworn to this statement. In the same manner the regulations concerning the making of a false declaration in lieu of oath are to be applied to the untrue declaration of a Jew, if the declaration was the substitute for a declaration in lieu of oath or a statement with reference to such a declaration.

Article 6

The regulations do not apply to Jews who are citizens of a foreign nation.

Article 7

The supreme authorities of the Reich are authorized to issue regulations for the execution within their jurisdiction.

[Typed] signed: DR. SCHLEGELBERGER

344531

5. Letter from Reich Leader SS to Lammers, 25 August 1942

13/9 RK. 12020 B 27 August 1942 [Initial] FI [Ficker]

The Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior

20/9 S IV B 4 b--Ref. No. 1268/42 Please quote above reference and date in reply. [Handwritten] Submitted last to RM 11853 tz 1b

Berlin SW 11, 25 August 1942 Prinz-Albrecht-Strasse 8 Tel. 12 00 40

1508/7

Urgent Letter

To the Reich Minister and Chief of the Reich Chancellery

Berlin [Initial] L [Lammers] 30 August

Subject: Limitation of legal rights for Jews

Reference: Urgent letter of the Reich Minister for Popular Enlightenment and Propaganda sent to you on 21 August 1942--R 1400/13 August 1942, 122--1,9.

Considering the fact that up to now, the competent authorities disagree and that moreover a number of further questions must be regarded as not clarified, I consider the suggestions which have been made up to now as not yet arrived at a stage when they could be submitted to the Ministerial Council for the Defense of the Reich, and for this reason I have asked the Reich Minister of Justice to arrange for a discussion for the clarification of these essential questions.

BY ORDER:

[Typed] Signed: SUHR

Certified:

[Illegible signature] Employee of the Chancery Resubmitted because of RM 11850 (marked red), Office 13/19

[Stamp]

The Reich Leader SS [Initial] F [Frick] Sept. 12 and Chief of the German Police

6. Letter from Martin Bormann to the Reich Ministry of Justice, 9 September 1942

National Socialist German Labor Party

Party Chancellery

The Chief of the Party Chancellery

Fuehrer Headquarters 9 September 1942. III C-Do. 2425/0/1

Copy

To the Minister of Justice Berlin W 8 Wilhelmstr. 65

Subject: Limitation of legal appeal for Jews. RM 11405 B

Reference: Your letter of 13 August 1942--III a 2 1706.42--.

The limitation for legal appeal for Jews proposed by you extends in the sphere of court decisions only to the legal appeal in a limited sense--that is to say to appeal, revision, and complaint. This regulation does not represent a comprehensive solution of the problem, since the Jews will still be given the possibility of making use of legal aids [Rechtsbehelfen] in a wider sense.

The considerations which are decisive for your draft also apply to almost all cases of “legal aids.” In criminal cases this applies above all to objections against penal rulings and to pleas for resumption of proceedings. In the sphere of civil law it would apply, e.g., to reminders of cost and execution matters, objections to execution orders and judgments by default, as well as to nullity and restitutions suits.

Also, a limitation of the admissibility of suits protesting against executions and suits filed by a third party will have to be taken into consideration, as in these cases, too, the result will be a legal aid against a judicial decision. I think it necessary to include all those cases too into the regulation.

I further request you to include into the draft a regulation declaring inadmissible the declining of a judge by a Jew.

I have no objections against the provisions of the draft relative to the disqualification of Jews to take an oath.

Heil Hitler!

[Typed] Signed: M. BORMANN

Certified copy: [Signed] DOSER

7. Letter from the General Plenipotentiary for the Administration of the Reich to a number of leading Reich authorities, 29 September 1942

Copy

RK. 136 2 B 29 Sept. 1942 [Initial] FI [Ficker] The General Plenipotentiary for the Administration of the Reich GBV. 788/42 2425 [Handwritten] Last submitted RK 12853 B

Berlin, 29 September 1942 [Stamp] See document of 8.10.

Urgent Letter

To the:

Head of the Party Chancellery The Reich Minister of Justice The Reich Minister for People’s Enlightenment and Propaganda The Foreign Office The Reich Minister of Finance

[Handwritten] Submitted with RK 442 B. attached October 2

Subject: Ordinance concerning legal restrictions to be imposed on Jews

On the basis of a discussion of 25 September 1942 between the officials in charge, a new draft of an ordinance concerning the restrictions imposed on Jews in the proceedings before the administrative agencies or courts has been drawn up under the title, “Ordinance concerning Legal Restrictions to be Imposed on Jews.” Please let me know as soon as possible your opinion about the enclosed new formulation.

If no reply has been received by 14 October, your consent will be taken for granted.

This copy is forwarded for your information and with the request that you take a decision by 14 October.

As deputy: [Signed] Stuckart

Justice 1 To the other supreme Reich authorities

8. Draft of proposed decree enclosed with the letter of the General Plenipotentiary for Reich Administration of 25 September 1942

Appendix to GBV 788/42--2425 25 September 1942

Draft of an Ordinance concerning Legal Restrictions to be imposed on Jews of..............1942.

The Council of the Ministers for Reich Defense ordains with the force of law:

Article 1

(1) Jews will have no right of appeal [Rechtsmittel] from the decisions of administrative agencies and courts, nor other legal means [Rechtsbehelfen] to attack the same. Should, at the time when the present ordinance takes effect, an appeal already be lodged, it will be treated as withdrawn.

(2) Other applications from Jews to the administrative agencies or courts are admissible only insofar as the administrative agency or court would be of the opinion that the consideration of the application would be in the common interest.

Article 2

Jews cannot testify under oath.

Article 3

(1) The regulations concerning perjury apply to the untrue, unsworn testimony of a Jew when the testimony could have been sworn to if it had been made by a person capable of taking an oath.

(2) Similarly, the provisions concerning false assurances in lieu of affidavits apply to a statement made by a Jew, if such a statement was intended to replace an assurance in lieu of affidavit, or a deposition made with reference to such an assurance.

(3) The Jew shall be warned that any such untrue deposition or false statement will be punished according to those provisions.

Article 4

Statements of a Jewish party to the proceedings with respect to the question whether a witness or expert should be put on oath, will be disregarded.

Article 5

In the sentencing of Jews the provisions concerning the deprivation of civil rights will not apply.

Article 6

Jews cannot challenge German judges on grounds of partiality.

Article 7

At the death of a Jew his fortune escheats to the Reich.

Article 8

The Reich Minister of the Interior in agreement with the supreme Reich authorities in interest will issue the necessary legal and administrative provisions for the implementation and amendment of the present ordinance. He will hereby determine how far this ordinance is to apply to Jews of foreign nationality.

Article 9

This ordinance will take effect on the seventh day after its promulgation. It also will apply in the Incorporated Eastern Territories. In the Protectorate of Bohemia and Moravia it will apply within the limits of the German administration and the German jurisdiction.

Berlin

The President of the Council of Ministers for Reich Defense

The Plenipotentiary General for Reich Administration

The Reich Minister and Chief of the Reich Chancellery

9. Letter from the General Plenipotentiary for Reich Administration to the Reich Chancellery, 3 April 1943

The General Plenipotentiary for Reich Administration GBV 262/43 1508/10 2425

[Handwritten notes] RK 4482 E RK 13672B 52 M 2 Enclosures

Berlin, 3 April 1943

To the Reich Minister and Chief of the Reich Chancellery for Under Secretary Kritzinger

Subject: Ordinance concerning legal restrictions to be imposed on Jews

With reference to today’s conference between Under Secretary Kritzinger and Under Secretary Dr. Stuckart, I am forwarding herewith in duplicate--

(1) the draft of the ordinance concerning the legal restrictions to be imposed on the Jews.

(2) the copy of the letter of the Chief of the Security Police and SD of 8 March 1943 (II A 2 No. 22 III/43 176--).[373]

BY ORDER:

[Signature illegible] Justice 1 344545

10. Letter from Kaltenbrunner, Chief of the Security Police and the SD, to Frick, 8 March 1943

The Chief of the Security Police and the SD Copy II A 2 No. 22 III/43-176

Berlin SW 11, 8 March 1943 Prinz Albrecht-Strasse 8

Urgent letter

To the Reich Minister of the Interior, Party member Dr. Frick Berlin NW 7 Unter den Linden 72

My dear Reich Minister:

Upon request I have been informed by Department I that you have stopped the passing of the ordinance concerning the legal restrictions to be imposed on Jews, as in view of the development of the Jewish question, you no longer consider this ordinance necessary.[374] May I therefore point out the following views taken by the Security Police, which are in favor of an immediate passing of the ordinance:

1. Previous evacuations of Jews have been restricted to Jews who were not married to non-Jews. In consequence, the numbers of Jews who have remained in the interior is quite considerable. As the ordinance would also include these Jews as well, the measures it plans are not objectless.

2. The provision of article 7 of the ordinance according to which at the death of a Jew his fortune escheats in its entirety to the Reich results in the accumulation of considerably less work for the State Police. At the present time the procedure used by the State Police in handling the confiscation of such Jewish inheritances must frequently be modified to suit each special case. If the decree were decided on these separate procedures would no longer need to be carried out. The ordinance would therefore bring about an effective reduction in present administrative activity.

3. The provision according to which the application of criminal law against Jews is transferred from the judicial authorities to the police, is based on an agreement between the Reich Leader SS and the Reich Minister of Justice Dr. Thierack. This agreement has been approved by the Fuehrer. For if it is to be put into practice it must be embodied in the form of a law, as the present competence of justice, which is based on criminal procedure, can only be modified by a legal provision.

If the ordinance which is planned does not come into force, this provision as it is planned must then be set down in an independent law which, however, is undesirable.

I beg you to consider the above-mentioned views and to examine whether in spite of them an immediate passing of the ordinance does not seem indicated.

Heil Hitler!

Yours obediently, [Typed] signed: DR. KALTENBRUNNER

344547

11. Note of the Reich Chancellery, 6 April 1943, 1508/11

(14./4.) To RK. 13672 B, 4482 E

Fuehrer Headquarters [Handwritten] 1508/11 6 April 1943

1. Note--Under Secretary Stuckart asked me over the telephone to obtain the opinion of the Reich Minister and Chief of the Reich Chancellery as to the draft of the ordinance which had been sent him with the accompanying letter of 3 April. As Under Secretary Stuckart informed me, the Reich Minister of the Interior himself has his doubts as to whether the ordinance is still necessary. When Stuckart approached the Party Chancellery on the question, Reichsleiter Bormann suggested that he should obtain the opinion of the Reich Minister and Chief of the Reich Chancellery.

On 5 April I discussed the affair with Under Secretary Klopfer. The latter is of the same opinion as myself, that with the exception perhaps of articles 6 and 7 of the draft, the ordinance can be dispensed with. As regards article 7 of the draft, Under Secretary Klopfer took my point of view that the possibility must be considered of directing the heritage of deceased Jews either in part or in its totality to their non-Jewish relatives.

The Reich Minister, to whom I reported on 6 April, is of the opinion that we should decline as far as possible from a settlement of the matter by an ordinance.

In order to help on the affair I came to an agreement with Under Secretary Klopfer and suggested to Under Secretary Stuckart that the question of the further consideration of the draft should be raised at a discussion in which, in addition to myself and him, Under Secretary Klopfer and Under Secretary Rothenberger and the Chief of the Security Police Kaltenbrunner should take part. Under Secretary Stuckart agreed to this and suggested that the conference should take place on Wednesday, 14 April, 11 o’clock.

2. RKabR. Dr. Ficker with the request for his consideration.

3. Resubmit 14 April (in Berlin).

[Initial] F [Ficker] 8 April

344549 [Initial] KR [Kritzinger]

12. Note of the Reich Chancellery, 21 April 1943

Reich Chancellery 4611 E [Handwritten] 1508/12 for files Rk. 4748 E Berlin, 21 April 1943

1. NOTE--The Under Secretary conference, suggested by us, about the draft on a decree concerning the limitation of the legal right of Jews, which was at that time completed in the Reich Ministry of the Interior took place today at the office of Under Secretary Stuckart. Under Secretary Rothenberger, Under Secretary Klopfer, SS Gruppenfuehrer Kaltenbrunner, and I were present as well as Under Secretary Stuckart.

The discussion showed that only articles 6 and 7 of the provisions of the draft of the order are considered necessary in which connection article 7 is to be supplemented by a regulation which makes possible, in the case of a confiscation of property, a settlement in favor of non-Jewish heirs and legal dependents.

It was furthermore considered suitable to have the regulation issued as a supplementary ordinance to the Reich citizens’ law.

The regulation accordingly would approximately take the form as shown in appendix II.

[Enclosure] Appendix II.

2. To the Reich Minister with request for consideration.

[Initial] L [Lammers] 28 April

3. RK ab R. Dr. Ficker, respectfully.

[Initial] KR [Kritzinger]

Justice 1 s.Rk 5761 344550

13. Draft of a decree concerning the Reich Citizenship Law, enclosed with the note of the Reich Chancellery of 21 April 1943

[Handwritten] Supplement to the Reich Citizenship Law and Appendix II

Decree Concerning the Limitation of the Legal Rights of the Jews

[Handwritten] 1508/13 dated................1943

(Abbreviated Form)

Article 1

1. Punishable offenses of Jews will be punished by the police.

2. The decree concerning the administration of penal justice against Poles and Jews of 4 December 1941 (Reich Legal Gazette I, p. 759) no longer applies to Jews.

Article 2

On the death of a Jew, his property is forfeited to the Reich.

[Handwritten] Hardship clause in favor of non-Jewish heirs and legal dependents.

Article 4

The Reich Minister of the Interior, in agreement with the top Reich authorities concerned, issues the legal and administrative regulations which are necessary for the execution and supplementing of this ordinance. In this case he determines how far this order applies to Jews of foreign nationality.

Article 5

This ordinance will come into force on the seventh day after its promulgation. It will also apply to the Incorporated Eastern Territories. In the Protectorate of Bohemia and Moravia it will apply to the sphere of German administration and German jurisdiction.

Article 2 also applies to Jews who are subjects of the Protectorate.

Berlin,............1943 344551

The President of the Ministerial Council for the Defense of the Reich

The Plenipotentiary General for the Reich Administration

The Reich Minister and Chief of the Reich Chancellery

TRANSLATION OF DOCUMENT NG-1656 PROSECUTION EXHIBIT 535

DRAFT OF PROPOSED MEMORANDUM TO HITLER FROM MINISTRY OF JUSTICE, APRIL 1943, INITIALED BY DEFENDANT ROTHENBERGER AND MINISTERIAL DIRECTOR VOLLMER, CONCERNING IMMINENT PROSECUTION OF A JEWESS FOR SELLING HER MOTHER MILK TO A GERMAN PEDIATRICIAN

The Reich Minister of Justice

Information for the Fuehrer

(1943 No.)

After the birth of her child, a full-blooded Jewess sold her mother milk [Muttermilch] to a pediatrician and concealed that she was a Jewess. With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception [Betrug]. The buyers of the milk have suffered damage, for mother’s milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for, so that the parents, who are unaware of the true facts, need not subsequently be worried.

I shall discuss with the Reich health leader the racial hygienic aspect of the case.

Berlin,..............April 1943

(Referent: Ministerialrat Dr. Malzan) To the Under Secretary

[Initial] R [Rothenberger]

[Initial] V [Vollmer] 19 April

TRANSLATION OF DOCUMENT NG-351 PROSECUTION EXHIBIT 132

SECRET JUDGMENT OF FIRST SENATE OF PEOPLE’S COURT CONCERNING TWO POLES, 21 MAY 1943, AND DIRECTIVE OF MINISTRY OF JUSTICE TO DEFENDANT LAUTZ CONCERNING THE MANNER OF CARRYING OUT THE EXECUTION OF ONE OF THE DEFENDANTS

9 J 190/420 Copy 1 H 110/43

SECRET!

In the Name of the German People

In the case against--

1. the porter Paul Stefanowicz, from Berlin, born 5 January 1922 in Olyka (District of Rovno),

2. the laborer Franz Lenczewski, from Berlin, born 1 August 1924 in Sandec (Government General), Poland, at present in custody pending trial for treasonable intent, et cetera, the People’s Court, First Senate, on the basis of the session of 21 May 1943, in which the following participated as judges:

People’s Court Senior Judge Laemmle, President District Court President Dr. Schlemann, SA Gruppenfuehrer Haas, SA Brigadefuehrer Hohm, SA Gruppenfuehrer Koeglmaier,

as representative of the Chief Reich Prosecutor [the defendant Lautz]:

Local Court Judge Dr. Pilz,

found:

As Poles, the defendants harmed the interests of the Reich by leaving their places of work in Berlin in August 1942 and going to the Reich border, with the intention of remaining in Switzerland until the end of the war.

The defendant Stefanowicz is therefore condemned to death.

The defendant Lenczewski, since he acted under the influence of Stefanowicz, who is mentally greatly superior to him, will receive a sentence of 8 years in a penal camp, and the period of custody for investigation will be included in this term.

Findings

Both defendants are ethnic Poles, were formerly Polish citizens, and on 1 September 1939 resided in the former Republic of Poland.

Both defendants reported for work and were assigned to work in Berlin; Lenczewski in April 1941 in a chocolate factory, Stefanowicz in January 1942 at the Neukoelln hospital.

Of the two defendants, Stefanowicz makes a much more intelligent and bold impression. He belongs to the Polish intelligentsia, which is the stronghold of the Polish spirit of resistance. Consequently in March 1942 shortly after he began his work, he left his place of work and attempted to flee to Denmark. He was arrested in Flensburg, however, and after 2 months in a labor reformatory camp he was returned to his place of work in Berlin. There he was noted for his anti-German attitude. According to his own statement, the nurses threatened that his attitude would bring him into the concentration camp one of these days. It was Stefanowicz who persuaded the codefendant Lenczewski, who is nearly 2 years younger and was at the time the deed was committed barely 18 years old, to leave his place of work and escape with him to Switzerland in order to live a more comfortable life there. They agreed to escape on 2 August 1942.

On that day they left Berlin and went via Augsburg and Innsbruck to Landeck/Tyrol. From there they went on foot toward the Swiss border, with the intention of crossing the border secretly. In the mountains, however, they suffered from bad weather, and on 6 August 1942 they were arrested by a customs patrol in See (Tyrol), very close to the Reich border.

The prosecution assumes that the defendants had the intention of joining the Polish Legion. Both defendants, however, have denied this from the beginning and maintain that they merely wanted to get better working conditions in Switzerland. The assumption of the prosecution is doubtless supported by the fact that members of the former Polish State who wanted to join the legion have frequently been arrested at the border under similar circumstances. On the other hand, no evidence has been presented that the defendants were in contact with such circles. As for their personality, neither of them gives an impression of a fighter but rather an effeminate one, and the fact that they merely wanted to go to Switzerland in order to live a better life there, could not be disproved.

Nevertheless, as Poles, both of them have harmed the interests of the German Reich by their conduct. For they were assigned to work in the Reich, and in total warfare any loss in this regard harms the interests of the Reich. They were aware of this fact, especially since they intended to remain in Switzerland permanently and thus to deprive the Reich of their work for the entire duration of the war (crime under art. 1, par. 3 of the Regulation on Administration of the Penal Law against Poles and Jews in the Incorporated Eastern Territories of 4 December 1941 (Reichsgesetzblatt 1, p. 759)).

The law provides the death penalty for this offense, as a rule. Only in less severe cases can a prison sentence be imposed. The case of the defendant Stefanowicz is not a less severe case. As already emphasized, he belongs to the Polish intelligentsia, which is the stronghold of the spirit of resistance. From the very beginning he failed to adapt himself to the order prevailing in the Reich and once before made an unsuccessful attempt to escape to Denmark. He is also responsible for the fate of his codefendant Lenczewski, to whom he is mentally far superior. He was therefore given the death sentence. On the other hand, in the case of the defendant Lenczewski, who did not make a very independent impression during the trial, who was very young at the time the deed was committed, and who succumbed to the influence of his mentally superior friend, a sentence of 8 years in a penal camp was considered sufficient. The period of custody for investigation was included in this term.

Under the law, the defendants have to bear the costs of the trial, since they have been convicted.

[Signed] LAEMMLE [Signed] DR. SCHLEMANN

25 May 1943

Carbon copy

The Reich Minister of Justice Berlin, 7 August 1943 IV g 10a 4910 c/43 g

Urgent--Secret

The Chief Reich Prosecutor with the People’s Court, Berlin

personally or to his deputy in office

Reference GJ 190/42g 30 July 1943

Enclosures: 1 volume 1 folder 1 decree of 5 August 1943 (fair copy) 1 certified copy of the decree

Referring to the proceedings against Paul Stefanowicz who was sentenced to death on 21 May 1943 by the People’s Court, I send you a fair copy and certified copy of the decree of 5 August 1943[375] with the request to take the necessary steps with the greatest possible speed. The executioner Reichhart is to be entrusted with the carrying out of the execution. As to the delivery of the body to an institute according to article 39 of the Reich Ordinance of 19 February 1939, the Anatomical Institute of Munich University is to be taken into consideration.

Please refrain from publicity, either through the press or through posters.

BY ORDER

[Typed] DR. VOLLMER[376]

PARTIAL TRANSLATION OF DOCUMENT NG-457 PROSECUTION EXHIBIT 201

OPINION AND SENTENCE OF THE NUERNBERG SPECIAL COURT, WITH DEFENDANT OESCHEY AS PRESIDING JUDGE, 29 OCTOBER 1943, BY WHICH TWO FOREIGN WORKERS WERE CONDEMNED TO DEATH[377]

Beg. f. H.V. Sg No. 256/1943

[Stamp] The sentence is effective and must be executed. Nuernberg, 3 November 1943 The Chief Registrar of the Office of the District Court Criminal Division

[Signed] RAMSENTHALER Chief Court Clerk

Sentence

In the Name of the German People

The Special Court

for the area of the Nuernberg District Court of Appeal at the Nuernberg-Fuerth District Court in the criminal case against Kaminska, Sofie, farm laborer in Uffenheim and 1 other person charged with a crime under part I, section 4 No. 1 of the Penal Ordinance for Poles and Jews, at a public session on 29 October 1943 attended by--

Presiding judge--District Court President Oeschey; Associate judges--Local Court Judge Dr. Pfaff and District Court Judge Dr. Gros; Public Prosecutor for the Special Court; Public Prosecutor Markl, and as registrar of the office.

Court Clerk Kastner rules as follows:

Kaminska, Sofie; nee Uba, born on 1 September 1907 at Czenstocice, widow, Polish farm laborer,

Wdowen Wasyl, born on 20 February 1923 at Zatwanica, single, Ukrainian farm laborer,

both last residing in Uffenheim, both under arrest pending trial are guilty: Kaminska slapped a German soldier, threatened him with a hoe, and threw a stone after him; furthermore offered resistance to a policeman when she was being arrested. Wdowen tried by force to prevent Kaminska’s arrest.

They are therefore sentenced to death; Kaminska under articles II, III, and XIV of the Penal Ordinance for Poles; Wdowen is sentenced as a public enemy.

Findings

The defendant Kaminska, who belongs to the Polish ethnic group and who on 1 September 1939 was residing in the territory of the former Polish State, attended elementary school and after having finished school worked as a laborer on several farms in Poland. She was married in 1929 and since then had three children. Her husband was killed in action during the Polish campaign in October 1939. At the middle of December 1939 she came to Germany being committed to work there. She was first employed for over a year by a farmer in Weidenheim, then for a year by the farmer Landshuter at Unternzenn, and since 15 March 1942 she has been employed by the farmer Gundel at Uffenheim. Leo Gundel is 60 years old and fragile; his daughter manages the farm. At Weidenheim the defendant Kaminska met the codefendant Wdowen who belongs to the Ukrainian ethnic group. Wdowen never attended school, he can neither read nor write, nor had he learned a trade. Until he came to Germany in March 1940 for labor commitment he worked as a farm laborer for his parents and for other farmers in the territory of the former Polish state. In Germany he was first employed by a farmer in Weidenheim, and in March 1942 he was transferred to Gundel together with Kaminska. Wdowen started a love affair with the defendant Kaminska in Weidenheim. The child born in June 1942 is a result of that relationship. The defendant took the child to her mother in Wussiowa in March 1943.

On 1 July 1942 the two defendants entered Gundel’s home and demanded money from the daughter, Marie, for the journey which the defendant Kaminska had made to Poland to take her child to her mother. When the daughter refused the request, they turned to old Gundel who was also present in the room. When he, too, refused to pay any money to Kaminska both defendants became more and more insistent; the defendant Wdowen even gave the farmer a push. In his distress, Gundel called for the help of the army private Anton Wanner, who used to work on the farm as a laborer and who happened to be spending his leave there. Wanner was in uniform. He came into the living room and told the defendants to leave immediately. The defendant Kaminska at once attacked the soldier, slapping his face once. Thereupon, Wanner slapped her face. Now a fight resulted during which his infantry assault badge fell to the ground. Wanner, feeling himself threatened, drew his bayonet and yelled at Wdowen, “Get out, you bully.” The defendant Kaminska by this time ran out of the room and took a hoe which was leaning near the staircase. She did not get a chance of attacking him as the soldier quickly closed the door.

Shortly afterward Wanner was riding on his bicycle along the road to Uffenheim to go to the police station. When he was passing the two defendants who were walking in the same direction, the defendant Kaminska threw a stone weighing half a pound after the soldier without, however, hitting him.

The next day police sergeant Dirmann went to Gundel’s farm, but the defendant Kaminska was working in the fields. There, the police official told her to follow him. The defendant Kaminska followed him unwillingly and hesitatingly. The codefendant Wdowen ran after the police official, although the latter had forbidden him to follow them. On the way Dirmann twice slapped Wdowen’s face to force him to turn back. Despite this he followed the two to the prison cell. When Dirmann wanted to put Kaminska in the cell she began screaming. Wdowen rushed up to them and embraced Kaminska with both hands so that the police official was prevented from arresting Kaminska. Only after several other people who were called in by the police official came to his aid, he succeeded in overpowering the two defendants and putting Kaminska in the cell.

The defendant Kaminska states that she learned before 1 July 1942 at the employment office that the farmer Gundel had to pay her travel expenses both ways. On 1 July 1942, she made only these demands. Besides, she only slapped the soldier after he had slapped her face. She had not purposely torn off his infantry assault medal. It was true she had fetched the hoe but she had not raised it to assault the soldier but only to intimidate him.

The defendant further admits having picked up a stone on the way to Uffenheim and having thrown it after the soldier; she merely mentioned as an excuse that she had been so angry that she had picked up a stone and thrown it at Wanner.

Regarding her arrest by police sergeant Dirmann, the defendant says she had offered resistance because she had been afraid that the police official would throw her into a cellar; she had not known before what the official really wanted from her.

The defendant Wdowen denies having struck or attacked the old man Gundel and the soldier in the living room. He had only received a blow on the nose from Wanner when Wanner had said something to him and to Kaminska which he could not understand. He had not seized or held him.

Concerning the arrest of Kaminska, Wdowen states that he had “already thought” that Kaminska was to be arrested by the police official; he had also kept “running after them,” although he had been forbidden to do so, and he did not let himself be intimidated by the slappings. Outside the cell he had intended to tear Kaminska away from the police official because he had felt sorry for her. The excuses which the defendants have put forward are irrelevant; for the rest, the afore-mentioned facts have been confirmed by the witnesses Gundel and Wurm. The soldier Wanner has been reported missing since the fighting in Tunisia. The witness, police sergeant Wurm testified, however, that Wanner had made definite and clear statements. The court is therefore convinced that the defendant Kaminska hit the soldier first; she was not authorized to do so in any way. When the witness Miss Gundel had told her that she would first make inquiries at the employment office as to whether the demands for payment of travel expenses were justified, the defendant Kaminska should have been satisfied. If despite that she continued to insist on her imagined demand and together with Wdowen behaved insolently towards Miss Gundel and her father, it was absolutely understandable that old Gundel called the soldier Wanner for help. The defendant Kaminska should have complied immediately with Wanner’s demand to leave the room. She cannot claim that she did not understand his demand. If instead of immediately leaving the farmer’s living room, she slapped the soldier’s face then this constituted a bodily maltreatment and thereby an assault and battery.

As the codefendant Wdowen, too, according to the credible statements which the soldier Wanner had made to the police sergeant Wurm, either gripped the soldier or at any rate took sides with Kaminska, so that Wanner had to fear a joint attack, it was understandable that he drew his bayonet in his defense. If the defendant Kaminska had to run out of the house to get a hoe and with it had walked towards the front door where the soldier was standing, Wanner had to fear the possibility of an attack on his life, although it was not established at the trial whether the defendant had already lifted the hoe to hit him. This behavior must be regarded as a threat within the meaning of article 241 of the Criminal (Penal) Code.

The defendant admits that after the incident in Gundel’s room, “some time later” on the way to Uffenheim she, in her anger, picked up a stone weighing a half pound and threw it after the soldier Wanner who was sitting on a bicycle, however, without hitting him.

The facts thus established prove that the defendant has committed a crime within the meaning of article 1, paragraph 1 of the Law against Violent Criminals of 5 December 1939. For this the death sentence is imposed on a person who, among other things, when committing a serious act of violence uses cutting or thrusting weapons or with such a weapon threatens the body or life of another person.

An act of violence within the meaning of that provision is constituted by a violent attack on a person which, according to design or execution or in view of the consequences for the person who is being attacked, endangers the security afforded by law to a high degree, and which therefore is particularly rejected and detested by the national community which is engaged in a fight for its right of existence, according to the verdict of the Reich Supreme Court of 26 January 1942, Second Criminal Senate, January 1942.

In the present case, the basic punishable deed is a threat within the meaning of article 241 of the Criminal (Penal) Code.

The defendant by throwing, in her anger, such a heavy stone after the soldier did not merely make a purposeless gesture. The court is convinced that it is evident from the over-all attitude of the defendant Kaminska, which she had previously displayed toward the soldier, that she meant to hit Wanner. A stone weighing half a pound when being thrown by someone in a condition which the defendant herself described as anger may kill a human being. Thus, a stone of that weight must be considered equal to a cutting or thrusting weapon; it must be considered as an object equal to a weapon within the meaning of the law against violent criminals. The defendant dared attack a German soldier, she took up an offensive position which would have caused grave injury if the soldier had not evaded the stone which was thrown at him. The defendant was about to endanger gravely the life and health of a German national. The German nation which is engaged in a grim defensive struggle rightly expects the most severe methods to be taken against such alien elements. The crime of the defendant, by design, and execution, as well as a considerable violation of the security afforded by law, constitutes a serious crime of violence within the meaning of the law against violent criminals. The fact that the criminal is a Pole is of particular significance.

From the name of the law it is concluded that it can only be applied against persons who are to be regarded as violent criminals. The defendant had not been provoked to the violent action. After she had failed to hit him with the hoe, she tried to hit the soldier on the road. The over-all behavior of the Polish woman, also toward the farmer, proves that the crime is not alien to her nature. She thereby characterizes herself as a Polish violent criminal. The defendant cannot dispute that she resisted with all her strength when a police official wanted to put her in a cell. Her excuse that she had not known what the official wanted from her cannot be believed. She knew in what manner she had acted toward the Germans on the previous day. She therefore had to expect the police official who moreover was in uniform to try and arrest her. The court has no doubt that she, as well as Wdowen who admitted having assumed that Kaminska was to be “picked up” because of her behavior on the day before, knew that she would now be arrested. By her violent resistance outside the cell, she therefore violated article 113 of the Criminal (Penal) Code.

According to the opinion of the medical expert, which the Court shares, the defendant shows no symptoms which could justify doubts as to her responsibility for the crime.

As the defendant on 1 September 1939 was a resident in the territory of the former Polish State, she had to be found guilty in application of articles II, III, and XIV of the Penal Ordinance for Poles, of a crime of assault and battery in conjunction with a crime of threat, a crime under article 1, paragraph 1 of the Law against Violent Criminals, and of a crime of offering resistance to the police.

The defendant was further charged with intentionally having torn off the infantry assault badge of the soldier Wanner. That could not be proved during the trial. The witness, Miss Gundel, testifies that after the defendant Kaminska had slapped the soldier’s face, a fight ensued and that afterward the soldier’s infantry assault medal was missing. In view of this evidence there is, at any rate, a possibility that the badge might have loosened in the course of the fight. A particular acquittal was not necessary, however, as the attitude of the defendants must be regarded as one action.

Although the old feeble farmer Gundel was not physically injured by the thrust of the defendant Wdowen, he did rightly feel the action of the Ukrainian to be an offense to his honor as a German. The defendant Wdowen, by holding Kaminska with both hands when the Polish woman was about to be put into a cell so that the police official was unable to do so for the moment, and by allowing himself to be removed only after the intervention of other persons, offered forceful resistance to an official who was lawfully doing his duty.

By his action, he also tried to free the codefendant Kaminska from the hold of the official in whose custody she was.

His act, therefore, constitutes an attempt to free a prisoner in conjunction with resistance to the police under articles 120, 43, 113, 73 of the Penal Code.

That, however, does not exhaust the entire unlawful character of his deed.

The defendant Wdowen knows very well that the German economy, on account of wartime conditions, is dependent on foreign labor, in particular on labor from the eastern territories. He speculated that his offenses would be overlooked in order not to lose him as a worker. The defendant also knew that because of the drafts into the armed forces the security organs in the Reich have been reduced and that Germany is deprived of the population fit for military service so that the rural population is largely helpless against the insolent and obstinate behavior and against attacks, which occur more and more on the part of such elements from the East. The defendant Wdowen, therefore, committed the offense taking advantage of the extraordinary wartime conditions. His action is therefore particularly despicable and demands that the ordinary limit of punishment be exceeded.

The defendant therefore had to be sentenced for a crime under article 4 of the Decree against Public Enemies in conjunction with resistance toward the police and an attempt to free a prisoner.

Under article III, paragraph 2 of the Penal Ordinance for Poles, the death sentence must be passed if the law provides for it. The defendant Kaminska, therefore, under the law against violent criminals is deserving of the death penalty.

The death penalty has to be pronounced as the only just atonement because the security afforded by law within the German living space must be protected against Polish criminality with the utmost severity. The defendant Wdowen, if only by his behavior toward the feeble old farmer Gundel proved that he is an insolent aggressive fellow inasmuch as he kept following the police official, although he had been chastized twice. It is to be concluded that he was waiting for a favorable moment to free the codefendant Kaminska by force, and finally by attempting to prevent by force the police official from the execution of his official duties and the latter having to call for assistance, he topped his provocative, dangerous behavior. Every security organ enjoys the special protection of the Reich. He who impedes in such a provocative manner the security organs, which are stationed at home, and which on account of their numerical minority are particularly overburdened during the war, must expect the Reich to react with utmost severity. That applies, in particular, to the foreign workers from the East who work in the Reich. In view of that, the court has assumed a particularly grave case within the meaning of paragraph 4 of the Decree against Public Enemies, and has not attached any decisive importance to the circumstances alone that the defendant Wdowen has had no previous convictions and has hitherto not attracted any unfavorable attention during his stay in Germany. Therefore, the defendant Wdowen had to be sentenced to death under the penal law of article 4 of the Decree against Public Enemies.

Costs: Paragraph 465, Code of Criminal Procedure.

[Signed] OESCHEY[378] DR. GROS[379] PFAFF[380]

TRANSLATION OF DOCUMENT 664-PS PROSECUTION EXHIBIT 348

CIRCULAR LETTER OF HIMMLER TO THE SUPREME REICH AUTHORITIES, 10 MARCH 1944, NOTING THAT “THE ACCOMPLISHED EVACUATION AND ISOLATION” OF JEWS AND GYPSIES HAD MADE MEANINGLESS THE PREVIOUS MANNER OF PUBLISHING SPECIAL DIRECTIVES CONCERNING THEM

Berlin, 10 March 1944

The Reich Leader SS Minister of Interior Affairs S. Pol. IV D 2 c--927/44 g-24

[Initial] TH [Thierack] [Stamp] Reich Ministry of Justice 17 March 1944 Dept. VII

SECRET

To the Supreme Reich Authorities

Subject: Posted prohibitions concerning Poles, Jews, and gypsies

The separately published decrees and rules governing the livelihood of Poles, Jews, and gypsies within the jurisdiction of the Reich, have frequently led to a summary equalization of these groups in the public eye as far as sale-and-utilization prohibitions, public announcements in the press, etc., are concerned. This attitude does not correspond with the differentiated political position to be granted to these groups now, and in the future.

As far as Jews and gypsies are concerned the accomplished evacuation and isolation of these groups by the Chief of the Security Police and the SD has made the publication of special directives (concerning the all inclusive prohibition of participation in many livelihoods) in the previous manner meaningless. Therefore, corresponding public directives may be eliminated.

The decrees and regulations which have been decided upon to govern the livelihood of the Poles will remain as before. For political practical reasons it is hereby recommended to maintain a certain amount of restraint in the public directives of these regulations, be it in posters, signboards, on press releases, etc.

I wish that the subordinate officers be informed of the necessary directives.

[Typed] Signed: H. HIMMLER Certified: [Illegible signature] SS Sturmbannführer

TRANSLATION OF DOCUMENT NG-900 PROSECUTION EXHIBIT 453

LETTER FROM THE CHIEF OF SECURITY POLICE AND SD TO MINISTRY OF JUSTICE, 3 MAY 1944, ENTITLED “REQUESTS MADE BY THE COURTS FOR INFORMATION ON JEWS,” AND INTEROFFICE MEMORANDUMS LEADING TO DISPATCHING OF A LETTER DRAFTED BY DEFENDANT ALTSTOETTER

The Chief of the Security Police and the Security Service

IVA b (I) a 4647/43

Please state this business number, the date and the subject in correspondence

Berlin SW-11, 3 May 1944 Prinz Albrechtstr. 8 Local Phone: 120040 Long distance: 126421

[Stamp] Reich Ministry of Justice

5 May 1944 Dept. VII-VI

[Initial] TH [Thierack]

[Initials] KLE [Klemm]

To the Reich Minister of Justice Berlin

Subject: Requests made by the courts for information on Jews

Reference: None

In a number of proceedings for the checking of descent, the District Court Vienna requested information about the whereabouts of Jews, in some cases it requested this information from the central office for the regulation of the Jewish problem in Bohemia and Moravia at Prague, and in some cases directly from here. These Jews were at some time either evacuated to the East or were sent to Theresienstadt. Although my local office drew the attention of the District Court Vienna several times to the fact that such requests, as well as applications for the admission of such Jews as witnesses before courts or for hereditary biological examinations cannot be granted on account of reasons stated by the Security Police, the District Court Vienna renews its applications continuously.

Besides the fact that the Jews for years had time and opportunity to clarify their position with regard to descent, the proceedings for the checking of the descent demanded by the Jews or their families are according to experience in general made only in order to conceal their descent so that they would not be subject to the measures of the Security Police intended for them, or to those which have already been carried out. For this reason and in the interest of urgent dispatch of work important to the war effort the granting of applications of this kind has to be refused for the time being.

Therefore, I request to direct the District Court Vienna not to submit any such applications in future. I would be grateful to be informed about the steps taken from there.

As deputy: [illegible signature]

The Reich Minister of Justice Berlin, 3 June 1944

VIb 2 1124/44

Dispatched 14 June 1944, [initial] B

[Stamp] Office

8 June 1944 H/Frl. [illegible]

1. To the President of the Court of Appeal, Vienna

Subject: Handling of cases concerning descent of Jews or Jewish persons of mixed race

No previous correspondence.

The Chief of the Security Police and the Security Service pointed out that in cases concerning descent of Jews and Jewish persons of mixed race the office of the police are frequently asked for information on the place of abode of deported Jews by the courts especially by the District Court Vienna, or that their admission, as witnesses or for the purpose of examination for hereditary biological expert opinions is requested. These requests cannot be granted for reasons of the Security Police.

Even if the hearing (and examination)[381] of the Jews (be an important piece of evidence for the clarifying of the question of descent) in many cases help to frustrate the intentions (of the Jews) to conceal their descent, reasons of the security police demand to desist therefrom (from this piece of evidence).

In the near future I intend to issue in a decree detailed regulations for the handling of cases concerning the descent of Jews and Jewish persons of mixed race. Already now I request to inform the District Court Vienna (and other courts, in your district, which according to your judgment, Mr. President of the Appellate Court, should be informed) of the following:

(insert)[382]

As deputy:

2. To the Chief of the Security Police and the Security Service

Subject: Requests for information on Jews made by the courts.

Reply to the letter of 3 May 1944--IV A-4-b (I) a-4647/43

1 enclosure (copy of 1)

[Stamp] Dispatched: 14 June 1944 3475/2 [Initial] B

In the enclosure I submit a copy of my letter to the president of the Appellate Court Vienna for your information.

BY ORDER

[Initial] AL [Altstoetter]

3. Ministerial Counsellor Rexroth

With the request to settle the arrangement of the report with the Minister

The settlement of the arrangement of the report was not possible on 3 June 1944

Before dispatch

Mr. Minister is informed [Illegible initials]

[To the] Minister [of Justice] with request to permit the dispatch of the above letter signed by me. The arrangement of the report could be settled in connection with the report on the decree concerning a general order on the handling of cases concerning the descent of Jews and Jewish persons of mixed race. It is intended to put into the draft of this official decree, the directives in the above letter sent to the president of the Appellate Court Vienna for information to all presidents of the appellate courts and general public prosecutors.

[Signed] ALTSTOETTER, 3 June [Initial] R [Rexroth] 3 June

[Insert]

(In cases of Jews who were deported to Theresienstadt or to other places, a hearing as witnesses or a hereditary biological examination is impossible for reasons of the Security Police, because persons to accompany them and means of transportation are not available. If the residents registration office or another police office gives the information that a Jew has been deported, all other inquiries as to his place of abode as well as applications for his appearance [before court], questioning and examination are superfluous. On the contrary, it has to be assumed that the Jew is not obtainable for the taking of evidence.

If in an individual case it is in the interest of the public to make an exception and to render possible the taking of evidence by special allocation of persons to accompany and means of transportation for the Jew a report has to be submitted to me in which the importance of the case is explained. In all cases offices must refrain from direct application to the police offices, especially also to the central office for the regulation of the Jewish problem in Bohemia and Moravia at Prague, for information on the place of abode of deported Jews and their admission, hearing or examination.)

[Initial] R [Rexroth] 3 June

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[383]

DIRECT EXAMINATION

* * * * * * *

DR. KUBUSCHOK (counsel for defendant Schlegelberger): Since the Jewish question is of particular importance for several points in the indictment, I would ask you first of all to tell us what your personal attitude to the Jewish question was.

DEFENDANT SCHLEGELBERGER: As far as I am concerned, there is and there was no Jewish question. This is my attitude: all races were created by God. It is arrogant for one race to place itself above another race and try to have that race exterminated. If a state deems it necessary to defend itself against being inundated and does so within the frame of a social problem, then it can and must be done by applying normal, decent means.

During the Goebbels campaign in 1938 I was abroad. When I heard about those events I said to my family: “We must be ashamed of being Germans.” That was my view at that time and that is my view today. The only person with whom I am united in faithful friendship until today because we went to school together is a full Jew. I succeeded in saving his life all through that era. He again holds his former office as a judge. My physician too is half-Jewish. That attitude of mine naturally meant that on many occasions I was faced with inner conflicts. I ask you to consider that the Jewish problem was regarded as the central problem of the National Socialist State and the entire life in Germany was to be placed in line with that. Concerning that question Hitler and his followers worked in an entirely uncompromising manner; that an expert administrator could not bypass that basic attitude is a matter of fact. I shall have an opportunity to demonstrate what my personal attitude was toward those questions and how it always evidenced itself in an effort to put a check on the wishes of party policy, to make improvements and to exercise as far as possible a moderating influence on the practical application of those matters.

Q. What were the manifestations of your attitude to the Jewish question in your office?

A. The prosecution charges me with having cooperated in taking measures against the Jews. That the ordinance of 4 December 1941[384] against Jews in the eastern territories must be evaluated under particular points of view, I shall show in connection with the Polish question. For the rest, I ask you to consider that in view of the strength of the powers with which I was engaged in a struggle, a hundred percent victory of the Ministry of Justice was entirely out of the question. In that sphere, too, faithful to my basic attitude, I did work to make justice prevail; but frequently I had to content myself with making a compromise and I had to be pleased when at least I had achieved some amelioration. To use a customary phrase, if I had drawn the consequences from every defeat, I would have deprived myself of all possibility to aid the Jews. Quite apart from the fact that the resignation from office, before the war would have been a factual impossibility, and during the war a legal impossibility until a new minister was appointed.

With the permission of the Tribunal I will prove how difficult it was by citing an example. When the Party started a campaign against Jewish lawyers, I went to see Hitler and told him that it was untenable to remove from their profession Jewish lawyers among whom research people of repute were included, and with whom I myself had worked. I was pleased when I succeeded in persuading Hitler that that was correct and in achieving his agreement that he would reject the wishes of the Party. To inform the agencies concerned, I called a meeting of Ministers of Justice of the Laender who were still in office in those days and informed them about Hitler’s decision. The result was surprising. I encountered bitter resistance, and the meeting bore no result. Hitler asked for Guertner to come to see him and asked him for information as to whether I was not perhaps a Jew myself. Then the Party began to exercise pressure on Hitler. He abandoned his decision, and the Jewish lawyers were removed from office. So as to make it possible at least for the Jews to preserve their rights, I proposed to set up the institute of the so-called Jewish consultants where former lawyers worked as consultants.

As to my own attitude toward these problems, that I could show properly only where I, myself, had to make the decisions. In this connection, I attach importance to the fact in saying here that nothing is more removed from me than here to play the part of the friend of the Jews. I am not a friend of the Jews; I am not a friend of the Aryans as such; but I am a friend of justice. And anybody who saw me at work and wishes to give a just opinion can confirm that with regard to all those who in my opinion were unjustly persecuted; no matter what their race or what their class, I tried to help them with all my strength.

Roosevelt, the former President of the United States of America, in 1944, in an address to the United Nations said, “Hitler asserts that he had committed the crimes against the Jews in the name of the German people. May every German show that his own heart is free of such crimes by protecting the persecuted with all his might.” I can claim for myself that I acted accordingly. Concerning the members of the Ministry who were not fully Aryan, I kept them in office; and as has been established at this trial concerning judges who were not fully Aryan, I left large numbers of them in their offices irrespective of the Party purge. I looked after those who had been dismissed from their posts, and who were non-Aryans, and who had Jewish relatives. As far as possible, I protected them against being driven out of their homes and being deported.

Q. Concerning the question of civil servants remaining under Dr. Schlegelberger who were not fully Aryan, persons who were only dismissed on the basis of Thierack’s list, I refer to Exhibit 42.[385] On the legal provisions concerning the fact that since 1933 a minister could not resign on his own, I will submit Schlegelberger Documents 79 and 80.[386]

Witness, you also dealt with a bill concerning people of half Jewish race. The prosecution has included those documents under PS-4055, Prosecution Exhibit 401.[387] Will you tell us something about those documents?

A. That document has been the subject of the discussion before the International Military Tribunal. The document, if my recollection is right, consists of two parts. On 12 March [1942], there was a letter from me to Reich Minister Lammers, and a letter of 5 April, to various agencies.

Q. May I interrupt you for a moment? The first letter is dated 6 March, and is in the English text on page 95.

A. I thought you were talking of the discussion which took place on 6 March.

Q. Yes, on page 95.

A. First of all, I’d like to speak about the letter of 12 March. That was, as I said, a letter from me to Reich Minister Lammers. From that letter I gathered that on 6 March there was a discussion about the treatment of persons of mixed origins, partly Jewish, partly Aryan. In that conference, the SS had demanded that people of mixed origin were to be treated in the same way as full Jews and were to be sent to labor camps in Poland.[388] If that had been done, a demand which for a long time had been voiced by the Party in a categorical manner would have been carried out. If one reflects to what extent the police measures were carried out in those days against Jews, one had to recognize that now the question of the fate of the mixed Jews had entered into an acute phase.

When I heard about the subject of that discussion, the question arose immediately whether one could, and how one could, intervene. My moral obligation was clear to me. There was the difficulty that it was a different department; that in itself was difficult to interfere with a different department in its work; and again and again there would be the additional difficulty that I was no minister. But to put it plainly, it was the case of an under secretary who was only appointed [as acting Reich Minister of Justice] under a system by which he could be given notice any day. If I had attempted to attack that political solution with legal or ethical weapons, nothing would have been done and there would have been nothing but mockery about me. Thus, I had to find a different way.

I had to try to approach somebody who perhaps might have the possibility to talk some sense into Hitler, and that person was Reich Minister Lammers, a man from the group of old civil servants, a man who had a feeling for right and justice, and whom I had frequently assisted in difficult situations. I could be quite open and frank with him; and, therefore, the quite open way in which I talked in my letter was without any pretense. I described the suggestions as entirely impossible. I did so knowing that thereby I was interfering with affairs which had nothing to do with me as far as my department was concerned, for the judiciary only had an outside interest in those affairs. There was a question of compulsory divorce, a question which naturally I answered in the negative; a question which was naturally very important for those whom it concerned, but the importance of which was not comparable to the great problem which was now my concern. Lammers said I could talk to him, but that conversation never came off, and probably it did not come off because Lammers was away at the [Fuehrer] Headquarters. Thus, I had to act on my own initiative, and, as I have said, I could not act in basing myself on legal and ethical considerations because that would have amounted to doing nothing. I had to limit myself concerning the agencies in question to acquaint them with the fact that the solution which they intended to apply was not possible. The entire idea and the entire way of thinking concerning that question altogether was based upon the desire to see to it that a further increase of persons of mixed origin, Aryan and Jewish descent, was to be avoided. I used that as my basis, and this is what my proposal amounted to. Certain groups were to be exempted from the solution altogether from the very outset. First, persons of mixed descent of the second degree, that is to say those persons who had only one Jewish grandparent; second, a person of mixed descent of the first degree, that is to say a person who had two Jewish grandparents; of those the people who were not able to propagate; and three, those persons of mixed descent, first degree, whose offspring under the law were not considered half-Jews. By that proposal, therefore, all persons of mixed descent, second degree a very large number, and a considerable number of people of mixed descent first degree, would have been excluded from this measure. The remaining persons were of mixed descent, first degree. For them I suggested that if they were to prefer it, they were to be sterilized rather than deported to Poland. May I draw the attention to this point. The idea of escaping deportation by voluntary sterilization did not originate within myself. That idea originated from the persons of mixed descent themselves. I knew that persons of mixed descent had asked physicians to exempt them from the application of the Nuernberg laws and had themselves suggested to afford them the possibility of sterilization. In view of that situation in which they found themselves, I thought it justified to revert to the suggestion which these people themselves had made originally, and to afford them an opportunity in that manner to escape deportation to Poland. The prosecution employed that suggestion of mine to raise charges against me. I believe that if one thinks things out until the last, it is not so difficult to recognize that these charges are unfounded. My suggestion, altogether my work in that respect as I have said before, was not one of the tasks of the judiciary. If I went beyond the limits of my department, one must bear in mind that the charge would only be justified if one took it for granted that I was a model of active National Socialists, an active National Socialist who overcomes every obstacle even the limitations of his department, and I would assume that everything that has been discussed here so far will show that to assume such an active National Socialist ardor would be complete nonsense. I acted in accordance with my ethical feelings; the only motive for me was the intention to check a development which was fatal for a large number of persons. There are, after all, situations where one can only escape a larger evil by applying a smaller evil. But that somebody who all his life has thought along the lines of law, found it extremely difficult to make a decision of that kind, that the Tribunal will understand.

Q. Under Document NG-151,[389] the prosecution has submitted documents concerning limitations of the legal means for Jews in penal cases. Please give us an explanation concerning those documents.

A. Those documents begin with a letter by Freisler dated, I believe, 3 August 1942. In that letter Freisler tells the agencies in question about a bill concerning the problem we have just mentioned. The reason for his suggestion, he referred to as the exigencies of the war, he says that the state of affairs is untenable, and that it weakens the defensive will of the German people. Freisler wrote that letter without my knowing anything about it beforehand, but afterward he told me about it and gave me his explanation. This is what he told me: Himmler and his agencies had pointed out again and again that the present state of affairs was an impossibility; only a radical separation of the entire Jewish problem from the judiciary and transfer to police was conceivable. Again here we find--I shall have to revert to that later--Himmler had also said that the administrative measures against the Jews had advanced so far that it would be nonsense, in particular concerning criminal Jews, to be more lenient; therefore, one had to guard against allowing these criminal Jews, who were already under the supervision of the judiciary, such benefits as legal protection.

Himmler’s desire to transfer Jewish affairs to the police was too much even for Freisler. Perhaps he was also particularly proud of his paternity of the penal ordinance concerning Poles and Jews which he considered his own sphere. Therefore, so he told me--and I believed him--in all circumstances he wanted to adhere to the competence of the courts; but he then convinced himself that somehow or other he had to make a concession because otherwise events would move without us.

Furthermore, we of the administration of justice, particularly in the Incorporated Eastern Territories, suffered from a severe lack of judges, and we could only master that difficulty if we exempted a number of judges from service in the armed forces. If Freisler and we had refused consistently to comply with Himmler’s wishes, it would have been easy for Himmler to get Hitler to agree to cancel such exemptions from service with the armed forces, and thus the administration of justice in the eastern territories would have come to an end altogether. In order to avoid this danger, Freisler believed that he had found a way out in limiting legal remedies and thereby to start out on a way which we later on, inside Germany, in cases against Germans, had to take on account of the lack of judges. That is why he made the suggestion. I could not altogether agree with Freisler’s arguments, but I attached importance to the fact that this new regulation was to be final and was to appear as such to the outside world, too. That might strengthen our position toward the opposing forces and, therefore, in the letter I wrote afterward,[390] I discussed the question of whether Jews are able to take an oath, and I included that question in my draft so as to make that draft more well rounded and complete. In itself this question of the oath was important, for under German law it is the duty of the judge to attach equal weight to statements made under oath, and statements made while the person was not under oath.

There again we were faced with a case in which a concession which in itself was immaterial but which to the outside world, nevertheless, seemed important, had to be made in order to pacify Party circles. If one wants to evaluate such a procedure, one must bear in mind that 1 month later Thierack did find a final and comprehensive solution. He dropped my suggestion and transferred the Jews to the police.[391]

Q. The prosecution also submitted Document NG-589, Prosecution Exhibit 372,[392] a document which concerns a curtailment of the poor law privileges of the Jews. Was that ruling made at your suggestion?

A. No. I only heard about that ruling here when the document book was submitted. At every ministry certain matters which are not of much importance are dealt with quite independently by departments which are below the under secretary or the minister. It is altogether out of the question that an under secretary or minister deals with everything personally. He would even misunderstand his function if he were to do so. Those matters, for example, the question of the poor law, fell within the competence of the then Assistant Under Secretary Hueber, who signed the ordinance.

As I said, I only heard about it here, but I should like to add that the institution of the poor law was created so as to enable poor persons to conduct civil litigations. The granting of poor law privileges does not mean that the person to whom it is granted can conduct proceedings free of costs, but it only exempts him from payment in advance. He is still under an obligation to pay.[393]

The poor law institution, therefore, so to speak is an institution of government welfare. For a long time before Hueber ordered it, government financial support of Jews had been stopped, and they had been referred to their own Jewish welfare organizations. The uncurtailed provisions governing the poor law, therefore, were not in accordance with the line otherwise observed, and Hueber refers to that when he considers the old ordinance as outmoded.

Q. I do not know whether the witness’ statements were clear enough to elucidate the concept of the poor law. I hear that the expression in English has been translated by “poor law.” That translation might perhaps lead to confusion. We are concerned here merely with the question of costs and merely with the exemption of paying costs in advance, and that is the cost of civil litigation.

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Q. I come now to the introduction of the German criminal law in the Incorporated Eastern Territories. Will you please give a short review of the general development of that question?

A. These matters, as far as the time was concerned, are connected with what I said before. Among the drafts sent out in February 1940, there was also one about the introduction of criminal law.

Q. May I interrupt you? That, again, is Exhibit 459.[394]

A. That draft comes from Freisler’s sphere, and in the absence of the Reich Minister of Justice Guertner, as well as Freisler, I signed that draft upon the request of the Minister. That draft provided absolutely equal treatment of Germans and Poles. Later on, 6 June 1940, a decree was issued about the introduction of penal law in the Incorporated Eastern Territories and that decree was only designed for Poles and Jews; that shows that before my time, and without any assistance on my part a special law was created for Poles and Jews. Apparently Freisler afterward gave in to the efforts of the Party and had managed after hard struggles to obtain the approval of Guertner, who, as I know, was against such a thing on principle. But the decree of 6 June 1940 bears the signatures of Frick and Guertner.

Q. That decree will be contained in my document, Schlegelberger 60.[395] Then, it came to the penal ordinance concerning Jews and Poles, 7 December 1941, that is Exhibit 343.[396] Will you please discuss that decree in detail?

A. That decree of 7 December 1941 which has been the subject of a detailed discussion in this trial is based on the following: The decree of June 1940, in the view of the department of criminal legislation in the Ministry, was not satisfactory. And that was because the extent of punishment was not sufficient, neither the maximum nor the minimum of punishment was sufficient. There was also a lack of specific provisions. In addition to that, the Reich Chancellery had informed the Ministry, that the deputy of the Fuehrer and the Party, demanded a discriminatory law concerning Poles and Jews.

Q. I refer to Exhibit 341.[397]

A. Therefore, the Department for Penal Legislation--that was before my period in office as Acting Reich Minister of Justice--had started to work out a new draft which should take care of these deficiencies. When I took over after Guertner’s death, Freisler reported to me about that matter and told me the following: It was Himmler’s intention to obtain sole competency for all cases against Poles and Jews, and that Gauleiter Greiser of Warthegau province was of the same opinion, and he if necessary wanted to eliminate the administration of justice with the aid of civilian courts martial. Bormann was of the same opinion and demanded, first of all, the introduction of corporal punishment. According to this information I had to expect a fight with the Party. This fight which was fought to maintain legal procedures for Poles and Jews in all events, could only be successful if I could point out that the courts had at their disposal an appropriate procedure and appropriate provisions which were sufficient for all, even the most serious cases. The new draft,[398] in my opinion, was designed to rebut the assertion by the Party that the courts could not master the situation. Therefore, in April 1941, I submitted that draft to the Ministerial Council for Reich Defense to the attention of Reich Minister Lammers, in order to achieve a decision. I also announced to Lammers that I had to see him in advance to inform him about the situation, and about the conditions which lead to the draft in that form. The prosecution has repeatedly referred to that covering letter which accompanied the draft.[399] Therefore, I should like to explain the reason for this letter, and the manner in which it was written. According to the legal provisions, to those provisions which I have already discussed, I had to have the approval of the Party Chancellery, but only then did I have any chance to obtain that approval, if that draft was implemented with those main points which I considered necessary.

If I had described in my letter the contents and consequences of the draft without exaggeration, I could never have expected the approval of the Party Chancellery. Therefore, I had no alternative but to emphasize the increases in the severity of treatment with exaggerated expressions, to pass over less severe provisions, and to leave out references to decrees which would make this decree more lenient. Whether it came to any conference with Lammers, I could no longer tell. I remember quite clearly the event which proved to me that my assumption was correct, that we would have to expect a most energetic attack on the part of Himmler.

In the summer of 1941, Himmler asked me to come to a conference. That was the only one I ever had with Himmler. There was a great pressure with regard to time connected with that request. Himmler told me that he was on his way to see Hitler and that he had to have my approval. Penal cases against Poles and Jews should be turned over to him, that is to say, to the police. That was regardless of where the acts had been committed.

I rejected that categorically and told him that for that kind of change of competence, there was no reason whatsoever, particularly since in a very short time a new regulation could be expected about that question by the Ministerial Council for Reich Defense. That, of course, made Himmler suspicious. At that time, it did not seem to him to be the right thing to fight against the Ministerial Council for Reich Defense which was under the presidency of Goering, at that time a strong opponent. Himmler seemed to depart for a short time from his original plan.

The Ministerial Council for Reich Defense passed that draft in December of the same year and that determined and assured the competence of the courts for penal cases against Poles and Jews[400]. When I left office that was immediately changed as could be seen from these proceedings. That decree dates back to December 1941, as I have already pointed out the period when my task as Acting Minister of Justice came to an end. It is not surprising that I could not gain a clear picture, as to how that decree was applied and what the consequences were.

I do recognize that one could criticize individual sentences at least as far as the limited amount of material is concerned which is available to us now. However, considering that there were about half a million penal cases during 1 year--as regrettable as it may be in the individual case--it is not very decisive for an over-all judgment of conditions. I owe it to the German judges to state here frankly and publicly that as long as I could observe their activity, they have discharged their duties with a definite desire for justice in general.

Concerning the criticism which was voiced against this decree, I should like to say the following in detail. The most essential feature of that decree was its practical application. I took every opportunity when a judge from the eastern territories came to see me to point out that that decree gave a great deal of latitude to the judges; that therefore, the judges for the procedure as well as for the sentencing had to keep in mind that they were servants of justice. Beyond that I caused Freisler to discuss the point of view of just application in an article in a magazine, Deutsche Justiz (German Justice).[401] Deutsche Justiz, an official publication, was read by all judges and prosecutors, and that made absolutely certain that they knew how Freisler thought about it, and that he did not want any arbitrary application. That achieved that Freisler himself was prevented from giving individual directives or expressing opinions which would go contrary to the meaning of that decree. In view of his unstable nature, this was particularly important.

This article by Freisler took into account my demands by stating that it was a serious duty of judges and prosecutors in cases of Poles and Jews to apply the same maximum care as they would in the case of Germans. The prosecutors are instructed in preliminary investigations to examine also points in favor of the defendant very carefully so that the defendant can recognize the charges made against him and is put in a position to prepare his defense. The courts are admonished to keep in mind that it was not within the meaning of the decree that facts which were of little or no importance should be artificially exaggerated. What harms an individual does not harm the Reich. Sufficient opportunity should be given to the defendant to use legal remedies, to explain things, and to state his views to the evidence submitted. Everything should be avoided which in the least would make the sentence look like a sentence based on suspicion. Under all circumstances, the extent of the punishment should be within sound measure. The legal remedy of appeal should be applied by the prosecutor, also in favor of the defendant and for that express purpose, the time limit was extended to twice its normal length.

PRESIDING JUDGE BRAND: Mr. Schlegelberger, you are referring to an article by Freisler, are you not?

DEFENDANT SCHLEGELBERGER: Yes.

PRESIDING JUDGE BRAND: Does that have an exhibit number, or will it have?

DR. KUBUSCHOK: I will submit that article as Document Schlegelberger 61; 61 will be the number of that article. It is in my document book.

PRESIDING JUDGE BRAND: 161?

DR. KUBUSCHOK: No, only 61 in document book 3, Schlegelberger document book 3.

PRESIDING JUDGE BRAND: Thank you very much.

DEFENDANT SCHLEGELBERGER: The right for civil suits for Poles and Jews had already been rescinded by the old decree. A new decree brought modification by which also Germans should not have that right any longer as Freisler explained. And now the most important element--the latitude and extent of punishment was increased not only toward heavier punishment, but also by decreasing the minimum. The death penalty was mandatory only where an act of violence was committed against a German on account of his being a German. That was already contained in the old decree. In all other cases, apart from the death sentence, there was an opportunity for a prison term.

In the old decree, in the case of anyone owning or carrying weapons a death penalty was mandatory. The new decree provides for the possibility of a prison term which goes all the way down to 3 months in prison. That modification applied to a large number of offenses. Also, the mandatory death sentence for arson was abolished. Apart from that, I am of the opinion--and it has been mentioned here frequently--that whether the death penalty is mandatory or optional, a judge who does not want the sentence of death in taking into account the facts in a case, can almost always avoid that possibility.

The prosecution asserts that the new decree excludes the clemency plea for Poles and Jews. That is not correct. If it is stated that the sentence was final and had to be executed immediately that only means that with the exception of that right the sentence is final. I will not discuss the question as to whether a sovereign can forego the use of the clemency plea from the outset, but it is beyond doubt that the Ministerial Council for Reich Defense could not have excluded the right of pardon on the part of Hitler. Besides, for the Incorporated Eastern Territories, the pardon regulations of 1935 applied. Article 453 of the Code of Criminal Procedure, according to which execution of the death sentence is only possible after it has been ascertained that the authority in charge of the clemency prerogative has refused to make use of this prerogative was especially emphasized upon my demands in Freisler’s article. In fact, Poles were pardoned. That was mentioned in these proceedings. I would like to refer to two cases which I remember: the case Pitra and the case Wozniak.

DR. KUBUSCHOK: Those cases are contained in Document NG-398, Prosecution Exhibit 253.[402]

DEFENDANT SCHLEGELBERGER: The right to have defense counsel is not taken from the defendant by that decree. On the basis of the regulations concerning Special Courts of that time, a defense counsel had to be appointed for the defendant. And I may say in conclusion that the penal ordinance concerning Poles and Jews guaranteed the Poles and Jews a court procedure and a sentence by the court. Also, it prevented these defendants from being dealt with without the protection of the court and being turned over to the police.

Q. I am just informed that the translation on one point was in error. The witness stated that he would not discuss the question as to whether the right for pardon on the part of the sovereign, or the supreme authority of the state, could be omitted, and instead of the word “sovereign,” the word “defendant” came over the channel.

According to Exhibit 346, retroactivity of the penal ordinance for Poles and Jews was ordered.[403] What can you say in that connection?

MR. LAFOLLETTE: I did not get the Exhibit number.

DR. KUBUSCHOK: Exhibit 346.

DEFENDANT SCHLEGELBERGER: I have described how great the pressure on the part of Himmler and Bormann had been. We had just succeeded in calming these parties down. They had had quite different ideas of the practical application, but now Freisler again piped up. He complained that in past cases the old decree was still applicable. In order to prevent a renewed debate about the competency of the police, that request for retroactivity was granted. Besides, that decree concerning retroactivity had a consequence which the Party officials had not taken into account, most probably, because now, on these many pending cases against people who had been found to have arms, not the old decree but the new decree had to be applied which also gave the possibility of a penalty of 3 months’ prison term instead of the death sentence, which was mandatory under the old decree.

Q. The prosecution charges you with having introduced or contributed toward introducing the Standgerichte--the civilian courts martial--in the Incorporated Eastern Territories. Document NG-136, Prosecution Exhibit 345[404] is in point. What can you say in that connection?

A. Apart from the general desire to turn over cases of Poles and Jews to the police, Himmler and Bormann, as it was said once, had a special preference and desire for the establishment of civilian courts martial. One could not quite bypass that desire in the decree concerning Poles and Jews, but it was possible to establish an obstacle. I did so, including the provision that civilian courts martial could only be established with the approval of the Minister of Justice and the Minister of the Interior. Greiser, with the support of Himmler, had recognized that that clause or that provision would make it impossible for them to have their wishes fulfilled.

Therefore, bypassing the Minister of Justice, they went directly to Hitler. Lammers, by order of Hitler, informed me that Hitler had decided that the demand for the establishment of civilian courts martial and the transfer of rightful pardon should be granted.

What I had always tried to achieve by various means had not been achieved; on the contrary, that which I had tried to avoid had come true. By the decision on the part of the Fuehrer, my hands were tied.

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CROSS-EXAMINATION

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MR. LAFOLLETTE: Now I believe you testified on direct examination that you yourself had no anti-Semitic feelings as such against the Jews as a race; that also you sought justice rather than to classify people as groups. That, as I gather, was right?

DEFENDANT SCHLEGELBERGER: Yes, that is correct.

Q. If then you extended the Nuernberg laws[405] by decree into the eastern territories, that would be a little inconsistent with your own feeling about the matter, would it not?

A. Certainly not.

Q. May I hand you a copy of an order of the 31 May 1941 which as I read it has the effect of extending those laws into the eastern territories. This order was signed by you. That is the prosecution’s document NG-1615, which we asked to have marked for identification as Prosecution Exhibit 521,[406] Your Honor.

If Your Honors please, if the Tribunal will permit me, I have had English copies of this and I thought they were here. I am advised that they are not in here now. I will furnish them. May I proceed and then furnish them to the Tribunal?

Have you examined that exhibit, Doctor?

A. Yes.

Q. It is signed by you as Acting Reich Minister of Justice, Martin Bormann, and Dr. Stuckart. Is that correct?

A. Yes. There are two decrees on the same day.

Q. Yes. Article 3 provides the Act for the Protection of German Blood and Honor of 15 September 1935 shall be applicable in the annexed eastern territories. That is what is known as the Nuernberg law, is it not?

A. Yes.

Q. That was applied to the eastern territories?

A. In regard to this decree, I would like to say something, if I may.

Q. Surely.

A. These two decrees of 31 May 1941; the first one is an order introducing it; and the second one is the executive order of the Law for the Protection of German Blood and Honor. They have to be looked at together. As far as the basic question of the introduction of that law is concerned, the prosecutor has already spoken about my personal feelings. I shall leave them out of consideration for the moment. In regard to the question as to whether the Nuernberg laws were supposed to be introduced, the following were the decisive legal sources:

First, here too the directives of policy which Hitler had issued; secondly, the political responsibility of the Ministry of the Interior, as the central office for questions regarding the eastern territories, and the leader of the Party Chancellery.

The Ministry of Justice in regard to these laws participated only because the so-called law for the Protection of German Blood and Honor, by which Minister Guertner was completely surprised at the time, contained a penal regulation. If now, in accordance with the political directives, one had to introduce this decree, the penal regulation, of course, had to be introduced too, and from that resulted, of necessity, the signature. Moreover, from the connection of these two decrees, it is apparent without any doubt that the decrees do not apply to Poles, either Jews or non-Jews, but only to German citizens, and that they had to comply is obvious.

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[407]

DIRECT EXAMINATION

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DR. SCHILF (counsel for defendant Klemm): We come now to the third phase of your activity, namely, your activity in the Party Chancellery in Munich.[408] I ask you, first of all, how did it happen that you came into the Party Chancellery at all? Please also tell the exact dates to the Tribunal first.

DEFENDANT KLEMM: I began my activities in Munich on 17 March 1941. At that time the Party Chancellery did not exist at all. At that time there was only the staff of the Deputy of the Fuehrer, and that was Reich Minister Hess. Reichsleiter Bormann who had the position of chief of staff was not in Munich at all, but since the beginning of the war, in the Fuehrer Headquarters in the immediate proximity of the Fuehrer. That remained the same way during the entire course of the war. From the Party Chancellery I knew the chief of Department III, that is Under Secretary Klopfer. I have known him since 1924 or 1925; that is, from my student days. We had not seen each other at all for 1 or 2 years and had not written to each other. We met by chance in Berlin in January 1941 in front of the Reich Chancellery, on the occasion of the funeral of the Reich Minister of Justice Guertner. I had come for this funeral from The Hague and Klopfer happened to be in Berlin. At that time Klopfer had just been given Department III in the staff of the Deputy of the Fuehrer, and he asked me whether I would like to work in his department, and to take over the group in charge of the administration of justice. That group consisted at that time of two or three people, and there was no group leader because he was employed in other matters.

Q. I believe that is sufficient to describe the cause--

A. I said at the time to Klopfer that I liked it very much at The Hague; that I had an independent position there. I was able to work independently, but during the war things were not done in accordance with the personal wishes of a person; that I would work wherever I was assigned to work. I never heard anything about it again until one day Seyss-Inquart called me to him and told me that he had had a lengthy correspondence with the Party Chancellery, that the Chancellery had asked for me, that he had fought against this, but in the end had to give in after all. And he had agreed to the chief of staff of the Deputy of the Fuehrer to put me at his disposal, and therefore, he instructed me to start my service in Munich 4 days or a week later. That is how I entered the staff of the Deputy of the Fuehrer at the time.

Q. Before we now turn to your activities in detail in the Party Chancellery, it seems to be necessary to tell the Tribunal the most important facts about the organizational structure of the Party Chancellery or the staff of the Deputy of the Fuehrer. You know that the Party Chancellery has a bad reputation. We want to tell the Tribunal first the outside organizational structure.

A. The staff of the Deputy of the Fuehrer had that name until the middle of May 1941, until the time when Reich Minister Hess--that is the Deputy of the Fuehrer--secretly flew to England.[409] At that time the staff was transformed into the Party Chancellery, and for the sake of simplicity I shall only use the name “Party Chancellery” from now on.

The Party Chancellery was an organization with, in my estimation, from 750 to 1,000 persons. There was one office in Munich and one in Berlin. The Party Chancellery was divided into three divisions, and these divisions were again subdivided into groups:

Division I, which is of no interest here, was in charge of management, building, and maintenance; and in that division the personnel of the Party Chancellery itself was administered. Furthermore, the registry was there and the telegraph and teletype system.

The nucleus of the Party Chancellery as a Party office was Division II, the Party political division. Here was the actual leadership of the Party, that is, the NSDAP, and here was the direct channel to the Gaue, the Kreise, and the local groups. A certain Friedrichs was in charge of this division.

Division III was the State or constitutional division as it was called. Under Secretary Dr. Klopfer was in charge of it. Here everything was dealt with which had to do with the State and the State functions of the Party Chancellery, while, as I have already stated, purely Party matters were dealt with in Division II.

Q. Would you please explain to the Tribunal the contrast between this office, the Party Chancellery, and the purely Party offices of the NSDAP?

A. In addition to the Party Chancellery, the Party had different offices on the level of the Reich leadership, for instance, to cite examples, the Reich Legal Office, the Office for Agricultural Policy, and the Office for Public Welfare. Thus, there were a number of different agencies. Party jurisdiction went through up to the supreme Party court. It also was divided into Gau and Kreis courts. In addition to that there were also, of course, some other Reich offices, such as the office for Reich propaganda matters and Reich organizational direction, and so on.

Within the Party Chancellery, in addition to these three divisions, there was also the so-called Reichsleiter Bureau, Reich Leader Office. That was, so to speak, the staff formerly closest around Reich Minister Hess and later on around Reichsleiter Bormann. This Reich Leader Office Bureau, which at times had up to three jurists on its staff, met partly in Munich and partly in Berlin, in the office there, and partly at the Fuehrer Headquarters immediately with Bormann.

Q. You spoke of Division III as the State or constitutional division. I ask you whether it was anchored on a legal basis.

A. If I speak of a state or constitutional division, I give it this designation because of the nature of the work of that division. Division III was, so to speak, the counterpart of the State organization in the Party sector. Division III was divided into seven groups. I shall describe this organization somewhat later.

By virtue of the “law to secure the unity of Party and State,”[410] the Deputy of the Fuehrer had been made a Reich Minister. Supplementary decrees, and orders laid down that the Deputy of the Fuehrer, had to participate in the making of national laws and ordinances, by having to approve the drafts of such decrees. This right was then transferred to the leader of the Party Chancellery, and in a more stringent form--as the witness Schlegelberger has already testified--quite clearly in a circular, or perhaps in an ordinance it was repeatedly stated that the leader of the Party Chancellery always had the position of a participating minister. In the same way as in the purely legislative field, the Deputy of the Fuehrer entered into personnel matters of the government. No higher official could be employed or promoted if this measure in the State sector was not approved by the Deputy of the Fuehrer and later by the leader of the Party Chancellery.

In order to fulfill these State and constitutional functions, Division III had been formed in the Party Chancellery, or rather earlier, in the staff of the Deputy of the Fuehrer. As I have already stated, it consisted of seven groups:

Group III-A, above all, dealt with the sphere of the Reich Ministry of the Interior and questions of nationality [Volkstum]. During the last period of my time in Munich, the witness Anker, who was examined here as a witness for the prosecution, was in charge of Group III.

In Group III-B, all economic matters were dealt with: economics, food, traffic, mails, and armaments.

Group III-C, the group of which I was in charge, dealt with laws and orders as far as they had been issued by the Ministry of Justice, and with questions of Party law.

Group III-D worked on educational and ecclesiastical questions, as well as matters of the Foreign Office.

Group III-E dealt with financial questions, and Group III-P (Paula) dealt with personnel matters; that is, all State personnel matters, without consideration of the fact as to whether they originated from the judiciary, the administration, finance, or anywhere else.

Then there was a group, III-S, which had special tasks in the cultural field.

* * * * * * *

Q. Witness, you have now listed the individual groups, seven, as you stated. I now ask you to make a statement as to how the individual groups of the Party Chancellery were in contact with each other or how they worked together.

A. In my description I omit Division I, because it only dealt with technical matters of the management of the office, administrative details within the Party Chancellery. I can limit myself to the relationship of Division II, that is the purely Party political division, and Division III. These two divisions worked not with each other but against each other. Already this structure was quite arbitrary and unorganized. For example there were fields of work which had the same name in both divisions. In the course of time Division II arrogated this to itself. This battle between the two divisions was not based only on purely factual reasons in the fields of work but also had other deeper reasons. In Division III officials were working who had almost exclusively been detailed by their ministries for such work. In Division II only political leaders were working whole time who, for the most part, looked down upon the jurists with contempt. The word “jurist” was a kind of epithet, and they saw in the people of Division III only civil servants and deputies of the ministries. They did not concede that we did any political work at all, and especially not work of a party political nature. They did not acknowledge us as political leaders at all. We in Division III were only a necessary evil in the Party Chancellery; that is how they saw things, because without the experts they could not get along. This disrespect--I cannot call it anything else--this disrespect on the part of Division II was especially strengthened by the attitude of Bormann toward Division III. He had approximately the same attitude. The result was that between Divisions II and III there was a constant malicious fight for competency. Division II constantly tried to arrogate to itself matters which could have something remotely to do with Party matters. These attempts took place also when State matters were predominantly or exclusively concerned; that is, if the effects would take place in the State sector. This situation was favored by the unbelievable conditions that existed in the registry. This registry had been built up by laymen. In 1933 Germany had several million unemployed, and an effort was made to find a place for these people and again give them an opportunity to make a living. The result was that people were put in such positions only to find a place for them, people who had no idea about an organizational structure. In this registry, former streetcar conductors and violinists were employed, people who knew nothing about it. Therefore, the entries were constantly directed to wrong places and then the other division did not let them go out. Whether a letter went to Division II, or Division III, or directly to Bormann was in many cases just a question of luck.

Q. I wanted to ask you also, in Division III was there also a financially worse position compared with the people in Division II?

A. We were paid the same way as we were paid when we were in the employ of the State, while the political leaders, the Main Office political leaders, had their own salary scale; and I do not want to repeat here; I can refer to what the witness Anker stated who explained that a political leader of Division II in the same position as Anker got about double the amount of salary than an official.

Q. I want to demonstrate to the Tribunal the borderline of competency between Divisions II and III. I have here a document which the prosecution believed they could bring into some kind of connection with your case. It is Document NG-364, Prosecution Exhibit 108.[411] This is the infamous letter about the lynching of Allied airmen who had bailed out. The letterhead is the NSDAP, Party Chancellery. Further, the leader of the Party Chancellery and the place from which it was sent is the Fuehrer Headquarters. The date is 30 May 1944.

A. Even though this is a circular from the Party Chancellery at a time at which I had been out of the Party Chancellery already for 5 months, I do know that such circular letters in principle were not submitted by Division II to Division III when they were in a draft form or for cooperation, even if the police, the Wehrmacht, and the administration of justice and their spheres of work were discussed in it.

Q. The letter is signed by Bormann. In the same document, that is Exhibit 108, there is contained another letter which also has the date 30 May 1944. It is addressed to all Gau leaders and Kreis leaders, and refers to Bormann’s circular letter. It is signed by Friedrichs. Is Friedrichs the chief?

A. Friedrichs is the chief of Department II.

Q. Before, when you were speaking about the registry and the delivery of letters, you mentioned that many letters went directly to Bormann, to the Fuehrer headquarters. Thus, these letters did not go to Munich to the divisions that had been established there. Was there any standard in regard to the distribution of these letters, to whom they were to be sent?

A. If personal letters to Bormann in his position as Reichsleiter or as secretary of the Fuehrer were received by a minister or a Reichsleiter or a Gauleiter or any other prominent person in the service of the State or the Party, these letters always went first to Bormann in the Fuehrer Headquarters. Other letters went quite frequently first to Bormann. It depended entirely on who of the people I described before, who did not have the requisite training at the registry, and the mail got such a letter into his hands and how he forwarded it. Of course, efforts were made to make as few mistakes as possible which would arouse Bormann. The result was that as much as possible was sent to Bormann so that the reproach could not be made that he had been skipped.

Q. Perhaps we can clarify this by means of an example. The prosecution introduced Document NG-558, Prosecution Exhibit 143.[412] This is a personal letter which Thierack wrote to Bormann, dated 13 October 1942. In this letter the information is passed on that in the extermination of Jews and Poles the administration of justice wanted to give a helping hand. In the form in which it is submitted, this letter is addressed personally by Thierack to Bormann. I am asking you whether this letter went via your Group III-C, that is the legal division, or whether Bormann later sent it to your legal division and thus informed you about it?

A. Whether this letter was sent to Bormann too, by Thierack, I don’t know. It did not come to Munich to Group III-C. I personally saw this letter for the first time here when the document was submitted.

Q. We have another document here, that is NG-280, Prosecution Exhibit 70.[413] It is a letter which Lammers, who was then Chief of the Reich Chancellery, sent to Bormann. It is a complaint about an inadequate sentence regarding a Pole. This document contains several letters. We are here concerned with the third letter with the address: “To Reichsleiter Bormann.” I ask you to also make a statement in regard to this whether the legal group or you personally had this letter, as shown to you, put at your disposal.

A. This letter came to Bormann personally, and in the same way as the preceding letter from Lammers to Bormann which was written by him personally. Group III-C, Bormann-Lammers, was not informed about this correspondence. I have to add something here. Bormann had, after all, two functions. He was leader of the Party Chancellery and he was secretary to the Fuehrer. He stayed almost exclusively in the Fuehrer Headquarters. It was often difficult to find out whether Bormann acted as leader of the Party Chancellery or as secretary of the Fuehrer. In a case like the one here, Exhibit 70, certainly the Fuehrer exercised criticism and to that extent Bormann then acted as the Fuehrer’s secretary. He then referred the matter to the State sector via Lammers. In addition, an exterior circumstance must be considered between the Fuehrer Headquarters and the Party Chancellery in Munich; there were thousands of kilometers. For some time the Fuehrer headquarters was in Vinnitsa in the Ukraine. In the immediate proximity of the Fuehrer Headquarters were the field headquarters of Lammers, that is, of the Reich Chancellery. For purely technical reasons the mail went immediately back and forth between the Fuehrer Headquarters and Lammers’ field headquarters.

Q. Another interim question, Mr. Klemm. You characterized Bormann in two capacities; one, as leader of the Party Chancellery, and secondly, as secretary of the Fuehrer. This letter which I am just showing to you, however, contains the designation Reichsleiter Bormann. Was that a third capacity in which Bormann worked?

A. In contrast to other Reichsleiters, as far as I know, Bormann became Reichsleiter, more or less, in title only. Goebbels, for example, was a Reichsleiter too, because he was in charge of the Reich Propaganda Office. On top of that, he was also Reichsleiter Goebbels, the Gau Leader of Berlin. At the very moment in which Bormann became leader of the Party Chancellery and in addition secretary of the Fuehrer, the concept Reichsleiter did not signify a special office or a special function any more.

Q. That is enough. Since you have described the geographical and technical conditions in which the correspondence went as a rule, I now want to ask you in principle, did you at all receive information about that correspondence which went to Bormann to the Fuehrer Headquarters or which went from Bormann from the Fuehrer Headquarters or which went from Bormann from the Fuehrer Headquarters to other State offices or Party functionaries?

A. That depended. There were several possibilities. Either Bormann answered such letters immediately himself, or those parts of the Reich leader’s office which were also in the Fuehrer Headquarters dealt with them. I have already mentioned that sometimes up to three jurists belonged to the Reich leader office who advised Bormann.

A certain proof of the fact that Bormann dealt with a matter himself is the initials “Bo.” Very frequently we were not informed about such matters, because often they were put in the files of the secretary of the Fuehrer which did not concern us in the Party Chancellery after all.

* * * * * * *

Q. Mr. Klemm, you spoke about several possibilities concerning Bormann receiving letters or sending letters. You said it all depended on the circumstances. I now ask you to explain to the Tribunal further what additional possibilities existed in order to clarify whether you were informed about any measures taken by Bormann or not.

A. The second possibility was that Bormann wrote his decision or his opinion on the margin of the letter and then gave it to the Referent in the Party Chancellery and left it up to him to draft the answer in accordance with the decision he had written in the margin. Whether the answer to the letter then formulated was signed by Bormann himself, or whether the Referent, his group leader, or the division chief signed it, depended in each case on who signed the first letter.

Q. The documents which I just mentioned were all brought into close connection with your person by the prosecution, apparently solely because the Party Chancellery is mentioned on these documents. I now come to Document NG-412, Prosecution Exhibit 77.[414] On this, there is your name. The connection with your person is very clear here. It concerns an approval that you gave to a draft of a law which the Reich Ministry of Justice had drafted on order of the Party Chancellery. The contents were retroactive application of regulations concerning treason. I would like to ask you on the basis of what you explained, was this approval given on your own decision or on Bormann’s instructions?

A. I did not give this approval by my own decision. In the case of drafts of laws in particular, Bormann always reserved the right to make the decision for himself. In this case the letter concerned, which the Ministry of Justice had, among others, probably also addressed to the leader of the Party Chancellery, was returned from the Fuehrer Headquarters. Probably on the margin it said “approved,” or “yes,” or “in accordance,” those were the words which Bormann used; and since in this letter of the Ministry of Justice a wish of the Fuehrer was referred to which he had expressed already before in discussions, it was quite clear for Bormann that he would agree, and in such a case I could then sign.

Q. This letter of the Party Chancellery is dated 18 June 1942 and also has the file number III-C; that evidently was issued by the legal group. I would like to ask you now to describe somewhat more in detail the sphere of the task of the legal group.

[Recess]

Q. We discussed Exhibit 77, that was the approval of the Party Chancellery to a draft or law which was prepared by the Ministry of Justice. I had asked you what matters in the legal group of the Party Chancellery were dealt with by you in addition?

A. I want to summarize the tasks of the legal group briefly. First it had to deal with laws and drafts and decrees of the Reich Ministry of Justice, unless for reasons of their subject, they were dealt with by another group, because that group appeared to be competent. Secondly, penal matters based on the law on insidious acts, as far as on the basis of legal provisions the approval of the chief of the Party Chancellery was required for the prosecution. Thirdly, complaints from Party offices or individuals against decisions by the courts. Fourth, complaints from the administration of justice against interference by Party offices into pending trials. Fifth, to observe especially civil and penal cases which concerned the Party. Sixth, matters of legal reform, and seventh, expert opinions in the field of the Party law.

Q. As for the first group, approval of laws and drafts, was that approval of the Party Chancellery for drafts of law based on a legal foundation?

A. I have already made statements concerning that question when I explained why there was a Department III, the so-called state law and constitutional law department in the Party Chancellery. The chief of the Party Chancellery, on the basis of certain legal provisions in the case of any law or draft or any decree was a minister who had to participate in its drafting, that is to say, he had the same position as a minister participating in legislation.

Q. In discussing the first part of your activities you made the reservation that the legal group in the Party Chancellery dealt only with those drafts which for reasons of their subject did not belong within the competency of another group. Would you please elucidate to the Tribunal what you mean by that?

A. First I have to make a more general reservation. It was not the task of individual groups of Department III or of Department III itself to display any political activity. The Party political elements connected with a problem were to be dealt with by the political offices of the Party. I had listed before the Reich Legal Office, the Office for Agrarian Policy, the Office for Public Health and others. These offices within the Party developed their policies through the Reichsleiters who were in charge of these offices, and did that directly with the Fuehrer. The groups of Department III, and above all not the Legal Group, could not deal with the individually specialized matters to the extent that it would have been necessary. I have already explained that Group III-C comprised four to six officers. That group was balanced in the Ministry of Justice by well over 200 experts. Our tasks--and above all because each individual in that group considered himself a representative of the thought of the Ministry of Justice,--were to prevent difficulties which might arise by some legal arrangement between the Party and the offices of the administration of justice. For instance, in Group III-C, we always were very skeptical to any general clauses which were contained in a draft and laws because such general clauses are the pets of the layman, and he sticks to them because that affords him the opportunity to criticize. That arrangement which was as such provided by law that the chief of the Party Secretariat always had the capacity of a participating minister, was not agreed to by various sectors of the administration of the State, and thus, for instance, Goering in his various positions which he held at the same time, as Minister for Aviation, as Plenipotentiary of the Four Year Plan, and as chairman of the Ministerial Council for the Defense of the Reich, never stuck to it, and never submitted any drafts. Likewise, the High Command of the Armed Forces never submitted the drafts of laws as far as they concerned the administration of justice, penal regulations, et cetera, to the Party Chancellery. The individual group, however, the legal group could not independently deal with a draft, if problems were dealt with in that draft which did not immediately concern the legal group but in their essence concerned other ministries, for instance, all questions of nationality, were dealt within Group III-A. For instance questions of Poles and Jews, Group III-C, to cite another example, in the field of law concerning hereditary estates, could not decide independently. That was claimed by Group III-B, which was in charge of questions of food, the Food Ministry, to which the hereditary estate court belonged also. I believe these examples should be sufficient.

Q. You had set forth that the various subgroups of III were offices corresponding to the institutions of the State, that you would consider the Ministry of the Interior as analogous to Group III-A. I ask you now since you mention Poles and Jews, the problems of which were to be dealt with by III-A, whether the purpose for that was that as far as the organization of the State was concerned, the Ministry of the Interior took a leading part in dealing with these questions?

A. Group III-A had dealt with these problems because it was the equivalent of the Ministry of the Interior. It was dealt with there only and if on the one side the Ministry of the Interior took the leading part, then Group III-C had nothing to do with those matters at all.

* * * * * * *

Q. Then, since you worked in the Party Chancellery, Document NG-151, Prosecution Exhibit 204[415] was submitted in connection with you. It is a proposal on the part of the Reich Minister of Justice of 3 August 1942, with the designation “Limitation of Legal Remedies in Penal Matters for Jews.” On page 108 of the German text, a letter is submitted which has the signature of Bormann. Next to Bormann’s signature there is also the file note “III-C,” that is to say, the symbol of the Legal Group [in the Party Chancellery].

I ask you to comment on that and to tell us whether you or your Legal Group had anything to do with that matter.

A. To answer this intelligently, I have to refer to the entire document submitted by the prosecution. The document comprises 25 pages, and that letter from Bormann is put at the end. The entire procedure, however, can be understood only if one puts these various documents in the correct chronological order, for only then can one see how this entire development can be subdivided into three phases.

On 3 August 1942, the Ministry of Justice distributes its first draft, which is draft number 1. The letter of 13 August 1942 shows the approval of the Reich Ministry of the Interior, with supplementary suggestions. In the meantime, however, the Ministry for Propaganda quite apparently, although there is nothing contained in this file about that, has made counterproposals and distributed those to all offices concerned. That can be concluded from the fact that on 13 August--that is to say, on the same day when the Ministry of the Interior first approved proposal number 1 with certain supplementary requests--on the very same day, the Ministry of Justice distributed suggestions for draft number 2, at the same time referring to suggestions made by the Ministry of Propaganda. That draft number 2 was approved on 20 August 1942 by the Food Ministry, which also stated requests for supplementation in its field, that is, in the field of civil administrative law. Then, on 9 September 1942, the chief of the Party Chancellery states his approval, and in that letter also the request is expressed that the suggested draft concerning a restriction of legal remedies for Jews should be supplemented.

As for the second phase, dealing with draft number 2, there are two events to be noted--one, a certain activity of the Reich Chancellery, that is to say Lammers, who suggests to the General Plenipotentiary for the Administration of the Reich, that is, the Reich Minister of the Interior, that he should see to it that these suggestions are adjusted to meet the requirements and then submitted.

And the second is a letter from the Reich Leader SS of 25 August 1942, who suggests a conference regarding draft number 2. On 10 September 1942, the High Command of the Wehrmacht also states its approval, and that second phase of developments ends with the result that the leading part is transferred from the Ministry of Justice to the Ministry of the Interior. The final conclusion of that phase is the letter from the Plenipotentiary for the Administration of the Reich, that is to say, the Ministry of the Interior to the participating supreme offices of the Reich containing draft number 3. Now the third and last phase of this development starts, and the procedure as submitted in documentary form by the prosecution for more than half a year does not produce any results as far as matters developed. In the documents submitted by the prosecution the only further development is that on 3 April 1943 the Minister of the Interior writes to the Reich Chancellery, that is to say, to Lammers and encloses a letter by Kaltenbrunner from the police of 8 March 1943 where the demand is made that the Jews should be completely removed from the administration of justice. These documents then contain only two further notations of the Reich Chancellery of 6 April 1943 and of 21 April 1943. The first notation deals with a conference between the Under Secretary Kritzinger on the part of Lammers, Reich Chancellery, Stuckart on the part of the Ministry of the Interior, and Klopfer for the Party Chancellery, the Party Secretariat. And the last notice of 21 April refers to a conference of various under secretaries from the Reich Chancellery, Party Secretariat, Ministry of the Interior, Ministry of Justice, and Kaltenbrunner on the part of the police. The result of that conference is what we designate as the 13th decree amending the Reich Citizen Law. The Party Chancellery letter from 9 September 1942 does only refer to draft number 2 of the Ministry of Justice, that is the draft of 13 August 1942. The problem of removing the Jews entirely from the administration of justice and to declare them incapable of inheriting property, that problem was not all under discussion at the time when that letter was written, and the suggestions made in that letter do not represent any change against the fundamental character of that draft. They supplement the draft only to the legal systematic side. In as far as the Party Chancellery suggests that legal remedies should be included, they are suggestions of a minor weight compared to those that are already planned in the draft. According to the draft, limitations were provided to appeals and revision, that is, matters which are directed to the next higher resort. Whereas in the suggestion for supplementation made by the Party Chancellery legal remedies are referred to which are normally directed to the same court in the form of a reminder or a complaint. The next suggestion to limit the right of challenging a judge is the same provision which is also part of the IMT charter. This letter of 9 September 1942 I did not draft. Besides since it was issued more than 1 month after the letter of 13 August, other offices must have participated. Who it was in Group III-C who drafted that letter and who was the referent dealing with the matter I can no longer tell. I cannot even recall ever having seen that letter such as Bormann signed it. It is quite possible that I was away on a duty trip and that my deputy signed it for me.

Q. I believe, Mr. Klemm, that that is sufficient.

* * * * * * *

Q. Then, concerning Poles, Jews, and members of the Protectorate, Document 664-PS, Prosecution Exhibit 348,[416] was submitted, that is a circular letter from Himmler with the classification of secret, and was sent to all Reich authorities. Your initial is on that letter because it was received in the Ministry and apparently came to your attention. In this letter it is stated that posters such as “no Jews permitted to enter public places and stores” should disappear. It was no longer necessary to show such practice to the public because the people concerned by evacuating and isolating them were no longer there. I ask you, did that lead you to the conclusion that the Jews were to be exterminated or already, at the time of this circular, had been exterminated?

A. I would never have gotten a thought of that kind. I know nothing about the places in the East. I knew that Jews lived in a city for themselves in Theresienstadt near Leitmeritz. On the contrary, I remember having seen series of pictures in magazines, I believe pictures from Theresienstadt were shown of the Jewish mayor, of the Jewish police, also of the baths and restaurants, and similar things. Also, I believe from Warsaw, such pictures were shown in German illustrated magazines. One could not gather any more from that circular letter than that or conceive the thought that it had anything to do with the extermination or anything similar to it.

* * * * * * *

Q. In addition, Document NG-900, Prosecution Exhibit 453,[417] was submitted against you. This concerns a document which treated so-called complaints of descent of Jews. The decisive question in this document is whether you, from the letter which is contained in this document, which was written by the chief of the SD and the Security Police, could gain the conviction that Jews should be exterminated. If you have the document in front of you--it consists of several letters--the first is of 3 May 1944, there the chief of the SD writes to the Reich Minister of Justice in this letter, and the subject is a request for information about reports regarding Jews. Please comment on this.

A. In regard to the first question I can only repeat what I have already stated in regard to Prosecution Exhibit 348. No such thought ever occurred to me. Moreover, I only saw the introductory letter of this document on which the Minister had written “V”--which meant “Vortragsanordnung,” schedule of report. With that, the matter was taken out of my sphere of activity.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG[418]

DIRECT EXAMINATION

* * * * * * *

DR. KOESSL (counsel for defendant Rothaug): It has been asserted that you had coupled together the Katzenberger and Seiler proceedings in order to exclude the Seiler woman as a witness.[419] What was the situation there?

DEFENDANT ROTHAUG: Under the German Code of Procedure, there are always as many penal proceedings pending as there are defendants. Under certain conditions, such penal proceedings can be tried together for the purpose of uniform trial and decision. That is what we call joinder of penal cases. That joinder may be decided by the court, concerning cases which are pending with it separately. But such joinder may be established by the prosecution itself by one combined indictment. That was what was done in the Katzenberger-Seiler case. The prosecution, by filing one indictment for both defendants, had already established the joinder prior to the files reaching the court. The joinder of the two cases was therefore neither due to a file prepared by me, nor to a file prepared by the court.

Q. Would it have been possible for the prosecutor to proceed differently?

A. Naturally. He could have filed separate indictments. The question was merely whether that would have been correct from the technical point of procedure.

Q. What are the legal provisions on which a joinder of penal cases is based at the Special Court?

A. A joinder is based on article XV, section 2 of the competency order.

Q. When do the conditions exist for a joinder, such as demanded by the law?

A. Such conditions can arise from all sorts of situations. They exist in particular if one offense developed from another offense, and if the judgment has to be based on the same facts. That was the case in the Katzenberger-Seiler affair, which we have been discussing.

Q. What was the reason for the prosecutor to connect the two cases?

A. Both cases, as is proved clearly by the opinion of the court, had to be decided on the basis of the same facts. Therefore, a joinder was altogether natural and corresponded to the customary treatment such as was applied in other cases as well.

Q. What was the legal nature of such joinder?

A. It was purely a measure of expediency.

Q. Is a defendant entitled to ask for not combining his case with that of another defendant because in the case of a joinder he loses evidence?

A. The defendant does not have such a claim. According to the general legal doctrine, which existed prior to 1933, a joinder is admissible even if, as a result of a joinder, one codefendant can no longer appear as a witness. But if it is decisive that the codefendant should appear as the witness, the two cases can be separated after all so as to have an opportunity to examine the codefendant as a witness. But that is left entirely to the discretion of the court, and the defendant has no claim to have that question decided in one definite way.

Q. When several penal cases are combined, does that mean that all possibility is excluded to examine one of the codefendants in the same proceedings as a witness? I would like you to supplement your previous answer and to tell us whether it is possible temporarily to separate proceedings.

A. Such temporary separation is allowed expressly by jurisdiction. Therefore, during one proceeding, temporarily a separation can be ordered. One codefendant can be examined as a witness, and after he has been examined the case can be recombined.

Q. Did anybody at any time--be it the prosecutor, the defense counsel, or the defendant--during the trial make a motion to separate proceedings?

A. Such a motion was not made either at the trial or outside of it by anybody. Not even the mere idea of doing that was ever mentioned, and the reason was that at that time nobody regarded the joinder of the two cases as a defect.

* * * * *

Q. In the case under discussion, was it likely that the chances of the two defendants might be affected by joining their cases?

A. As I have stated before, the legal position of the defendants could not be affected, and their chances were not affected either. If one had thought that their chances might be affected, I think in that case the two defense counsel would have made a motion to have the two proceedings separated. If one wishes to judge the situation properly, one has to bear in mind the following: that is to say, one has to think of the situation such as it would have been if the Seiler woman had not been a codefendant but a witness. In that case, she would have made no different statements at the trial than she had made at her interrogation under oath before the investigating judge, for she made the same statements as a codefendant, and we had to discuss her statements under oath before the investigating judge from every point of view for the purpose of the verdict. What difference would there have been, as far as our judgment was concerned, if she had repeated the same statements at the trial in her capacity as a witness? The real problems of the proceedings would and could not have been affected in any way by that.

* * * * * * *

PRESIDING JUDGE BRAND: Were tickets issued for admission to the trial?

DEFENDANT ROTHAUG: Yes, Your Honor.

DR. KOESSL: I shall come back to those tickets later. What importance had to be attributed to the fact that a trial was held in front of such a large public?

DEFENDANT ROTHAUG: Under the German Code of Penal Procedure, the fact that the public is admitted to a trial constitutes one guaranty that the proceedings will be conducted in an orderly manner.

Q. Did Katzenberger have a defense counsel?

A. Yes, he had.

Q. Was that defense counsel a Jew?

A. Yes, he was.

Q. Did the Seiler woman have a defense counsel, too?

A. Yes, she had.

Q. What sort of a man was the defense counsel for Seiler? Was he a National Socialist, or what was he?

A. I knew him. He wasn’t a National Socialist for certain. My impression was that he was entirely uninterested in politics and devoted to his profession.

* * * * * * *

Q. Now, we’re going to examine the statements by the witness Seiler. The statements by the witnesses Ferber, Seiler, and Dr. Baur[420] are criticizing your method of conducting the Katzenberger case.

According to the testimony of the witness Seiler, you addressed the audience and said--“The Jews are our misfortune. It is the fault of the Jews that this war happened. Those who have contact with the Jews will perish through them. Racial defilement is worse than murder, and poisons the blood for generations. It can only be atoned by exterminating the offender.” (Tr. p. 1053).

Did you make remarks of that kind, or of a similar nature, or what exactly did happen?

A. That expression--“The Jews are our misfortune” or “It is the fault of the Jews that the war happened,” or “Those who have contact with the Jews will perish through them”--those expressions are well known slogans from the Stuermer, which I think appeared in large letters in every issue of the Stuermer.

PRESIDING JUDGE BRAND: Mr. Witness, the only question before you is whether you used, in substance, the language which was attributed to you. You may answer that question. We are not concerned with who else used the same language.

DEFENDANT ROTHAUG: Neither on duty nor in my private life did I use such generalizations, but the facts which have been discussed here, and which were mentioned in that issue of the Stuermer, concerning all that I would like to give my view on one point. That is the question as to war guilt. I can remember more or less exactly--and that idea is also mentioned in the opinion of the judgment in the same way in which I expressed it at the trial. Naturally, it was not the purpose of the trial to prove that it was the fault of the Jews that war had broken out. The point was, however, this. As is known, both defendants tried to make the situations which incriminated them appear more harmless, as if their relations had been everyday matters. And in that connection, I remember that I put it to Katzenberger that, particularly here in Nuernberg, he must have known that such relations were particularly dangerous even if the relations had been harmless, because, ever since 1933, he had observed the developments, and then, finally, war had broken out and the Jews were held responsible for the war, and all these events should have caused him to be wise and to abandon relations which were bound to endanger him, even if those relations had been only harmless--and if they had been harmless it would, after all, have been easy to abandon them. That thought of which I made use by way of arguments, both at the trial and in my oral opinion, that thought appeared in the Stuermer. It said, if I remember correctly: “He also mentioned the fact that it was the fault of world Jewry that war had come.”[421]

DR. KOESSL: Now, it has been alleged that in other cases too, you addressed the audience. What were the speeches about? What was the purpose of those speeches?

DEFENDANT ROTHAUG: I am charged with having addressed the audience, particularly in connection with the Katzenberger case. In addition to the generally acknowledged fact that, under the German Code of Penal Procedure, trials have to be held in public, there is also a fact that by the trial this general law consciousness should be deepened--

PRESIDING JUDGE BRAND: We have extended beyond our time for the recess. We’ll take 15 minutes’ recess now.

[Recess]

DR. KOESSL: Witness, you came to the explanation of the connections where you have made the so-called speeches to the audience. Will you explain the purpose and the connections for making these so-called speeches?

DEFENDANT ROTHAUG: I base myself on the fact that the reason for the trials being public according to the German rules of procedure was that the conscience of law should be strengthened and that the population should be educated in the meaning of the laws. Our sphere dealt with entirely new legislation, new in consideration of the basis on which it was founded and of its purposes; for that reason--and of course one has to consider that this new legislation provided severe and most severe consequences, and that makes it understandable why I--and that was with approval of all interested offices of the administration of justice--was of the position that it was necessary to bring as quickly and as effectively as possible this legislation before the population in order to warn them because that warning in a certain sense is a justification of the severe sentence, particularly the extent of the sentence; and that explains why I had the intention to conduct my trials before the public and as many people as possible and as broadly as possible. That also explains why it was not only my intention to describe the bare legal facts but the offenses regardless in what field they were committed and to explain them from the point of view of the doctrine of the State and from the points of view of the legal system and the political point of view. The guiding thought for me was that it was our duty, and at the same time, our justification before the public, to explain that the sentence pronounced in any individual case was the direct consequence of the legislation provided therefore. It has to be added that fundamentally according to German rules of procedure, the sentence can only be based on the entirety of the trial; that is to say, that all points of view which are concerned with the penalty or the extent of penalty have to be discussed in all details during the trial because that alone puts the defendant in a position to recognize the main points which may be directed against him; and I also want to emphasize that at no time were lectures made for their own purpose, but that such statements were made in connection with the testimony of the defendant or the witnesses at the time and at the place where it seemed proper.

Q. Ferber charges you generally, and particularly, in the case Katzenberger.

A. I intended to add, that it is therefore quite certain that at that session I also stated my opinion concerning the problem of race defilement on the basis of the doctrine of the State and on the basis of the legal system, and on the basis of our political and legal foundations. That I also discussed the danger in the manner that these things were regarded at that time according to the legal situation, the danger arising from the mixture of races to coming generations, that I consider to be a fact. What words I used and what thoughts I may have expressed in detail in discussing these matters, that, of course, I could no longer tell today. But what I object to is the assertion that these may have been statements of the level of the “Stuermer;” and with absolute certainty I should like to exclude the possibility that in that connection I demanded any physical destruction. That, according to the law, would not have been possible. That, of course, based on the fact of the war which went far beyond any racial point of view.

* * * * * * *

Q. The witness Seiler in her direct examination testified that she and the defendant Katzenberger had denied under oath at various times those relations. Was Katzenberger heard under oath?

A. No, he was not heard under oath. That was not admissible under German law because German law holds that the defendant had to be entirely free to use all possibilities for his defense. That is considered a certain guarantee to aid in finding the truth.

Q. The witness Seiler also stated in her direct examination that the judge, Rothaug, used the assumption of her guilt as the basis for the entire conduct of the trial. The reason for that discrimination in her opinion had been that Rothaug did not want to hear any answer. Did you examine the witness Seiler thoroughly?

A. Of course, she was examined thoroughly, and I may point out--and that can be found also from reading the opinion--that this was a so-called case of circumstantial evidence, that a large number of individual situations of more or less importance were compiled in order to make it possible to reconstruct the circumstances which were of importance for the evaluation; and it was always like that, and it was no different in this Katzenberger-Seiler case, that I discussed with the defendants every phase and every little detail; not only in order to completely clarify any particular action, that of course, was the main purpose; but beyond that it was of importance to establish what the point of view of the defendants was, and how they described matters; that is the reason why that matter took a day and a half, and in addition to that, after the examination of every witness who offered something new, again the two defendants were heard thoroughly concerning the new situation. At any rate the evidence which was taken as the basis for the judgment, was discussed in all possible detail.

* * * * * * *

Q. Among the judges concerned during the deliberations, was there any doubt about the guilt of Katzenberger?

A. I remember the deliberations very well. That conference was as peaceful as could be; for in the course of the trial, which lasted a day and a half, the entire occurrence, as far as the facts were concerned based upon the statements of the defendants and on what the witnesses testified to, had developed into such a clear picture that there could not have been any differences of opinion; and, after a very short time--and I remember that very well also--we arrived at a decision and actually started to write the judgment down, but considering the importance of the case, we extended the time for deliberations so that the impression should not be given that we wanted to pronounce a hasty decision. There were no difficulties at all, the reason being that the facts themselves were of compelling logic, and that anything else which was the consequence of the facts just arose from them logically and in the way one had to evaluate those things at that time, and of course, we could not evaluate it based upon any different philosophy.

Q. Which motions were made by the defense counsel?

A. I would like to say with certainty that one of the defense counsel, without being able to tell who it was, made an attempt in the direction of a lenient sentence, and he was trying to combat its evaluation as a serious case, but there was no doubt left about the basic facts in the case. That is the way I remember the case, and it must have been like that; and that was also manifest by the calm deliberations where no points of argument came in existence.

Q. Was any one of the associate judges of a different opinion concerning the extent of punishment? Did any one of them vote against the death penalty, for instance?

A. The core of the question from the very beginning was the following.

PRESIDING JUDGE BRAND: Let me ask you a question. Did all of the judges vote for the death penalty? Answer yes or no.

DEFENDANT ROTHAUG: Yes, absolutely.

PRESIDING JUDGE BRAND: Next question.

DR. KOESSL: At that time, among the jurists around you--but those who were not in direct contact with the case--were there any discussions about that sentence?

DEFENDANT ROTHAUG: In no way at all. That sentence was never criticized in any way or considered doubtful by jurists who were not connected with the case which would normally be possible.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[422]

DIRECT EXAMINATION

* * * * * * *

DR. WANDSCHNEIDER (counsel for defendant Rothenberger): We come now to a new subject which plays an important part within the scope of national socialism; that is, the Jewish question. Will you please tell the Tribunal quite generally what your point of view is concerning the Jewish question.

DEFENDANT ROTHENBERGER: Concerning the Jewish question, there were in the NSDAP already before 1933 two factions which opposed each other. One was the so-called Streicher wing which put the racial problem in the foreground. The other wing was the so-called social wing, led originally by Gregor Strasser. Gregor Strasser, already as early as the end of 1932, went into open opposition, and in 1934 was killed together with Roehm. Among the men who emphasized the beliefs of that social group was Kaufmann. That was conditioned by the fact that in Hamburg, of course, social problems played an important role. The Jewish question did not play the same part in Hamburg as in many other parts of the Reich. One reason for that was that on account of a large Portuguese immigration in Hamburg, the connection to western Jewry had been very strong for centuries; particularly the so-called good old Hamburg families are greatly mixed by intermarriage. Furthermore, it was due to the fact that the people of Hamburg are generally more tolerant in their basic temperament.

Another indication of the attitude of the people of Hamburg to the Jews was, for instance, that the display of the so-called Stuermer boxes in Hamburg was prohibited by Reichstatthalter Kaufmann. I, of course, officially and also privately was in close contact with Jews. I knew the advantages and disadvantages of Jewry.

Q. Now, of course, it is known to you, Dr. Rothenberger, that the Party program ambiguously states its position to the Jewish question. I assume you knew the Party program at that time. Could you comment on that as to what thoughts you had concerning the attitude the Party would take to the Jewish question?

A. In the beginning of 1933, I believed that just as in many of the Party platforms many points are made which later do not play an important role. Gradually, however, I realized that the general line became more severe. It is beyond doubt that any German under the influence of propaganda considered a limitation of the Jews in cultural and spiritual life absolutely required, and so did I. But what was generally rejected in Hamburg was any method of violence, any economic exploitation and any kind of hatred. As for the general line, such as it developed gradually in Germany, I could not change anything anymore. In each individual case of my personal and official sphere of influence, individually and from the human point of view, I helped.

Q. In connection with this question, the pogroms against Jews of November 1938 play a part. Will you please state to us what experiences you have made of these pogroms and what your attitude was.

A. On the day before the pogroms--that is the night before--by way of rumor I heard of the intention that Jewish shops were to be looted. There again to obtain information I got in touch with the Reichstatthalter Kaufmann who told me that he had asked for information in Berlin because he had also heard about it, and he had already alerted the Hamburg police too. He had posted them before the Jewish shops so that nothing should happen, and in fact, in Hamburg nothing did happen with the exception of a few individual cases. About that, in the document submitted, NG-629--

Q. I refer to Document NG-629, Prosecution Exhibit 28[423] which has already been mentioned.

A. It also mentions that due to the attitude of Reichstatthalter Kaufmann, nothing happened.

Q. Will you please discuss now the question of the legal position of Jews, as far as you had to do with it.

A. As for the legal point of view, of course in the course of years many instances of conflict occurred to everyone; also to me. In a meeting in Berlin about various legal questions negotiations were made, and the result of these negotiations as far as it concerns questions of civil law was passed on by me to the subordinate courts. As far as matters of penal law were concerned, it was passed on by the General Prosecutor at Hamburg. The opinion which the Ministry stated at that time in matters of civil law was just about in accordance with my own opinion.

Q. Here again we are concerned with Exhibit 28, which has already repeatedly been mentioned; specifically the point of view of the Ministry which Dr. Rothenberger mentioned and which he shared and passed on to the subordinate officials can be found on the last page of Exhibit 28.

A. If I may be permitted, I would like to point out that during the same press conference I mentioned two further points; one the question of sensational reports in the press about trials, where I promised to get in touch with the competent agencies to see that such sensational reports would have to cease; and the other concerning the speed of signing the sentences. I pointed out that no pressure should be permitted to be exerted on judges so that they should be given an opportunity to work on their opinions in all peace and quiet.

* * * * * * *

Q. Dr. Rothenberger, we will now go over to another subject. Now we are going to deal with the beginning of the war. I want to ask you about the Jewish problem which we have already discussed. In what way did the Jewish problem develop after the outbreak of the war, as far as your opinion goes.

A. The outbreak of the war increased the difficulties of the Jewish problem in Germany considerably. The situation became considerably more acute, and in particular under the influence of propaganda. Under that influence, naturally difficult legal conflicts arose as far as the situation of a Jew in court proceedings was concerned. Previously, as Dr. Schlegelberger emphasized, already there had existed separate welfare institutions for Aryans and non-Aryans. There was the NSV for the Aryans, and there were separate welfare institutions for the non-Aryans. For the jurisdiction, that resulted in complete uncertainty on the part of the judges as to the question whether a Jew can be allowed to conduct proceedings without paying costs. There were courts which granted that privilege; there were other courts that did not. I considered that a uniform jurisdiction on these matters was necessary. Naturally I was not uninfluenced by the situation then prevailing; and, therefore, I supported a proposal to the Reich Ministry of Justice that a uniform jurisdiction should be developed to the effect that such privileges were not to be granted to the Jews. The importance of those privileges concerning costs and nonpayment of costs has been characterized by Dr. Schlegelberger who said that the State makes an advance which the person concerned has to pay back, that is to say he is not exempted from paying costs caused by court proceedings. The prosecution in submitting evidence read out a sentence which is supposed to have originated with me. I only want to correct the matter to say that Document NG-589, Prosecution Exhibit 372,[424] shows that that sentence is not mine, but was phrased by the Gau economic adviser. The other exhibits which refer to that question are NG-392--

Q. Dr. Rothenberger, may I interrupt you for a moment so that we can quote the correct exhibit numbers to the Court? They are Exhibit 373,[425] Exhibit 462,[426] and Exhibit 372. Would you please continue?

A. The only thing I can add is that it happened fairly frequently, and that it appears altogether understandable that the Jews in order to avoid having their property confiscated upon their emigration, transferred their property to somebody else in a fake transaction. Thus, the whole problem became more complicated and more difficult for the courts.

Q. In what way were you concerned with curtailment of Jewish legal rights which emerged in the subsequent period?

A. I had to deal with that question once again in the spring of 1943. At the end of April, Thierack one day asked me to go see him and told me that on the same day a discussion would take place, a so-called conference of under secretaries. That conference was to be held at the Reich Ministry of the Interior. I believe I had no knowledge of those developments until then.

Q. May I interrupt you, Dr. Rothenberger? At the moment we are concerned with Document NG-151, Prosecution Exhibit 204,[427] which Dr. Rothenberger wants to discuss. This Exhibit 204 is composed of a number of letters in which a draft on curtailment of legal means and legal recourse for Jews is discussed and in which various ministries give their views. Will you tell us, please, whether you had anything to do with that matter?

A. Until that conference I had nothing to do with the previous history. That is due to the fact that the first draft originates from a time before I had assumed office. It is dated 3 August 1942, and it is signed by Dr. Freisler. The second draft is dated 13 August, and that also was before I assumed office. As this was a matter concerning penal law I was not informed about the developments during the subsequent period. As I can see from the documents now, in September 1942 the so-called GBV, the Plenipotentiary General for the Reich Administration--that was the Reich Minister of the Interior--was in charge of the drafting and conference which I have mentioned took place at the Reich Ministry of the Interior.

Q. Would you tell us something about the course of the conference of April 1943?

A. Thierack, before I went to the conference, handed me a draft. That was the draft by the GBV of 25 September 1942. That was already 6 months old by that time because the conference took place in April 1943. I was annoyed anyhow that I was now to deal with a matter the previous history of which I did not know. I had a look at the draft in Thierack’s office and when I had read it, I said to him that I was against such far-reaching restrictions.

What seemed embarrassing to me, in particular, was the provision that if the Jew was not to swear an oath, he was yet to be punished for perjury. Thierack said to me that doesn’t matter. In his somewhat brusque and curt manner he said, “You will have to go there, for I am the minister and I cannot attend a conference of under secretaries.” That, as a matter of fact, was not the custom. I went to the Reich Ministry of Interior. To begin with, I maintained reserve, because I had not dealt with the matter beforehand. Then I heard from the others who were present there that they too were against such an ordinance. Thereupon, I said that that was my personal opinion, too. Of course, I could not say as to the minister’s decision. He was in favor of it, as he had told me beforehand.

Then the provisions of that draft were dropped. Only one person who was present objected; that was Kaltenbrunner. Kaltenbrunner said he had to attach a decisive importance to at least two provisions becoming law. He was referring to 2 provisions which, in effect for some time, had already been applied, which however, required subsequent legalization. One provision was that the property of a Jew who dies goes over to the Reich. He said--as is evident in detail from the exhibit--that until now Jewish property in the case of death had been regarded as so-called property of an enemy of the State and had, therefore, been confiscated all along. But he would like to have a legal provision, because that would constitute a technical administrative simplification.

That provision, as I see from the file, had not been incorporated into the draft before by the Reich Ministry of Justice, but by the Reich Ministry of Interior. It appears for the first time in the draft of 25 September 1942. The Ministry of Justice, thus, did not deal with it. The second provision--

PRESIDING JUDGE BRAND: Would you mind telling us what happened to that provision?

DEFENDANT ROTHENBERGER: Yes. That provision did become law afterward. Yes, I meant to say that.

The second provision which Kaltenbrunner wanted to become law and considered necessary was a provision, which has already been discussed here, and it concerned handing over the penal jurisdiction over Jews from the administration of justice to the police. As far as I was concerned that resulted in an entirely new situation, for that provision was not contained in the previous draft. I felt I could not assume any responsibility for such a provision, all the more so as I had no formal competence for penal matters. I would have to report to the minister as I had been requested by him to do.

DR. WANDSCHNEIDER: Did you make a report to Dr. Thierack?

DEFENDANT ROTHENBERGER: I went to see Thierack on the same day, and I told him that he had now for the second time confronted me with a very embarrassing situation, by bypassing me in a fundamental question of the administration of justice which did not concern me formally, but which concerned me as a jurist and as a human being. I could not assume the responsibility and I offered him my resignation.

Thierack was very angry and said, “I shall decide the day when you will leave the office.” In saying that, he referred to the compulsion to which all of us were subject in time of war, that is to say, the compulsion of not being able to leave our service voluntarily.

He then added ironically, “For the rest--in the future you will have nothing to do with penal matters even when I am away for I have already asked Lammers to appoint a second under secretary,[428] and I shall get some help that way.” I mentioned these facts briefly in another connection this morning.

Subsequently I had nothing to do with the ordinance. I merely read that later, on the first of July 1943 with both provisions; it took effect. I felt unfree, and from that time on I stuck all the more to the one task, which still remained to me, that is, the task of the administration of justice proper; the strengthening of the judiciary.

* * * * * * *

CROSS-EXAMINATION

* * * * * * *

MR. KING: Dr. Rothenberger, the document which has been placed before you is NG-1656 [Pros. Ex. 535].[429] It is an information for the Fuehrer report. I would like to, with your concurrence, read it. You say--“After the birth of her child a full-blooded Jewess sold her mother milk to a pediatrician and concealed the fact that she was a Jewess. With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception. The buyers of the milk have suffered damage for mother’s milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for, so that the parents who were unaware of the true facts need not subsequently be worried.”

Do you recall the origin of this particular document?

DEFENDANT ROTHENBERGER: I do not remember the facts. It is quite impossible that I wrote this, because I never drafted the Fuehrer Information. I do not even remember whether it ever came to my attention later. I ask to be shown the original of that Fuehrer Information.

Q. I will be very happy to do that, Dr. Rothenberger. Is that your initial?

A. That shows that I have seen it later, but not at all that I was the author. It can be seen from the original, naturally, that the Fuehrer Information had neither a date nor a signature and the Fuehrer Information also shows that there is a notation on it “to the Under Secretary”--for information, that means. As I can see from the initial, it apparently came to my attention without, however, identifying myself in any manner with the contents of that Fuehrer Information.

Q. Have you finished, Dr. Rothenberger?

A. Yes.

Q. Your feeling, of the moment, is that you had nothing to do with the authorship of this document?

A. I consider it quite impossible that I would have identified myself even at that time with such an opinion.

PRESIDING JUDGE BRAND: I have a question of information. Would your initials have been placed on it before or after the distribution of the document?

DEFENDANT ROTHENBERGER: Whenever such Fuehrer Informations were sent out--and I cannot see that that was the case--then they were afterward brought to my attention.[430]

* * * * * * *

EXTRACT FROM THE TESTIMONY OF DEFENDANT OESCHEY[431]

DIRECT EXAMINATION

* * * * * * *

DR. SCHUBERT (counsel for defendant Oeschey): I am now coming to the subject of violent criminals and the first case I want to refer to is the case of Kaminska and Wdowen. The prosecution introduced Exhibit 201, which included extracts from the official files.[432] The prosecution also introduced affidavits, Prosecution Exhibits 229, 235, and 635.[433] Finally there is the witness Gros[434] who was heard on those cases (Tr. p. 2828). Please comment on it.

DEFENDANT OESCHEY: The account given of that case by the witnesses who were heard on it gives the impression as if Kaminska had been convicted merely for having thrown that stone, but that was not the case.

What was of great significance were the events which had preceded that attack which are not mentioned by the witnesses, but which were the factors which made that case so grave that led to its being evaluated as the crime of a violent criminal.

The witness, in giving an account of that case, omitted to mention that the offense began with an act of blackmail committed by the two defendants for they approached their employer, whose name was Gundel. He was an old weak man. They asked Gundel for money to which they were either not entitled at all or to which their title was extremely doubtful. And when Gundel asked that they should give him some more time, they tried to force him to give them the money by attacking Gundel, that is to say, the defendant Wdowen attacked Gundel and slapped his face. That explains why Private Wanner appeared on the spot and intervened. That factor, too, was omitted by the witnesses and that is why it was not made clear that Wanner came to the aid of Gundel and in doing so Wanner limited himself to asking the two defendants to leave Gundel’s room. But the witnesses omitted to mention that the two defendants now assaulted Wanner who after all had behaved absolutely correctly, and Kaminska when Wanner had been able to ward off the first attack took up a hoe and tried to attack Wanner with that hoe, and Wanner was only able to evade that blow by showing presence of mind and closing the door which happened to be between him and Kaminska. Shortly after Kaminska threw a stone--

PRESIDING JUDGE BRAND: Wait a minute. If I remember correctly, you are merely reviewing now the findings which are contained in the transcript of the case and which is in evidence. We have examined that.

DEFENDANT OESCHEY: I merely wanted to explain that the whole of that action did not consist of isolated facts but that it is necessary to evaluate all those facts together in order to comprehend the legal evaluation of the offense as a whole.

DR. SCHUBERT: Witness, I now ask you to tell us what was the nationality of those two defendants.

DEFENDANT OESCHEY: Wdowen’s nationality I am afraid I can’t remember. The Kaminska woman was a Pole. Anyway, I don’t think Wdowen was a Pole.

Q. Well, what was he?

A. He was a Ukrainian.

Q. On the basis of what provision did the prosecution file its indictment?

A. The prosecution filed an indictment on the basis of part I, section 4, Number 1 of the law against Poles.[435]

Q. Against whom?

A. Against both defendants. If I am right--well, I am not quite sure whether my memory serves me well--(document handed to witness). Against Kaminska the indictment was based on part I, article 4 of the law against Poles and with Wdowen it was based on a crime of having aided in somebody else’s crime, articles 4 to 7 of the law against Poles. Also she was convicted on the basis of having offended against article 4 of the public enemies law.

Q. You saw that in the official court files?

A. Yes, I saw that from the original files of the Nuernberg Special Court, SG 256/43.[436]

Q. Both the witnesses Pfaff and Gros today draw back from this judgment.[437] Gros said that he voted against it. Pfaff wasn’t clear in what he said about it. My first question to you is this. Did you in any other case announce a judgment without having had at least one associate agree with your view, as provided by law?

A. No, I never did that.

Q. Did you force Gros and Pfaff to agree with you in passing the death sentence on these defendants?

A. In this case they were as free in their decision and in their opinion as I left them in every other case.

Q. What did the court say of the offense against the woman, Kaminska? Was the decision in accordance with the indictment?

A. No. The court did not convict Kaminska under article 1, section 4, No. 1 of the law against Poles and among us judges there was a fairly long discussion on that point. That is to say, we debated the question as to whether the offense of Kaminska could be sentenced under the provision of the law against Poles which I have just mentioned. As far as I remember the associate judge, Pfaff, was inclined to answer that question in the affirmative. Gros, as well as myself, however, had doubts about that. That legal provision assumes that the violent crime was directed against a member of the armed forces in which case the death sentence becomes mandatory. But in view of the entire facts of the case it appeared doubtful whether Kaminska, in committing her offense, had realized at all that the person she was attacking was a member of the armed forces. According to the facts, that element did not play a part. In the view of Gros and myself, therefore, the elements needed for convicting a defendant under part I, section 4 of the law against Poles were lacking. The further examination had to discover whether the offense was to be sentenced under article I of the decree against violent criminals of 5 December 1939.[438] That question, too, we debated at great length and that is a point which I remember. We scrutinized quite a number of decisions made by the Reich Supreme Court and studied a number of commentaries. As far as I recollect, neither of the associate judges had any doubts about that view.

With these Reich Supreme Court decisions the legal questions had been clarified beyond all doubt.

Q. Witness, is it correct that Kaminska was not convicted under the law against Poles?

A. Kaminska, as the law against Poles prescribes in paragraphs II and III, was convicted under the decree of 1939, the decree against violent criminals, which applied to all violent criminals in Germany, and she was convicted under that law as concerns the question of her guilt as such and as concerns the sentence.

Q. The witness Gros testified that she had been convicted for racial and political reasons. What do you have to say to that?

A. That is altogether untrue. The decision was based solely on the logical application and interpretation of the law in accordance with the decisions of the Reich Supreme Court while taking into consideration the particularly difficult and dangerous conditions prevailing in the rural districts in wartime. Such points of view as those of race and biology and whatever else you may call them, as I pointed out yesterday, played no part whatsoever in any of my decisions and judgments.

Q. And you will now tell us something about the Wdowen case. The witnesses Gros and Pfaff evidently tried to minimize that offense. What do you have to say to that?

A. The facts of the case can be seen from the judgment which is available to the Tribunal, and I therefore need not to go into any detail. Apart from the fighting and the aid given by Kaminska, this was a very violent and altogether unusual attack against the policemen; it was a kind of attack on the policeman who had arrested the Kaminska woman, and Wdowen was trying to get the policeman to release his grip on Kaminska. Gros and Pfaff as witnesses disputed that fact; one can only refer to the fact that Wdowen himself never disputed his own intentions and his motives.

Q. What was the legal evaluation of the Wdowen offense?

A. That offense by Wdowen was considered by the court as a crime under article IV of the decree against public enemies[439] and the indictment had given the same evaluation. I should like to point out that assaults of that nature against police officials ever since the beginning of the war, and that is by all courts who tried such crimes, had been sentenced under the same provisions, that is to say under article IV of the decree against public enemies. As a rule, the Wdowen case is by no means an exception. The need to protect particularly rural districts and the need which became greatly increased due to the wartime conditions, and such need for protection was due to the fact that the police was very short of staff, and, because of all that, an attack of that kind on the police--who worked under very difficult conditions--always resulted in a very severe penalty.

Q. Was the law against Poles applied in the Wdowen case?

A. No, it wasn’t. Only article IV of the law against public enemies.

Q. Was the Wdowen case the subject of differences of opinion at the consultations?

A. As far as I remember, it wasn’t.

Q. Did the prosecution consider both defendants as meriting the death sentence?

A. The prosecution from the very beginning considered that the death sentence should be asked for both defendants, and accordingly, it informed the Reich Ministry of Justice before the indictment was filed. The Reich Ministry of Justice concurred with the view of the prosecution and approved it.

DR. SCHUBERT: I am now passing on to the next case of violent criminals.

* * * * * * *

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ALTSTOETTER[440]

DIRECT EXAMINATION

* * * * * * *

DR. ORTH (counsel for defendant Altstoetter): Do you remember Prosecution Exhibit 204, Document NG-151?[441] That document is concerned with the events which lead up to the 13th decree concerning the Reich Citizenship Law.[442]

DEFENDANT ALTSTOETTER: Yes.

Q. In article II of the draft, it was provided that when a Jew died his property was forfeited to the Reich and that for non-Jewish heirs and persons who were entitled to alimony, a hardship clause should be added, is that correct?

A. Yes.

Q. The treatment of hereditary provisions according to the plan for the distribution of work was to be dealt with by Department VI of the Ministry of Justice.[443] In connection with the intended contents of the provisions in article II of the draft, could that not justify a conclusion that you and your department had something to do with that decree?

A. No, the order that Jewish property was to be forfeited to the Reich in case of death of a Jew was not a hereditary ruling. It was a matter of police confiscation and that concerned only the Ministry of the Interior and only that Ministry was responsible. That is evident too from the document itself and that from the final draft, no, not the final draft, the draft before the final draft, which shows that the provision of article II, section I, originated with the Ministry of the Interior.

Q. I am now going to show you the text of the 13th amendment of the Reich Citizenship Law. Please have a look at article II of the decree. On the basis of this provision, do you have further indication that Department VI did not have anything to do with the promulgation of this decree? A. Yes, the wording of these provisions, already in article I, because if Department VI, I mean the section that dealt with hereditary law, had had anything to do with this decree, they would have chosen the version which existed in the civil code for hereditary rights of the State [Fiskus][444] which is provided there for special cases. I am referring to article 1936 in the civil code, which has always existed. Furthermore, the provision under article II shows that hereditary rights of Jews and non-Jews, [benefiting from the will] of a deceased Jew as such were not affected. Otherwise, one could no longer have spoken of persons entitled to inherit. According to that provision, or rather in spite of that provision, for example in the case of a mixed marriage, the Jewish partner of the marriage could be or become heir to the non-Jewish partner. In the case of hereditary settlements, provisions would have had to be made concerning the rights of third persons, that is to say, non-Jewish subsequent heirs. Furthermore, we would have had regulations concerning the legal validity of transactions among living people, concerning the part of the estate not comprised by inheritance regulations. Section II also mentioned non-Jewish persons entitled to receive support from the deceased, although generally in the case of death any obligation to look after the maintenance of third persons comes to an end.

Q. If Department VI had had anything to do with the 13th decree, what Referent of the Department would have dealt with it?

A. Ministerialdirigent Dr. Hesse, Ministerial Counsellor Rexroth, or Ministerialdirigent Dr. Stagel would have dealt with it in that case.

Q. Did Department VI have anything to do with the handling or carrying out the 13th decree?

A. No.

Q. Did you or Department VI at a later time have anything to do with the handling of Jewish hereditary law?

A. Yes, in 1944 the Minister of the Interior approached the Reich Ministry of Justice with a request concerning an executory order of the 13th decree, to incorporate in it provisions, which were to change or amend article II of the Reich Citizenship Law. The ministry of the Interior had recognized that article II had certain defects, and therefore asked us to find a solution concerning the hereditary law. I objected to this request from the Reich Ministry of the Interior, although the Minister of Justice was of different opinion.

Q. Do you know how that matter developed further?

A. As for the details of the subsequent development I do not remember them, but one thing I remember for certain, Hesse, with my consent, when Thierack the Minister of Justice had declared himself ready to collaborate in the preparation of this executory order, contacted the competent Referent of the Ministry of the Interior, and convinced them that the provision, purely technically, for the Reich Ministry of Interior, amounted to a basic change of the previous decree, that is to say the 13th decree. He also told them that we didn’t want to have anything to do with this matter. The Ministry of the Interior then withdrew its request, and I was told by Hesse that the matter of a Jewish hereditary law would now be dropped. In effect, an executory order in connection with the 13th decree concerning the Reich Citizenship Law was promulgated on 1 September 1944, and that by the Ministry of the Interior alone without any participation of the Reich Ministry of Justice and without incorporating the provisions concerning article II of the 13th decree, which had originally been requested.

Q. In summing up, Witness, I should like to ask you, is it correct that Department VI, during your term of office, did not participate in the making and carrying out of laws concerning confiscation of Jewish property and that during that time legal provisions about the exclusion of Jewish hereditary rights were not issued?

A. Yes, that is true.

PRESIDING JUDGE BRAND: May I ask you concerning that. I am wondering if I have the correct understanding of your testimony. Do you intend to say that this 13th decree did not change the previous law of inheritance, the rights of inheritance, but that the only effect was to provide for police confiscation, is that right?

DEFENDANT ALTSTOETTER: Yes, yes, quite. That is my opinion.

Q. Well, was it your opinion that the provision for police confiscation was invalid?

A. Invalid? Invalid, no, not invalid.

Q. The courts which had to do with matters of inheritance in general were courts with which your department had dealt, were they not?

A. Yes, Your Honor.

Q. Well, when a question of inheritance under the general law came up in the courts in which they were confronted with this 13th decree concerning police confiscation, what did the courts do?

A. I got to know of only one single case which may be connected with this problem, and I am thinking of a case of recognition of the right of subsequent inheritance. The district court of appeals and the seventh civil senate of the Reich Supreme Court at the time decided that the right of subsequent inheritance remained legal and that regardless of the provisions which had been issued in connection with the Jewish problem, the estate, if a case of subsequent inheritance occurred, would have to be passed on to the subsequent heir. Other cases, I do not remember.

Q. Was that the equivalent or did it amount to holding that the decree for police confiscation was invalid?

A. I am sorry. I did not understand.

Q. The Supreme Court apparently refused to apply the provisions of the decree for police confiscation, did it not?

A. I can’t say for certain. If I remember rightly the Reich Supreme Court, concerning the question of the validity of that decree did not express its opinion at all.

Q. Well, it didn’t enforce the decree, did it?

A. No, the Reich Supreme Court said, the subsequent heir who comes after the immediate heir is not affected by that decree, and therefore, his rights remain his rights.

Q. And who was the subsequent heir? Was he a Jew?

A. All I remember is his name. Whether he was a Jew I don’t know, but I don’t think he was. Probably he was non-Jewish.

Q. Well, what was your opinion as to what a court could do when the law of inheritance provided that one person should receive the Jewish estate and that the decree for police confiscation provided that the property should be confiscated?

A. In practice it was like this. The law of inheritance remained as it was from the point of view of legal theory; but the property left by a Jew which was forfeited to the Reich when the Jew died, however, no longer existed.

Q. It existed. You don’t mean it vanished in the air? You mean it was--

A. No, that is to say, it had now gone to the police or to the finance office, they had now taken into their hands the property left by the Jew.

Q. Then I take it in practice the courts did not enforce what you have stated would be the valid law of inheritance?

A. I assume that such cases did not come before the courts.

Q. Well, didn’t matters of inheritance in general as to the Germans come before the courts?

A. Yes, yes they did.

DR. ORTH: I think that is all.

* * * * * * *

DR. ORTH: Please explain briefly to the Tribunal what one understands under German law by “matters of descent.”

DEFENDANT ALTSTOETTER: The fact that from the biological point of view a certain man has fathered a certain child is under the German civil code, the decisive criterion for the status and the legal position of the child, and therefore, also for the rights and claims of such a child. However, as we know, it is frequently difficult to establish the true biological descent of a child, and it was particularly difficult at the time of the promulgation of the civil code. Pursuant to the achievements of biological science, the German legislator had established certain legal suppositions concerning the legal descent. On the basis of those provisions the biological descent and the legal descent not infrequently appeared to be different. As science progressed, in particular in the field of biochemistry, hereditary biology, and anthropology, after the civil code had come into force, more and more reliable methods of science were discovered in order to prove or at least exclude biological descent of a child from a certain father. As a result, litigations between father and child became more and more frequent concerning the true biological descent, that is to say, concerning the question as to whether the legal father was also, biologically speaking, the child’s father.

Under German law, all those cases of litigation are described as matters of descent. A partial complex is formed by those cases where Jews and persons of mixed descent, in the majority already adults, wanted the matter clarified in a court for themselves or their progeny, that contrary to the legal supposition, biologically and consequently also legally, they were not--or, at any rate, not to the extent that had been assumed--the children of a Jew or a person of mixed descent.

* * * * * * *

PRESIDING JUDGE BRAND: Could you tell us in a few words what, if anything, your Department VI had to do with matters pertaining to descent cases such as you have described them?

DEFENDANT ALTSTOETTER: Those descent cases played a great part from the point of view of my department exercising supervision. I shall revert to that matter quite briefly.

Q. Over whom or over what did you exercise supervision?

A. The Ministry of Justice, because of the treatment to be accorded to such descent cases constantly received complaints, in particular, complaints stating that these proceedings never made any progress. Furthermore, and I shall revert to this, too, we received complaints--

Q. That doesn’t answer my question. I am sorry to interrupt you. Your department exercised supervision in matters pertaining to descent. Over whom did you exercise supervision?

A. We had that supervision over the courts and over the public prosecutors.

* * * * * * *

DR. ORTH: Witness, will you please comment again on Exhibit 453?[445]

DEFENDANT ALTSTOETTER: Here I have to say first, briefly, that the descent cases which I have just mentioned, especially the right of the prosecution to raise charges in descent cases, since the so-called laws concerning Jews were issued, were used as a means for Aryanization as we called it. In cases, that is to say, where a man who according to the law was considered to be a Jew was of the opinion that he was not to be considered a Jew, he himself filed a claim for the establishment of the fact that he was not a Jew, that is, that he was not a descendant of a Jew. Or if his right to file that claim or the right of his father to do so no longer existed because the term to do so had expired, he went to the public prosecutor to make the public prosecutor file this claim. The latter was the case when a suit was filed in order to challenge the legality of a marriage. Now in cases where these claims were filed in the course of the war, particularly during the last years of the war, considerable difficulties arose. I only want to mention two, but there were more of those. One was the lack of experts in the field of genetics which was caused by the war. The other reason was the thing that had occurred with the courts in Vienna. In other courts it did not occur, as far as I know. There in Vienna a particular difficulty arose owing to the fact that the police, as far as Jewish witnesses for these descent trials were concerned--in most cases it was a question of so-called witnesses for the investigation or witnesses for the purpose of comparison--that the police, as I said, for reasons of security had removed these witnesses and now refused to produce them or to release them. That can be seen from the letter of the police of 3 May 1944, which is in this exhibit. Objections against the attitude of the police which were raised by the subdepartment chief, Ministerialrat Rexroth, in the course of a conference with a Referent, were only successful to the extent that the police consented in exceptional cases to produce witnesses if the Reich Minister of Justice expressly demanded that. Moreover, the police referred to the lack of means of transportation and escort personnel caused by the war. With matters as they stood, the Reich Ministry of Justice could do nothing else but to bring them to the attention of the courts in Vienna through the president of the district court of appeals. For the people concerned who desired to carry out by that suit, as I have called it, an Aryanization, the fact that these witnesses were not produced as a rule did not amount to any disadvantage. The persons concerned on their part, either if they had instituted the proceedings themselves in their own interest or if they had requested of the public prosecutor to institute proceedings, had themselves presented to the public prosecutor evidence for their assertion that they were not descendants of a Jew or a person of mixed Jewish descent. And if the court could not produce the expert opinions of geneticists which officially had to be produced and for which these witnesses for the purpose of comparison were needed, then the court could do nothing else but on the basis of the evidence which the Jews concerned had submitted, to decide, and that this evidence was in favor of the person filing the claim is obvious. And to that the remarks in Exhibit 453 refer, that one had to put up with it if in this manner the intentions to cover up for the true descent could not be prevented.

Q. Witness--

PRESIDING JUDGE BRAND: Let me ask you this. Concerning these claimants suspected of being Jews but claiming to be Aryans, how far back did they have to trace their ancestry to prove that they were Aryans?

DEFENDANT ALTSTOETTER: They were not compelled to go far back. It sufficed to prove that either one of the parents was not Jewish, and if that could not be proved, they also could refer to the fact that other ancestors of theirs were not Jewish. The question as to whether a person was a Jew or was not a Jew was laid down in the meaning of the Nuernberg laws, these laws and the decrees to carry out these laws. But the suits themselves were not concerned with that, but subsequently the main thing was whether--

Q. Did they have to prove that their grandparents were not Jewish?

A. Mr. President, we have to distinguish here--

Q. Just tell me yes or no first, and then you may distinguish. Here is a man who claims he is an Aryan. He wants to prove it. What of his ancestors must he prove were not Jews? Can you answer?

A. Framed in this way, as far as these suits were concerned, I cannot answer the question because as far as these suits were concerned that question was of no importance.

Q. Was he an Aryan if his grandfather was a Jew?

A. He had two grandfathers and two grandmothers.

Q. Yes.

A. And there the distinction was made, but according to the Nuernberg laws, which were only of interest before the administrative authorities and not for these trials, the distinction was made whether he was one-eighth, one-fourth, or one-half Jew, that is to say, a person of mixed descent of that degree, or whether he was a full Aryan. But I say that that is a question which for carrying out these descent cases was of no importance.

Q. Will you tell me then, and do it briefly, because I know you can, what did the person have to prove in order to establish in a descent case that he was an Aryan?

A. It was established, Mr. President, that contrary to the legal assumptions, he was not the descendant of that and that father. Nothing else.

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

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

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

A. If the father was a Jew.

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

A. Yes. If it was at all a question of legitimacy. There were such cases of descent also outside of marriage, illegitimate. These descent cases were not restricted to Jews. There were not at all any special regulations for Jews.

* * * * * * *

3. NATIONALS OF THE WESTERN OCCUPIED COUNTRIES-- THE NIGHT AND FOG DECREE

TRANSLATION OF DOCUMENT 671-PS PROSECUTION EXHIBIT 304

LETTER FROM KEITEL, CHIEF OF ARMED FORCES HIGH COMMAND, TO MINISTRY OF JUSTICE, 12 DECEMBER 1941, TRANSMITTING HITLER’S NIGHT AND FOG DECREE AND ITS FIRST IMPLEMENTATION ORDER; INTEROFFICE MEMORANDUM REQUESTING TRANSMITTAL OF THE LETTER TO DEFENDANT SCHLEGELBERGER

Chief of the Supreme Command of the Armed Forces 14 n 16 WR (I3/4) No. 165/41 g

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

Berlin W 35 12 December 1941 Tirpitzufer 72–76 Telephone: Local: 218191 Long distance: 218091 12/Hz

[Stamp] Secret

To the Reich Minister of Justice

Attention: Under Secretary Dr. Freisler

Subject: Prosecution of criminal offenses against the Reich or the occupying power in the occupied zones

3 enclosures

With regard to the oral conversation between Under Secretary Dr. Freisler and the chief of my legal section,[446] I enclose herewith a decree of the Fuehrer and Supreme Commander of the Wehrmacht of 7 December 1941[447] and an order for its execution of the same day.[448] I agree with the opinion of the State Secretary that the execution of the Fuehrer decree necessitates a close cooperation between the Reich Ministry of Justice and the Supreme Command of the Wehrmacht.

I instructed my officials to assist your agencies in every respect. I ask you to settle the question regarding the manner of imprisonment in your provision for the execution of decree.

[Signed] KEITEL

Action taken by II a 118 and 119/42 g

II a 116/42 g 3 enclosures

12 received 26/1 SCH [Schlegelberger]

Ministerialrat Dr. Gramm, State Secretary Dr. Freisler asks to transmit the enclosed letter to State Secretary Dr. Schlegelberger for his information

[Signed] VON HACKWITZ 19 January 1942

PARTIAL TRANSLATION OF DOCUMENT 1733-PS PROSECUTION EXHIBIT 303

SECRET NIGHT AND FOG DECREE OF HITLER, SIGNED BY KEITEL, 7 DECEMBER 1941, CONCERNING MEASURES TO BE TAKEN AGAINST PERSONS OFFERING RESISTANCE TO GERMAN OCCUPATION

Secret

The Fuehrer and Supreme Commander of the Armed Forces

Directives for the Prosecution of Criminal Acts against the Reich or the Occupying Power in the Occupied Territories of 7 December 1941

Since the beginning of the Russian campaign, Communist elements and other anti-German circles have increased their assaults against the Reich and the occupation force in the occupied territories. The extent and the danger of these activities necessitate the most severe measures against the malefactors in order to intimidate them. To begin with, the following directives should be observed:

I

In case of criminal acts committed by non-German civilians and which are directed against the Reich or the occupation force, endangering their safety or striking force, the death penalty is indicated in principle.

II

Criminal acts contained in paragraph I, will on principle, be tried in the occupied territories only when it appears probable that death sentences are going to be passed on the offenders, or, at least, the main offenders, and if the trial and the execution of the death sentence can be carried out without delay. In other cases the offenders, or, at least, the main offenders, are to be taken to Germany.

III

Offenders who are being taken to Germany are subject to court martial procedure there only if particular military interests should require this. German and foreign agencies will be told upon inquiries on such offenders that they were arrested and that the state of the proceeding does not allow further information.

IV

The commanders in the occupied territories and the judicial authorities, within their jurisdiction, will be personally held responsible for the execution of this decree.

V

The Chief of the High Command of the Armed Forces will decide in which of the occupied territories this decree shall be applied. He is authorized to furnish explanations, to issue supplements, and implementation directives. The Reich Minister of Justice will issue implementation directives within his jurisdiction.

BY ORDER: The Chief of the High Command of the Armed Forces

[Signed] KEITEL

Distribution: Foreign Office Reich Minister and Chief of the Reich Chancellery

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

Army High Command (Chief, Army Armament and Commander of the Replacement Army, Army Legal Department) with 7 numbered copies

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

Reich Air Minister and Commander in Chief of the Air Force with 1 numbered copy

President of the Reich Military Court

Commander Armed Forces Southeast with 4 numbered copies Norway Netherlands Ostland Ukraine

Plenipotentiary for the Armed Forces with the Reich Protector for Bohemia and Moravia

Armistice Commission Wiesbaden

OKW: Chief of the Armed Forces Operational Staff with 8 numbered copies Division L Armed Forces Propaganda Division Foreign Affairs, Foreign Counter Intelligence Division Foreign Affairs Counterintelligence III General Armed Forces Office

TRANSLATION OF DOCUMENT 669-PS PROSECUTION EXHIBIT 305

KEITEL LETTER OF 12 DECEMBER 1941, TRANSMITTING THE FIRST IMPLEMENTATION DECREE TO THE NIGHT AND FOG DECREE

[Stamp] SECRET

The Commander in Chief of the Armed Forces 14 n 16 WR (I 3/4) [Stamp] L. 15 Dec. 1941 No. 165/41 g Az. 14g po 10 No. 37787 41

12 December 1941

Subject: Prosecution of criminal acts against the Reich or against the occupying power in occupied territories

1 enclosure

It is the long considered will of the Fuehrer that in case of attacks against the Reich or the occupation force in the occupied territories, other measures than those in present use should be taken. The Fuehrer is of the following opinion: in connection with such activities imprisonment, even life imprisonment, is considered as a sign of weakness. An effective and lasting deterrent can only be achieved by death sentences or by measures which will keep the relatives of the perpetrator and the population in suspense concerning the fate of the perpetrator. This purpose is served by deportation to Germany.

The attached directives for the prosecution of crimes correspond to this conception of the Fuehrer. They were examined and approved by him.

[Signed] KEITEL

Distribution[449]

[Handwritten notes] Clarify as soon as possible.

1. Are the provisions concerning shooting of hostages, etc., annulled by that order?

2. Is it clear to the Army High Command, especially to the Quartermaster General, who has been omitted in the distribution?

[Initial] W [Warlimont] 17 December

Secret

First Decree for the carrying out of the Fuehrer’s and Supreme Commander’s directives concerning the Prosecution of Criminal Acts against the Reich or the Occupying Power in the Occupied Territories

By virtue of chapter V of the directives of 7 December 1941 of the Fuehrer and Supreme Commander concerning the prosecution of criminal acts against the Reich or the occupying power in the occupied territories, I order the following:

I

The conditions of chapter I of the directives will as a rule be applicable in cases of--

1. Assault with intent to kill.

2. Espionage.

3. Sabotage.

4. Communist activity.

5. Crimes liable to create disorder.

6. Favoring of the enemy by the following means:

a. Smuggling people into a country.

b. The attempt to enlist in an enemy army.

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

7. Illegal possession of arms.

II

(1) The criminal acts described in section I of the directives are to be tried in the occupied territories only under the following conditions:

1. It must be probable that a death sentence will be pronounced against the perpetrators or at least against the principal perpetrator.

2. It must be possible to carry out the trial and the execution of the death sentence at once (on principle a week after the capture of the perpetrator).

3. Special political misgivings against the immediate execution of the death sentence should not exist.

4. Apart from the death sentence for murder or partisan activities no death sentence against a woman is to be expected.

(2) If a sentence which has been pronounced according to section I is annulled, the trial can continue in the occupied territory, if the conditions of section I, No. 1, 3, and 4 still exist.

III

(1) In case of criminal acts mentioned in section I of the directives, the highest judicial authority in agreement with the counter intelligence officer examines whether the conditions for a trial in the occupied territories exist. If he agrees that they are, he orders the session of the court martial. If he denies it, he submits the documents to his superior commanding officer (sec. 89, par. 1 of the decree on criminal procedure during wartime). The latter may reserve the decision to himself.

(2) The superior commanding officer renders the final decision as to whether the conditions for a trial in the occupied territories exist. If he agrees that they do, he orders the highest judicial authority within his command to deal with it. If he denies it, he gives the order to the secret field police to take the perpetrator to Germany.

IV

(1) Perpetrators taken to Germany will be subjected there to court martial proceedings only, if the High Command of the Armed Forces or the superior commanding officer declare in their decision according to chapter III that special military reasons require court martial proceedings. If such a declaration is not made, the order that the perpetrators be taken to Germany means a transfer according to section 3, paragraph 2, sentence 2 of the decree on criminal procedure during wartime.

(2) If the superior commanding officer uses his authority according to paragraph 1, he submits the documents to the High Command of the Armed Forces through official channels. The perpetrators are to be designated “prisoners of the armed forces” when being transferred to the secret field police.

(3) The High Command of the Armed Forces determines the tribunal for those perpetrators who are subjected to court martial proceedings according to paragraph 1. It may waive the competence of the armed forces tribunals. Moreover, it can suspend the proceedings for any time it chooses.

V

The trial in Germany will be held under strictest exclusion of the public because of the danger for national security. Foreign witnesses may be questioned during the trial only with the permission of the High Command of the Armed Forces.

VI

The regulations on the procedure before tribunals of the Armed Forces included in the decree of the High Command of 13 September 1941 concerning the situation in Norway (Armed Forces Operational Staff/Department L (IV/Qu) No. 002034/41 top secret) and of 16 September 1941 concerning the Communist revolutionary movements in the occupied territories (Armed Forces Operational Staff/Abt. L (IV/Qu) No. 002060/41 top secret) are superseded by the directives and this executive order.

VII

(1) These directives will become effective 3 weeks after they are signed. They are to be applied in all occupied territories with the exception of Denmark until further notice.

(2) The orders issued for the newly Occupied Eastern Territories are not affected by these directives.

(3) Chapter I of the directives is applicable for pending trials. The highest judicial authority and the superior commanding officer can accordingly apply chapter III of this executive order in case of such trials. If the superior commanding officer orders that a perpetrator be taken to Germany, chapter IV will be applicable. In case of perpetrators who were taken to Germany before these directives became effective, the High Command of the Armed Forces can proceed according to chapter IV, paragraph 3.

The Commander in Chief of the Armed Forces

[Signed] KEITEL

Distribution:

Foreign Office

Reich Minister and Chief of the Reich Chancellery

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

High Command Army (Chief Army Armament and Commander of the Replacement Army, Army Legal Department) with 7 numbered copies

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

Reich Minister for Air and Commander in Chief of the Air Force with 1 numbered copy

President of the Reich Military Court

Armed Forces Commander Southeast with 1 numbered copy

Norway Netherlands Ostland Ukraine

Plenipotentiary for the Armed Forces with the Reich Protector in Bohemia and Moravia

Armistice Commission Wiesbaden

High Command Armed Forces:

Chief Armed Forces Operations Staff with 8 numbered copies Department L

Armed Forces Propaganda

Office Foreign Counterintelligence

Department Foreign Countries

Branch III

General Armed Forces Office

PARTIAL TRANSLATION OF DOCUMENT NG-077[450] PROSECUTION EXHIBIT 306

LETTER FROM UNDER SECRETARY FREISLER TO GENERAL LEHMANN, 16 DECEMBER 1941, TRANSMITTING A DRAFT OF A PROPOSED IMPLEMENTATION ORDER TO THE NIGHT AND FOG DECREE, TOGETHER WITH AN INTEROFFICE NOTE OF 25 DECEMBER 1941

Priv. II v. Ha/La

16 December 1941

[Handwritten] Officially dispatched, 16 December

Secret [Handwritten] IIa 117/42 g Sheet 13 Secret!

To Ministerialdirektor Dr. Lehmann Chief of the Armed Forces Legal Division with the High Command of the Armed Forces

Berlin W Bendlerstr. 14

Dear Ministerialdirektor,

Dear Party Member Lehmann,

Being in the possession of your letter of the 12th of this month, I send you attached hereto the draft of an executive order. Taking your consent for granted, the Reich Minister of Justice intends to publish it.[451] I should be obliged to you, if we could discuss our views in the beginning of next week. (Prior to that time I shall be on an official trip.) In the meantime, Ministerialdirektor Schaefer is also ready to discuss this matter with you. Ministerialdirektor Schaefer will prepare the necessary administrative regulations on the basis of the provisions issued or proposed.

Heil Hitler! [Initial] FR [Freisler]

[Illegible stamp] [Italicized text crossed out in original document]

Before dispatch submitted to State Secretary Dr. Schlegelberger with the request to take note.

Berlin, 16 December

[Signed] FREISLER 22. 12. to II a 116/42 g

[Enclosure]

[Executory decree to Hitler’s Night and Fog order of 7 December 1941]

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

1. I reserve to myself the decision as to which court is materially and locally competent to deal with a case.

2. The public prosecutor shall prefer charges after earnest reflection according to his duty.

3. The order, application, and termination of the arrest pending trial are at the discretion of the public prosecutor.

4. The trial will be conducted behind closed doors.

5. The admittance of evidence of foreign origin depends on the preceding consent of the public prosecutor.

6. Prior to the verdict the public prosecutor may revoke the indictment or move for a suspension of the proceedings.

The motion of the public prosecutor to suspend proceedings must be granted by the court.

The public prosecutor must be given an opportunity to state his opinion, should the court decide on making an exception to his motion in re.

[Initial] FR [Freisler] 16 December [Initial] SCH [Schaefer] 16 December

[Entire document handwritten]

Secret

1. Note. I had an oral discussion in this matter on 19 December, and on 24 December I had a discussion by telephone with Ministerialdirektor Lehmann. He told me, that the High Command of the Armed Forces had, in principle, agreed to the draft submitted to it with regard to the executive order but that, nevertheless, it would give a reply in writing. The question has not been decided whether the High Command of the Armed Forces within its jurisdiction, will give the right to handle the case to the higher military court or the military courts. There is also the necessity of settling some other questions which presumably will be attempted in a conference of delegates in the beginning of January. It would be advisable for the Reich Ministry of Justice to await further information from the High Command of the Armed Forces. Transfers of the cases to courts should not be expected before the second half of January.

Experts in charge of this matter with the High Command of the Armed Forces are--

Senior Military Court Counsellor Huelle, Military Court Counsellor Schoelz, Ministerialrat Sack.

Furthermore with the counterintelligence office of Colonel Bentivegni, Chief of Counterintelligence III.

Ministerialrat Herzlieb, Senior Military Court Counsellor von Gramatzki.

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

[Initial] GR [Grau] 25 December

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

[Signed] SCHAEFER 24 December

TRANSLATION OF DOCUMENT NG-232 PROSECUTION EXHIBIT 308

CIRCULAR DECREE OF THE REICH MINISTRY OF JUSTICE, SIGNED BY UNDER SECRETARY FREISLER, 6 FEBRUARY 1942, ASSIGNING PARTICULAR SPECIAL COURTS TO HANDLE NIGHT AND FOG CASES

The Reich Minister of Justice II a 119/42 secret

Berlin W 8, 6 February 1942 Wilhelmstrasse 65 Phone: 110044 Long distance: 11 65 16

[Stamp] Secret

Circular decree on the implementation of the executive decree of 6 February 1942, concerning the directives issued by the Fuehrer and Supreme Commander of the Armed Forces for the prosecution of criminal acts against the Reich or the occupying power in the occupied territories.

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

1

Competent for the handling of the cases transferred to ordinary courts, including their eventual retrial, are, as far as they originate from the occupied French territories, the Special Court and the chief public prosecutor in Cologne; as far as they originate from the occupied Belgian and Dutch territories, the Special Court and the chief public prosecutor in Dortmund; as far as they originate from the occupied Norwegian territories, the Special Court and the chief prosecutor in Kiel; for the rest, the Special Court and the attorney general at the Berlin district court. In special cases I reserve to myself the decision of competence for each individual case.

2

The Chief Public Prosecutor will inform me of the indictment, the intended plea and the sentence as well as of his intention to refrain from any accusation in a specific case.

3

The choice of a defense counsel will require the agreement of the presiding judge who makes his decision only with the consent of the prosecutor. The agreement may be withdrawn.

4

Warrants of arrest will be withdrawn only with my consent. If such is intended, the chief public prosecutor will report to me beforehand. He will furthermore ask for my decision before using foreign evidence or before agreeing to its being used by the Tribunal.

5

Inquiries concerning the accused person or the pending trial from other sources than those armed forces and police agencies dealing with the case will be answered by merely stating that * * * is arrested, and the state of the trial does not allow further information.

Acting: [Typed] Signed: DR. FREISLER Certified: [Signed] KERSTEN Chief Secretary of the Ministerial Chancellery

Circular stamp of the Reich Ministry of Justice

TRANSLATION OF DOCUMENT 2521-PS PROSECUTION EXHIBIT 310

LETTER FROM THE SS ECONOMIC AND ADMINISTRATIVE MAIN OFFICE TO CONCENTRATION CAMP COMMANDERS, 18 AUGUST 1942, TRANSMITTING INSTRUCTIONS FOR TREATMENT OF NIGHT AND FOG PRISONERS

Copy Oranienburg, 18 August 1942

SS Economic and Administrative Main Office[452] Chief of Division D--Concentration Camps D I/Az.: 14 c 2/Ot./U. Secret Diary No. 551/42

Subject: Prisoners who come under the Keitel decree

Reference: Reich Security Main Office--IV C 2 Gen. No. 103/42 of 14 August 42 and attached extract of 4 August 1942

Enclosure: 1

To the Camp Commandants of the Concentration Camps Dachau, Sachsenhausen, Buchenwald, Mauthausen, Flossenbuerg, Neuengamme, Auschwitz, Gross-Rosen, Natzweiler, Niederhagen, Stutthof, Arbeitsdorf, Ravensbrueck, and Prisoner of War Camp at Lublin

I am sending you, for information and execution, enclosed extract from the Nacht und Nebel [Night and Fog] Decree for official use in concentration camps, in connection with prisoners who come under the “Keitel Decree.”

In the event of the transfer of such prisoners, it is to be pointed out that the prisoners come under the “Keitel Decree” or the Nacht und Nebel Decree.

[Typed] GLUECKS

SS Brigadier General and Brigadier General of the Waffen SS Certified true copy Natzweiler, 24 August 1942 [Signed] MELZER SS-Corporal

Seal

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

Copy

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

Extract from the Nacht und Nebel Decree for official use in concentration camps

By decree of the Commander in Chief of the Armed Forces dated 12 December 1941 regarding the prosecution of punishable offenses against the Reich or the occupation forces in the occupied areas (called in short Nacht und Nebel Decree), it has been directed by virtue of a Fuehrer order, that persons who, in the occupied territories, take action against the Reich or the occupation forces, shall be removed to the Reich for deterrent purposes. Here they are to be transferred to a Special Court. Should this not be possible for any reason, these persons will be placed in a concentration camp under sentence of protective custody. Protective custody as a rule lasts until the end of the war.

As it is the purpose of this decree to leave the relatives, friends, and acquaintances in uncertainty regarding the fate of the prisoners; they are not allowed to have any means of communication with the outside world. They may therefore neither write, nor receive letters, parcels, or visits. Nor will any kind of information regarding the prisoners be given to any agency outside.

In cases of death, the relatives are not to be informed until further notice. There has not yet been a final ruling on this question.

These regulations apply to all prisoners regarding whom it is stated in the detention particulars or in the detention certificates of the Reich Security Main Office that they come under the Nacht und Nebel Decree. Furthermore, all prisoners come under it who are described as “Porto” or “Continent” prisoners.

If it should occur that prisoners who come under the Nacht und Nebel Decree, have, through an error, had the opportunity of informing their relatives, further exchange of correspondence with their relatives should, for tactical reason, be granted them within the framework of the general regulations regarding correspondence for persons under protective custody.

[Typed] Signed: DR. HOFFMANN

Certified true copy. Natzweiler, 24 August 1942

[Signed] MELZER

[Seal]

SS Corporal

TRANSLATION OF DOCUMENT NG-228 PROSECUTION EXHIBIT 312

MEMORANDUMS OF DEFENDANT VON AMMON TO DEFENDANT ROTHENBERGER, 9 AND 26 SEPTEMBER 1942, CONCERNING PENDING NIGHT AND FOG CASES AND THE HANDLING OF THESE PRISONERS

1. Note. Criminal proceedings according to the directives of the Fuehrer for the prosecution of criminal acts against the Reich or the occupying power in the occupied territories of 7 December 1941[453] (so-called Nacht und Nebel cases) pending on 1 September 1943 are--

a. With the Chief Public Prosecutor in Kiel (from the occupied Norwegian territories) 9 cases with a total of 262 accused.

b. With the Chief Public Prosecutor in Essen (from the occupied Belgian and northern French territories) 180 cases with a total of 863 accused.

c. With the Chief Public Prosecutor in Cologne (from the occupied French territories--with the exception of northern France) 177 cases with a total of 331 accused.

Since 31 August 1942, trials have been held before the Special Court in Essen. On 31 August 1942 the first death sentence (against Kratz) was passed.

2. To be submitted to:

Ministerial Director Dr. Crohne, Ministerial Dirigent Dr. Mettgenberg, Oberregierungsrat Mielke separately to each one--with the request to take note [Initial] R. [ROTHENBERGER] Berlin, 9 September 1942 [Signed] VON AMMON

[Handwritten notes]

To State Secretary Dr. Rothenberger To the Reich Minister of Justice With the request to take note. Has been submitted.

[Signed] DR. CROHNE 10 September [Signed] EBERSBERG [Initial] E

Notes for State Secretary Dr. Rothenberger

On 24 September a report was submitted to the Reich minister on the legal basis (Fuehrer decree for the prosecution of criminal acts against the Reich or the occupying power in the occupied territories of 7 December 1941 and orders for execution) and on the present stage of the so-called Nacht und Nebel proceedings.

On 1 September 1942 pending were--

1. With the Chief Public Prosecutor in Kiel (from the occupied Norwegian territories) 9 cases with a total of 262 accused.

2. With the Chief Public Prosecutor in Essen (from the occupied territories of Belgium and northern France) 180 cases with a total of 863 accused.

3. With the Chief Public Prosecutor in Cologne (from the occupied French territories--with the exception of northern France) 177 cases with a total of 331 accused.

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

1. The Special Courts in Kiel, Essen, Cologne, and Berlin with exclusive competence hitherto, are to some extent to be replaced by the People’s Court.

2. The present procedure, according to which the accused are kept in custody indefinitely by the judiciary authorities when an indictment was either impossible or not answering the purpose, is to be abolished.

Furthermore, the Reich Minister wishes the question of the competence for pardons settled in such a way that in cases which have been handed over to the common court authorities, these (not the authorities of the armed forces) shall make the decision for pardon.

To give consideration to these questions, a departmental meeting with the High Command of the Armed Forces Legal Division and Counterintelligence is to be held on 2 October 1942.

Berlin, 26 September 1942

[Typed] signed DR. VON AMMON [Handwritten] for further action

[Initial] A [Ammon] 2 October

PARTIAL TRANSLATION OF DOCUMENT NG-255 PROSECUTION EXHIBIT 314

LETTER FROM MINISTRY OF JUSTICE, INITIALED BY DEFENDANTS METTGENBERG AND VON AMMON, TO VARIOUS JUDGES AND PUBLIC PROSECUTORS, 21 DECEMBER 1942, CONCERNING OBJECTIONS TO ELECTIVE DEFENSE COUNSEL IN NIGHT AND FOG TRIALS

The Reich Minister of Justice Berlin, 21 December 1942 IVa 2069.42 g

[stamp] mailed 9 January 1943 [Handwritten] Ru.

[Stamp] Secret

To--

a. The President of the People’s Court

b. The Chief Public Prosecutor at the People’s Court

c. The President of the Military Court

d. The Presidents of the Courts of Appeal in Hamm, in Westphalia, Kiel, and Cologne

e. The Attorney General at the Military Court

f. The Attorneys General in Hamm, in Westphalia, Kiel, and Cologne

[Stamp] To the Chancellery 5 January 1943 made out: Reply: 6 January 1943 Le/Ru.

Subject: Prosecution of criminal acts against the Reich or the occupying power in the occupied territories

[Stamp] [Stamp] To the Chancellery Armed Forces Legal Department 22 December 1942 24 December 1942 made out: Reply: 1211/42 Secret Before mailing

To the High Command of the Armed Forces Armed Forces Legal Department for information. Send copy there.

Several attorneys general have raised the question of whether elective defense counsel are to be admitted in the procedures transferred to the general courts according to the directives of the Fuehrer, dated 7 December 1941, dealing with the prosecution of criminal acts against the Reich or the occupying power in the occupied territories. I have contacted the High Command of the Armed Forces in this respect. We are both of the opinion that in view of the regulations in force for keeping secret the procedures in question, there are basic objections to the admission of elective defense counsel. The interests of the defendants can be taken care of by giving them defense counsel according to paragraph 32 of the competence regulation.

BY ORDER

[Department] III [Department] IV 21 December [Initial] M [Mettgenberg] 21/12 [Initials illegible] [Initial] A [von Ammon] 17/12

PARTIAL TRANSLATION OF DOCUMENT NG-253 PROSECUTION EXHIBIT 317

EXTRACTS FROM OFFICIAL CORRESPONDENCE ARISING OUT OF THE QUESTION OF PROVIDING DEFENSE COUNSEL IN NIGHT AND FOG TRIALS, 4 JANUARY--19 FEBRUARY 1943

[Letter from the President of the Essen Special Court to the President of the Essen District Court, 4 January 1943]

The President of the Special Court

Essen, 4 January 1943

Secret

To the President of the District Court in Essen

Concerning--Prosecution of criminal acts against the Reich or the occupying power in the occupied territories.

The German Penal Code applies to the prosecution of criminal acts against the Reich or the occupying power in occupied territories. This does not exclude the application of article IV, paragraph 32 of the competence decree of 21 February 1940 concerning necessary defense, included in the Reich Minister of Justice’s executive decree of 6 February 1942.[454] Foreign defendants must therefore have counsel if there is a possibility of the death sentence (or life imprisonment) being imposed. That is frequently the case in these trials. An increasing number of more copious cases with several defendants are now coming up. Very frequently the only evidence against defendants pleading not guilty consists of statements of codefendants, so that in view of the possibility of conflicting interests, it is only rarely possible to appoint one counsel for a number of defendants. Recently, seven counsel had to be appointed for one trial lasting several days. At that time it was most difficult to find enough counsel in a position to take over the defense. The course of proceedings was repeatedly interrupted owing to the inability of counsel to appear. In a few days another case with about 30 defendants will come up, for which a number of counsel will presumably have to be appointed, too. A number of similar trials may be expected shortly.

Such a strain for trials lasting all day for several days upon the few lawyers, who are overworked due to their representing their drafted colleagues, is in my opinion untenable under present circumstances. The resultant drain upon the State treasury is considerable. When the second court for these special cases which will soon be needed is set up, it will be next to impossible to get the requisite number of counsel. The interests of foreign defendants can hardly be considered sufficiently important to justify continuous demands of this kind on staff and public funds.

I therefore suggest that the Reich Minister of Justice should lay down the following by virtue of the powers granted in No. V of the Fuehrer’s directives of 7 December 1941:

Article IV, paragraph 32 of the competence decree of 21 February 1940 is not applicable. The president of the court will appoint a counsel for the defendant if the latter is unable to defend himself or if for any other special reasons it seems desirable that the defendant be represented.

[Signed] GOEBEL[455] District Court Director [Landgerichtsdirektor]

[Memorandum, 18 January 1943, from Ministerial Director Grau to defendant von Ammon asking for comments on the proposal of the President of the Special Court in Essen.]

Secret

In reference: III a 184/43g To Oberlandesgerichtsrat Dr. von Ammon

Account of proceedings enclosed with request for comments. In case a regulation of the nature suggested by the Essen Special Court should be considered necessary, a legal decision along the lines of the draft could be made. The formulation of this communication intends to leave untouched in principle the necessity for defense in the cases concerned and only to permit individual exceptions of the compulsory regulation contained in paragraph 32 of the competence decree (ZustVO).

I consider it doubtful whether the principle of the necessity of having a defense should be abandoned also in cases where the death sentence may be expected. Here the existing regulations should be waived only in cases of the utmost urgency.

Berlin, 18 January 1943

[Signed] GRAU

[Answer, 1 February 1943, from the Reich Ministry of Justice, initialed by defendants Mettgenberg and von Ammon.]

To Ministerialrat Grau

Department IV suggests that section 2 of decree No. 7 of 7 December 1941 be given roughly the following form:

“In trials in which according to the regulations a defense counsel has to be appointed for the defendant, the regulation may be ignored if the president of the court is convinced that the character of the defendant or the nature of the charge make the assistance of a defense counsel superfluous.”

However, it might be expedient to obtain the comments of the President of the People’s Court, and of the chief Reich prosecutor at the People’s Court, the presidents of the courts of appeal at Kiel and Cologne and the attorneys general in Hamm, Cologne, and Kiel.

Berlin, 1 February 1943

[Initials] V [Vollmer] M [Mettgenberg] 1 February A [von Ammon] 30 January

[Letter, 9 February 1943, from the Reich Ministry of Justice, initialed by defendants Mettgenberg and von Ammon.]

The Reich Minister of Justice Berlin, 9 February, 1943 III a 184/43 g

Secret

1. To

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

b. The Chief Public Prosecutor at the People’s Court[456] c. The Oberlandesgerichtspraesidenten in Kiel and Cologne

[Initial] TH [Thierack]

d. Chief Public Prosecutors in Hamm, Kiel, and Cologne

[Stamp] To files 9 February 1943

Subject: Crimes against the Reich or the occupying forces in occupied territory

The president of the Essen Special Court reports that in trials for the above-mentioned offenses, where a defense is necessary, because of the sentence which may be expected, it is often difficult to obtain counsel for the defense when [defendants who have confessed in cases where there is a collision of interest between the defendants][457] a defense counsel always has to be obtained. The requisite number of lawyers is not always obtainable, the course of the main proceedings is also frequently hampered by the inability of individual lawyers to appear.

I therefore propose to insert in No. 7 of the decree for the carrying out of the directives laid down by the Fuehrer and Supreme Commander of the Armed Forces of 7 December 1941 the following regulation, which is to be paragraph 2:

“In trials before the Sondergericht [Special Court] in which according to the regulations defense counsel has to be provided for the defendant, the regulation may be ignored when the president of the court can conscientiously state that the character of the accused and the nature of the charge make the presence of a defense counsel superfluous.”

Please comment as soon as possible.

BY ORDER:

[Department] IV [Department] III [Initial Illegible]

[Initials] V [Vollmer] 4 February

M [Mettgenberg] 4 February

A [Ammon] 3 February

C [Crohne] 3 February

2. 3 weeks later. 3 March

TRANSLATION OF DOCUMENT NG-269 PROSECUTION EXHIBIT 319

SECRET INSTRUCTIONS OF REICH MINISTRY OF JUSTICE TO PROSECUTORS AND JUDGES, INITIALED BY DEFENDANTS ALTSTOETTER, METTGENBERG, AND VON AMMON, 6 MARCH 1943, CONCERNING MEASURES NECESSARY TO MAINTAIN SECRECY OF NIGHT AND FOG PROCEDURES

Draft

Berlin, 6 March 1943 The Reich Minister of Justice IV a 398/43 secret

[Stamp] Secret

Secret

1. To:

a. The Chief Reich Prosecutor at the People’s Court

b. The Attorneys General in Celle, Duesseldorf, Frankfurt/Main, Hamburg, Hamm, Kiel, and Cologne

c. The Attorney General at the Berlin Court of Appeal

Subject: Criminal procedures on account of criminal acts committed against the Reich or the occupying power in the occupied territories

Enclosures: Extra copies for the Chief Public Prosecutors in Essen, Kiel, and Cologne and for the Attorney General at the Berlin District Court

For the attention of:

a. The President of the People’s Court

b. The Presidents of the District Courts of Appeal in Hamm, Kiel, and Cologne

c. The President of the Berlin Court of Appeal

Enclosures: Extra copies for the Presidents of the District Courts in Hamm, Kiel, Cologne, and Berlin

[Stamp] Chancellery of Justice

6 March 1943

With regard to criminal procedures on account of criminal acts against the Reich or against the occupying forces in the occupied territories (so-called Night and Fog cases) I request the observance of the following directives in order not to endanger the necessary top secrecy of the procedure, particularly, regarding the execution of death sentences and other cases of death among prisoners. [Italicized text crossed out in the original document.]

1. The cards used for investigations for the Reich crime statistics need not be filled in. Likewise, notification of the penal records office will be discontinued until further notice. However, sentences will have to be registered in lists or on a card index in order to make possible an entry into the penal records in due course.

2. In cases of death, especially in cases of execution of NN prisoners, as well as in cases of female NN prisoners giving birth to a child, the register must be notified as prescribed by law. However, the following remark has to be added: “By order of the Reich Minister of the Interior, the entry into the death (birth) registry must bear an endorsement, saying that examination of the papers, furnishing of information and of certified copies of death (birth) certificates is only admissible with the consent of the Reich Minister of Justice.”

3. In case an NN prisoner sentenced to death desires to draw up a public will, proceedings must follow No. 30, paragraph 2 of my circular ordinance of 19 February 1939, article 417-III a, 318.39. The persons who assist the drawing up of the will are, if necessary, to be sworn to secrecy. The will has to be taken into official custody according to article 2 of the Probate Law. The deposition receipt has to be kept by the prosecution until further notice.

4. Farewell letters by NN prisoners as well as other letters must not be mailed. They have to be forwarded to the prosecution who will keep them until further notice.

5. If an NN prisoner who has been sentenced to death and informed of the forthcoming execution of the death sentence desires spiritual assistance by the prison padre, this will be granted. If necessary, the padre must be sworn to secrecy.

6. The relatives will not be informed of the death and especially of the execution of an NN prisoner. The press will not be informed of the execution of a death sentence, nor must the execution of a death sentence be publicly announced by posters.

7. The bodies of executed NN prisoners or prisoners who died from other causes have to be turned over to the State Police for burial. Reference must be made to the existing regulations on secrecy. It must be pointed out especially that the graves of NN prisoners must not be marked with the names of the deceased.

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

8. Legacies of NN prisoners who have been executed or died from other causes must be kept at the prison where the sentence was served.

BY ORDER:

[Initials] SCH [Schaefer] 5 March MX [Marx] 3 March A [Altstoetter] 3 March M [Mettgenberg] 25 February v. A. [von Ammon] 27 February [Initials] W [Westphal] 27 February V [Vogel] 26 February R [Rexroth] 27 February H [Hecker] 26 February EI [Eichler] 1 March

2. Copy of (1) to District Court Judge Dr. von Ammon and to Chief Public Prosecutor Dr. Metten, also to Dr. Eichler.

3. To be submitted again after being mailed.

[Stamp] Mailed 8 March 1943

[Handwritten] resubmitted [Initials illegible] March 9 [Handwritten notes illegible]

Distribution

The circular ordinance of 6 March 1943-IV a 398/43--has been mailed today to the following addresses:

786 b 1. Chief Reich Prosecutor at the People’s Court, Berlin. 7 2. Attorney General, Celle. 8 3. Attorney General, Duesseldorf. 9 4. Attorney General, Frankfurt (Main). 90 5. Attorney General, Hamburg. 1 6. Attorney General, Hamm. 2 7. Attorney General, Kiel. 3 8. Attorney General, Cologne. 4 9. Attorney General at the Court of Appeal, Berlin. 5 10. President of the People’s Court, Berlin. 6 11. President of the Supreme Court of Appeal, Hamm. 7 12. President of the Supreme Court of Appeal, Kiel. 8 13. President of the Supreme Court of Appeal, Cologne. 799 b 14. President of the District Court, Berlin.

[Handwritten] 14 Weber

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

TRANSLATION OF DOCUMENT NG-281 PROSECUTION EXHIBIT 323

FILE NOTE OF DEFENDANT VON AMMON, 7 OCTOBER 1943, CONCERNING DEFENDANT LAUTZ’ QUESTION AS TO GIVING DEFENDANTS TRANSLATIONS OF THE INDICTMENTS AGAINST THEM IN NIGHT AND FOG CASES

1. Note--Chief Reich Prosecutor Lautz asked me whether there were any objections to translations of indictments in NN proceedings being handed over to the defendants. It has turned out to be inconvenient that the defendants learned the details of the charges raised against them only during the trial. Also the interpretation by the defense counsel is not always sufficient, since their French mostly is not good enough and since the defendants were brought to the place of the trial only shortly before it was held.

The procedure adopted for Czech defendants, viz, having the indictment translated to them orally by a Czech-speaking sergeant, is not possible here since French-speaking sergeants are not available.

After having given a report to Ministerialdirektor of Department IV and to the Minister, I informed Chief Reich Prosecutor Lautz on 6 October 1943 that there were no objections whatever to the intended procedure.

2. Ad procedures of office a 3.--“Prosecution of criminal acts against the Reich or the occupying power in the occupied territories.”

Berlin, 7 October 1943 IVa 2369/43 g [Initial] A [von Ammon]

PARTIAL TRANSLATION OF DOCUMENT NG-205 PROSECUTION EXHIBIT 328

SECRET DIRECTIVE OF THE REICH MINISTRY OF JUSTICE, 21 JANUARY 1944, ORDERING TRANSFER TO GESTAPO OF NIGHT AND FOG PRISONERS WHO WERE ACQUITTED, AGAINST WHOM PROCEEDINGS WERE QUASHED, OR WHO HAD SERVED THEIR SENTENCES

The Reich Minister of Justice IV a 2083.43 g Berlin, 21 January 1944

Secret [Handwritten] Immediately! [Initial] TH [Thierack] (Stamp) dispatched: 25 January 1944

1. To the

a. President of the People’s Court

b. Chief Reich Prosecutor at the People’s Court

c. Presidents of the Courts of Appeal in Breslau, Hamm, and Kiel

d. President of the Military Court

e. Attorneys General in Breslau, Hamm, and Kiel

f. Attorney General at the Military Court

Subject: Prosecution of criminal acts committed against the Reich or the occupying power in the occupied territories

Enclosures: Extra copies for the Presidents of the District Courts in Breslau, Essen, Kiel, and Berlin; Chief Public Prosecutors in Breslau, Essen, and Kiel; and for the Attorney General at the Berlin District Court

[Stamp] submitted on 25 January 1944

For information: a. The other Attorneys General b. Supreme Command of the Armed Forces

Referring to the letter of 10 November 1943 14 n 16.18 WR (I/3)--129/43 g

c. Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior --Chief of the Security Police and of the SD--

Referring to the letter of 17 December 1943 IV D 4-103/42 g

As supplement to my circular decree dated 28 October 1942--IV a 1668/42 g--I order the following concerning the treatment of NN prisoners who were acquitted by a general court, against whom such proceedings were quashed, or who served their sentence imposed on them by a general court:

1. If during the trial of an NN proceeding it appears that the defendant is innocent or that his guilt has not been sufficiently established, he will be handed over to the Secret State Police; the public prosecutor will inform the Secret State Police of his opinion whether the defendant can be released and return to the occupied territories, or whether he will continue to remain under detention. The Secret State Police will decide what further actions are to be taken.

2. Defendants who were acquitted, or against whom proceedings were quashed during the trial, or who served a sentence during the war, will be handed over to the Secret State Police for detention for the duration of the war. The Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior has ordered that these defendants will always be given the mildest grade of protective custody, i.e., grade I.

3. Deviations from the regulations as contained in Nos. 1 and 2, will be made only after my approval has been given.

BY ORDER: As deputy [Initial] V [Vollmer] Jan. 18

2. Copy of 1 will be sent to the-- a. President of the Senate Hecker b. Ministerialrat Dr. von Ammon c. Amtsrat Thienel d. s 1

3. To be resubmitted after dispatch-- [Initial] A [von Ammon] Jan. 18

Report of 13 December 1943 [Handwritten] submitted with IV a 27/44 g

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

1. President of the People’s Court in Berlin. 2. Chief Reich Prosecutor at the People’s Court in Berlin. 3. President of the Court of Appeal, Breslau. 4. President of the Court of Appeal, Hamm/Westphalia. 5. President of the Court of Appeal, Kiel. 6. President of the Court of Appeal [Kammergericht], Berlin. 7. Chief Public Prosecutor, Breslau. 8. Chief Public Prosecutor, Hamm/Westphalia. 9. Chief Public Prosecutor, Kiel. 10. Chief Public Prosecutor at the Court of Appeal, Berlin. 11. Chief Public Prosecutor, Bamberg. 12. Chief Public Prosecutor, Braunschweig. 13. Chief Public Prosecutor, Celle. 14. Chief Public Prosecutor, Danzig. 15. Chief Public Prosecutor, Darmstadt. 16. Chief Public Prosecutor, Dresden. 17. Chief Public Prosecutor, Duesseldorf. 18. Chief Public Prosecutor, Frankfurt/Main. 19. Chief Public Prosecutor, Graz. 20. Chief Public Prosecutor, Hamburg. 21. Chief Public Prosecutor, Innsbruck. 22. Chief Public Prosecutor, Jena. 23. Chief Public Prosecutor, Karlsruhe. 24. Chief Public Prosecutor, Kassel. 25. Chief Public Prosecutor, Katowice. 26. Chief Public Prosecutor, Cologne/Rhine. 27. Chief Public Prosecutor, Koenigsberg. 28. Chief Public Prosecutor, Leitmeritz. 29. Chief Public Prosecutor, Linz/Donau. 30. Chief Public Prosecutor, Munich. 31. Chief Public Prosecutor, Naumburg/Saale. 32. Chief Public Prosecutor, Nuremberg. 33. Chief Public Prosecutor, Oldenburg. 34. Chief Public Prosecutor, Poznan. 35. Chief Public Prosecutor, Rostock, at present Schwerin/Meckl. 36. Chief Public Prosecutor, Stettin. 37. Chief Public Prosecutor, Stuttgart. 38. Chief Public Prosecutor, Vienna. 39. Chief Public Prosecutor, Zweibruecken. 40. Plenipotentiary of the Reich Minister of Justice for the Emsland convict camps in Papenburg. 41. German State Minister for Bohemia and Moravia in Prague. 42. Supreme Command of the Wehrmacht, Berlin. 43. Reich Leader SS and Chief of the German Police (Pommerenin) [sic]. 44. [illegible marginal note]

[Stamp] Berlin, 25 January 1944

TRANSLATION OF DOCUMENT NG-230 PROSECUTION EXHIBIT 331

LETTER FROM ARMED FORCES HIGH COMMAND TO THE FOREIGN OFFICE, COPY TO DEFENDANT VON AMMON, 4 APRIL 1944, CONCERNING TWO NOTES OF M. DE BRINON, VICHY GOVERNMENT AMBASSADOR, ON NIGHT AND FOG CASES

Berlin, W 35, 4 April 1944 Copy Tirpitzufer 72–76

High Command of the Armed Forces 14 n 16.18 WR (I/3) 259/44g

Secret

To the Foreign Office Berlin W 8

Subject: Prosecution of offenses against the Reich or the army of occupation in the occupied territories

2 enclosures[458]

Enclosed two notes of the French Ambassador and Secretary of State de Brinon are submitted

The High Command gives the following comment upon them:

In virtue of the directions given by the Fuehrer on 7 December 1941, capital punishment will be inflicted on principle in the occupied territories for offenses of non-German civilians which are directed against the Reich and the army of occupation and are endangering its safety or readiness for action. Whenever capital punishment would not be probable or could not be immediately inflicted and executed, the perpetrator will be brought to Germany and sentenced there. In some cases perpetrators who have been sentenced in the occupied territories will be committed for imprisonment to a penitentiary in Germany. This will be done for political reasons on principle in case of capital punishments inflicted on women, men of 70 years and older, and fathers of numerous children under age, excepting punishments inflicted on account of murder or of such crimes which are in connection with actions (e.g., partisans).

The transfer to Germany will be made, in accordance with the wishes of the Fuehrer, in order to make an efficacious and lasting warning example. The Fuehrer desires the relations and the population to be kept in suspense as regards the fate of the perpetrator. To German and foreign bureaus it will be replied to inquiries and petitions--“The perpetrator has been committed to prison, further information cannot be given.”

To Ministerialrat von Ammon

It is therefore impossible to comply with the wishes of the Ambassador de Brinon. The High Command requests you to inform him in due form.

BY ORDER: [Typed] signed DR. HUELLE

Berlin, 6 April 1944

High Command of the Armed Forces 14 n 16.18 WR (I/3) 259/44g

To the Reich Minister of Justice Berlin W 8

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

BY ORDER: [Signed] DR. HUELLE

[Handwritten note]

To previous correspondence [illegible]. Prosecution of offenses against the Reich or the army of occupation in the occupied territories

[Initial] A [von Ammon] 2.5

TRANSLATION OF DOCUMENT NG-262 PROSECUTION EXHIBIT 333

FILE NOTE INITIALED BY DEFENDANT VON AMMON ON 10 MAY 1944, CONCERNING THE STATUS OF NIGHT AND FOG CASES AS OF 30 APRIL 1944

Copy

IV n 313/42 secret

Survey of the Status of NN Proceedings on 30 April 1944

I. The following cases were transferred by the military authorities to: a. Chief Public Prosecutor Kiel-- 12 proceedings with 442 defendants. b. Chief Public Prosecutor Oppeln-- 729 proceedings with 4048 defendants. c. Chief Public Prosecutor Breslau[459]-- 1273 proceedings with 2149 defendants. Total--2014 proceedings with 6639 defendants.

II. Charges preferred by: a. Chief Public Prosecutor Kiel-- 9 proceedings with 345 defendants. b. Chief Public Prosecutor Oppeln-- 494 proceedings with 1578 defendants. c. Chief Public Prosecutor Breslau-- 813 proceedings with 1113 defendants. d. Chief Reich Prosecutor with the People’s Court-- 134 proceedings with 588 defendants. Total--1450 proceedings with 3624 defendants.

III. Verdicts have been submitted from: a. Kiel Special Court-- 8 cases with 168 defendants. b. Oppeln Special Court-- 307 cases with 725 defendants. c. Breslau Special Court-- 377 cases with 473 defendants. d. Chief Reich Prosecutor with People’s Court-- 115 cases with 427 defendants. Total--807 cases with 1793 defendants.

[Handwritten] To the files concerning the prosecution of criminal acts against the Reich and the occupying power in occupied territories.

[Initial] A [von Ammon] 10 May

TRANSLATION OF DOCUMENT NG-1886 PROSECUTION EXHIBIT 546

LETTER FROM DEFENDANT VON AMMON TO THE ATTORNEY GENERAL IN MUNICH, 22 NOVEMBER 1944, CONCERNING THE EXECUTION OF NIGHT AND FOG PRISONERS

The Reich Minister of Justice IV a 676/44g

Berlin W 8, 22 November 1944 Wilhelmstrasse 65 Telephone: 11 00 44 Long distance calls: 11 65 16 Diary No. 1716/44g

SECRET

To the Prosecutor General in Munich 35

Subject: Certification of the personal data of executed NN prisoners

Reference: Diary No. 1584/44g

In view of the new arrangement concerning the treatment of NN prisoners in the future there no longer will be executions of NN prisoners in any large numbers.

Therefore, a closer examination of the suggestions, made by the director of the penitentiary and the detention prison Munich-Stadelheim, is not necessary. I request you to notify the latter accordingly.

BY ORDER: [Typed] DR. VON AMMON[460]

[Official seal of the Ministry of Justice] [Signed] RUTH Certified: Court Official

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS RUDOLF LEHMANN[461]

DIRECT EXAMINATION

* * * * * * *

MR. KING: Will you tell us briefly what your rank was and what your duties were in the High Command of the Armed Forces?

WITNESS LEHMANN: I was the Ministerialdirektor in the High Command of the Armed Forces, and I was Chief of the Legal Division of the Armed Forces.

Q. Do you know of the so-called Nacht und Nebel Decree which was issued in the latter part of 1941 over the signature of Keitel?

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

Q. Will you tell us briefly how the Nacht und Nebel program was supposed to work? In other words, what was the theory upon which this “Erlass” or decree was issued?

* * * * * * *

A. There arose in France, after the beginning of the Russian campaign, the resistance movement which became very active. Hitler complained to the justice administration of the armed forces that on account of their attitude they were not in a position to suppress that resistance movement. That is the general background for the Nacht und Nebel Decree.

In detail this is what happened--In the beginning of October 1941 I received a letter from Field Marshal Keitel--but I want to state here that Keitel was always at headquarters, whereas I was always in Berlin. In this letter, which all my assistants have read, Keitel passed on a directive which he had received from Hitler. The letter was quite long, several pages in handwriting. In that letter, it was expressed that Hitler considered the resistance movement in France a tremendous danger for the German troops. It could be seen that the methods previously used were not sufficient to suppress that movement. There was no sense in passing sentences of prison terms--considering conditions as they were--which were handed down after a long period. That was not the right deterrent which the armed forces should employ; therefore, new means would have to be found.

Q. Now, Witness, you have given us some background on the history of the Nacht und Nebel Decree. Will you tell us with some particularity how the Nacht und Nebel program was supposed to work? In what way were the resisters to be handled under the Nacht und Nebel Decree?

A. Yes. That was also stated in that letter by Keitel. The Fuehrer demanded that Frenchmen who were suspected of such acts, during night and fog--that is where the expression comes from--should be brought across the border and that in Germany they should be held completely incommunicado. That should only not apply in those cases where immediately a death sentence could be passed in France. This measure could be used as a deterrent but not the procedures as had been used heretofore. That was the general plan of Hitler’s which did not include anything about the question as to who should deal with these people after they had been brought to Germany.

Q. Now, Witness, did you, in your position with the High Command of the Armed Forces negotiate with the Ministry of Justice regarding the Nacht und Nebel Decree?

A. Yes, but not immediately. At first, in a lengthy conference with Field Marshal Keitel, I tried to thwart the entire plan because I disagreed--I definitely disagreed with it. Details about that conference, I am sure, are not interesting for us now. In doing that, I only had a very limited success; that is, Keitel said that he would be ready to speak to the Fuehrer once more. But already on the occasion of this first conference, he stated that the Fuehrer insisted on the carrying out of that concept and he used a term which I cannot forget. Hitler had said with reference to that--“Nobody can deny that I am a revolutionary of considerable stature. Then I should know best how uprisings can be suppressed.” Keitel then spoke once more to Hitler, as he stated, but it was of no avail. According to Keitel’s information, Hitler said that there were things of which he understood more than jurists do.

In the conference with Keitel, I raised the question immediately as to who should deal with these matters in Germany now. Thereupon, Keitel said, that it would be most according to the desire of the Fuehrer if the Secret State Police would deal with it. But we were against that from the very beginning, and also Admiral Canaris was against it with the same severity.

After the argument had gone back and forth, I received the permission from Keitel to get in touch with the Ministry of Justice.

Q. Do you have any reason which you can state at this time as to why Hitler preferred the Ministry of Justice rather than the army court system to deal with Nacht und Nebel cases?

A. That question can only have been discussed between Keitel and Hitler. It was a way out which I had suggested, because under all circumstances I wanted to achieve that these matters should continue to be dealt with by judges, and since the aversion of Hitler against the armed forces justice was known, it could be assumed that he would still prefer civilian court to us.

* * * * * * *

Q. When did you first confer with a member of the Ministry of Justice regarding the assumption by the Ministry of Justice of the Nacht und Nebel program?

A. I went to see State Secretary Freisler, I believe, in October 1941. I went to Freisler because he dealt with the criminal cases in the Ministry. He was in charge of them.

Q. Can you tell us what purpose you had in mind in going to Freisler; what proposition did you discuss with him?

A. I discussed with him the proposition that the cases which the military courts in France would not keep should be taken over and tried by the civilian justice administration.

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

A. He was not enthusiastic about it but he agreed that one had to try and keep these cases for the administration of justice as such.

Q. Can you tell me this? Did Freisler have the authority to agree on behalf of the Reich Ministry of Justice to assume the trying of Nacht und Nebel cases?

A. That question I can only answer by saying that Freisler told me that first he had to think it over; and secondly, he had to discuss it with State Secretary Schlegelberger who was at that time in charge of the Ministry.

Q. Is it your impression that Schlegelberger was the individual in the Ministry of Justice to whom Freisler went to secure permission and authority on behalf of the Ministry of Justice to try the Nacht und Nebel cases?

A. That is hard to answer. I can only answer it out of my general background by saying that this was a question of considerable importance, and I thought it was quite clear that Freisler told me that he had to ask the man who was in charge of the Ministry, the acting Minister.

Q. Mr. Lehmann, on 23 December 1946 you put your name to an affidavit. Do you recall signing an affidavit about that time?

A. Yes.

Q. I point out to you that this affidavit is now in evidence before this Court as Document NG-484,[462] Prosecution Exhibit 307. I wish to read to you a statement from that affidavit, and ask you a question concerning it after I have read it. The statement is as follows: “Schlegelberger, who was then acting Minister of Justice, was in my opinion the only person who could consent to take over these Nacht und Nebel cases by the Ministry of Justice.” I ask you now, do you still agree with that statement?

A. Yes, with the reservations that I have made before; as far as I was informed about the routine in the Ministry.

* * * * * * *

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[463]

DIRECT EXAMINATION

* * * * * * *

DR. KUBUSCHOK (defense counsel for defendant Schlegelberger): To what extent did you participate in the legislative work and the execution of the Night and Fog Decree, the Nacht und Nebel Erlass?

DEFENDANT SCHLEGELBERGER: First, I must make a temporal limitation here. The Tribunal knows that on 20 August 1942 I left the Ministry of Justice. Thus, in regard to my person, only the previous period can be considered. During that time the procedure, as well as taking prisoners into custody, remained exclusively in the hands of the Ministry of Justice.

If I am supposed to make some statements about the decree, I would like to emphasize that the jurisdiction of the Ministry did not refer to the western territories, which are under consideration here. This was entirely under the competence of the military commanders. Hitler had issued the order to Keitel that in the future merely in very clear cases, and in such cases where the death sentence could be expected with certainty, the military courts were to pass sentences. The rest of the culprits were, for the purpose of a deterrent by the police, to be transported to Germany to remain under the custody of the police, and--and this is the expression he used--to disappear during night and fog.

The chief of the legal division of the Wehrmacht, Dr. Lehmann, realized what the situation was, and after unsuccessful attempts with Keitel and with Hitler he tried to have it avoided that the prisoners be left in the custody of the police by having them tried before the ordinary courts. He called on Freisler. Freisler did not disagree with Lehmann, and basically asked for my agreement. I gave my approval.

Here, too, I had to make a serious decision. On the one hand, the fate of the prisoners was concerned. If they were in police custody, their fate could not be controlled. On the other hand, there was the necessity to loosen certain regulations which formed definite components of our legal system.

The Fuehrer order was based on the fundamental idea that the deterring force, through the cutting off of the prisoners from every contact with the outside world, could be achieved in this manner. If we now wanted--and this is the decisive question--to have the direction of the prisoners, if we wanted to avoid having the prisoners remain in police custody and thus not carry out Hitler’s decree but break its head, no other recourse was left to us but to conduct our court proceedings under the point of view of secrecy, since otherwise Hitler would immediately have forbidden and actually prevented the fact that ordinary courts should handle these matters.

However, in order to avoid any doubt, I want to emphasize expressly in the following that I have to state we are concerned only with regulations governing proceedings. The NN prisoners were supposed, and were, to be tried materially according to the same regulations which would have applied to them by the courts martial in the occupied territories. The rules of procedure had been curtailed to the utmost extent. In German law we also know of the possibility, because of the endangering of the security of the State, that the public is excluded when the opinion on which the sentence is based is pronounced. We now had to take one more step, to issue an order to make available the possibility that the pronouncing of the sentence itself would not be made in public. One could not avoid the recognition that otherwise the secrecy would not be maintained, and I have to repeat, the cases would have been taken out of our hands immediately.

Everything else was based on this. For example, the limitation in the selection of defense counsel. Germany had a very eminent legal profession, and in my opinion it was a matter of course that every lawyer fulfilled the oath of secrecy given to him by law. However, one had to realize that as with every other profession, the lawyer’s profession too, during such times, was permeated with bearers of the resistance idea, and therefore, here too, a certain caution was needed and it was necessary to limit the selection of defense counsel.

It is well known that in the executive order which I signed--and it was the same as the draft submitted in the document book[464]--that I limited the use of foreign evidence. However, if one thinks the matter through correctly and thinks of the practical application, one will realize that this limitation worked only in favor of the defendants because numerous acquittals occurred according to the principle, that governs other law as well as ours, in dubio pro reo. In accordance with this basic attitude, it was decisive, under all circumstances, to avoid the subsequent transfer of the NN prisoners to the police.

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

AFTERNOON SESSION

(The hearing reconvened at 1330 hours, 30 June 1947)

THE MARSHAL: The Tribunal is again in session.

DR. KUBUSCHOK: We have come to the discussion of the NN regulations. Will you please continue there?

DEFENDANT SCHLEGELBERGER: I have taken the liberty to explain that the purpose in including ourselves in the procedure was to counteract Hitler’s plan to have prisoners in the hands of the police. There arose a problem--If one had to consider that in the regular course of procedure a penalty was found which expired before the end of the war. In such cases there would not have been any possibility to keep these people but they had to be taken over by the police and that would have thwarted the purpose--of the inclusion of our administration. That, one had to consider. The matter was simple, if the prosecutor, after examining the facts, arrived at the result that the penalty had to be so low that the term would expire before the expected end of the war because then he did not demand that a date for the main trial be set; the procedure remained pending and the accused remained in the custody of the administration of justice. The situation however could become more difficult if the prosecutor intended to demand a higher penalty which probably would expire after the end of the war and if the court would arrive at a more lenient sentence. The way out could be found only by quashing the proceedings in time and in order to do that various means could be applied. It could have been put to the court, that is, by legislation of course, to make a decision for this continuance, and could also put the prosecutor in a position where he would demand discontinuance and then let the court decide for discontinuance. I took the latter approach. Therefore, I provided that if the court wanted to deviate from the demands of the prosecution it should inform the prosecutor so that he had the possibility to demand discontinuance, but with all emphasis I want to stress there can be no question that the courts were to be bound in any way by the demands for a penalty on the part of the prosecutor. That would have been quite irresponsible.

PRESIDING JUDGE BRAND: Dr. Schlegelberger, are you still speaking with reference to the NN case?

DEFENDANT SCHLEGELBERGER: Yes. So, it is quite out of the question that the courts were to be bound in any way to the penalty as requested by the prosecutor as Freisler has stated in a letter which was written for special service to Thierack and which is quite wrong, but I repeat again, the intention was only for the court to tell the prosecutor, “we are arriving at a milder sentence than you requested,” so as to put the prosecutor in position to demand discontinuance; then the matter remained in the hands of the administration of justice; that is to say that the defendant was in the custody of the administration of justice. May I summarize. The provisions concerning secrecy had to be made so that the matter would not be taken out of our hands by Hitler. I was faced with the problem as to whether I should refuse to take over the NN case altogether, and the Tribunal will recognize that that would have been very simple for me. I could have held the position that as far as my department was concerned that I had nothing to do with the matter and therefore could reject it or refuse to have anything to do with it. But I could not take the responsibility to assist, to contribute, that the Hitler order be carried out and that the NN prisoners remain in the custody of the police. And, I believe that that decision has also found its justification in the findings of the International Military Tribunal concerning the treatment of these prisoners in the hands of the Gestapo.[465]

* * * * * * *

EXAMINATION BY THE TRIBUNAL

JUDGE HARDING: Dr. Schlegelberger, you have testified that you favored the decree as to Poles and Jews and the taking over of NN prisoners for trial, to avoid having these people turned over to the police, is that correct?

DEFENDANT SCHLEGELBERGER: (Nodded in the affirmative.)

Q. Why was that?

A. May I ask you a question, namely, does this question refer to the Poles and Jews, or as I now understand it, to the NN prisoners?

Q. It applies to both.

A. Well, that was for the following reason. From the cases of transfer about which I reported, I saw that the police was the instrument of power that Hitler used in order to do away with certain people without any legal procedure, and I wanted to give those people a legal procedure with a regular trial.

Q. Now the administration of justice at one time, at least, was responsible for the prosecution and trial of all crimes committed in the Reich, isn’t that correct?

A. Yes.

Q. Was there ever an investigation with subsequent trial after 1 September 1939 for the abuse or murder of a person in the hands of the police or in a concentration camp?

A. I can answer that question by saying that the Ministry of Justice as far as I am informed--that is, these matters were in the penal sector--interfered in every case, even in the case of abuses and concentration camps where they could actually do something about it, only since 1939--I don’t remember the exact date--these matters were taken out of our hands through the special jurisdiction of the SS.

Q. I don’t believe you quite answered my question. Did the Ministry of Justice ever call or ever prosecute a member of the police or somebody connected with the concentration camp because of abuse of the prisoners or murder of prisoners in their hands?

A. Yes, the Ministry did so.

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

A. In any case, it did happen before September 1939. I regret, Your Honor, that I cannot give exhaustive information about this because those are events and trials which were outside of my official duty, but I can say with certainty and under the oath under which I am now that because of abuse in concentration camps measures were taken with the utmost energy.

Q. Did a person who had been handed over to the police or who was sent to a concentration camp, including Poles and other foreigners, have any recourse to the law as administered in the Reich, for his protection?

A. Well, if these people were in the hands of the police, we could not extend that protection to them. As long as those people were in a concentration camp, and to the extent that we had any jurisdiction over concentration camps--to that extent we always intervened, if somehow or other we could find out that there had been some abuse; but later on, from 1939 on, these matters came under the special SS jurisdiction, and we were no longer in a position to interfere[466].

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

A. We could not give them any legal recourse; we of the Ministry of Justice could not extend legal protection to them.

Q. Did they have any legal protection?

A. Well, I would like to say there was a jurisdiction over the inmates of the concentration camp and this was in the jurisdiction of the SS courts. That SS jurisdiction in accordance with its duty, could intervene in the same manner as we if anything had happened, that was the legal protection afforded to them.

Q. That was the only legal protection they had?

A. Yes, I could not name any other.

Q. Now, by what laws, orders, or decrees were these people left to the sole jurisdiction of the SS and the police?

A. Well, the Poles and Jews, NN prisoners were only handed over to the police after my time in office. As long as I was in office this did not happen.

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

A. The SS got a special jurisdiction through a law of 1939. The handing over of Poles and Jews, of the NN prisoners, and other people took place through measures of the year 1942, I believe. However, I do not want to make this statement with certainty, because it was after I had resigned.

Q. After this order setting up special jurisdiction for the SS the Ministry of Justice could not prosecute them, isn’t that correct--or try them?

A. No, it couldn’t.

Q. Now, I have here this decree which is found in volume 2, on page 55, decree of 17 October 1939, relative to the Special Courts for the SS.[467] Are you familiar with that?

A. Yes.

Q. After that the Ministry of Justice could not try these people for abuse or murder of persons in their hands, is that correct?

A. Yes, I assume so. Please take into consideration when considering my answers that these matters were apart from my official activity. Therefore, I can rather give an expert opinion than a testimony as a witness.

Q. Well, the effect of this decree was to deprive the people in the hands of the police of all legal recourse, is that not correct?

A. The effect was in any case that they had no recourse to the ordinary means of administration of justice. But the SS jurisdiction in my opinion had the same duties, the same possibilities for their people as we had.

Q. The only recourse, then, was to the SS administration of justice--now, on page 56 there is this decree which is signed by you, implementing that order, which places the police beyond the administration of justice.

A. I didn’t quite understand.

Q. I have here on page 56 of volume 2 a decree concerning the jurisdiction of SS courts and police courts in the Protectorate Bohemia and Moravia[468] which implements to some extent the preceding decree which I called to your attention. This decree is signed by you, which sets up Special Courts for the police, that is, takes them out from under the administration of justice. Now, this is signed by you. Do you have any explanation of that?

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

Q. 15 July 1942.

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

Yes. This decree, however, I believe, has nothing to do with the matters we have discussed so far. This decree as far as I remember, was connected with a decree of January of the same year. In this decree of January in the Protectorate military jurisdiction was rescinded, and only for certain cases the Commander in Chief of the Wehrmacht was granted the right, in the matter of attacks against the Wehrmacht, to found the competency of Wehrmacht courts. The text of this decree which concerns itself with the policy is almost literally the same one as that of the decree of January 1942 regarding the Wehrmacht. Here in this decree for the police, they were concerned with certain courts for the SS. But the Wehrmacht SS [sic], which was considered a special group of the SS was supposed to be treated in the same way [as the Wehrmacht]. Therefore, after a discussion between Keitel and the commander of the SS Wehrmacht [sic], the possibility just as it was given to the Wehrmacht, was given to the SS as a fighting troop, to found such courts. But this has nothing to do with the question of SS jurisdiction, which is another question.

Q. Were there any other orders or decrees issued whereby prosecution of SS and similar units was taken out from under the administration of justice, and if so, what were they?

A. Yes, there was a special law about SS jurisdiction. At the moment, I cannot tell you the date, but it was from 1939. That is the civilian SS. But this decree refers to the SS as part of the Wehrmacht.

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

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

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

JUDGE HARDING: It is October, yes.

DEFENDANT SCHLEGELBERGER: Yes, 17 October 1939. That is the decree about the SS jurisdiction.

Q. After that decree, did the Ministry of Justice have any means whereby they could protect a person in the hands of the police in any way whatsoever?

A. In my opinion, no; and that is why I tried to keep all these people away from the police. That is why I wanted to keep all these people within the sphere of the administration of justice, so that I could protect them.

Q. Then these foreigners, Poles, and Jews in the hands of the police were beyond any recourse of law in Germany, is that correct?

A. Not in my opinion.

Q. What recourse did they have?

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

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

A. Yes. That was more administrative.

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

* * * * * * *

EXTRACTS FROM THE TESTIMONY OF DEFENDANT VON AMMON[469]

DIRECT EXAMINATION

* * * * * * *

DR. KUBUSCHOK (counsel for defendant von Ammon): You have stated that you were not a confirmed National Socialist. In view of your attitude, did you not have conflict of conscience sometimes during your activity in the Ministry of Justice?

DEFENDANT VON AMMON: To a certain extent I have to answer “yes” to that question. In my official activity, I occasionally had to apply laws or other legal regulations or had to follow instructions issued by my superiors with which I was not quite in agreement in my own mind. In such cases I considered it my duty to follow such regulations and provisions which in my opinion though unpleasant were after all effective. Likewise, I considered it my duty to follow the instructions issued by my superiors. However, I would not have considered myself obligated to follow instructions issued by my superiors which were contrary to law. Such illegal orders however were not given to me. In such cases, however, a certain amount was left up to my own discretion and that happened in many cases. When I applied that discretion I tried as far as possible to make my own opinion apply. Of course, the possibility in those directions were not overly large since as a Referent I had to obtain the agreement of my superiors, the more important decisions. Because of my lenient attitude I was frequently objected to, especially by my superior Vollmer and the Minister of Justice Thierack.

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

A. Due to the outbreak of the war nothing changed in my basic attitude. I was of the opinion that since the war had broken out, independent of its consequences for national socialism, it would bring about the decision, “to be or not to be” for Germany. Therefore, I believed that every German had to fulfill his duty in his official position.

Q. I now come to the main charge which the prosecution has raised against you in regard to your dealing with the so-called NN cases. Under what circumstances were you entrusted with this new field of work?

A. The distribution of the Referate [sections] was as a rule made by order of the department chief without asking the Referent about it in advance. Thus, I too in February 1942 was assigned by my department chief, Ministerial Director Crohne, to work with NN cases without my knowing for the time being what these NN cases were all about.

Q. What tasks and authorization did you have as Referent of Department IV of the Ministry of Justice for NN cases?

A. In order to answer that question I first have to describe briefly the competency of Departments III, IV, and V.

Department III was the department for criminal legislation, Department IV was for the administration of criminal law, Department V was the department for the administration of penalties. It belonged to the competency of Department III; the preparations of the laws and regulations similar to laws, the housing of prisoners belonged to the competence of Department V and the treatment of these prisoners while they were in prison. Department IV, that is my department, dealt in the main with the cases against the defendants until they were sentenced by a court, including the clemency procedure. Furthermore, the issuance of general provisions regarding legal procedure in as far as Department III was concerned was not competent for this.

Q. As far as Department V was competent, what authorization did you as Referent have with regulation to your superiors?

A. Gramm and Mettgenberg have already testified to this, here on the witness stand. I only have to add some supplementary remarks. As Referent, I had to a certain extent the right to give my signature, that is to say, to a certain extent I could give written or oral statements by order. This right for signature, however, was limited, since due to my being subordinate to the department chief, and for the most part of my activities I was subordinate also to a subdepartment chief. During the first month of my activity in the NN cases my section was directly under the department chief. A few months later, however, Mettgenberg was put in charge as a subdepartment chief between me and the department chief. My authority in relation to my subdepartment chief and department chief were limited through general regulations rather carefully. The regulations applied which were contained in Exhibit 510 submitted by the prosecution.[470] May I refer to these regulations? Regarding the letters by the Ministry of Justice that were sent outside the Ministry of Justice which were submitted by the prosecution, in accordance with the provisions I mentioned, I did not sign a single one finally, but all the letters after I had also cosigned them I submitted to my subdepartment chief for signature. He then for the most referred them to the subdepartment chief or even to the under secretary or to the minister. If the prosecution, contrary to this, in this submission of several documents, stated that the letters of the Ministry of Justice were signed by me, that is an error. There are throughout letters for which I did give a cosignature, that is in the right hand lower corner, they bear my initials, but one of my superiors gave the final signature.

* * * * * * *

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

A. No. I never had more than one assistant, and he worked only part of the time in NN cases, and then only at the beginning of my activity with NN cases. From the beginning of 1943 on I worked entirely without any assistance. From that time on, due to the heightened drafting for the Wehrmacht, younger gentlemen who could be assistants, were available only to a very limited extent in the Ministry of Justice. From that time on I had only a so-called “Mittlerer Beamter,” a civil servant in the intermediate level [of civil service] for registration and filing.

There was a special provision only for preparation of clemency pleas in death sentence cases. For that work, I had assistance from time to time.

Q. I refer to that extent to Document NG-988, Prosecution Exhibit 510, the plan of distribution of work which shows further facts. Witness, please give us a survey over the periods when the general administration of justice participated in the NN cases.

A. We can distinguish between two periods during which the general administration of justice was concerned with NN cases. The first period extends from February 1942 until October 1942; the second from October 1942 until September 1944, and to some extent until the end of the war. During the first period the executive regulations of the Reich Ministry of Justice of 6 February 1942[471] were decisive in their original form as they had been issued by Schlegelberger and Freisler. Two factors characterized this period. First, the police were involved in the NN cases only to the extent that the transportation of the NN prisoners from the occupied territories was carried out by the police; and secondly, for the sentencing of NN cases only some Special Courts were competent. The competency of the People’s Court did not exist at that time, for those cases.

The second period begins with the changes which were introduced soon after Thierack assumed office. The police now also became competent to the extent that the NN prisoners, for the detention of whom no legal reason existed any more, were transferred to the police for protective custody for the duration of the war.[472] And for the trying of NN cases, in addition to the individual Special Courts, the People’s Court now is competent too. This second period ends with the order that the NN prisoners should generally be returned to the police. This order was issued in September 1944. The return, however, was carried out until the end of the war only partly so that at the end of the war numerous NN prisoners were still in the detention of the administration of justice.

Q. We shall now turn to the first period for which the executive regulations of 6 February 1942 were decisive. Witness, were you involved in the drafting of these regulations and the discussions with the OKW which preceded this decree and which the witness Lehmann testified about?

A. No. I neither participated in the formulation of the regulations nor in the preceding negotiations. The regulations were worked out in the departments for penal legislation, first Department II and later III, and at that time I did not belong to either of them. About the regulations and the preceding negotiations, I heard only on the day when the regulations were issued. On that day--it was 6 February 1942--the presidents of the courts of appeal and the attorneys general of those districts in which the NN cases should in the future be tried, had been ordered to the Ministry of Justice for a discussion.

Immediately preceding the beginning of the meeting my then department chief, Ministerial Director Crohne, had a message sent to me that I should come to the meeting because in future I would have to work with the penal cases which would result from the newly issued regulations.

I then attended that meeting and for the first time, from the mouth of State Secretary Freisler, who was presiding over the meeting, I heard about the Night and Fog Decree and the executive regulations issued pursuant to it.

Q. In the executive regulations of 6 February 1942 there are provisions about the limitation of foreign evidence. Paragraph 5 of the executive regulations, Exhibit 306[473], which, however, are here only in draft form gives this regulation--The use of foreign evidence material requires the prior agreement of the public prosecutor. Furthermore, paragraph 4 of the same regulation provides that the senior public prosecutor has to obtain the decision of the Reich Minister of Justice before he can use foreign evidence material or can agree to the use of foreign evidence material by the court. This latter regulation is contained in Exhibit 308[474].

The indictment asserts that it was one of the purposes of the NN procedure to prevent the defendants from having access to witnesses or any other evidence. What do you have to say about this?

A. First, I would like to correct you, Counsel. You quoted paragraph 4 of the circular decree of 6 February 1942, and by mistake you said that this was the same provision as paragraph 5 which you mentioned before. These are two different regulations. First is paragraph 5 of the executive order of 6 February 1942. That is Exhibit 306, and the second regulation is paragraph 4 of the circular decree of the same day, and that is Exhibit 308.

In answer to the question of what I have to say about the allegation in the indictment, that it was one of the purposes of the NN procedure to make it impossible for the defendants to have access to witnesses or any other evidence, I have to say that that assumption is entirely wrong. The limitations on foreign evidence material was not one of the purposes of the NN procedure, but the absolutely undesired result which resulted from the necessity of keeping the matter secret.

It could never result in a disadvantage for the defendant but would of necessity result in favor of the defendant. The German criminal procedure is based on the assumption that the defendant has no duty or no authority to prove anything. Therefore, any doubt had to work in favor of the defendant. In the same way, doubts which arose out of the limitation of foreign evidence worked in favor of the defendant. Moreover, foreign evidence was in no way excluded altogether but it should only be procured and used in such a way that the secrecy of the proceedings and the keeping incommunicado of the defendant would not be endangered.

Q. What was the effect of the regulations about the limitation of foreign evidence in practice?

A. According to my observation, in the majority of cases these regulations did not lead to any difficulties. In many cases the clarification of the facts was accomplished by the statements of the defendants or codefendants or on the basis of German evidence. This was the case especially in the numerous cases in which simple facts were involved. Thus, for instance, in most of the cases of illegal possession of weapons, a weapon was found in the possession of the defendant. Beyond this, the use of foreign evidence was admissible as far as the secrecy of the proceedings was not endangered by this. Thus, the Ministry of Justice in any case permitted that a foreign witness not before the court trying the case but in the occupied territories could be examined by an investigating judge. If this, however, did not bring about the desired result, if there still existed some doubt as to the guilt, the defendant had to be, and was, acquitted. According to my observations, probably in all courts which had to deal with NN cases, a large number of acquittals were pronounced, because owing to the limitation of foreign evidence defendants could not be convicted. I remember, in particular, extensive trials before the Special Court of Oppeln against numerous defendants who were charged with participation in dangerous resistance movements in Belgium. According to the indictment, I was under the impression that heavy sentences would be pronounced. In effect, however, the result of the trials was quite different. The defendants maintained that it was not a dangerous resistance movement, but a harmless club. In view of the limitation of foreign evidence it was impossible to disprove this defense. Thus, the defendants had to be acquitted, or they could be given only slight penalties because of participation in a club not authorized by the military commander.

Q. Paragraph 6 of the executive orders of 6 February 1942 which have already been mentioned--that is, Exhibit 306[475]--makes the following provision: The public prosecutor can, until the sentence is pronounced, withdraw the indictment or ask that the trial be postponed. The court has to agree to the application of the prosecutor for suspension. If the court wants to deviate from the application made by the public prosecution, it has first of all, to afford them an opportunity to state their opinion.

Witness, what can you say about this regulation?

A. Dr. Schlegelberger, when he was examined, commented extensively on these regulations. I only have to add the following: The procedure described was, as Dr. Schlegelberger stated, introduced in order to prevent NN prisoners from being transferred to the police. For the court itself, in view of its prestige, it probably was not very pleasant. The authors of that regulation realized that too. As I said already in my affidavit of 17 December 1946, that is Exhibit 337[476], even Freisler said in this meeting of 6 February 1942, that with this regulation one had reached the utmost limit of what one could expect of the court. The authors of this regulation, however, believed that they had to put up with that regulation in the interest of the NN prisoners.

Q. The regulation of paragraph 6 of the executive orders which we just discussed--was it ever applied in practice?

A. I don’t believe so. The regulation was in effect only for a brief period. Thierack, in October 1942 soon after he became Minister, rescinded it. During the time that this regulation was in effect, as far as I remember, only very few NN cases were tried. These were clear cases in which the court had no misgivings against agreeing with the plea of the prosecutor. If that regulation would have been applied, the Ministry certainly would have been informed about it, and I certainly would still remember it.

Q. On the changes which Thierack ordered in October 1942, Dr. Mettgenberg has commented.[477] Did you have misgivings against these changes, especially also against the transfer of NN prisoners to the police?

A. The changes which Thierack made also had, without doubt, a favorable side. The unpleasant regulation of paragraph 6 of the executive order of 6 February 1942 was removed. Even Freisler, as I mentioned before, stated about it that with this regulation the outside limit had been reached of what could be expected of the courts. Now, this bad condition was removed, that the justice authorities of the administration had to detain persons in whose cases the reason for detention had to be maintained by the procedure discussed by Dr. Schlegelberger. On the other hand, the transfer of the NN prisoners to the Gestapo was without doubt unpleasant. After the competency of the general administration of justice for the detention of NN prisoners who were acquitted or whose time of arrest had been removed, it again was returned to the armed forces. According to the provision of the NN decree, however, the armed forces, as a rule at least, were not allowed to return these NN prisoners to the occupied territories. Neither, for the reason of keeping this matter secret, could they be set free in Germany. The only way out that Thierack saw was their detention by the Gestapo and the OKW who in the last instance had to decide about this affair agreed to the suggestion by Thierack. If now I am asked if, in regard to the treatment of the prisoners by the police, I had misgivings, I can answer that in the following way: The prisoners were handed over to the police with the express provision that the detention was carried out only for reason of secrecy and in the interest of keeping the whole affair secret. Therefore, the Gestapo merely had to detain them and not to carry out a penalty. As far as I know, in the negotiations between Crohne and the Gestapo, the representatives of the Gestapo stated that in the case of detention of NN prisoners, they would take into consideration the fact that against the prisoners personally there was no longer any charge. Later on, the Reich Leader SS also ordered expressly that the NN prisoners, who were handed over to the police, always should be put on the level of Protective Custody I which was the most lenient level.

Q. I refer to Exhibit 328[478] in regard to the last statements made by the witness.

Witness, as Mettgenberg testified in September 1944, the general administration of justice was again deprived of the competency for NN cases. It was ordered that NN prisoners generally should be handed back to police. What can you say about this?

A. I can confirm the statements made by Dr. Mettgenberg to their fullest extent and only have to make a few supplementary remarks. As Mettgenberg already testified, in the discussions at the OKW, which took place in the beginning of September 1944, the witness Hecker and I represented the Ministry of Justice. Since the matter could not be reported to Minister Thierack in advance, my department chief, Vollmer, had given me the instruction to reserve the right for the Minister to state his opinion. I acted accordingly during the negotiations. The representatives of the OKW then also agreed that the OKW would forward a draft of the intended order of the OKW to the Ministry of Justice and that the Ministry of Justice could then state its opinion on the draft, in writing.

In place of that the OKW then sent us an already filed decree which ordered the discontinuance of the NN procedures and the transfer of NN prisoners to the police. When I reported this to Mettgenberg and together with him to Vollmer, he was very much displeased about the manner of handling used by the armed forces. Vollmer said the OKW had byplayed us in that manner, and he instructed me to talk to the representative of the OKW by telephone and protest against this manner of conducting this business. He said the decisive thing, however, was that the regulation made by the OKW had to be accepted according to the division of business, as the OKW was competent for NN cases.

In accordance with the instructions given by Vollmer, I then telephoned the representative of the OKW and expressed our surprise at the manner of handling this. The representative replied that this was a misunderstanding and he regretted it very much; in any case I can testify that on the part of Department IV of the Ministry of Justice, no agreement for these regulations was given, but that Department IV only through force submitted to the regulation which was made without its agreement.

Q. The meeting in the building in the Reich Military Supreme Court in the beginning of September 1944 was presided over by Dr. Werner Huelle and at that time he was supreme judge. I submit an affidavit by Dr. Huelle that was taken on 17 July 1947.[479] Following the usual introduction formula, it reads as follows:

“By order of the chief of the legal department of the Wehrmacht I presided over the discussion in the beginning of September 1944 in the building of the Reich Military Supreme Court in Berlin. In this meeting the question of the transfer of the NN prisoners was dealt with. The basis of this discussion was a Fuehrer order, which had ordered the return of the NN prisoners to the police.

“The representative of the RSHA insisted on the giving back of the prisoners who had already been sentenced, since the will of the Fuehrer referred also to those and by saying so he referred to a classification which Himmler had written about to Hitler.

“Although in view of this the discussion could have only the value of a technical discussion. I consider it absolutely possible that the referents of the Reich Ministry of Justice reserve to themselves the right of obtaining the opinion of their minister since they had not received instructions from him. More exact statements I can no longer make from memory. In what manner and by whom my office then received a statement by the Ministry of Justice, I do not know since I was not the Referent. With absolute certainty, however, I can say that only the transfer to the police for the purpose of commitment for labor for urgent armament work was considered for which the manpower of the prisoners was needed. My superior, Generaloberstabsrichter Dr. Lehmann, who himself had formerly been a member of the Ministry of Justice, always attached importance to relations without frictions with the administration of justice, and therefore, he had the questions which interested both offices discussed in common.”

PRESIDING JUDGE BRAND: Will you tell me the author of that affidavit? I did not catch the name.

DR. KUBUSCHOK: Huelle. I submit this affidavit and ask to reserve the number, von Ammon Exhibit No. 2, for this affidavit.

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DR. KUBUSCHOK: From the documents submitted by the prosecution, it is apparent that keeping NN prisoners incommunicado was one of the main peculiarities of the NN procedure which was applied from the very beginning. In the opening statement by the prosecution, among others you too are being charged with having systematically carried out and approved these regulations about keeping the procedure secret. In this connection, Exhibit 319[480] is of interest. It contains a circular decree by the Reich Minister of Justice in which several directives are given as to how agencies of the Ministry of Justice are to handle NN cases in order not to endanger the cutting off of NN prisoners from the outside world. What can you say about the origin of this circular decree?

DEFENDANT VON AMMON: The circular decree was caused by reports of the Chief Public Prosecutors in Cologne and Essen, about the difficulties resulting from the strict regulations about keeping the NN prisoners incommunicado, especially when NN prisoners died, and they had made suggestions for overcoming these difficulties. The report of the Chief Public Prosecutor in Cologne is contained in Exhibit 314.[481] In this report the decisive questions are dealt with under paragraph [II and] III. The report of the Chief Public Prosecutor in Essen was not submitted in this trial here.

PRESIDING JUDGE BRAND: The morning recess--15 minutes.

DR. KUBUSCHOK: Before the recess, you answered the question as to the origin of the circular decree which we discussed. Please continue.

DEFENDANT VON AMMON: The circular decree, Exhibit 319, which took issue with the questions raised in the reports from the senior public prosecutor at Cologne and Essen was, as Mr. Mettgenberg has already stated here, the joint work of both Departments III and IV of the Ministry of Justice. I participated in the work on that particular decree, insofar as the competence of my department was affected by drafting the provisions contained in it. Various questions that were settled in that circular decree did not affect the competence of Department IV at all. Thus, for example, the question of burials of NN prisoners who died a natural death while serving their sentences and the question of the possessions they left behind was a matter for Department V to deal with. To that extent only Department V was responsible for the provisions which had been worked out. Apart from my section, there were other sections, partly in Department IV and partly in other departments which were competent. The questions which emerged therefore had to be dealt with by these various sections cooperating.

Q. What are your comments about the contents of the circular decree in general?

A. By that circular decree the existing provisions concerning secrecy were not made more severe in any way. The stringent provisions concerning the seclusion of the NN prisoners from the outside world had applied since the NN decree as such had been issued. As far as we were concerned it was a shock from the very beginning that in the case of the death of an NN prisoner, the relatives could not be informed. That was true in the case of a natural death, as well as in the case of a death sentence being carried out. We, naturally, were aware of the severity of such a provision, but we did not see any possibility of avoiding it, but as far as that was possible within the scope of the severe provisions we wished to take into account the principles of humanity. We did want to make sure that persons who had been sentenced to death would have spiritual care. We did wish to afford them a possibility not only to leave a holographic will but also to make a real testament before a notary or judge. We also wished that NN prisoners who had died should have a proper funeral. That was the purpose of the provisions in the circular decree of 6 March 1943.

Q. Please comment on the more important details of that circular decree?

A. The provisions under paragraphs 1, 3, and 5 of the circular decree, I believe speak for themselves. Concerning the other provisions I would like to say this. Paragraph 4 said that farewell letters by NN prisoners were not to be sent out. That was not a new provision but that was the unavoidable consequence of the NN decree, since the general administration of justice had to deal with NN cases. As early as the first day when the NN provisions had come into force, the Department V, the administration of punishment, had issued a provision to the effect that NN prisoners were not allowed any correspondence. The farewell letters of prisoners who had been sentenced to death also came under that provision. Paragraph 4 of the circular decree furthermore reads that the farewell letters from NN prisoners were to be kept in custody for the time being by the prosecution. It was to be made sure that the farewell letters, when the NN provisions would be rescinded, that is to say, at the latest at the end of the war, would be passed on to the relatives. Paragraph 6 of the circular decree laid down that the relatives were not allowed to receive information about the death of NN prisoners. That was a repetition of the old provision which had existed since the NN decree as such had been issued. It was an unavoidable consequence of the NN decree as such. Paragraph 7 of the circular decree laid down that the dead bodies of NN prisoners who had been executed or who had died from other causes were to be turned over to the Gestapo for their funeral. That provision is not new and is not peculiar to the cases of NN prisoners. That is obvious from Document NG-257, Prosecution Exhibit 322. That document contains the reply from Thierack to the complaint by the chief of the Security Police, that this opinion had not been obtained before paragraph 7 of the circular decree was issued. Thierack’s reply points out that that provision did not provide new tasks for the Gestapo. That the Gestapo was to carry out the funeral, that in itself was not of a dishonorable nature, but funerals in cases where the relatives could not take care of them, that in Germany is one of the duties of the police. Whereas, under the general regulations in such cases the corpse is offered to an anatomical institute for research purposes, an exception was made in the case of NN prisoners, and the corpse was buried. As the provision shows, we, of course, ordered that every NN prisoner receive a grave of his own which was not identified by his name, but figures or something of that nature.

Finally, paragraph 8 of the circular decree laid down that the possessions which NN prisoners had left behind were not to be handed over to the relatives. That also was the necessary result of the provisions which dealt with the seclusion of the NN prisoners from the outside world. On the other hand, we ordered that the possessions which the NN prisoners had left behind were to be taken in custody by the NN prisons and once toward the end of the war, a general public prosecutor--concerning the watches and other articles left behind by NN prisoners, wanted to make his own regulations. Naturally, I repudiated that view.

Q. In its opening statement the prosecution said this: If the armed forces in the occupied territories arrested the people by mistake, who quite evidently had not been guilty of any form of resistance against national socialism, then those victims, for the sake of keeping the program secret, had to be treated in the same manner in which other persons were treated who succeeded in getting away with a prison sentence. Is that correct?

A. That assertion by the prosecution is not correct. First of all, I consider it out of the question that the general authorities of the administration of justice ever had persons handed over to them who quite evidently had not made themselves guilty of any resistance to the occupying powers. Persons who had been arrested were not moved into Germany immediately after their arrest, but to begin with investigations were carried out inside the occupied territories and in particular the defendant was interrogated. In the course of those investigations obvious errors were soon discovered, and in that case the person concerned was not moved to Germany but was set at liberty in the occupied territories. May I refer to the testimony by the witness Lehmann?[482] He testified that the agency of the armed forces in the occupied territories had issued provisions which were to make sure that as far as possible only such matters were handed over to the general administration of justice which were clear cases on account of the evidence that had been obtained. If it did happen after all that a person who was obviously innocent was taken into Germany--I cannot remember that such a case ever occurred--there was the possibility to transfer him to the occupied territories. In this respect, I refer to Documents NG-226, Prosecution Exhibit 313 and NG-205, Prosecution Exhibit 328.

Q. According to the indictment one of the purposes of the NN proceedings is supposed to make it impossible for the NN prisoners to have access to a defense counsel. What do you have to say about this?

A. First of all, the same is true here that was true of the limitation of evidence obtained abroad. Certain limitations of the defense which had been ordered for NN proceedings were not the purpose of NN proceedings, but a consequence which resulted of necessity from the particular manner of these proceedings and from the wartime conditions.

We must distinguish between two different limitations of defense. First of all, a limitation of choosing a counsel; and, secondly, limitation of having counsel appointed by the court.

Q. Please comment first about the limitation of the free choice of defense counsel.

A. In respect to the seclusion of the NN prisoners from the outside world, which had been ordered, the executive office of the Ministry of Justice, in carrying out the NN decree from the beginning believed that a limitation of the free choice of defense counsel was necessary, but they believed that the provisions in paragraph 3 of the circular decree of 6 February 1942 would be sufficient.

Q. That circular decree of the 6 February 1942 is contained in Exhibit 308.[483] I quote the provision concerned: “The choice of a defense counsel requires the consent of the presiding judge who can only give such consent with the agreement of the public prosecutor. The consent may be withdrawn.” Please continue.

A. In the subsequent time, however, we found those provisions not to be sufficient, in order to guarantee the secrecy of the proceedings which after all had been ordered. As the decisive document on the subject is available to the Tribunal I can be brief. I am referring to Exhibit 314.[484] The document contains a report by the senior public prosecutor at Cologne, dated 15 October 1942. In that report he states at length that, so as not to endanger the secrecy of the NN proceedings, he had doubts about consenting to allowing a defense counsel to be chosen freely.

Similar reports, as far as I recollect, were received from other senior public prosecutors as well. The document also shows that at the Reich Ministry of Justice we only, after careful examination, decided on further limiting the free selection of defense counsel. From marginal notes which, however, can only be seen on the photostat of the document and which have not been entered in the document books, the following is to be seen. The question of the free choice of a defense counsel, I first on 22 September 1942 reported on to my subdepartment chief. In accordance with the result of that report of 1 December 1942, I then discussed the matter with the expert of the OKW over the telephone. He first of all reserved his opinion, but on 12 December 1942, he told me that the OKW took the view that the admission of defense counsel selected by the defendant in NN matters was not desirable.

We then contacted Department III of the Ministry of Justice, the department of penal legislation, and when that department took the same view as the OKW, Departments III and IV of the Ministry of Justice issued the joint regulation of 21 December 1942, which is contained in Document NG-255, Prosecution Exhibit 314.

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Q. What about the limitations concerning the necessity of defense?

A. Originally concerning the necessary defense, a provision in paragraph 7 of the executive order of 26 February 1942 applied, according to which the appointment of a defense counsel required the consent of the public prosecutor. May I point out that the following wording of the executive order of 6 February 1942 has not been submitted here as a document. Exhibit 306[485] merely reproduced the draft of that executive order. The provision concerning the necessary defense was issued immediately before the executive decree was issued, and it is therefore not contained in the draft which we have before us here. In the subsequent period opinions were voiced according to which further limitation of defense was considered necessary. The prosecution has submitted Exhibit 317.[486] Although that document unfortunately is very incomplete, it does show that at the Special Court at Essen there had been difficulties in appointing defense counsel as frequently several defendants were dealt with in one proceeding and, on account of the collision of interests, a defense counsel had to be appointed for each defendant.

It is obvious that, in view of having to maintain the work of the court in general, the simultaneous employment of a large number of defense counsel was not desirable. Insofar, the desire of limiting the defense by appointed defense counsel was understandable.

If the report from the presiding judge of the Special Court at Essen points out that the interests of the defendants did not justify so much strain placed on manpower and material, I would point out in this connection that not one of the persons who dealt with the subject at the Reich Ministry of Justice shared that view.

The matter itself was then dealt with at Department III and not in our Department IV, because it concerned a proposed change of a legal regulation. The Referent of Department III then informed me of these events and made a suggestion of his own which unfortunately is not contained in this document.

I then reported the matter to Mr. Mettgenberg and together with him to Mr. Vollmer. The result of that report can be seen from the note made on 1 February 1943 which is initialed by Vollmer and which also bears Mettgenberg’s and my initials.[487] That note provides for certain limitations of defense counsel appointed by the courts, but the document does not show the wording of the decree as it was actually issued later on.

What I remember is that after that decree had been issued, the limitation of defense counsel, appointed by the courts, applied neither to proceedings before the People’s Court nor did it apply to those proceedings where the death sentence could be expected. How insignificant the practical effect of this limitation of the appointment of defense counsels by the courts was is revealed by the position which defense counsel hold under German code of procedure, a position which has been discussed here repeatedly. For the rest, according to my observations, the Special Courts in practice almost always appointed defense counsel.

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Q. Please state some details about the practice followed by the courts.

A. In the final result, and that is still my conviction today, the jurisdiction of the general courts in NN cases was absolutely adequate. This applies to the matter seen as a whole. It applies to the jurisdiction of the People’s Court and especially to the jurisdiction of the Special Courts. In the case of the Special Courts you will see that few death sentences were pronounced whereas the People’s Court in a large percentage of cases pronounced death sentences. However, the percentage of death sentences is not as high as I assumed in my affidavit of 17 December 1946. That is Exhibit 337.[488] In this affidavit I stated--purely off hand, I would like to say--that the majority, that is, more than fifty percent of those indicted before the People’s Court were sentenced to death. I made that statement at the time to the best of my knowledge. However, I did not have any documents of any kind at my disposal, and I had to rely on my memory alone. Today, after I take into consideration the statistical material which the prosecution has submitted, I would assume that about fifty percent of the NN cases sentenced by the People’s Court were sentenced to death. The death sentences which the People’s Court passed were, I think, justified; and I can even say from an international point of view, the death sentence was appropriate. They were cases of espionage, guerilla activities, serious cases of aiding and abetting the enemy, as well as the support of enemy parachutists, etc. About the offenses which were the basis for sentences for the People’s Court, the witness Walter Roemer[489] also testified here in this Court. I refer to the testimony of 24 April by this witness. I can also refer to what the defendant Lautz[490] said here on the witness stand. After examining the statistical material, I have to correct another sentence from my affidavit of 17 December 1946. In that case I stated that aiding and abetting the enemy always practically resulted in a death sentence before the People’s Court. After careful consideration, however, I have no reason for expressing the opinion that the number of death sentences was larger in the case of aiding and abetting the enemy than in the case of espionage and guerilla activity. Here, too, I assume that the death sentence amounted to fifty percent.

Characteristic sentences in these courts were those pronounced for illegal possession of arms. I have already mentioned that in the decree issued by the military commander in normal cases the death sentence was provided and only in lighter cases a prison sentence. In fact, only very few death sentences were pronounced because of the illegal possession of arms. These cases were special cases, as for instance possession of an entire ammunition depot. In an overwhelming majority of cases--and I want to state that illegal possession of arms as far as the number of cases played an important role--only prison sentences were pronounced for the illegal possession of arms. The action by the president of the district court of appeals of Katowice who in the discussion at Oppeln instigated a more severe punishment because of possession of arms was at that time generally rejected. In the few cases in which because of illegal possession of arms, the death sentence was pronounced, almost without exception the execution of the death sentence was avoided by clemency pleas.

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DR. KUBUSCHOK: I now come to the clemency proceedings of the Reich Ministry of Justice in death sentences pronounced for NN cases. Please comment on this.

DEFENDANT VON AMMON: The clemency procedure in NN cases was in principle the same as in the case of other death sentences. However, there were some peculiarities. One of these was that the Gauleiter did not participate in the clemency proceedings, because the crime had been committed in occupied territory and not within the sphere of a Gauleiter.

A further peculiarity consisted in the fact that Hitler, as I already mentioned before, reserved to himself the right to make the clemency decision in death sentences pronounced against women from the Occupied Western Territories.

Finally, I should like to point out that in NN cases, because of the lack of the possibility of a deterrent, there was no so-called “lightning” [Blitz] executions. The practice in regard to clemency questions followed by Thierack was, as has been discussed here frequently, severe. It was not easy for a Referent to succeed in getting clemency granted by him. Nevertheless, I succeeded in doing so in a number of cases.

However, when I made the attempt to bring about the granting of a clemency plea in several cases, I became subject to the scorn of Thierack who made derogatory remarks about the obstinacy which I applied.

Q. The NN regulations in the execution of which you had to cooperate--did you have any misgivings about them?

A. In the application of the NN regulations I was, of course, conscious of their severity. I considered especially severe the strict regulations about the seclusion of NN prisoners from the outside world which made any correspondence of the NN prisoners with their relatives impossible. Furthermore, I considered very severe the regulations which provided that on principle also those NN prisoners, to whom no offense or at least no serious offense could be proved, should remain in custody. That I considered very severe. But I kept to the statements that were made when these regulations were issued, that these regulations were necessary in order to suppress the increasing resistance movement in the occupied territories.

The regulations issued seemed to me to be still better than--and this would have been possible in the case of offenses against the occupying forces in the occupied territories--indiscriminate death sentences.

As the witness Lehmann testified here, the seclusion of NN prisoners from the outside world was, so to say, the price to be paid for the possibility of greater leniency in sentencing. Under this point of view it seemed to me to be acceptable. That very strong resistance movements existed in the occupied territories, which in a certain sense could be considered as a second illegal army and influence the military situation considerably, is an historical fact.

Q. Did you have an opportunity to give up your NN section and to take over another section?

A. As I already stated in the affidavit of 17 December 1946 which I quoted repeatedly, I did not like dealing with NN cases. Whether a person likes his special professional field is, on the whole, dependent on his inner attitude. In any case, I can say about myself that the activity in a section in which of necessity, severity, and above all, death sentences appeared, was not to my liking, especially since people were concerned who as such were not criminals and who could not be denied a human understanding.

For that reason, in the summer of 1944, I made the attempt to swap my section with another section in the personnel division of the Ministry of Justice. At that time it was intended to promote Ministerial Counselor Wittland who was a member of the personnel division. In that case he would have left the Ministry of Justice. The section comprised organization of the courts and civil service law.

At that time I requested to receive this section when Wittland would leave. From August 1944 until January 1945, I used part of my time in order to get acquainted with the personnel department. However, the Party Chancellery then objected to Wittland’s promotion, and, therefore, it did not take place; and I had to remain in my former section.

Q. Did you regard the NN regulations as being within the framework of international law?

A. In answering that question, I have to make a clear distinction. The NN decree was signed by Keitel on order of Hitler. The executive regulations for the NN decree were issued, first of all, by the OKW and for the sphere of the Ministry of Justice, by the Ministry of Justice. The basic executive regulations of the Ministry of Justice in regard to the NN decree were not worked out by me as Referent nor in my department at all. Apart from the leadership of the Ministry, the penal legislation department, Department III, was competent for this. Department IV and I as Referent were in a certain sense merely executive organs in the application of the existing legal regulations.

The examination as to whether the NN decree and the basic executive regulations were in accordance with international law was therefore up to the people who were competent for the issuance of the decree and working on the drafting of the regulations. But the executive organ neither has the duty nor the right for review as has been discussed here frequently.

Of course, as a jurist, I thought about these questions and can say that crimes of that nature as were prosecuted as NN cases can be punished with the most severe penalty according to international law, and that penalties of that kind are also usually applied by all states as is obvious, I believe; that courts martial which otherwise would have tried such cases in the occupied territory, were replaced by civil courts in the home country, is also not contrary to international law.

And now, as to the limiting regulations of the NN procedure, the essential factor was that a just decision by the court was not prevented by them. In the statements I have made so far, I have pointed out that the limiting regulations of the NN procedure did not exert a negative influence for the defendant in the proceeding.

Keeping the prisoners incommunicado had been ordered by the Fuehrer order and by the military authorities. The question of military necessity was not subject to review by us. International law puts these military interests above the personal interests of the inhabitants of the occupied territories.

From all these considerations I did not see that the NN regulations were contrary to international law.

Q. Since the prosecution has submitted documents about the conditions in concentration camps against all defendants who continued working in the Ministry of Justice after 1942, I have to ask you too what you knew about occurrences in concentration camps.

A. My various official positions could not afford me any knowledge about such events. Even at the time when members of the SS did not yet have their independent jurisdiction, when reports about these excesses in concentration camps could thus still reach the Ministry of Justice, my section was not affected by this, and this was entirely regardless of the fact that these reports only provided knowledge of a very small section of actual conditions.

In conversations, too, within the Ministry I heard very little about these matters, probably because they were treated as secret, and I was not in a special confidential relationship with the Referenten who were working on these matters. For those reasons, for example, the occurrences in the Kemna and Hohenstein camps being known to me only here during this trial. I myself never visited a concentration camp. As far as private knowledge is concerned, I considered being kept in the concentration camp, of course, as something unpleasant, especially since the camps were cut off from the outside world, the uncertainty of the period of detention, the lack of orderly legal recourse. That abuses might have occurred for those reasons I assumed without knowing anything definite about it. I did not have acquaintances who had been in a concentration camp and from whom I might have found out some definite details. Although I had quite good relationships with Protestant church circles, for example, I did not even know, did not gain any definite knowledge about Niemoeller’s[491] being kept in a concentration camp. About systematic killings and mass exterminations I heard only after the surrender.

* * * * * * *

CROSS-EXAMINATION

MR. WOOLEYHAN: Mr. von Ammon, last Friday you stated with regard to your relationship with the Nazi Party that you were a victim of Nazi propaganda and that you were not an enthusiastic Party member for ideological reasons. Weren’t you omitting some very important events in your political career?

DEFENDANT VON AMMON: First of all, I believe that I did not express myself in that cross manner, that I described myself as a victim of Nazi propaganda. I only stated that under the influence of Nazi propaganda I saw many a thing in a more favorable light than it actually was, and that I was not an enthusiastic National Socialist, because from my ideological point of view, much kept me apart from the Party. I am not aware of the fact that I left out anything important when making such a statement.

Q. Then you don’t consider it important, noteworthy enough to remember, that on 9 November 1923 you actively participated with Hitler and others in the famous Munich Putsch; why don’t you remember that, Dr. von Ammon?

A. Of course, I remember that, but it is not correct that I left these events out, rather I stated that as a high school student as well as a college student I belonged to patriotic youth organizations and to Nationalists’ associations. Among these Nationalists’ associations also belonged the Bund Oberland, which actually, as you indicated, participated in the so-called Hitler Putsch of 9 November 1923.

Q. As a result of that Putsch in which you participated, wasn’t Hitler tried and imprisoned for high treason, for trying to overthrow the German Republic by force?

A. Yes.

Q. Were you tried, Dr. von Ammon?

A. No.

Q. Why not?

A. Because my participation in the Hitler Putsch was so insignificant. By the way, my participation wasn’t at that time even found out by the authorities, as was the case with the great majority of those who participated.

Q. If your participation and membership in the Nazi activity at that time had become known, you would have lost your job in the government, wouldn’t you, or did you have a job at that time?

A. No, certainly not. First, I was still a college student at that time, as I stated before, and also I do not believe I would have lost my job. Many participants that is, many civil servants who participated at least, if they took part in a subordinate role such as I were not in any way affected in their positions. Moreover, I would like to state at that time it was not a Nazi activity within the meaning of that phrase, the Bund Oberland was not a National Socialist organization. It was a patriotic, self-protective organization, which in the years after the First World War in the fight against the attempted Communist uprising and in the fight against the Polish uprising in Upper Silesia in 1921, without a doubt had gained its merits. To be sure, I participated in the Hitler Putsch at that time, but at that time the fronts were not so well delineated as yet that the actual Putsch could be described as unequivocal Nazi action.

Q. If that is so, Dr. von Ammon, apparently officials in the Ministry of Justice were not aware of it really, because as I read your official personnel files here which came from the Ministry, and which I am sure you have seen many times with respect to your membership in the early political associations, you are credited with having participated, and I am quoting, “in the Nazi uprising in Munich on 9 November 1923.” Now, in later years, Dr. von Ammon, did the Nazi Party ever give you any tangible momento of that famous event of 1923?

A. First of all, in order to correct you, I would like to say that I never saw my personnel files, as you assume, Mr. Prosecutor. I do not know at all what is written in these personnel files. As far as the question is concerned whether I have a tangible momento of my participation in the Hitler Putsch, I have to answer that this momento was limited to a pass which permitted me to participate in the festivities which took place yearly on 8 and 9 November in Munich--

Q. Ah--

A. And I may also add that I only seldom made use of this pass.

Q. What number was that card or pass?

A. Unfortunately I don’t recall.

* * * * * * *

Q. Now, Dr. von Ammon, there is just one thing further in this custody-of-the-Gestapo business that confuses me. After the arrangement had been made late in 1944 to transfer these Nacht und Nebel prisoners to the Gestapo for protective custody, there has been a lot of talk here about the fact that the court authorities finally handed these people over to the Gestapo, at least in some measure.

What actually was involved in this handing over of Nacht und Nebel prisoners to the Gestapo as far as the courts and the justice administration were concerned? By handing over, what actually did happen, so far as the courts and the Ministry are concerned? Did you sign a release? Did you actually put them in trucks and take them to the other side of town, or what happened?

A. Unfortunately I cannot give you that information. You have to turn to the Referent of the department for penal administration, to the witness Hecker,[492] who carried out those transfers.

Q. Dr. von Ammon, with respect to the winding up of the Nacht und Nebel affairs in the Ministry in the handing over of these people to the Gestapo, the witness Hecker in Exhibit 416[493] says that you attended a number of the conferences during which this method was ironed out. It’s surprising that you don’t know how it happened. How did these people get off your hands? Was it a paper transfer, or what was it?

A. No, two ordinances of Departments IV and V were issued at that time, and they were issued to the chief general prosecutors concerned, to the effect that they were to transfer the prisoners to the competent authority, the Gestapo.

* * * * * * *

Q. You mentioned that the courts in enforcing the Nacht und Nebel program by trying Nacht und Nebel defendants, particularly the Special Courts, had been moderate in their sentences. Now, in view of that, I’m wondering if that is true for the reason that after the Nacht und Nebel program was terminated by these arrangements in 1944, you wrote a letter to the Attorney General in Munich and you told the Attorney General in Munich that in view of the new arrangement concerning the treatment of Nacht und Nebel prisoners in the future, namely their transfer to the Gestapo, “There no longer will be executions of Nacht und Nebel prisoners in any large numbers.”[494] Now, tell me, Dr. von Ammon, if these courts were so lenient and gentle with these Nacht und Nebel defendants, why did you see fit to mention that death sentences weren’t going to be in any large numbers in the future? That’s the same as saying they were large in the past, isn’t it?

A. I stressed above all that the sentences passed by the Special Courts were moderate. It is true that the Special Courts only passed a few death sentences. I did say, however, on the contrary that the People’s Court did pass a large number of death sentences and even mentioned that 50 percent of the persons indicted by the People’s Court were sentenced to death. Those sentences which were intended to be executed in Munich were sentences which had been passed by the People’s Court.

Q. In any event, whether it was the People’s Court or the Special Court, after that Nacht und Nebel program was dissolved, you were of the opinion then that large numbers of death sentences would not be passed in the future?

A. No, actually I was of the opinion that no further death sentences would be passed. The only thing that could still happen was that death sentences would be executed that had been passed prior to September 1944.

Q. And from your letter, it appears that up until that time, they had been large in number, does it not?

A. Well, that is a relative concept--that word “large.”

Q. Oh, of course.

A. I believe that in view of the long period of time--from 1942 until the end of 1944--the number of death sentences which were actually passed is relatively small.

Q. May it please the court, the prosecution offers as Document NG-1886, Prosecution Exhibit 546, the letter written by defendant von Ammon which we have just been discussing.

PRESIDING JUDGE BRAND: The exhibit is received.

* * * * * * *

EXAMINATION BY THE TRIBUNAL

PRESIDING JUDGE BRAND: I understood you to say that you did not know of any innocent person who was brought to Germany under Nacht und Nebel procedure.

DEFENDANT VON AMMON: I was referring to the assertion of the prosecution. The prosecution had maintained that evidently innocent persons had been treated in exactly the same manner as guilty NN prisoners, and it was in reply to that, that I stated that evidently innocent persons were never brought to Germany at all; that is to say, as far as my knowledge goes. If, however, it did happen that a person was evidently innocent and had been brought to Germany, then there was a possibility of releasing him back to the occupied territories.

Q. I still understand you to say that you knew of no innocent person brought under Nacht und Nebel procedure.

A. It may have happened, naturally, but--

Q. I am referring to what you said. Did I correctly understand you to make the statement that you knew of no innocent person who was brought to Germany under Nacht und Nebel procedure?

A. I would like to restrict that to evidently innocent persons, as opposed to a person whose innocence only later was made clear. That naturally happened, too, and such cases did occur and such cases were brought to Germany.

Q. That is a very material modification of your former statement, because you also said that considerable numbers were acquitted. I assume that you do not consider that persons who were acquitted were necessarily guilty; you presume them innocent if they were acquitted, don’t you?

A. Or that the evidence was not sufficient to prove them guilty.

* * * * * * *

REDIRECT EXAMINATION

DR. KUBUSCHOK: In reply to a question by the prosecutor, you spoke of your membership with the Bund Oberland, and you stated that the Bund Oberland on 8 November [9 November] 1923 took part in the so-called Hitler Putsch. You stated that the Bund Oberland was an association--a so-called Nationalistic association of which many members were college students. Did that organization Oberland at a later time ever become incorporated in the NSDAP? Did that nationalistic organization ever become a National Socialist unit by way of incorporation?

DEFENDANT VON AMMON: No. After the Bund Oberland had participated in the Hitler Putsch on 9 November, it was dissolved. I believe that at some time later on it came back to life, but I personally no longer took any part in it. As far as I know, it never in any way was incorporated in the National Socialist movement.

Q. How far did you participate in the events of the night of 9 November 1923?

A. The company of the Bund Oberland to which I had been assigned was alerted, on the evening of 8 November 1923. I was not alerted because my name was not on the alert list. I had joined the Bund Oberland only a little before that time. Therefore, I was only told about it on the morning of the 9th. I then joined my company which was stationed in an inn by the Isar, at Bogenhausen, in Munich. There I spent a few hours with the company; then we marched off to the East. There we disbanded and returned to Munich one by one. That was my participation in the event of 9 November.

PRESIDING JUDGE BRAND: May I ask you--were you armed? Were you armed at that time?

DEFENDANT VON AMMON: Yes, I had a gun.

* * * * * * *

E. High Treason and Treason, Malicious Acts, Undermining the Military Efficiency, Public Enemies

PARTIAL TRANSLATION OF DOCUMENT NG-685 PROSECUTION EXHIBIT 259

EXTRACTS FROM A LETTER BY CHIEF PUBLIC PROSECUTOR AT HAMM TO THE MINISTER OF JUSTICE, FOR DEFENDANT SCHLEGELBERGER, 29 JANUARY 1941, CONCERNING TREASON, BREACH OF REGULATIONS BY FOREIGN WORKERS, CRIMINAL PROCEEDINGS AGAINST POLISH CIVILIANS, AND APPLICABILITY OF DECREES AGAINST PUBLIC ENEMIES AND VIOLENT CRIMINALS

The Chief Public Prosecutor 3130 a GSTA. 1.06/216

Hamm (Westphalia) 29 January 1941 Telephone: 1780-87

REGISTERED

To the Reich Minister of Justice

Attention: Under Secretary Dr. Schlegelberger Berlin W 8 Wilhelmstrasse 65

Subject: Situation report

Enclosures: 2 copies of the report 2 printed forms 1 bulletin of the Criminal Police Office, Dortmund

I. High Treason

The department in charge of high treason cases is highly taxed because of the numerous, and in part also very extensive emigrant problems. Upon my request, the president of the court of appeal has seen to it that the criminal senate will hold 4–5 meetings a week from now on. I hope that in this way the majority of all cases can finally be settled in the course of the spring.

II. Administration of Criminal Jurisdiction for Juveniles

* * * * * * *

_V. Breach of Work Contracts and Unauthorized Change of Residence of Foreigners_

1. In my last situation report I already pointed out the difficulties which are created by the criminal prosecution of foreigners, especially Polish civilian workers, who leave their place of work and their assigned place of residence without authorization.

The directors of the labor offices and the Reich Trustee for Labor of the economic territory of Westphalia-Lower Rhine as a rule do not prefer the necessary charges for criminal prosecution, in accordance with the decree concerning the restrictions for changing the place of work, dated 1 September 1939--Reich Law Gazette I, page 1685--and in accordance with the decree concerning the fixing of wages, dated 25 June 1938--Reich Law Gazette I, page 691.

Upon inquiry, the Reich Trustee for Labor for the economic territory of Westphalia-Lower Rhine has informed me that “in accordance with an agreement between the Reich Minister for Labor and the Reich Leader SS and Chief of the German Police, breach of work contracts by Poles are to be punished by the Secret State Police with protective custody or concentration camps. The meaning of this step”--so writes this Reich trustee--“is that in the case of Poles the strictest measures are to be taken at once in order to create a deterrent effect. For this reason we made it a point in my office to transfer the cases involving breach of work contract by Polish civilian workers to the Gestapo (Secret State Police) for further action. Only in those cases where the Polish workers involved were already under arrest on charges of vagrancy, vagabonding, etc., and investigated, have I in those cases known to me, preferred charges for breach of work contract, so that all the punishable offenses of the Pole could be adjudicated in one court trial.”

In one individual case, concerning a member of Protectorate, the Reich Labor Trustee for the economic districts of Westphalia and Lower-Rhine refrained from demanding legal action stating, as a reason, that “all foreigners including the Czechs” were exempt from criminal action where this question is concerned.

Contrary to the opinion of the above-named authority, the Reich Trustee for Public Service, who had been informed of the attitude fundamentally taken by the Reich Labor Trustee for the economic districts of Westphalia and Lower-Rhine, has strictly upheld the charges he had preferred against members of the Protectorate who had broken their contracts. In the case in question, the demand for punitive action was based upon the recommendation of the Reich Minister for Transportation to the Reich Trustee for Public Service, dated 24 June 1940 and 13 August 1940 respectively--51.533 Pldaa. According to a statement by the Reich Trustee of Public Service, entered into the criminal record files, the Reich Minister of Labor stated at that time in reply to the report of the Reich Trustee for Public Service referring to a regulation dated 17 July 1940--III b 15062/40, that he had no objections, if he--the Reich Trustee--should prefer charges in accordance with the wishes of the Reich Minister of Transportation. On the other hand the competent office of the Reich Protector thinks it more advisable, not to punish workers from the Protectorate employed within the Reich proper for breach of work contract or to punish them only very mildly as otherwise great difficulties would be encountered in the further recruitment of Czech workers from the Protectorate for jobs in the Reich proper. At any rate, I have dealt with the criminal procedure against workers from the Protectorate for breach of work contract in a special report to the Protectorate also taking up the question concerning the competence of the German courts in the Protectorate for passing sentence in case of breach of contract, committed in the Reich proper.

According to this there seems to be a difference of opinion within the Reich Ministry of Labor as to the question in which cases the competent authorities should prefer charges against foreigners who have broken their contracts. In order to get uniform action on matters concerning punitive regulations it seems desirable to have the Reich Minister of Labor effect a settlement that negotiations between the Ministries concerned and the Reich Protector will result in an agreement to follow one standard rule in preferring charges against members of the Protectorate.

Polish civilian workers leaving their working place and their place of residence without permission have at times--when no charges had been preferred against them--been prosecuted and punished according to the viewpoint of article 2 of the ordinance [VO], concerning the treatment of foreigners of 5 September 1939--Reich Law Gazette I, page 1667. This procedure is not without objection, because the Poles concerned were not in the Reich proper on 6 September 1939 when this decree took effect, and it is not known whether they had been informed of this regulation according to article 1 of the ordinance.

VI. Criminal Proceedings against “Zivilpolen” [Polish Civilians][495]

With regard to criminal proceedings against the so-called Zivilpolen--as has been pointed out by me before--an uncertainty has developed which can no longer be tolerated. One cause for the uncertainty regarding criminal proceedings is found in the fact that some matters are handled by the State police independently, and the other is that sentences passed by the regular courts are not based on uniform standards. It may happen that the regular court may sentence a criminal to 2 to 3 years of imprisonment--concurrently or separately--while the State police may pronounce the death sentence for the same crime. In order to overcome these intolerable conditions I have issued directives to the senior public prosecutors and to the public prosecutors of the district and have therein called attention to the following aspects:

Civilian Poles are under the jurisdiction of the regular courts because no special provisions are made for them. However, it is not sufficient, firmly to advocate this principle, but the real effect of jurisdiction can only be secured by consequent and energetic action according to this principle, and by administering justice with the speed and severity called for by the situation. In this way it was made possible in the criminal case Bugajny (IIIg 23 5023/40) for the regular jurisdiction to become effective and to do justice to the case. The State police had decided not to hand the case over to the office of the public prosecutor and, with the objective of having the State police deal with the case, reported it to the Security Main Office. I learned about this case from a newspaper report, and I asked the senior public prosecutor to procure a legal warrant of arrest, to put the accused into a court prison, and then through investigations of his own to ascertain the facts of the case, and to prefer charges as soon as possible. The Pole was thereupon condemned to death for criminal violence and forthwith executed without intervention of the State police.

The result obtained in this case must, however, not mislead us, and make us forget that as a rule successful action depends on two other conditions.

For one thing, it is necessary that the office of the public prosecutor be notified immediately. One cannot depend on the chance that a newspaper will report a case. It must be made sure, therefore, that the local police will immediately report crimes committed by civilian Poles to the office of the public prosecutor.

The other thing is the question of the measure of punishment. According to article 1 of the GewVVO[496] the death sentence was called for in the criminal case Bugajny. But what punishment should be given, e.g., for indecent assault--cases in which the State police generally also pass the death sentence. The question is whether Zivilpolen should on principle be judged according to article 4, VVO[497] when in the individual case special circumstances according to article 4, VVO do not exist.

In my opinion this question may be answered with yes, if (1) political crimes or, (2) crimes against the body, life, or possession of a German are involved. The term “body, life, or possession” is taken from article 2 of the VVO and it is, therefore, to receive an accordingly free interpretation. It would not apply, e.g., to refusal to work, and also not to any crimes of the Zivilpolen among themselves.

The following points should lend support to--

(1) That Poles are citizens of an enemy state, whose representatives in foreign countries are continuing to fight against Germany.

(2) That they are citizens of a nation which contrary to all international laws has massacred 60,000 German civilians and mistreated and plundered others.

Therefore, this is not a question simply of malicious crimes, work sabotage, or indecent assault, etc., but crimes which due to the fact that they were committed by Poles against the German Reich or against a German fellow countryman considering the type of Polish warfare (see (1) and (2) above) appear in a different light.

Of this type of crime it can, in my opinion, be said that it was committed by taking advantage of war conditions and is therefore especially contemptible. For the Zivilpolen have only come to Germany proper because of the war conditions (insufficient work in Poland, lack of workers in Germany). Here they are due to the war situation (drafting of fathers, shortage of other personnel) without sufficient supervision, in the midst of German nationals especially women and children, and in German factories as well as in other establishments of great importance to the German armed forces.

The Zivilpole too is without doubt aware of all these circumstances. These circumstances have not necessarily been the actual reasons for this action. But often this will be the case with the stirred up Polish national hatred.

Of course it is not quite certain whether the courts, especially those courts which until now have punished the crimes committed by Zivilpolen very moderately or even mildly, will agree with this legal conception and, if the occasion arises, will pronounce the death sentence in case of an especially serious crime. However, this question does not seem hopeless to me, if the Ministry will exert its influence through circulars, articles in the “Deutsche Justiz”, or in oral discussions. I think that a special directive stressing the importance of such an administration of justice in the interest of safeguarding a normal course of jurisdiction, would also bring results. According to our experience so far, it should generally be possible to avoid the application of Article 4, VVO in cases of Polish females.

Acting: [Signed] DR. HAFFNER, Senior Public Prosecutor

[Stamp] Certified: [Signature illegible] Court Clerk

TRANSLATION OF DOCUMENT NG-548 PROSECUTION EXHIBIT 347

LETTER FROM DEFENDANT LAUTZ, CHIEF REICH PROSECUTOR AT THE PEOPLE’S COURT, TO THE REICH MINISTER OF JUSTICE, 23 FEBRUARY 1942, CONCERNING THE QUESTION OF PROSECUTING FOREIGNERS FOR TREASON AGAINST GERMANY FOR INJURIES TO ETHNIC GERMANS ABROAD

The Chief Reich Prosecutor at the People’s Court File No.: 3 J 85/40 secret Berlin W 9, 23 February 1942 Bellevuestrasse 15 Telephone: 21 83 41 [Stamp] Reich Ministry of Justice 2 March 1942

To the Reich Minister of Justice in Berlin W 8 Wilhelmstrasse 65

[Handwritten] Is this matter to be taken with the attached file? St. g 10a. No! In my opinion it belongs to Gp. 4 March [Signed] A [von Ammon]

Subject: Application of article 91, paragraph 2, Penal Code, in conjunction with article 2, Penal Code for the protection of Germans with foreign citizenship

Enclosures: 3 copies of report

The Reich Leader SS and Chief of the German Police [Himmler] recently asked me to recheck several expert opinions given in several preliminary proceedings here, among them criminal case 3 J 85/40, secret, against Haupt and others; the above-mentioned legal question, which was not definitely decided in the judgments passed by the 2d senate on 19 May 1938 in the criminal case 14 J 785/37, secret, against Krippner; and that passed by the 3d Senate on 14 June 1938 in the criminal case 7 J 105/37, secret, against Zueckert.

The expert opinion in the case against Haupt and others, contains the following statements, in the part concerning this:

The Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior Berlin, 13 December 1941 S II A 4 No. 12/41 = 558 = secret

SECRET

To the Chief Reich Prosecutor of the People’s Court

To Chief Reich Prosecutor Dr. Barnickel--or deputy in the office in Berlin.

Subject: Preliminary proceedings against the employee Edith, Margarete Haupt, born in Poznan on 7 May 1918, on a charge of treason

[Illegible Marginal Notes]

The systematic shadowing of ethnic Germans also served to obtain reasons for persecution measures and chicaneries in the course of the battle for suppression and extermination. The Poles carried out these measures against the ethnic Germans in a manner which the Germans considered to be absolutely arbitrary, contrary to international law, and brutal (cf. for instance, Freisler, “Development of the nationality law of ethnic German groups,” in German Justice, 1941, pp. 881 ff.).

As far as Reich Germans, who in exceptional cases were not prohibited from participating in the above-mentioned ethnic German organizations, are concerned by this, article 91, paragraph 2 of German Penal Code, is to be taken into consideration.

As far as ethnic Germans are concerned, paragraph 91, section 2 of German Penal Code, is not directly applicable, as ethnic Germans according to formal national law were not German, but Polish citizens. I can only express my opinion in the form of a suggestion, that in the case of the betrayal of ethnic Germans to the foreign police, article 91, paragraph 2 of German Penal Code is to be applied accordingly on the basis of article 2 of German Penal Code (vide People’s Court 2d Senate of 19 May 1938, vs. Wenzel Krippner, document number 14 J 785/37-2 H 22/38; different opinion: People’s Court 3d Senate of 14 June 1938, vs. Walter Zueckert, document number 7 J 105/378-3 L 78/37; decision of 24 October 1940 to quash criminal proceedings in the criminal case, vs. Anton Reiprich, document number 4 J 86/40g).

An offender who has caused, or who wanted to cause ethnic Germans to be punished or otherwise prosecuted by Polish (Czech, or Lithuanian) authorities was hitherto almost never punished, because in such cases the intention, according to articles 88, 89, and 90c of the German Penal Code, i.e., the knowledge that he had acted against the interests of the Reich could not be proved satisfactorily owing to a lack of comprehensive political training and of judgment, article 91, paragraph 2 of the German Penal Code, was considered to be nonapplicable.[498] Such an offender deserves a much heavier punishment, for his dishonorable behavior--behavior which up to now has generally been considered as contemptible in judicial decision and conclusions made by public prosecutors--than, for instance, a person who only apparently was connected with a foreign intelligence service for purposes of treason, but who must be punished according to Article 90c of German Penal Code. The offender nearly always knew that “Germans” were concerned.

Even considering the possibility that a decision, according to article 91, paragraph 2 of German Penal Code, falls into the hands of a foreign government, it would not cause additional attacks against the Reich in foreign affairs, if this decision contains a complete explanation. Such a legal standpoint neither demands the ethnic Germans living on the former borders of the Reich to behave disloyally toward the foreign nation, nor does it take away from the foreign nation the right to exercise a normal police control over the ethnic Germans. This corresponding application according to the above always provides that foreign police control served purposes and measures contradictory to international law and law of minorities. This is especially applicable to the border districts which were taken from the Reich, according to the Treaty of Versailles. Nor does this opinion, for instance, object if single members or groups of ethnic German organizations now and then should have overstepped the bounds of loyalty, for this was not the cause, but the consequence of foreign compulsory measures.

I would consider as improper only the laying down generally and legally of a treatment applicable to treason committed by ethnic Germans, by adding a supplementary regulation to the second paragraph of article 91 of the Penal Code. It is true that consideration regarding foreign policy would oppose this. But on the other hand, in my opinion, the lack of an express regulation of penal law for the protection of ethnic Germans does not prove that article 91, paragraph 2, of the criminal code should be applied in every case. On the contrary, I consider this to be a task for the courts to fill a gap in the law, which has been left open for state political reasons, by creating a law in the appropriate cases.

The basic idea of article 91, paragraph 2 has been expressed as follows in the verdict of the People’s Court 4th Senate of 8 April 1940, against Horst Moses (4 L 2/40):

“The National Socialist State is especially well aware of its responsibility toward its citizens, and of its duty to protect all its members, especially if they are abroad and do not enjoy the full protection of law. Hence, it feels its integrity endangered, even in the case of a conspiracy by a foreign government against a single Reich citizen, and wants to lend the threatened person its legal protection, as far as this is possible, from the home country.”

The Reich made no secret of the fact that with regard to the protection of Germans it does not only claim the right to protect Reich Germans, but also ethnic Germans living on its borders. The Reichstag speech made by the Fuehrer on 20 February 1938, strikes me as fundamental, even if it was directed especially against the then Czechoslovakian Republic. In this speech, he pointed out, among other things:--

“* * * two of the states situated on our frontiers alone have more than ten million Germans * * *.

“The fact that [these persons] were separated from the Reich by constitutional law, cannot deprive [them] of their ethnic political rights (volkspolitische Rechtlosmachung); i.e., the general rights of an ethnic self-determination which, incidentally, were solemnly granted to us as prerequisites of the armistice in Wilson’s Fourteen Points. These rights cannot be disregarded simply because Germans are concerned! In the long run it is impossible for a world power with self-respect to know that they have ethnic comrades [Volksgenossen] at their side who, owing to their sympathy or their ties with the whole population [Gesamtvolk], its fate, and its ideology, are being continually, and gravely harmed. The fact that it is possible, if there is good will, to find ways to reach compromise [Ausgleich] or to ease this suffering, has been proved. But he who tries to prevent such easing in Europe by force will one day invite force among the nations.

“For it cannot be denied, that as long as Germany was powerless and defenseless, she had simply to tolerate the fact that there was a continual persecution of German people on our frontiers. But in the same way as England represents her interests over the whole world, the Germany of today will know how to represent and to protect her interests, even if they are more limited. And these interests of the German people comprise also the protection of those Germans who, of their own accord, are not in a position to ensure for themselves along our frontiers the right of commonly human, political, and ideological independence * * *.” [End of quote from Hitler’s speech.]

I request, therefore, the re-examination of this question on account of its fundamental importance in regard to legislation and to clarify its principle--in the first place, for the jurisdiction of the Chief Reich Prosecutor at the People’s Court--so that this question may through indictments in the respective cases, also be decided in court. It is, of course, not intended by these statements to anticipate the weighing of evidence in the present case.

“* * * I induced the Foreign Office to participate in the afore-mentioned expert opinion. The Foreign Office did not make any particular comment on the statements concerning purely legal matters, but has pointed out that questions in the sphere of foreign politics could not be raised, if the court in cases such as the present, acted in accordance with article 91, paragraph 2 of the Penal Code for the above-mentioned reasons. This comment applies firstly to such cases in which the ethnic groups of former Poland, Lithuania, as well as the former Czechoslovakia, and Soviet Russia are concerned. In cases in which other countries are involved, the question would, if necessary, have to be examined individually.” [End of Himmler’s letter.]

The president of the People’s Court, to whom I applied for a comment on this judicial problem, in view of the above-mentioned two different verdicts, has stated:

“A discussion with the presidents and the deputy presidents of the senates of the People’s Court on the legal question, whether article 91, paragraph 2 of the Penal Code may be applied in connection with article 2 of the Penal Code[499] in connection with the protection of ethnic Germans of foreign nationality, resulted in the following unanimous interpretation:

“The application is confirmed--

(1) if the wrong [Unrechtsgehalt] of the act--apart from the requirements that all other necessary constitutive elements [of the crime] must be present--is so serious as absolutely to demand punishment,

(2) if the granting of equal rights to an ethnic German and to a German national does not present for the state to which the ethnic German belongs, a grave detrimental proposition from a political point of view, which is prejudicial to its sovereignty and to its friendly relations with the Reich,

(3) if the act is not subject to punishment from any other legal point of view according to German penal law nor subject to punishment according to the laws of the foreign state (article 4 of the Penal Code).”

I agree firstly with the Reich Leader SS and the President of the People’s Court that a direct application of article 91, paragraph 2 of the Penal Code, which obviously, expressly, and knowingly--see also the draft of the new penal code--protects only German nationals will not be made in favor of ethnic Germans. Furthermore, I concur with the conception that the general political development which has meanwhile come about, particularly during the last years, enabling the Reich largely to protect its ethnic members of foreign nationality to a greater extent than has been possible hitherto must be borne in mind in this particular instance. Therefore, I find it necessary on principle to protect by means of the German Penal Code those ethnic Germans who have seriously suffered through action such as mentioned in article 91, paragraph 2 of the Penal Code, provided that the action, in accordance with sound public sentiment, deserves punishment analogous to this provision, but where such punishment considering the wrong of the particular case cannot be pronounced on account of any other directly applicable penal regulation. In this connection, my standpoint--and this agrees with Laemmle, “German Justice,” 1940, page 775, and with the practice of the People’s Court mentioned therein--is that the act which is punishable according to article 91, paragraph 2 of the Penal Code must be considered as an act of high treason against the Reich to which article 4, paragraph 3, number 2, of the Penal Code, not article 4, paragraph 2, is applicable. Whether in other respects the prerequisites for an appropriate application of article 91, paragraph 2, in conjunction with article 2 of the German Penal Code exist, will, in my opinion, depend upon the examination of each individual case, in which also questions of foreign politics will have to be taken into consideration, although these already have been eliminated to a large extent by the comment of the Foreign Office contained in the expert opinion of the Reich Leader SS.

In this connection, I wish to quote, by way of example, two cases of preliminary proceedings which have recently come to my hands, and which concern particularly serious aspects.

In the proceedings of 3 J 304/41 vs. Hellig, the defendant, an ethnic German, formerly resident in Northern Bukovina, and formerly of Rumanian nationality, who since became a German national, repeatedly guided, for high reward, ethnic Germans of Rumanian nationality, who had been surprised by the Russian occupation of Northern Bukovina by the Soviet Russians in 1940, allegedly in order to enable them to illegally pass the frontier into Rumania, but then played them into the hands of the Russian frontier guards.

In the proceeding 11 J 8/42 g vs. Golek, the defendant, a former Polish national, of the Polish ethnic group, in the years of 1938 and 1939 in Poland handed over to the Polish authorities his friend, the ethnic German Leo Hardt, of Polish nationality, by accusing him wrongly of treason in favor of the Reich and by concealing in the latter’s house a Polish army regulation book for the purpose of incriminating him. As a result of this action of Golek, Hardt was condemned to 6 years of imprisonment for espionage in favor of Germany.

In the majority of the cases, as in the two cases cited, it will be offenses, which have been committed by foreign nationals abroad against ethnic Germans. To that effect I shall have to report in each individual case especially for the purpose of reaching the decision on initiating prosecution according to article 153a, paragraph 2, Code of Criminal Procedure, so that the doubtful problems mentioned above will have to be decided upon there in each case. There are cases possible, however, in which the offender acted also or only within Germany proper so that a report is practically unnecessary. In view of this and on account of the fundamental importance of this problem, I believed, I should submit it in general already at this time with the request for a decision, as to whether my interpretation is approved.

[Signed] LAUTZ

PARTIAL TRANSLATION OF DOCUMENT NG-337 PROSECUTION EXHIBIT 186

THE LOPATA CASE, APRIL-DECEMBER 1942. EXTRACTS FROM THE OFFICIAL FILES INCLUDING: VERDICT OF LOCAL COURT SENTENCING LOPATA, A POLE, TO 2 YEARS’ IMPRISONMENT; DECISION OF THE REICH SUPREME COURT GRANTING NULLITY PLEA FILED BY CHIEF REICH PROSECUTOR; VERDICT OF THE NUERNBERG SPECIAL COURT (DEFENDANT ROTHAUG PRESIDING) SENTENCING LOPATA TO DEATH; THIERACK’S REFUSAL TO PARDON; LOPATA’S LAST PETITION FOR CLEMENCY; AND THE RECORD OF EXECUTION OF THE DEATH SENTENCE

Ds.14/1942

In the Name of the German People

VERDICT

Local Court Neumarkt (Oberpfalz) in the criminal case against-- Lopata, Jan, Polish farmhand in Bodenhof at present under arrest pending trial for assault, in its public session on 28 April 1942 in which took part:

1. Local Court Judge Egger

2. Public Prosecutor Durchholz, as counsel for the prosecution

3. Inspector Fuchs, as Registrar

V.R.A. 163/164/42

On the basis of the trial--Lopata, Jan, born 24 June 1916 in Kajscowka, District Myslenice; parents: Michale and Anna Lopata, née Mosul, single, Polish farmhand, at present in arrest pending trial, is sentenced to an imprisonment of 2 years in a prison camp for the crime of assault according to article 185 of the Penal Code together with a violation according to section 1a, 7 of the Police Regulation of the Governor in Regensburg, 28 May 1940, No. 1032 f 47; and of 23 December 1941, No. 1032 f 48, section 44a of the Police Penal Code, both in connection with articles III and XIV of the penal decree for Poles of 4 December 1941,[500] Penal Code I, page 759, and to a fine of 35 RM--and in default of payment an additional week in prison camp, and to the costs for the trial and for the execution of the sentence.

FINDINGS

The accused who is a Pole and who on 1 September 1939 was resident at Kajscowka in the district of Myslenice in Poland was employed as an agricultural laborer by the farmer Therese Schwenzl at Bodenhof in the parish of Muehlen. In the beginning of February 1942, Mrs. Schwenzl together with the accused and a Polish maid were cutting chaff. The accused stood to the right of the chaff-cutting machine. Without saying anything he suddenly touched Mrs. Schwenzl’s genitals through her dress. When thereupon she said: “You swine, you think nothing terrifies me. You think you can do that to me because my husband is sick.” The accused just laughed and repeated his action. At this Mrs. Schwenzl slapped his face. In spite of this he did it again. Finally, he had a quarrel with the Polish maid and did no longer molest the farmer’s wife.

On 8 February 1942, the accused left his place of employment without permission and was arrested on 9 February 1942 when calling at the employment exchange at Neumarkt/Oberpfalz.

The circumstances are proved by the absolutely trustworthy statement given by the witness Mrs. Schwenzl under oath. The stubborn denial of the accused is disproved by statements made by the witness.

In the witness Schwenzl’s description there is nothing to prove that the accused went as far as to use force against the witness. Therefore, this is no case of sexual crime according to article 176, paragraph (1), Penal Code, but only a case of personal assault according to article 185, Penal Code.

No sentence has been proposed pursuant to article 2 of the decree concerning wages of 25 June 1938. The fact is that the accused left his place of employment and cannot be punished under articles 2 and 8 of the ordinance, dated 5 September 1939, Reichsgesetzblatt I, page 1667, dealing with the treatment of foreigners, since it has not been established that the accused had left the place where he stayed at the time of a public summons in accordance with section 1 of the same ordinance. However, articles 1a and 9 of the police decree of the Regierungspraesident [president of local government] of Regensburg dealing with the treatment of Polish labor should be applied.

According to this, the accused has been proved to have assaulted another person and to have violated the police orders regarding the treatment of Polish labor by another action. He therefore is to be punished for personal assault according to article 185, Penal Code, together with a violation of articles 1 and 9 of the police decree of the Regierungspraesident of Regensburg, dated 28 May 1940 No. 1032 f. 47, supplemented by the ordinance dated 23 December 1941 No. 1032 f. 48 and dated 3 June 1941 No. 1032 f. 27 in conjunction with articles III and XIV of the Criminal Code for Poles dated 4 December 1941, Reichsgesetzblatt I, page 759.

* * * * * * *

Although the accused was treated well in Schwenzl’s house, he was as lazy as he was insolent and presumptuous. The manner in which the accused committed this act of insult to the honor of his employer [Mrs. Schwenzl] shows an enormous degree of insolence and shamelessness which can be found only among persons belonging to the Polish people. The fact that the husband Schwenzl was ill in bed at the time the crime was committed has an aggravating effect. It demonstrates the mean and treacherous character of the accused that he did not find it convenient to confess but denied it all stubbornly. He stubbornly continued his denial even in the face of the sworn statements of the witness Schwenzl. It therefore seems appropriate to sentence the accused to 2 years’ imprisonment at a detention camp in application of articles III and XIV of the Penal Code for Poles dated 4 December 1941, Reichsgesetzblatt I, page 759. For the unauthorized leaving of his place of residence the usual fine of 35 RM or 1 week of detention camp was considered to be an appropriate punishment.

Costs--Article 465, Code of Criminal Procedure.--There is no cause to take into account the time spent in arrest pending trial in view of the mean conduct shown by the defendant, article 60, Penal Code.

[Signed] EGGER

No charge because of insolvency.

Neumarkt (Oberpfalz), 6 May 1942 The Registrar of the Local Court Neumarkt (Oberpfalz)

[Signed] SCHROTH Clerk

[Decision of the Reich Supreme Court upon the nullity plea]

1 C 566/42 (I StS 26/42)

DECISION

In the criminal case against the Polish agricultural laborer, Jan Lopata, last residence Bodenhof, in the parish of Muehlen, now at the main camp at Maltheuren, for assault among other offenses:

The Reich Supreme Court, Penal Senate, in secret session of 14 July 1942 has decided with regard to the nullity plea of the Chief Reich Prosecutor.[501]

The sentence of the local court at Neumarkt (Oberpfalz) dated 28 April 1942, Ds 14/42, is annulled with its relevant findings in as far as the accused was sentenced for assault. In this connection the case will be returned to the lower court, namely to the Special Court at Nuernberg, for a new trial and sentence.

FINDINGS

By the afore-mentioned verdict the accused has been sentenced to 2 years at a detention camp for personal assault according to article 185, Penal Code, in conjunction with articles III and XIV of the Criminal Code for Poles dated 4 December 1941, Reichsgesetzblatt I, page 759. The sentence has been declared valid.

The Chief Reich Prosecutor has filed a nullity plea and has moved to annul the sentence by decision and to return the case to the lower instance, namely the Special Court at Nuernberg for a new trial and sentence. The motion has been granted.

The sentence passed by the local court is defective in law insofar as it does not discuss at all as to whether article 4 of the decree against public enemies of 5 September 1939[502] (Reichsgesetzblatt I, p. 1679) is applicable. That this is applicable may very well be assumed considering the facts established. According to these facts the possibility exists that the defendant knowingly took advantage of the wartime conditions when committing the crime, inasmuch as he was aided by the lack of other labor and a thereby conditioned insufficient supervision and watching, or inasmuch as he presumed that because of the labor shortage no charges would be preferred against him lest not to lose a hand. In the summary of the local court as to the sentence imposed it has been emphasized that the action of the defendant proved an unheard of amount of impudence. This impudence, considering the facts, could possibly be explained only by the fact that the defendant considered himself indispensable, and therefore presumed he did not have to reckon with the preferring of charges.

With this judicial error the judgment has become unjust since, if also article 4 of the decree against public enemies is applicable which may very well be assumed, a much more severe sentence is deemed necessary.

[Typed] signed: SCHULTZE

[Typed] signed: RAESTRUP

[Verdict of the Nuernberg Special Court]

COPY

Reg. f.H.V.Sg No. 433/42

VERDICT

In the name of the German People:

The Special Court for the district of the Nuernberg Court of Appeal at the Nuernberg-Fuerth District Court pronounces the following sentence in the case against Lopata, Jan, Polish agricultural worker, last place of residence Bodenhof, on account of defamation and other offenses. The sentence was pronounced in open session on 26 October 1942. Persons present were--

The Presiding Judge: President of the District Court Chamber Dr. Rothaug.

The Associate Judges: District Court Judge Dr. Ferber and Local Court Judge Dr. Pfaff.

The Prosecutor at the Special Court: Senior Public Prosecutor Paulus.

Chief clerk Kastner as registrar of the office.

Lopata, Jan, born on 24 June 1916 in Kajscowka, single, Polish agricultural worker, last place of residence Bodenhof, in arrest pending trial for this case is, by application of articles II, III, and XIV of the decree concerning Poles and Jews, sentenced to death for a crime under section 4 of the decree against public enemies in connection with assault, and will have to bear the costs.

FINDINGS

1. The accused is a Pole; he belongs to the Polish ethnic group. He grew up in Kajscowka as son of a farmer and cattle dealer, he attended school for 6 years according to local custom. He can read, calculate, and write. According to his testimony, the parents of the accused died over 20 years ago. A brother and a sister of the accused live in the Government General. After he left school--in 1931--the accused worked on a farm for his aunt because his parents had died. At the age of 20--in 1937--the defendant took up work as a farm hand.

2. After reporting voluntarily, in spring of 1940, the defendant was assigned by the labor office Neumarkt/Oberpfalz to work for the farmer Josef Schwenzl in Bodenhof, district Neumarkt/Oberpfalz. Early February 1942--on a day which can no longer be clearly specified--the wife of the farmer Schwenzl, together with the accused and a Polish girl were cutting chaff in the barn. The accused was standing on the right hand side of the machine to carry out the work. Suddenly while working, the accused without saying anything, touched with his hand the genitals of farmer Schwenzl’s wife through her dress. When she said after this unexpected action of the defendant, “You swine, you think nothing terrifies me, you think you can do that because my husband is sick,” the accused laughed and, in spite of this admonition, again touched the genitals of the farmer’s wife through her dress. The wife of farmer Schwenzl slapped his face after that. In spite of this, the accused continued with his aggressive conduct, for a third time he touched the genitals of the farmer’s wife through her dress.

On account of that the farmer’s wife started a heated quarrel with the accused. The accused started to quarrel with the Polish maid too, and no longer molested the farmer’s wife.

II

The accused did not make a complete confession. He states that he only once, for fun, touched the genitals of the farmer’s wife through her dress.

The court is convinced, on account of the testimony given by the witness Therese Schwenzl, who makes a trustworthy impression, that the incident occurred exactly as described by the witness. Therefore, the court based its findings on the testimony given by this witness.

The prohibition to have sexual intercourse with a German woman was known to the accused, he also knew about the severe punishments laid down for Poles who do not comply with this regulation. When the accused was assigned a place of work by the labor office Neumarkt/Oberpfalz in spring 1940, this regulation was pointed out to him according to the testimony of the witness Reiser; he was also given a printed guide of conduct for enlightenment. The statement of the accused that, in spite of all, he had no knowledge of this regulation because when given the instruction no interpreter was present, and because he did not peruse the guide of conduct, proves to be a scant excuse; because when asked why he denied having been aggressive towards the farmer’s wife in his interrogation by the local court at Neumarkt, a fact which can be proved on hand of the record made there on 28 April 1942, the accused says that he did not want to confess, not even partially, fearing that the death sentence would be pronounced.

Thus, the defendant gives the impression of a definitely degenerate personality who is distinguished by irritability and a positive propensity to lying; all his inferiority is based on his character and the reason can obviously be found in his belonging to the Polish subhuman race.

III

The established facts show first of all that the defendant grossly assaulted the honor of farmer Schwenzl’s wife by his frequently touching her genitals. The defendant fully realized the despicable nature of his mean and base aggressive conduct. He thereby committed the offense of personal assault--article 185, Penal Code, 13 March 1942. The insulted person preferred charges in writing on account of the personal assault.

This, however, does not cover the full extent of the defendant’s crime.

The drafting of men into the armed forces effected a serious labor shortage in all spheres of life at home, last but not least in agriculture. To balance this, Polish laborers, among others, had to be used to a large extent in the Reich, mainly as farm hands. These men cannot be supervised by the authorities to such an extent as their insubordinate and criminal disposition would necessitate. Since there is a lack of the necessary supervision, these Poles are becoming impudent and insubordinate. At the same time, they know that they can indulge in all manner of activities, because we have to depend on them, and because it is difficult to find replacements.

The defendant has lived in the greater German domestic sphere for a sufficient length of time to know about these circumstances caused by the war as he saw them daily with his own eyes.

From the very beginning of his employment with Schwenzl the defendant was a lazy and stubborn fellow. Frequently he refused to work; when once in the morning in the presence of the Pole, farmer Schwenzl’s wife made a casual remark to her husband to the effect that someone would have to beat her to death if she had to eat as much as the “Polak” did, the defendant at noontime refused to take his midday meal. He also induced the Polish servant maid to offer the same passive resistance. Farmer Schwenzl did not permit the defendant to act like that, he called the Pole to account in the stable. The defendant put up resistance toward his admonitions by arming himself with a pitchfork. In the hallway of the farm, farmer Schwenzl continued his admonitions. The impudence and disobedience of the defendant is shown in all its impressiveness by the fact mentioned by the witness Schwenzl, that the Pole at the threshold of the farm hallway turned against the farmer again and only let him go when the sheep dog which they kept on the farm attacked the defendant from the back.

As proved by the defendant’s behavior as a whole, he took advantage of the circumstances caused by the war also in the crime under discussion. Being a Pole who had been given the opportunity to earn a fair wage in the Reich, he acted in the basest conceivable way. His crime as well as all the rest of his impudent behavior classify him as a public enemy. The German population which today is especially sensitive toward such attacks and needs--according to the sound public sentiment--an increased protection against such foreign elements by sentences beyond the customary penal code.

Accordingly, the defendant was to be sentenced in connection with personal assault also a crime under section 4 of the decree against public enemies of 5 September 1939.

IV

The defendant is a Polish national in the meaning of the Ordinance on Legal Procedure against Poles and Jews in the Incorporated Eastern Territories of 4 December 1941. On 1 September 1939 he was living on former Polish territory; therefore punishment has to be pronounced according to article III of the ordinance mentioned above, of articles II and XIV in other instances.

The action of the defendant means a considerable violation of the peace to the persons immediately concerned by his base actions. The rural population is right in expecting most severe measures against such terrorization by foreign elements. But beyond disregarding the honor of farmer Schwenzl’s wife, the attack of the defendant is directed against the purity of the German blood. Looked at from this point of view, the defendant showed such a great deal of insubordination living in the German domestic sphere that his action has to be considered especially grave. Anyone who is acting like the defendant commits an outrage against the defensive power of the German people in the emergency of war. Wartime demands an essentially increased protection of the home country against the dangers of war.

Accordingly, as outlined in article III, paragraph 2, second sentence of the ordinance concerning Poles and Jews, the crime of the defendant which, compared with his other conduct, shows a climax of unspeakable impudence, has to be considered as especially serious. Thus, the death sentence had to be passed as the only just punishment which is also necessary in the interest of the Reich security to deter Poles with a similar attitude.

Decision as to the costs--article 465 Criminal Code of Procedure.

[Typed] signed DR. FERBER

[Typed] signed ROTHAUG

[Amtsgerichtsrat] AGR. Dr. Pfaff was not in town on account of official business.

[Typed] signed ROTHAUG

Certified. Nuernberg, 29 October 1942

The registrar of the Office of the Special Court for the District of the Nuernberg Court of Appeal at the Nuernberg-Fuerth District Court.

[Signature illegible] Clerk

[Stamp] District Court Nuernberg-Fuerth

[Refusal of pardon by the Reich Minister of Justice]

Certified true copy

In the criminal case against Jan Lopata, sentenced to death by the Special Court with the Nuernberg-Fuerth District Court on 26 October 1942 as a public enemy according to the ordinance concerning penal law applying to Poles, I decided after having been authorized by the Fuehrer not to make use of the right of pardon, but to let justice take its free course.

Berlin, 19 November 1942

The Reich Minister of Justice (Seal) [Typed] signed: DR. THIERACK

[Stamp] Reich Ministry of Justice Ministerial Chancellery

This is to testify that the text corresponds with the original.

Berlin, 22 November 1942

[Signed] PETERSEN Senior Secretary of the Ministerial Chancellery

IV g-11-2417.42

[Petition for Clemency]

[Handwritten marginal note] Special Court Nuernberg. Sentence: 26 November 1942.

[Handwritten] Translation from the Polish language of a petition for clemency.

Stanislaus Bieniasz

Jan Lopata, born on 24 June 1916 in Kajscowka, district of Myslenice.

Petition for Clemency

In 1940, I stayed in Germany as an agricultural worker with the farmer Josef Schwenzl at Bodenhof, where I had my residence together with Angelike Murzyn until 1942. Later on, on Sunday 7 February, I went to another farmer whose name was Josef, I do not know his surname, but I know where he lives. He urged me continuously to come to him, and I went to see him on Sunday 7 February. On Monday 8 February, I went to the regional labor office together with the farmer’s wife and from there the policeman took me along to prison, for what reasons, I do not know. Maybe on the grounds that for 2 years I worked hard and well at the farmer’s; the Lord can see that from heaven how they treated me and such things. The Polish woman is my very best witness, because she has been working together with me and she knows everything, how the farmer beat me in the beginning, and how he did not want to pay me. The testimony given by the farmer’s wife during the proceedings is not absolutely true. She has not told what they had hidden in the corn on the second floor of the barn. Neither did she tell that they slaughtered a pig for New Year’s day. At that time they chased us out of the house, and we were supposed to go to Peihof? [sic] and have a glass of beer together with the Polish woman. I immediately refused to do that, and that is the reason why they urged us and said that they would also go and have a glass of beer and that we should not return home too early at least not before 8 o’clock. They themselves would not return so early either, at any rate not before late in the evening. When we then came back later--the sun had already set--they were already at home. I was just about to enter the room in order to cut a few slices of bread for myself, as I always did. When I came home Sunday night, and at that time cut bread for New Year’s Eve, the farmer was already at home and was doing something in the other room. He called to his wife to bring him some salt. She went upstairs to get the salt. When she came down with the salt she tried to hide it in a way that the Polish woman should not see it. The pig had been delivered only shortly before the New Year. On New Year’s day, in the morning, the pig was still there and on the other day, Friday morning, that pig was not there any longer. At the time mentioned in the evening, we were urged to go to bed and later on, they turned on the light and arranged something in the other room at night. The windows were screened. I do not know why. Because I was angry I left them. The farmer’s wife said that I did not want to get up in the morning, and that I did not want to work. All that was seen by the Polish woman. Now I would be deeply obliged if the death penalty could be commuted into a prison term. I beg you very much to do that, I forward my petition to the lawyer so that he may try to bring it about. If I had enough money, I would pay him, but what can I do, if I have not got any? Perhaps I might beg the defense counsel to do so without pay, and I beg him most humbly to have this petition carried through as soon as possible.

Munich, 22 November 1942

Signed: JAN LOPATA

For the correctness of the translation: Munich, 26 November 1942

[Signed] STANISLAUS BIENIASZ

[Report of execution of Lopata] Sg 433/42 V.R. Sg. II 371/42

Nuernberg, 3 December 1942

The Chief Public Prosecutor

I. Report: To the Attorney General--personally or to his official representative in Nuernberg

Subject: Execution of the death sentence against the Polish farm worker Jan Lopata, single, last residence: Bodenhof

In addition to the ordinance of the Reich Minister of Justice, IV g-11-2417 b/42 issued 19 November 1942

Enclosure: Original of the decree IV g-11-2417.42 of the Reich Minister of Justice, dated 19 November 1942

The death sentence was carried out on 30 November 1942

The execution took 1 minute 10 seconds altogether. From the defendant’s being handed over to the executioner until the falling of the axe, 7 seconds elapsed.

The execution took place without any incidents.

Please find in the enclosure the original of the decree of the Reich Minister of Justice, dated 19 November 1942.

II. To Public Prosecutor Dr. Dorfmueller for due information and further orders (carrying out of the sentence).

III. Information to the Chief Public Prosecutor, Munich, according to Reich Ordinance of 21 May 1942, 4417--VIII a-10-1003 Article 2b (2).

[Signed] HOLLMANN Senior Public Prosecutor

[Handwritten marginal notes] I. duly noted. II. To Attorney at law, Dorfmueller.

3 December 1942

TRANSLATION OF DOCUMENT NG-412 PROSECUTION EXHIBIT 77

REQUEST BY UNDER SECRETARY FREISLER FOR A “DRAFT ON THE RETROACTIVE EFFECT OF THE MORE SEVERE NATIONAL SOCIALIST REGULATIONS” FOR TREASON, 18 MAY 1942; AN INTEROFFICE MEMORANDUM THEREON, AND A CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO VARIOUS REICH AUTHORITIES ATTACHING A DRAFT OF A PROPOSED LAW AND REQUESTING APPROVAL

[Handwritten] Reich Chief Prosecutor Lautz will return from official trip on 22 May.

To Ministerialdirektor Schaefer

I ask you to submit as soon as possible a draft on the retroactive effect of the more severe National Socialist regulations for cases of treason upon the earlier period. You can perhaps discuss the cause with the Chief Reich Prosecutor on the telephone.

18 May 1942

[Initial] FR (Freisler)

[Handwritten Notes] Urgent Herr Rietzsch:

Please discuss this with me.

[Initial] SCH [Schaefer]

19 May

Settled.

[Initial] R [Rietzsch] 20 May

Note--Reich Chief Prosecutor Lautz, who could be reached only after his return from a journey, states that one case has been discovered where a German subject from the Memel district had betrayed to Lithuania prior to 1933 important State secrets on the organization of the supporting operation set up by the Reich for the Memel district.

In view of the extent and importance of the State secrets which were revealed, and betrayal was deserving of death. The disclosure of further severe cases of treason from the time prior to the seizure of power is to be expected.

[Signed] RIETZSCH 26 May

BY ORDER OF UNDER SECRETARY DR. FREISLER:

Berlin, 27 May 1942

The Reich Minister of Justice III a 454.42 g Official in charge: Ministerialrat Rietzsch

Secret [Handwritten Notes] III a 891/42 g. Immediately!

To:

1. The Chief of the High Command of the Armed Forces, III a 683/42 g.

2. The Reich Air Minister and Commander in Chief of the Air Force.

3. Reich Marshal Goering, Plenipotentiary of the Four Year Plan, III a 608/42 g.

4. The Reich Minister of the Interior.

5. The Reich Minister and Chief of the Reich Chancellery, III a 454/42 g.

6. The Chief of the Party Chancellery, III a 609/42 g.

7. The Foreign Office, III a 537/42 g.

[Stamp] To the office 30 May 1942, finished and dispatched June

Draft of a Law to Supplement the Regulations against Treason

Dispatched: 2 June 1942

1 Enclosure [Handwritten] to be mimeographed

I. The trial of the emigrated Jew Leo Israel Sklarek before the People’s Court has proved anew that, in severe cases of preparation for treason (art. 92 Reich Penal Code), there is need of instituting the death penalty which so far is not provided for in article 92 of the Reich Penal Code. When deliberating on the draft of the Penal Code, the Fuehrer, during a cabinet session, had personally emphasized the necessity of threatening even with the death penalty in cases of preparation of treason. I, therefore, propose to supplement article 92 of the Reich Penal Code accordingly.

II. Inquiries that could be opened on the grounds of discoveries in the occupied eastern towns have disclosed a case of treason in the time prior to the seizure of power, when a German subject betrayed important military secrets. The act of treason of that German subject deserves death but cannot be punished with the death penalty according to the hitherto valid regulations since a retroactive effect of the law altering regulations of the Penal Code, dated 24 April 1934,[503] Reichsgesetzblatt I, page 341, which reformed at the time, the regulations against treason, is not provided for as yet. The disclosure of further severe cases of treason may be expected. It is, therefore, recommended that in the individual case, the section chiefs concerned be authorized to order the retroactive effect of the regulations against treason in order to arrive at the imperative severe punishment in particularly serious cases of more remote date.

Enclosed please find the draft of a law containing the two regulations discussed above with the request for approval.

The Acting Minister, [Initial] SCH (Schlegelberger) 27 May

[Initial] FR (Freisler) 26 May

2. Copy to Ministerialrat Rietzsch.

3. To Ministerialdirector Schaefer after his return with the request to note.

4. 1 month.

Dispatched: 2 June 1942

[Handwritten] Enclosure to III a 454.42 g.

Law for supplementing the regulations against treason of 1942.

The Reich Cabinet has enacted the following law which is herewith promulgated:

Article I

Paragraph 1

Article 92 of the Reich Penal Code is supplemented by the following concluding paragraph:

In particularly serious cases the death penalty has to be passed.

Paragraph 2

The regulation of paragraph 1 is also valid in cases of criminal acts which were committed prior to the date this law came into effect.

Article II

The Chief of the High Command of the Armed Forces, the Reich Air Minister and Supreme Commander of the Air Force, as well as the Reich Minister of Justice may each order within their jurisdiction that the penal regulations against treason (articles 88 to 93a of the Reich Penal Code in the version of the third part of the law dated 16 September 1939, Reichsgesetzblatt I, p. 1841) should be applied also to criminal acts which were committed prior to the date the law dated 24 April 1934, Reichsgesetzblatt I, page 341, came into effect.

Article III

The law is also valid in the Incorporated Eastern Territories. Fuehrer Headquarters,..............1942

The Fuehrer and Reich Chancellor The Chairman of the Ministerial Council for Reich Defense The Reich Marshal The Chief of the High Command of the Armed Forces The Reich Minister of the Interior The Acting Reich Minister of Justice The Reich Minister and Chief of the Reich Chancellery

[Handwritten] to III a 454/42 g.

PARTIAL TRANSLATION OF DOCUMENT NG-595 PROSECUTION EXHIBIT 136

THE BRATEK CASE, 10 DECEMBER 1942–20 JULY 1943. EXTRACTS FROM THE OFFICIAL FILES, INCLUDING GESTAPO REPORT OF 10 DECEMBER 1942; JUDGMENT OF THE PEOPLE’S COURT AFTER TRIAL OF 20 MAY 1943; AND NOTE OF 20 JULY 1943 ON THE EXECUTION OF THE DEATH SENTENCE

Secret State Police Office Innsbruck File No. III B-3240/42 g.

Innsbruck, 10 December 1942 Herrengasse 1 Telephone: 1230, 1231, 2107 Long Distance: 2159

Imprisonment!

To Chief Reich Prosecutor at the People’s Court or deputy in office Berlin W 9 Bellevuestrasse 15

[Stamp] SECRET!

[Stamp] The Chief Reich Prosecutor at the People’s Court Received: 14 December 1942

Subject: Case against the Pole, Stanislaw Bratek born on 3 January 1920 in Wolbrom

Incident: Your file No. 9 J 195/42 g.

Enclosures: None

The Secret State Police Office Breslau informed me additionally about the following details concerning the accused:

“From January 1940 to 6 September 1942 Bratek was employed as a farm hand in Roggendorf at the State-owned farm Buchenhang. On 13 October 1941 and on 6 September 1942, he left this place of work without permission. In the first case, he was arrested at the police border in Kosten on 13 October 1941, district of Kreuzburg (Upper Silesia), and after having been warned, was taken back to his place of work. After the second breach of his working contract he was arrested at the station in Munich on 8 September 1942. When being arrested B. illegally wore the Hitler Youth badge, and was in possession of 2 tobacco ration cards, bearing his name, and stated that he wanted to escape to his aunt, Stefanie Truempler, Zuerich 4, Zwinglistr. 24 (Switzerland). On 8 September 1942 he was sent to the reformatory labor camp Munich-Moosach by the Secret State Police Office Munich--Document No. 27311/42 II E 3/Hoe--from which he escaped on 10 September 1942. B. has not been involved in any activity of a criminal, political or counter-espionage nature.”

BY ORDER:

[Signed] SCHMID SS Obersturmfuehrer

File after acknowledgment. 15 December 1942

9 J 195/42 g 1 H 90/43

In the name of the German people

In the case against the shoemaker Stanislaw Bratek of Buchenhang (Lower Silesia), born at Wolbrom (Government General) on 3 January 1920, a Pole, at present held in custody during judicial proceedings, charged with preparation for high treason and other crimes, the People’s Court, First Senate, as result of the trial, held 20 May 1943, in which took part as judges--

People’s Court Judge Laemmle, president

District Court Judge Dr. Schlemann

S.A. Gruppenfuehrer [Major General] Haas

S.A. Gruppenfuehrer Hohm

S.A. Gruppenfuehrer Koeglmaier, as representative of the Reich chief prosecutor

Local Court Judge Dr. Pilz

duly pronounces--

The defendant, as a Pole, ventured to aid the enemy of the Reich by leaving his job in Lower Silesia, on 6 September 1942, to go to Switzerland and to get in contact with the Polish Legion there. After having been arrested first in Munich, he succeeded in escaping from an internment camp with two other Poles and in proceeding toward the Swiss frontier. On his way, he was arrested at Lochau (Vorarlberg).

He therefore is sentenced to death

The defendant, who is an ethnic Pole and who, as a former Polish subject, had on 1 September 1939 his residence within the territory of the former Polish republic, in November 1939 volunteered for employment on a farm in Germany which he obtained at Metschlau (Lower Silesia). His conduct, however, was by no means in accordance with his voluntary enlistment. Already a few weeks later he left his working place without permission. He was picked up and allocated for work to a farmer in Buchenhang (district of Glogau, Lower Silesia). In October 1941, although his living was provided for by free board and lodging and monthly wages of 30 reichsmarks, he left that job, too, without authority. Again he was arrested and brought back to his Buchenhang working place after having served a prison term of 3 months, pronounced on charges of breach of the working contract, in January 1942. Instead of, as a Pole, taking his sentence as a serious warning, the defendant after having received certain pieces of information on Switzerland from Poles when on leave to his home town, gradually made up his mind to deprive Germany permanently of his capability to work, to escape to Switzerland, and to apply there with the Polish or English consular office for enlistment in the Polish Legion. On 6 September 1942, he began to carry out his plan. Secretly he left Buchenhang and took a train running toward the Swiss frontier, taking with him his savings of 100 Reichsmarks and a Hitler Youth badge as camouflage. He was, however, arrested in Munich on 8 September and brought to the labor reformatory camp Moosach. On 10 September 1942, he escaped from the camp together with two other Poles who also wanted to go to Switzerland and continued his trip to Switzerland by going to Lindau. From there he tried to get to the Swiss border on foot and in order would have had to cross it illegally. On his way there he then was arrested by a customs official in Lochau (Vorarlberg) on 12 September 1942.

The defendant admits the facts with the one proviso that his sole motive had been to look for a job in Switzerland and that he wanted to get in touch with some Polish people who, as he knew, lived in Switzerland, and whose addresses he had got in his home town as being able to get him work.

This defense cannot be given credit. The defendant held a job in Germany and got, as a Pole, such fair wages that he was able to save 100 RM within a comparatively short period. There was therefore no good reason why he should have given up his place of work in Germany, in order to look for work in a foreign country, especially considering the illegal frontier crossing which in wartime is particularly dangerous. How little, after all, he really did care for serious work is shown clearly by the fact that he repeatedly and without authorization left his place of work.

It must therefore have been for other reasons that the defendant considered the idea of going to Switzerland. Based upon the experience gained by the senate in similar cases, the way which was chosen by the defendant, in order to reach the Swiss frontier, was taken by many other Poles escaping from their employment in Germany for the purpose of enlisting in the Polish Legion in Switzerland. On account of the hostile propaganda from abroad, carried on everywhere among the Poles, it was generally known to the latter that in Switzerland, through the Polish Consul of the Polish puppet government, or through the British Consul, there existed an opportunity of joining the Polish Legion, whose aim, as the court knows, is to bring about the restoration of an independent Polish state including forced separation of the Incorporated Eastern Territories from the Greater German Reich, by rendering military service on the enemy side. According to the view taken by the senate, the defendant became informed about these circumstances while on leave in his home town. All the more so, as he expressly admits having acquired the idea of escaping into Switzerland from there. Furthermore, it should be added that the defendant is a young and sturdy Pole, who was absolutely fit for military service in the Polish Legion. Besides this, his general anti-German attitude which is shown by his breaches of contracts is compatible with his enlistment in the Polish Legion, hostile to Germany. Finally he makes the same statement for his defense as has always been made by other Poles trying to join the legion, who are arrested in the neighborhood of the Swiss frontier. Apparently, this was recommended as a pretense by the Polish propaganda machinery from the very beginning in cases in which escape should fail. Taking into consideration all these circumstances, the defendant’s escape to Switzerland leads to the only possible conclusion that he wanted to join the Polish Legion intending to fight as a member of the latter against the armed forces of the German Reich and to help bring about the success of the treasonable purposes of the Legion, which in spite of his denial and according to the view of the senate, were known to him. He therefore may be considered as convicted of preparation of high treason according to article 80, paragraph 1; article 83, paragraphs 2 and 3 of the Penal Code and of undertaking to aid the enemy from inside our country according to the provisions of article 91b of the Penal Code.[504]

At the same time he has made himself guilty of a crime according to article I, paragraph 3, last sentence, of the Penal Decree for Poles of 4 December 1941.[505] Because, being a Pole, he has intentionally inflicted damage to the interests of the German people by malevolently leaving his important agricultural job, above all, during harvest time in September 1942, and by escaping abroad, thus trying to rob forever the German people of his own labor. In view of the lack of farm workers, each single farm hand is decisive for maintaining the food supply of the German people, and in consequence, for its staying power in the fight for freedom. Every deduction of manpower whatever is detrimental to the German interests in a total war. This was absolutely clear to the defendant who admits it, too.

According to article 73, Penal Code, the penalty can be drawn from the penal decree concerning Poles which loc. cit. demands exclusively the death penalty as a rule, this being taken from the most severe penal law applicable here.

The senate, considering the defendant’s character, could see no reason for deviating from this threatened basic punishment, and for treating it as a less serious case. By serving a 3 months’ prison term imposed previously on account of breaches of contracts, the defendant had been given sufficient warning. He was offered a last chance finally to come to his senses and to reason by his internment in the labor reformatory camp Moosach. All that, however, could not make the least impression on him. On the contrary, although as a Pole he was held to excellent conduct and unrestricted labor service in view of the blood guilt of which the Poles before and at the outbreak had made themselves guilty against the German people, he stubbornly stuck to his hatred against Germany. Furthermore, beyond the fact that he deprived us of his services, he stubbornly and without disregarding the opposing difficulties, continued to pursue his aim of fighting against Germany on the enemy side, and of accomplishing his attempt at high treason. The death penalty therefore represents the only adequate measure which does justice to the criminal action committed by the defendant, who is dominated by his fanatical hatred against Germany, and to the security requirements of the German people. This appears absolutely necessary in order to create a deterrent. It has been for these very reasons that the People’s Court passed the death sentence on the defendant.

As a condemned person, the defendant has to bear all costs of the proceedings.

[Signed] DR. SCHLEMANN

LAEMMLE

Munich, 20 July 1943

File number: AR. VII 442/43 The Chief Reich Prosecutor Munich I To the Reich Minister of Justice Berlin

SECRET

through the Chief Reich Prosecutor at the People’s Court, c/o the Local Court Judge Dr. Pilz or his representative in office

Berlin W. 9 Bellevuestrasse 15

Subject: The case against Stanislaw Bratek. Concerning decree of 1 July 1943--IV g 10a 1098/43 g--

Official in charge: Senior Prosecutor Roemer

In 2 copies--With one attachment for the Reich Minister of Justice and 2 further enclosures for the Chief Reich Prosecutor

Concerning 9 J 195/42 g.

The execution of the death sentence against the person named took place on 19 July 1943 at the Munich-Stadelheim prison. 1 minute, 10 seconds elapsed between his leaving the cell and final execution, and from the moment he was handed over to the executioner to the fall of the axe, 10 seconds. There are no accidents or other happenings to be reported.

[Typed] signed KUMMER Certified: [Signature illegible] Clerk

[Stamp] The Chief Prosecutor Munich

PARTIAL TRANSLATION OF DOCUMENT NG-381 PROSECUTION EXHIBIT 159

THE BECK CASE, 5 APRIL-21 SEPTEMBER 1943. EXTRACTS FROM THE OFFICIAL FILES INCLUDING REPORT OF LOCAL NAZI OFFICIAL, 5 APRIL 1943; REPORT TO THE GESTAPO IN VIENNA, 4 JUNE 1943; LETTER FROM DEFENDANT BARNICKEL TO THE PRESIDENT OF THE PEOPLE’S COURT, 30 JULY 1943, ENCLOSING INDICTMENT SIGNED BY BARNICKEL; AND JUDGMENT OF THE PEOPLE’S COURT AFTER TRIAL OF 20 SEPTEMBER 1943

Ortsgruppe Vienna, 5 April 1943 Rembrandtstrasse NSDAP Gau Vienna 2., Obere Donaustrasse 35 Kreis II Telephone: A 43-0-72 The Kreisleiter

[Stamp] NSDAP Kreisleitung II 12 April 1943

S/Jo.

Subject: Oskar Beck, of mixed race, Vienna, 2., Obere Donaustrasse 12

I enclose a report from the competent block leader on Oskar Beck. Beck is of mixed race, 1st degree, but he behaves like a 100 percent Jew and is a malicious enemy of Party and State, who unfortunately could not be caught up to now. I had already raised objections against the man when, at approximately 11 o’clock at night, he removed wireless sets from his shop to install them in his flat. I reported to you personally on this matter at the time, but there was then no means of initiating proceedings against him.

The present report may make it possible to apprehend Beck.

Heil Hitler!

The Ortsgruppenleiter [Illegible Signature]

[Stamp] National Socialist German Workers Party Ortsgruppenleitung Rembrandtstrasse

To the NSDAP, Gauleitung Vienna Gau Personnel Office Main Office for Assessing Political Reliability Vienna, I, Gau Building

Assessment to be sent to: (Exact designation and address of office to which reply is to be sent).

To the Secret State Police, State Police Office Vienna, Vienna, I Morzinplatz No. 4

Reference of inquiring office: IV A 3--853/43 Vienna, 4 June 1943

[Handwritten] 285981

Political assessment requested for: Name: Beck Date of birth: 21 July 1899 Occupation: Radio dealer Place of residence: Vienna II Other addresses from 1932 until now: First name: Oskar Place of birth: Vienna Where employed: Independent business man Street: Obere Donaustrasse 15/9 Of mixed race: 1st degree.

Purpose of inquiry: State Police proceedings

[Handwritten] 10 June 1943

Confidential! Answer from Personnel Office

Vienna, 29 June 1943 P.B. 285.981/hei/bu

The above-mentioned was a member of the Social Democratic Party, and while it was banned he was a voluntary member of the Fatherland Front.[506] He was at that time an adversary of the [National Socialist] movement.

There has been no change in his opinion up to the present. He does not belong to any of the affiliated associations of the NSDAP and gives very small sums to collections.

On political grounds exception must be taken to Beck, who is of mixed race, 1st degree.

Heil Hitler!

[Signed] VOLKMER

HEIDE

Berlin W 9, 30 July 1943 Bellevuestr. 15 telephone: 21 83 41

The Reich Chief Prosecutor at the People’s Court

Reference: 9 J 617/43

Please quote in your answer

[Handwritten] E 19/8 R.

To the President of the People’s Court Here

Subject: Criminal case against radio engineer and dealer, Oskar Beck from Vienna for undermining military efficiency

Enclosure: 1 volume of files 9 copies of the indictment

I enclose the indictment together with enclosures, with reference to my submissions contained in the latter part of it.

If Attorney Dr. Jerabek obtains admittance as defense counsel, no counsel need be appointed (pages 14 and 15 of the indictment).

Prosecution under article 2 of the law of 20 December 1934[507] has been ordered as a precaution (page 17 of the indictment).

As deputy: [Signed] DR. BARNICKEL Berlin, 30 July 1943

Chief Public Prosecutor at the People’s Court 9 J 617/43

Arrest!

Indictment

The radio engineer and radio dealer Oskar Beck, born on 21 July 1899 in Vienna, from Vienna II, Obere Donaustrasse 15; bachelor, no previous convictions, provisionally arrested on 3 June 1943, from that day on under detention pending judicial investigation in virtue of the warrant issued by the examining magistrate at the Court of Appeal in Vienna on 17 June 1943--2 S Js 1750/43--at detention prison I in Vienna, so far without defense counsel, is charged by me, in Vienna in March or April 1943 to have undermined the defensive strength by malicious incitement against war work for women.

Crime according to article 5, paragraph I, number 1 of the Extraordinary War Penal Ordinance.[508]

Main result of investigations

The accused attended the elementary school and a 4-year high school course in Vienna, and for 5 years attended a trade school for electro-technicians, was employed until 1924 in a number of places; and since then has had a shop of his own with a net income of 200 reichsmarks per month. He is of mixed race, first degree; his mother was a Jewess. From 1919 until March 1922 he was a member of the Social Democrat Party. He is now a malicious adversary of the National Socialist State.

In March or April 1943, he repaired the wireless set of Theresia Draxler, retired post office secretary. When leaving her apartment, he saw an application form for joining the total war effort on the kitchen table. He asked the witness Draxler whether she had already filled in the form and added:

“Do you know that every woman who goes to work, sends one soldier to his death”?

The witness Draxler did not answer him. Then the accused left the apartment.

He denies, but has been convicted by, the trustworthy statement of the witness.

The remark of the accused aims at preventing a person from fulfilling the duty of registering for the total war effort. This attempt to burden the conscience of a woman who is willing to work by seeking to make her responsible for the heroic death of soldiers jeopardizes the devotion of women for work, and has a damaging effect on the nation’s fighting morale and its will of self-preservation in total war. The accused could not count on Mrs. Draxler keeping his remark to herself, but had to reckon with the fact that she would speak of the incident to other people and that his utterance would become known to wider circles.

Evidence

I. Statements of the accused.

II. Witness: Post office secretary, retired, Theresia Draxler in Vienna II, Scholzgasse Nr. 2.

I request that trial shall be ordered, detention pending investigation be maintained, and defense counsel be appointed for the accused.

As deputy: [Signed] DR. BARNICKEL

Received: 21 September 1943

9 J 617/43 4 L 150/43

In the Name of the German People

In the case against the radio engineer and radio dealer Oskar Beck, born 21 July 1899 in Vienna, resident in Vienna, at present under detention pending judicial investigation for undermining the military efficiency, the People’s Court, 4th Senate has decreed that, following the trial held on 20 September 1943, at which the following were present, as judges:

People’s Court Counsellor Mueller, president

District Court President Mittendorff

Kreisleiter Reinecke

City Councillor Ahmels

City Councillor Vahlberg, as representative of the Reich Chief Prosecutor

Senior Prosecutor Jaeger

The defendant is sentenced to death and to the loss of civil rights for undermining the military efficiency.

He bears the cost of the proceedings.

Findings[509]

The 44-year old defendant has had German citizenship since the “Anschluss.” His deceased mother was a Jewess. After passing through primary school and a 4-year high school course, he was trained as an electrician at a trade school in Vienna which he attended for 5 years, and then held several jobs until 1924. Next, he worked independently as a radio engineer and radio dealer in Vienna. He claims to have earned about 300 RM a month lately. From 1919 to 1922 he was a member of the Social Democratic Party. Later on he belonged to the “Fatherland Front.”

The Draxler couple were among his customers in Vienna to whom he had sold a radio several years ago. At Mrs. Draxler’s request he had repaired it several times. In March 1943 Mrs. Draxler called him in again to overhaul the radio. As he left the apartment, he happened to see lying on the kitchen table an application form for employment in the total war effort. Believing this to be Mr. Draxler’s form, he asked Mrs. Draxler whether she too had filled in such a form. When she informed him that she had got the form for herself, he said: “You realize, of course, that every woman who goes out to work, sends a soldier to his death”? Mrs. Draxler who was very indignant about this remark refused to answer, and he left very soon afterward. Later on she spoke of this incident to some of her acquaintances, among others to the wife of a political leader in the NSDAP who reported it to the Ortsgruppe.

The senate considers these facts to be correct on account of the trustworthy statements made under oath by Mrs. Draxler. The defendant admits that he was in the apartment of the witness in the spring of 1943 to test the radio and to have left through the kitchen; he denied emphatically, however, during the preliminary proceedings as well as at the trial to have made the remarks with which he is charged or any similar remark. He maintains to have only discussed business matters with Mrs. Draxler as with his other clients. The woman might have been annoyed that the radio had been out of order several times and had therefore reported him. The witness might have heard the remark from somebody else and mixed it up. His attitude was not hostile to the Third Reich. He had advised a National Socialist, Walter Pindur, who during the Schuschnigg period had supplied him with cardboard out of which swastikas had been cut, to be careful. The Party members, senior customs inspectors Schmidt and Scerences would be in a position to testify to it that he had not been an enemy of national socialism. An inquiry at the Ortsgruppe Rembrandt would show that he had done repair work for them free of charge.

The defendant cannot have any success with this defense. The witness Draxler firmly maintained her statements in the face of all his objections and the senate, from her bearing at the trial, gained the conviction that the witness did not wrongfully accuse the defendant out of annoyance because her radio did not work. Furthermore, she denied to have been annoyed at all and pointed out quite rightly that she had not made the report. The senate is convinced that by his denials the defendant is only trying to avoid the serious consequences of his offense. To interrogate the witnesses Pindur, Schmidt, and Scerences and to obtain a statement from the Ortsgruppe Rembrandt in Vienna is superfluous in view of the facts, especially if one considers that for ulterior motives the defendant would not have disclosed his true opinion to these witnesses nor to the Ortsgruppe.

The way in which the accused spoke calmly and deliberately, and without any apparent cause, only an enemy of the State can think and speak.

The utterance which the accused is known for certain to have made to the witness Draxler was liable to impair her as well as other people’s willingness to work for the total war effort. By this remark he attacked therefore the fighting morale and the will for self-preservation of the German people, and this he did “publicly” within the meaning of article 5, number 1 of the Extraordinary War Penal Ordinance, as he had to count on the fact and he actually did count on it that the witness, whom he did not know well would spread his remarks--as actually did happen. The senate is furthermore of the opinion that the accused was fully aware of the defeatist nature of his remark and the publicity in the above sense. Thus, the conditions under article 5, paragraph 1, number 1 of the Extraordinary War Penal Ordinance of 17 August 1938 apply. The fact that the intention of the accused was without any result as regards the witness, does not affect this state of affairs--the purpose of the above ordinance is not merely to prevent any undermining of the people’s will to self-preservation, but to prevent all possibility of undermining it.

It is out of the question to assume a less serious offense because the accused acted with the intention to undermine morale and because [by the remorse combined with it][510] the appeal to the emotions of a woman prepared to join the war effort represents a well calculated and particularly mean and dangerous attack on the German nation’s will to self-preservation. Accordingly, the death sentence, which is the only penalty provided for the crime of undermining the military efficiency, was passed on the accused.

Owing to the dishonesty of his offense, the accused forfeited his civil rights.

Costs have been awarded according to the law.

[Signed] MITTERDORF MUELLER

TRANSLATION OF DOCUMENT NG-546 PROSECUTION EXHIBIT 141

DRAFT OF A NOTICE TO HITLER, INITIALED BY DEFENDANT ROTHENBERGER AND VOLLMER, NOVEMBER 1943, REPORTING A DEATH SENTENCE IMPOSED BY THE PEOPLE’S COURT UPON A FORMER GERMAN NAVAL CAPTAIN FOR REMARKS ALLEGED TO HAVE ASSISTED THE ENEMY AND UNDERMINED THE MORALE OF THE ARMY

The Reich Minister of Justice Fuehrer Information 1943 No.

On 18 October 1943, Guenter Paschen, retired naval captain [in German navy] from Flensburg, was sentenced to death by the People’s Court for assisting the enemy and for undermining the morale of the army.

Paschen, whose family on his mother’s side comes from Denmark and who is married to an English woman, was a veteran in World War I and took part in the Skagerrak battle and later on in the Finland operation. Last, he was liaison officer with General von der Goltz. Having retired after the collapse, he was a naval training officer from 1926–1936.

Paschen, since his retirement, is a resident of Flensburg and moves in the circle of the Danish minority. He had a political discussion at the end of August 1943 with two Danes, unknown to him, who wanted to rent a furnished room in his house. He then expressed the view that he did not believe in a German victory and that he thought the secret weapons to be propaganda bluff. Furthermore, he stated that Denmark had been treated unjustly in 1864 and that the Reich must give Schleswig back to Denmark.

One of the Danes adopted these views as his own and tried to shake the confidence in victory of a woman naval auxiliary with whom he had an affair.

The sentence will be executed.

Berlin, .... November 1943

(Expert on the case: Chief Public Prosecutor Dr. Franke)

Initials] R [Rothenberger]

V [Vollmer]

PARTIAL TRANSLATION OF DOCUMENT NG-674 PROSECUTION EXHIBIT 100

CIRCULAR LETTER FROM THE REICH MINISTRY OF JUSTICE TO LEADING JUDGES AND PROSECUTORS, 19 FEBRUARY 1944, TRANSMITTING EXCERPTS FROM REPORTS OF A CONFERENCE OF JUSTICE OFFICIALS ON CASES OF “UNDERMINING” AND “MALICIOUS POLITICAL ACTS”[511]

The Reich Minister of Justice 3131 E--I p 2 43

Berlin W 8, 19 February 1944 Wilhelmstrasse 65 Telephone: 110044 Long distance: 116516

Confidential

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

2. The Reich Chief Prosecutors at the Reich Supreme Court and at the People’s Court

3. The Presidents of the District Courts of Appeal

4. The Attorneys General at the District Court of Appeal

Subject: Meeting on 3 and 4 February 1944

Enclosures: Additional copies for the presidents of the district courts and the chief public prosecutors

Enclosed please find a copy of excerpts from some of the reports in the field of criminal justice of the Reich Ministry of Justice made at the session on 3 and 4 February 1944. Point No. 7 was not discussed at the session, I beg you to discuss this point, too, at the meeting planned with the judges and prosecutors of your district and to see that they observe the instructions given in the copy.

[Stamp] Reich Minister of Justice Ministerial Chancellery

BY ORDER: [Typed] DR. VOLLMER Certified: [Signed] BLUENKE Clerk

313 E--3 a 3376 To: The Chief Public Prosecutors, for information Munich, 7 March 1944

The Attorney General

BY ORDER: [Typed] signed: KEIDEL Chief Public Prosecutor

1. _Definition of cases of “Undermining” [Military Efficiency] and cases of “Malicious Political Acts”_[512]

The relations between the law on malicious acts against State and Party, article 2, paragraph 1, and the decree concerning special penal law in wartime, has changed during the fourth and fifth year of the war. The development was speeded up by the events at Stalingrad and in Italy. This found its outward expression in the following measures: setting up a special committee for cases of undermining the morale--for serious and acute attempts at undermining morale--in the Reich Ministry of Justice, a corresponding agreement with the Reich Security Main Office, by taking steps concerning the distribution of work at the People’s Court and by a press campaign. A number of Special Court districts and also certain criminal divisions with the district courts of appeal have not yet followed the new practice. The severity of their sentences does not agree with the penalties of the sentences at the People’s Court. Conditions are to be made clear by this report and by a Judges’ Letter.[513] The temporary defensive attitude at the front means a burden for the home front. The enemy is looking for weak spots, and thinks he has found them in the will for self-assertion of the inner front, as it was 1914–1918. Since the Italian events he has been intensifying this attack. The not very numerous cases of defeatism resulting from it have led to a new line in the administration of justice in cases of undermining of military efficiency, which is to be organically followed in the treatment of cases concerning malicious political acts. The following cases dealt with by the Reich Ministry of Justice, are intended to illustrate this line.

Clear cases of serious undermining of the military efficiency

Case Dr. Geiger--a 52-year-old physician, Party member, no prior convictions.

Offense--In summer 1943, the condemned man made a remark during the treatment of the pregnant wife of a Hitler Youth Leader who was at the front at that time that she had courage in having a child now. For if things went wrong, we would be in a bad way. After the events in Italy the war was lost for us, a victory of the Russians meant our physical death, a defeat by the English and Americans was still the smaller evil. She--the patient--was too much under the influence of Nazi propaganda. To the scared question of the pregnant woman, what was going to happen to all of them, the condemned man answered that persons living such an “exposed” position (as her husband) naturally would be dealt with in the first place. Then there would be a mass Katyn.[514]

Sentence of the People’s Court--8 September 1943--death sentence. Request of the public prosecutor--death sentence. Plea for clemency was refused.

Case Weber--a 60-year-old dentist, Party member, no previous convictions.

Offense--In August 1943 the condemned man made the remark to a patient--hardly anybody still believed in victory. Medieval methods of torture were applied in our concentration camps; especially homosexuals were being too harshly dealt with; we had murdered a million Jews and therefore had incurred a grave burden of guilt. Rudolf Hess was the right man but not the Fuehrer. The condemned man went on literally: “Moreover, in 4 weeks’ time, the Fuehrer will no longer be alive. You will hear about it.”

Sentence of the People’s Court of 15 September 1943--death sentence. Request of the public prosecutor--death sentence. Plea for clemency was refused.

In cases of undermining the morale the consideration of the actual nature of the facts must not be excessive. In the fifth year of the war every German has to think about the effect of his remarks to other people. The same applies to foreigners, who are working here and enjoy German hospitality. Critical, for instance, authorized discussions of the political and the war situation are not punishable only as long as they are not calculated to shake the convictions of others.

Up until now, no need has been observed to give the prerequisite “publicly” in article 5 of Extraordinary War Penal Ordinance a more rigid interpretation than is done in cases of malicious political acts.

As such to be considered are remarks falling under article 2 of the law against insidious attacks on State and Party, which do not result in influencing other people. Two examples are the cases of Krejci and Kochzius.

Case of Krejci--41-year-old home worker, no previous convictions.

Offense--In spring 1943 the condemned woman told the following joke:

“Who is the biggest farmer in Germany”?

“Adolf Hitler, he owns a lame dog, a fat pig, and many million sheep.”

(With the lame dog and the fat pig she meant Goebbels and Goering.)

Sentence of the Special Court II Berlin of 5 October 1943--6 months imprisonment.

Case of Kochzius--a 57-year-old printer.

Offense--At the beginning of 1942, the condemned man answered the greeting, “Heil Hitler,” with, “Shit.”

In December 1942 when Fuehrer parcels were distributed in the plant, he made the remark that he did not want the Fuehrer and these parcels, he was no beggar.

In January 1943 the condemned man declared, that the Fuehrer was a tramp; a vagabond without a Fatherland who came from abroad where only beggars lived; he intended to make the Germans into beggars too; he was making the people ridiculous in the eyes of foreigners by the street collections. The entire government as well as the Party consisted of tramps and rascals.

To a Party member he remarked, that he had better hurry up and get out, otherwise he would be hanged from a tree later on. Sentence of the Special Court II Berlin of 28 September 1943--1 year imprisonment.

Border line cases are the cases of Graf, Kessel, Eckert, and Heinitz.

Case of Graf--a 65-year-old farmer, no previous convictions.

Offense--In spring 1943 the accused declared, “Hitler must abdicate, then the war will stop.”

In autumn 1943 he made the remark, “The war will not stop until Hitler abdicates.”

In October 1943 he remarked, “The Germans bled to death in the advance, and now they bleed to death in the street. In summer, one runs to save every little berry, and now one has to watch how everything perishes. It only depends on a few gentlemen. With the war it is just the same thing. All their throats should be cut.”

In agreement with the general public prosecutor, the Chief Public Prosecutor proposes not to order prosecution under article 2 of the statute against malicious political acts but to warn the defendant by imposing a fine. The defendant had a good reputation and was a participant of World War I, had several sons at the front, and had already backed the NSDAP before it had taken over.

The opinion of the field offices that this case was one of malicious political acts cannot be agreed to. It rather represents a case of undermining the morale, which has already been submitted to the Chief Public Prosecutor for examination.

* * * * *

Case Eckert--domestic servant, 50 years of age, single, no previous convictions.

Offense--In the afternoon of 14 September 1943, the accused, in a shop, said to the female proprietor in front of partly unknown persons, “By Christmas, the war will long be over. Germany has long since been divided up.” Obviously she alluded to a defeat in the very near future. When asked by an employee of the local health insurance office, how she thought it would be if the war were lost and we would all have to go to Russia, the accused replied, “Very well, let them send those 5 million SS men there. During the last air raid on Mannheim the SS, those bloody swines, chased the people out of the shelters with rubber truncheons for fire-fighting and clean-up work.”

The Chief Public Prosecutor with the approval of the General Public Prosecutor wants to base the charge on article 2 of the law against malicious political acts or insults to the State or Party (Heimtueckegesetz)[515] and to propose a prison term of 9 months. This is a border line case. Certainly the statements made by the accused in their second part fulfill the conditions of malicious political acts or insults to the State or Party. Regarded as a whole, however, the accused obviously had in mind to injure the listeners’ will to pull through, as can be seen from the first part of her statements. When she met with resistance in doing so, she tried to support her opinion by abusive language and by telling atrocity stories. The trend of her statements therefore was directed toward undermining [the military efficiency].[516] Therefore, the accused will, in the first place, have to be prosecuted under this provision.

* * * * * * *

PARTIAL TRANSLATION OF DOCUMENT NG-671 PROSECUTION EXHIBIT 220

EXTRACTS FROM THE SITUATION REPORT OF DEFENDANT LAUTZ, CHIEF PUBLIC PROSECUTOR AT THE PEOPLE’S COURT, TO THIERACK, 19 FEBRUARY 1944, CONCERNING THE UNDERMINING OF MILITARY EFFICIENCY

Copy

Berlin W 9, 19 February 1944 Bellevuestrasse 15

The Chief Public Prosecutor of the People’s Court 4206 E--2.36

[Initials] KL [Klemm]

[Stamp]

SECRET

To the Reich Minister of Justice Berlin W 6 Wilhelmstrasse 65

Decrees of 25 October 1933--IIIa 19570/35 and 29 October 1942--3130-Ia 9 1746-.

Enclosures: 2 copies of the report.

[Handwritten illegible marginal notes]

[Handwritten note] M.D. IV Mr. B.S.S. request to be informed in regard to p. 9.

[Signed] MARTIUS 28 February

Situation Report

A. _High treason and undermining of military efficiency within the Reich territory (except for the Protectorate)_

I. General.

* * * * * * *

In accordance with the expectation expressed already in my previous report of 8 October 1943, the number of incoming reports on investigations concerning undermining of military efficiency has again increased considerably. At present the daily average amounts to about 25 cases. Since, in addition, numerous investigations which are not handled by special proceedings and which could not yet be concluded are pending, I am forced at present due to the pressure of business in my office and the further difficulties caused by the effects of the terror raids to make more extensive use of my right to turn matters over to another office. However, in the interest of a uniform jurisdiction the indictments will principally be served before the People’s Court in all cases where--

a. The undermining activity involves members of the Wehrmacht.

b. Greater significance is ascribed to the statements of the accused because of his position in public life or in the economy.

c. The accused has become known as an enemy of the State on principle or a systematic instigator either according to his personality or because of the nature of his offense.

d. The personality of the accused in connection with the nature of his offense or the effect he strived for seems to point to special treatment.

e. The offender belongs to the clergy.

In view of the necessity of turning over proceedings, even in which the offense can be called a serious one without question, I have generally informed the chief public prosecutors concerned in advance of the altered way in which I am going to handle my right to turn matters over to another authority. In addition to this they will in each single case be especially informed about my conception of the case and will be requested within the limits of my right of turning cases over to them, not to consider taking on less serious cases but to strive for the highest possible penalty if the state of the investigations at the moment the case is handed over gives a sufficiently clear picture of the case in this respect. In comparison with the previous report, no essential new experiences were gained regarding the nature of the offenses and the personality of the offenders. Especially could it not be determined that the number of punishable offenses increased, particularly in those territories subject to a special air terror of the enemy. It is rather characteristic that the manifold rumors about alleged riots among the population in the cities damaged by air raids often arose in regions not at all or only slightly affected by the air terror. This leads, on the one hand, to certain conclusions as to the intentions of the propagators of these rumors. On the other hand, however, it can be taken as a pleasing sign for the truly disciplined attitude of the population that suffers most from the enemy’s air terror.

II. Special Proceedings.

* * * * * * *

[Typed] signed: LAUTZ

EXTRACT FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[517]

DIRECT EXAMINATION

* * * * * * *

DR. KUBUSCHOK (counsel for defendant Schlegelberger): According to the document I have before me, Document NG-412, Prosecution Exhibit 77,[518] the Ministry of Justice made a suggestion to increase the severity of penal provisions concerning the preparation of treason. Would you explain this?

DEFENDANT SCHLEGELBERGER: The situation with regard to the law was the following: Preparation for treason [Landesverrat] could not be punished by death. Treason, that is to say the betrayal of the native country in my opinion, is the most severe and most serious political crime, and the danger inherent in that crime reveals itself already in its preparation. As can be seen from the document, the question had come before the public and had been discussed in public on the occasion of the Sklarek case, and had become the subject of a heated discussion. It was known to me that Hitler once before in a cabinet meeting had taken the position that preparation for treason should be punished by death. It was quite obvious for me that as a consequence of the Sklarek case and, on that, Hitler’s point of view was also known to other people, a new storm would come up; in fact it was the expressed purpose to force matters upon the administration of justice so that afterward one could make use of these matters, by saying that the administration of justice itself was not strong enough to find the right position, or in order to institute and justify proceedings outside the administration of justice. I considered it appropriate, therefore, to bring this question into the stage of a legal regulation as quickly as possible. In the draft the death penalty was provided for very serious cases, cases of aggravating circumstances, and that provided the guaranty at least for the fact that in ordinary court proceedings it would have to be examined whether that really was a severe case. The danger was quite acute that unless in time such a law would be promulgated, other elements, namely, the police, would have seen to it and would have taken care of it wholesale without examining individual cases. Since the cases in question were cases of the past, retroactive measures had to be permitted. That is well within all legal guaranties.

* * * * * * *

EXTRACTS FROM THE TESTIMONY OF DEFENDANT LAUTZ[519]

DIRECT EXAMINATION

* * * * * * *

DR. GRUBE (counsel for defendant Lautz): Mr. Lautz, is it correct that in 1938 you received an offer to become senate president in the Reich Military Court?

DEFENDANT LAUTZ: That is correct. I was well known to the Ministerial Director at the High Command of the Wehrmacht, Lehmann, who appeared as a witness before this Tribunal and who offered me in 1918 to become senate president at the Reich Military Court.

Q. Just a moment, I believe you made a mistake, you meant to say 1938?

A. Yes, 1938.

Q. At that time, would you have improved your financial situation if you had accepted?

A. Yes. The position was much better paid.

Q. Why did you not accept that position?

A. I did not accept it only for the one and decisive reason that I did not want to leave the beautiful district of Karlsruhe for the time being.

Q. For how long were you general public prosecutor in Karlsruhe?

A. Unfortunately, only until 1939.

Q. May I now ask you, who was Parey?

A. Parey was Reich Public Prosecutor since 1936, later chief Reich prosecutor [Oberreichsanwalt] at the People’s Court in Berlin.

Q. And for what reason did Parey leave his office as Chief Reich Prosecutor at the People’s Court?

A. At the beginning of November 1938. He had an automobile accident.

Q. When did you find out for the first time that you were being considered as Parey’s successor?

A. At the beginning of December 1938. The then Under Secretary Freisler, on order of Minister Guertner, informed me that Guertner had chosen me as his--that is, Parey’s--successor.

Q. Did you make any efforts to obtain that position?

A. Not at all.

Q. Did you do anything against your appointment as chief Reich prosecutor at the People’s Court?

A. I was very much interested in getting out of being appointed to that position, and because of that I consulted with the personnel division of the Ministry as to how I could prevent my appointment. However, I was told that Minister Guertner attached importance to my taking that position, and therefore, being a civil servant I complied.

Q. May I ask you why you had an aversion to that office?

A. First of all, because of the exclusive occupation with political penal cases and in connection with that the absolute dependence upon the Ministry which was my superior was not an inducement for me; even though, at that time, I could not have the remotest idea that war would shortly break out, that Minister Guertner would die, and that through all these events a course would be followed in politics which, in any case, was not in accordance with the one that I imagined.

That was my main reason. My second reason was that I wanted to remain in Karlsruhe.

Q. When were you appointed Chief Reich Prosecutor?

A. I was appointed on 1 July 1939.

Q. At that time, did you still count upon becoming Chief Reich Prosecutor, since Parey had already left the office some time before?

A. Since it took such a long time I had the hope, quietly, that perhaps another person would be found.

Q. Did you ever find out whether any office of the Party or any other organization of the Party was in favor of your appointment as Chief Reich Prosecutor?

A. I never heard anything about that.

Q. When, in effect, did you assume your office as Chief Reich Prosecutor at the People’s Court?

A. Due to illness, I only assumed office on 20 September 1939, in Berlin.

Q. However, you had already been appointed on 1 July?

A. Yes.

Q. Mr. Lautz, may I ask you this? Before 1933, did you belong to a political party?

A. From 1924 to 1930, I was a member of the German People’s Party. That was the party of Minister Etresemann, who became well known through the policy of understanding which he followed toward the victorious countries of 1918, and whose efforts, in particular to reach an understanding with France in order to bring about peace in Europe, I welcomed very warmly and supported.

Q. When did you become a member of the National Socialist Party?

A. On 1 May 1933.

Q. Will you please tell the Tribunal for what reasons you joined the Party?

A. Before the spring of 1933, I belonged to the Prussian Judges’ Association, in which organization I worked on press matters as a member of the board of directors. The Prussian Judges’ Association decided to urge its members to join the Party. I joined because, according to the situation prevailing at the time, I considered it to be the correct and proper thing to do.

Q. Mr. Lautz, at that time in 1933, did the joining of a party have the significance of 100 percent approval of the Party platform? Was it not rather like this, that since the Weimar era joining a party by no means implied that one approved of its ideology?

A. In the case of many persons who joined the Party at that time, that was so.

* * * * * * *

Q. Through my documents in Lautz document book 1, I have already shown that the competence of the People’s Court to sentence defeatist cases was introduced only beginning in February 1943. Witness, for how long did the special penal regulations for wartime exist on which these trials against undermining of military efficiency were based?

A. This special wartime penal order is from 1938[520] which was put into effect only on 26 August 1939.

Q. Originally the Reich military court was competent for those cases of undermining of fighting force or the other military courts, is that correct?

A. Yes. That is correct, not only for members of the Wehrmacht but also for civilians.

Q. In 1940 the competency in regard to civilians was transferred to the general courts?

A. Yes. That is correct.

Q. Who became competent at that time for the cases of the so-called public undermining of military efficiency?

A. Public undermining of military efficiency was prosecuted by the senior public prosecutors at the special courts and/or was to be tried by the Special Courts.

Q. When in 1943 the cases of so-called public undermining of military efficiency were transferred to the People’s Court, had the law, in effect, been applied for 4 years?

A. Yes.

Q. Is it correct, Witness, that the decision as to whether a public undermining of military efficiency was proved depended upon the following two points: first, what does the legislator mean by an attempt to undermine; and second, when was this attempt to undermine committed in public? Is it correct that those were the two nuclei in this question?

A. Yes.

Q. Is it furthermore correct that, when in 1943 the People’s Court became competent, these two basic questions of undermining of fighting efficiency were based on a general jurisdiction originating first from the Reich Military Court, then the Reich Supreme Court, and then of the Special Court--that these decisions existed already?

A. The Reich Military Court had in several very basic decisions decided these questions without any doubt.

Q. In regard to these points from which it is especially evident that the definition of “public attempt of undermining” had already been laid down definitely in 1943, I shall prove by some further documents. Witness, how did the individual cases of undermining come to your office?

A. That differed. In part, the senior public prosecutor at the Special Court who considered the case as leaving room for no doubt submitted the files to me. If, on the other hand--and that occurred in the majority of cases--he harbored doubts whether this was not merely a malicious act, then, as was his duty, he reported it to the Minister of Justice, and the Minister of Justice decided whether a case was to be regarded as undermining of fighting efficiency and should be transferred to the chief Reich public prosecutor.

This is evident from the affidavit by the witness Franke, which the prosecution submitted.

Q. May I refer to the fact that this is Exhibit 515[521] submitted by the prosecution. Furthermore, I am referring to Exhibit 97[522] of the prosecution. Witness, did it continue the way you described it just now, later on too?

A. Later on, two more basic changes occurred. A very severe decree of 13 August 1943 was introduced. Minister Thierack required a more expeditious and more emphatic trying of certain especially serious cases of undermining of fighting strength. For this purpose, it had been ordered that the RSHA submitted those cases which were not very numerous, either through the hands of the Minister of Justice or directly to me. I submitted them to a special division because the division which treated other cases of undermining of military efficiency was no longer in a position, merely due to the large number of cases, to take over this new work also. These cases in the main are those in which the so-called quick trials [schnell termine] took place which have frequently been discussed here already. Due to the importance of the cases, Freisler also did not let anybody deprive him of trying these cases basically in his senate. Moreover, due to a later decree by the Minister of Justice, it was laid down that in the preliminary investigation of the cases which were to be submitted to the chief Reich Public Prosecutor, that the presidents of the district courts of appeal should be included in order to avoid too many of these files being submitted to the office of the Reich Public Prosecutor.

The final decree which concerns these cases, and which I am citing because perhaps it is important in the von Braun case, is the following instruction by the minister. If an indictment is filed before the Special Court in a malicious acts case, and during the trial the Special Court decides however that possibly this might be an undermining of military efficiency in which case the Special Court was not competent to sentence, then the Special Court should not through an uncontested decision refer this to the People’s Court, but the Chief Reich Public Prosecutor should ask for an adjournment so that the chief Reich public prosecutor could examine the case in every individual case. If he considered it not suitable, he was to return it to the Special Court. In this way, it was intended to prevent that through such decisions against which it could do nothing, the People’s Court was burdened with cases which did not concern it.

Q. Witness, how were pending cases treated? How were the cases which came to it treated by the office of the Reich prosecutor, and especially how was the conduct of the members?

A. When the order came into effect--the order of 29 August 1943--at which time the People’s Court became competent, at that time I was on an official trip outside of Berlin. When I returned, I found out that the defendant Barnickel, who at that time was my deputy, had handed over the handling of the cases which came to his division. At that time, he was of the opinion--at least, that is what he told me--that his division was less burdened and therefore was in the best position to be able to handle the new influx of cases. I let matters stand as they were.

First, we introduced the following treatment of the cases and we also maintained this for several weeks and months. At certain intervals of 2 or 3 days, every case that was handled by the expert or the Referent in the presence of the division chief was reported to me, and then we made a decision as to whether we wanted to file an indictment before the People’s Court and for what reasons this was necessary. Varying reasons governed this. In part, the cases were so serious that there was no doubt about this. In part, we considered it necessary in order to bring about certain basic decisions on principle--to bring about the sentencing by the senate of the People’s Court. During that time, the number of prison sentences that were pronounced was without doubt larger than the number of death sentences. The enormous incidence of new cases, however, brought it about, and this is also apparent from the situation report which the prosecution submitted, in the beginning of 1944--

Q. I may interpolate here that the defendant is speaking of Prosecution Exhibit 220.[523]

A. That at the end of the year 1943, quite a considerable number of cases were in arrears. Therefore, I decided that in regard to the cases of undermining of fighting strength to gather them in a special division which would have the task--especially in regard to the backlog cases--to clean it up as quickly as possible. Among these, there were a number of cases of arrest whose expeditious handling was necessary especially because in a large number of these cases the transfer to a subordinate court was necessary. Therefore, I could not act in any other way. No division chief was anxious to be given this new division. Therefore, I decided that the defendant Rothaug should take it over.[524] First of all, he was the youngest division chief, and up to then he had been in charge of a division which was so small and insignificant that it was easiest to replace him by a senior public prosecutor.

From the situation report which I mentioned, it is also evident what the number of cases was which came to us at the time. They amounted to about seven to eight hundred a month. This figure shows me that when I was interrogated preliminary to this trial, I made a wrong estimate. At that time I thought it was twice as high as it actually was.

Q. Witness, you have just said that the number of cases in the undermining of military efficiency increased to about seven to eight hundred cases a month. I would like to put another question to you on that subject. Did that mean that before the People’s Court seven hundred to eight hundred cases of undermining of military efficiency were tried every month?

A. No. That figure refers to the number of cases which were submitted to the Reich prosecution for examination. As I will mention later, only a small percentage of those cases--I estimate about 10 percent--were kept back. All other cases were returned to subordinate courts. In my situation report, if I may repeat that, I only gave the number which I did mention there because only at the trial here I saw that situation report again. I ascertained that the figures which I had given in Exhibit 126,[525] from memory were evidently incorrect.

Q. By that you mean to say that the figures in Exhibit 126, the figures which you gave from memory, are too high?

A. That is what I did mean to say.

Q. How did you, in general, treat these questions of undermining military efficiency?

A. To a large extent the treatment of such cases depended on the clear instructions from the Minister of Justice. It also depended on the basic importance of these cases. To mention one example, I would like to revert once again to the situation report of 9 February 1944, that is Exhibit 220. In that report it says that the undermining of military efficiency when committed by clergymen would have to be tried before the People’s Court. That was due to a decree by the Reich Minister of Justice. Generally speaking, however, in treating these cases I attached the greatest importance to having every single file examined carefully by the head of the department so that those points would not be left unobserved which would justify treating that case in a more lenient manner. For in particular the transfer of these cases as being cases of lesser importance to the district courts of appeal or to the Special Courts, to that I attached the greatest importance, as far as it was at all possible. That is proved not only by the testimony of the witness Gruenwald[526] before this Tribunal but it is also evident from Prosecution Exhibits 178, 474, and 100.[527] For the numbers of cases where criticism was exercised by the ministry on sentences passed by lower courts, and in particular at the Weimar conference [NG-674, Pros. Ex. 100] would remain incomprehensible unless many cases which were more serious had been transferred to the lower courts by the Reich prosecution.

In the last analysis, perhaps the percentage of cases which we kept back, as I mentioned before, and of the cases where an indictment was filed, at the People’s Court, I estimate those cases at 10 percent.

* * * * * * *

Q. Witness, do you still remember what information you received in regard to the question whether recruiting offices for the Polish Legion existed in Switzerland?

A. I said that already. From the answer of the head office of the border police in Stuttgart, it was apparent without doubt that according to the information which they had from Switzerland that there was an illegal recruiting and transport service which helped Poles to get to Switzerland and to Africa; to that extent, Switzerland apparently did everything that it was possible to do, and as far as it could; and from the files it is occasionally apparent that the Swiss border officials returned the Poles who had crossed the border from Germany; but in all cases they probably did not succeed.

Q. Had the Ministry of Justice also informed you to what extent recruiting offices for the Polish Legion existed in Switzerland?

A. If I remember correctly, the same information had also reached us from the Foreign Office via the Ministry of Justice.

Q. Thank you. The prosecution seems to assume that the indictments were not the results of attempts to join the Polish Legion, but were a means to prosecute Poles because of their flight from Germany and their places of work. Please comment on this.

A. For us, that certainly was not the motive for the filing of an indictment, because we were convinced that the suspicion was justified. Moreover, against such allegations the fact probably speaks which can be gathered from Exhibit 259[528] of the prosecution. From that it can be gathered that particularly at the time in question here, hundreds perhaps thousands of Poles left their places of work in the Reich; and if only a very small number of these were tried before a court because they wanted to join the legion, this makes it apparent that they were not tried only because they left their place of work. The other participating offices, that is the police and the counterintelligence of the OKW, were probably also of the opinion that here we were faced not only with flight from the place of work, but flight for a special purpose.

The general situation was just as I described it. During the war the German Reich, as any warring power, had closed its borders and this had been done for reasons of the security of the State and was therefore necessary because everybody who crossed the border and reached neutral country or an enemy country took along with him important experiences and knowledge which he had gained in the warring country. Poles knew that too.

Q. Witness, you have already stated before that a Pole, only for the reason that he had left his place of work on his own, could not be tried and sentenced by the People’s Court. Now, according to your determinations in the individual cases in which Poles were indicted because of attempts to reach the Polish Legion, did other reasons for suspicion also play a role which supported the suspicion on the basis of which then in accordance with the law you were obliged to raise an indictment?

A. I just wanted to talk about that.

Q. Will you please state what reasons for suspicion have regularly played a role also?

A. If somebody crosses the border with a certain purpose in mind and he is caught in the act, then, in the most infrequent of cases will he be inclined to say and be ready to say what intentions he had in mind, for in so doing he would damage his own case. Criminal cases which were conducted under this point of view--and this is probably not the case only in Germany--therefore are based to a large extent on the justified conclusions one can draw from the facts available.

Now, it was here known generally what I have already stated, that this way led to the Polish Legion if one started out on it. Secondly, it was known that among the Polish workers in south-western Germany these conditions and knowledge thereof were widespread. Furthermore, it was generally known to those workers too that favorable conditions for work could not be expected in Switzerland; and finally, it was in accordance with the experiences which had been gathered in other trials that a large number of these people who crossed the border after their arrest did not even deny this intention. These general considerations alone would have, in my opinion, justified such a strong suspicion that in accordance with German Code of Criminal Procedure sufficient suspicion for the filing of an indictment existed, and that thus the indictment had to be filed in accordance with the law.

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