Instead of long doctrinary explications I have offered the verdicts, Exh. 21-41; they represent all the remaining cases of DINKELACKER's affidavit, cases comprising entire series of proceedings and giving - without any further selection - a general insight of the actual taks of this Special Court. These cases depict the everyday routine of this Court, and this Court, and this picture is quite different from the one intended by the Prosecution.
The declarations of Dr. KUESTNER, record page......, the exhibits C 60 and 64 and also the personnel-file Exh. 406 discloses that my client has been appointed President of the Special Court in Stuttgart by a decision of the President of the District Court of Appeal on the September 1937. He remained in this office without the necessity of a new election or a special appointment until he was discharged in the summer of 1944. The Ministerial decree has been submitted by the Prosecution itself with Exh. 406. My client has neither striven for nor taken on this new task in 1937 for an ignoble reasons. The prosecution has not been able to prove that my client has conducted this office of a Judge in any unlawful manner. Unsubstantiated assertions could not be upheld in face of the actual facts offered by us. In particular, no witness could maintain a single case where my client's conduct has brought about with intent, a disadvantage to any one defendant. Not a single case of false summing up of facts or of false application of the law could be brought forth. Unsuccessful has been the attempt to charge my client with having eserted pressure upon his fellow-judges. The WAGNER case has been refuted by WAGNER's own declarations in Exh. C 60.
It has been proved by numerous affidavits and the statements AZESD0RFER transcript page ....... that my client as a judge opposed all influences by forces foreign to justice. Thus it becomes even more remarkable that it has been attempted to prove by the witness LADOSHOWSKI that my client has tried to deliver acquitted persons to the police. It is possible to check the statements of this witness with regard to time on the basis of the documents submitted. During the 10560-G period mentioned by this witness he could observe trials under CUHORST only from the end of January until the middle of March, and from the end of March until the beginning of June 1943.
During that period three death sentences were passed in Stuttgart under CUHORST. Never has the police in Wuerttemberg altered sentences of courts, and on the basis of all facts we have proved, my client would have been the last to approve such methods or to use such methods himself. I refer further to the statement AZESDORFER transcript page.... My client has further been charged in a general way with having curtailed the rights of the defense. I have refuted this. I refer in this connection to the statements of the witness KUESTNER, transcript, page ..... and the affidavits C. 60 and 64. The witness SCHOECK, as an experienced counsel for the defense, has stated (transcript, page......) that my client had always an open ear for a good final statement. This fact is also proved by the affidavit DIETTERLEN, Exhibit C......Document....... It has been proved that the selection of obligatory defense counsels took place in accordance with the law, that CUHORST preferred to appoint specialists in economic cases and not inexperienced assistant judges (Referendare). Thus the witnesses, assistant judges Eberhard SCHWARZ end LEDUSCHOWSKI were just on-lookers at the Special Court Stuttgart. This witness has also confirmed that these principles were also applied to foreigners. If the Prosecution accused my client in this connection that he rushed the proceedings, this is a reproach which every judge in penal cases would have to put up with who does not want to become the playing ball of the parties.
Significant for the attitude of my client was his fight against the tendency to pass too severe sentences. This has been proved by the documents of both parties and even by the witnesses for the Prosecution SCHWARZ, BERTHOLD and RIMELIN. The most positive documents are the decree of July 1944, Exhibit 178, NG 676 and the correspondence about the removal of my client fr*m his office as a judge in Exhibit 406, 10560-H which document is at present complete with the exception of one sheet which has been removed.
The resistance of my client against the tendency to pass too severe sentences cost my client his position as a judge. his is the reason why my client to-day does not stand before you as a civilian internee and judge, but as an officer of the German Army and prisoner of war.
The fact that my client became disagreeable to the NSDAP because of his unrelenting opposition to corruption of any kind is shown by the attempt to expel him from the Party on the occasion of the Case WOLFF. The sentence of the Party Court of 1943 was at first excluded from the personnel files by the Office of the Prosecution, and later on, it has been resubmitted in the cross-examination.
How my client acted as a judge has been established with sufficient certainty. We do not have to hide his fights and conflicts. The reason for these incidents are shown by the evidence submitted. The Prosecution could not shake any of my evidence with statements of a vague nature, also here we find generalities in opposition to facts. Even if the picture of my client shows human weaknesses he is a human being like others with shortcomings, but he is not conscious of any crime.
Concerning the trial brief of 16 July 1947, I should like to point out that I, as judge-counsel for the defense, refer to the uncommonly hard living conditions in Germany during the war as an accessory circumstance only, as they were bound to be hard due to the hermetical encirclement of Germany, regardless whether - theoretically speaking - it was an aggressive or defensive war.
My first consideration is rather the fact that in this war millions of Germans willingly gave their lives for their father land in good faith, and that the country had to adapt itself to the heroic spirit of the fighting forces, just like other countries did, in order to have any chance of survival. That meant harshness towards others as well 10560-I as towards oneself.
As in every war, the concerns of the nations took first place, and every individual had to subordinate himself readily. That is simply the spirit of patriotism, which did not need to be bolstered up by a projection or foundation of National Socialism.
The economic angle - that is the difficult economic living conditions - only entered the picture when some war black marketeer threatened this basis of existence. In discussing this subject it is of no consequence whether Hitler caused this war as an aggressor.
It docs not alter the fact in the slightest that millions of people barely escaped starvation, and, justified by law, angrily faced people like the big black market operator WOLFF, for instance, who, protected by the Party, was able to live in luxury.
The more objectively one views the matter, the less one is convinced by the abstract statements of the prosecution in that respect.
10560-J 18 Oct.
47-1c (MW FINAL PLEA CUHORST As a precautionary measure, I should finally like to stress that the judges had nothing to do with the preparations for aggressive warfare although I should not feel inclined to assume this charge from reading these pages.
The Prosecution in their trial brief dated 16 July 1947 discussed the position of the defendants, that is, in the case of my client therefore the position of the judge. The position of a judge in Germany could not at any time be compared with that of an officer or administrative official.
Officers and administrative officials are bound by orders or directives, the judge is only bound by the law. He would act against his duties if he obeyed orders or directives. It has been proved by testimonies of experts and various documents, that a judge in Germany was expressly forbidden to examine the laws for their contents; he had to apply them unconditionally.
Your Honors: Every judge is the product of his education and the legal circle of which he is a member. The German judge has also a tradition, of which he is proud and to which he adheres. This was the tradition of complete integrity, independence, but also absolute obligation towards the law. In the opinion of others, it may be considered right or wrong, but at any rate, those are the dogmas which the judges, who are being tried here, were taught at their universities or law-courts between 1890 and 1933.
I decidedly oppose the attempt made by the Prosecution, to examine the judges on trial hero merely from the angle of Control Council Law No. 10.
I do not understand the public prosecution for solely admitting the penal law of the Weimar period 1919-1933, since the law of before 1919 and after 1933 is even today still in force to its full extent: as to penal law there are many supplementary laws to the Penal Code in force after 1933, like the war economy decree and the decree protectin the rationing of consumer goods.
10560-K The so-called charges produced against my client cannot be dealt with by ignoring the German penal law in force at the time in question.
That neither the Moscow Declaration nor the London Convention were to refer to judges is apparent from article I of the Control Council Law No. 10 which states that the agreements mentioned are directed against atrocities and the chief war criminals. During the trial of 4 January 1947 nobody alleged that judges were chief war criminals and sentences of punishment, atrocities. It is not proved that the Control Council Law No. 10 was to go beyond the limits of both the agreements. From article 4 it can even be gathered that the law is to apply only to responsible government officials, to which judges certainly do not belong. In part I of the indictment the public prosecution has made clear distinction between officials of administration and independent judges and therefore it is supposed that this distinction is also made when giving legal judgment. What is more it would be only a judge who would not be able to refer to orders and directives, and thus be the only group to be deprived of extenuating circumstances according to article 4. It is to be supposed that such an effect was not intended by the Control Council Law No. 10.
The fact that my client in particular defended his independence, has been clearly stated; and oven the witness for the prosecution, RIMELIN, has said that CUHORST fought for his independence. Exhibit page ...... If the prosecution thinks that laws which have been partially repealed can be compared to orders, then, though there may be some foundation to this supposition, yet it is too bold to be correct. In any case it is a fact that my client cannot and will not, in his capacity as a judge, refer back to orders. He could only be justly accused of having abused his office and mishandled his position as a judge if he had acted in a manner dependent on the administration of justice authorities - only then could he have offended against the law.
It becomes increasingly evident that Law No. 10 of the Control 10560-L Council has abandoned the general principle of "nulla poena sine lege". Whatever attitude one may adopt in this matter, one thing is certain in this judges' trial, namely that the application of Control Council Law No. 10 would not only punish a crime which was previously not liable to punishment, but an act would be made punishable which formerly was expressly laid down as not punishable, by reason of the general basic principles evolved for the use of the judge.
The function of a judge for penal cases consists on occasions in establishing a criminal case for the state in order to restrict a wrong which may be done to the person breaking the law by the executive authorities- In all civilized countries tho judge of criminal cases is protected in carrying out this function. For centuries there have existed either explicit laws or decisions creating a precedent in this particular position of the judge. In this connection too I can only say: "jura, novit curia". Even if the principle of "nulla poena sine logo" is not applied, tho Control Council Law No. 10 cannot dispense with tho principle that a judge enjoys a special position in penal law. One should follow this line of thought right through and remember that even today there still are and always will be varying conceptions of justice, one will appreciate that tho steps taken by the Prosecution are inadmissible.
All this does not, of course, preclude one from calling a judge to account for wilful miscarriage of justice and from ascertaining if this judge is guilty of wilful miscarriage of justice in connection with certain crimes. Such wilful miscarriage of justice may also include in its wider interpretation tho handing over by a judge on his own initiative of defendants to non-judicial authorities. However, as regards my client, I need not enter into this possibility. Cases of wilful miscarriage of justice have not been proved nor were transfers oven assorted in any substantiated speech.
The Prosecution relies on generalities and attempts to incorporate these in one law which is neither intended for judges nor applicable to any extent to them.
10560-M The fact remains that the Control Council Law No. 10 cannot properly be applied to judges.
In particular, the trial brief overlooked the fact that the sentences of the special courts are expressly legalized by laws of the states in the US Zone, Exhibit C No. 124, doc. No. 127; in these identical laws of the three states the sentences themselves are upheld but the punishment may, in case of need, be mitigated by the bench.
Law No. 10 of the Control Council is not intended for an examination of valid judgments of the past, such propositions are not within the scope of Law No. 10 of the Control Council, quite apart from the fact that for other reasons this law cannot apply to judges.
The construction of the prosecuting authority must therefore prove inefficacious in this trial, the equalization of judge and officer not serving to remove legal difficulties unless the Prosecution here purposes fully to disavow the traditional conception of a judge and, according to Part I of the indictment, this does not seem to be the case.
Even had the Prosecution been successful in proving the objective facts of the case as asserted by it, in part only, there has been brought forward no evidence, nor can there be any evidence for the equally essential question whether my client has committed punishable offense with knowledge and intent.
To find my client guilty it had to be established with absolute certainty that he knew the judicial actions in which he had a share to be criminal offenses, so that he, therefore, intended and committed these crimes.
The entire evidence as far as it concerned judicial acts, with reference to my client, gave the following result:
All the verdicts in which he participated complied in every respect with the theory of law and with the prejudicial decisions of the highest courts, above all of the Supreme Court of the Reich.
10560-N The method of interpreting the laws is based on a tradition practiced by all Germans courts for generations.
The Special Court at Stuttgart gave the same decisions as all the other German courts. The further development of the jurisdiction remained strictly limited, and had no effect on the traditional principles of penal jurisdiction. As has been done in the case of other judges accused here, we have submitted a large number of relevant rulings given by the Reich Supreme Court, text-books and commentaries, which correspond to the issues of the penal cases being dealt with here.
If a court bases its decisions on law, legal doctrine and legal practice, can any one of the judges have the intention, in that case, of acting against the law? Must he assume that doctine and the prevailing jurisdiction are criminal? Can he have an consciousness at all of doing wrong; if he adheres to a conception of long standing and in which he has been brought up? There is only one answer to this: no. It is inconceivable and impossible. In giving this answer I have again touched on the fundamental question of this trial; that of the responsibility of judges.
Since the prosecution refrained from submitting any evidence at all on Count IV, I can express myself briefly. The fact that the so-called active membership of the SS is not the official membership of the SS required according to the IMT-judgement, is evident from that paragraph alone of the active -member's book; submitted by me as Exhibit C. No... Doc. C. No......The prosecuting authority should at least have submitted and proved which rank my client had in the SS, if he should have been an official member of this organization. Besides, it is the rule with all USA courts and Spruchkammer that sponsors (Foerdernde Mitglieder) should not be regarded as belonging to the SS.
With this proof I do not need to deal with the fact that no evidence has been produced that my client was involved in committing crimes by his supposed membership of the official SS. I am making the foregoing statement as a precaution for I have not found a reference in 10560-0 the Final Plea of the Prosecution.
Under Count 8 of the verdict of the International Military Tribunal, it has been stated in the concluding provisions regarding the guilt of the political leadercorps of the NSDaP that the decision of the Court concerning Staff Organization includes only those National Socialist section leaders who had been chiefs of offices at the staff of the Reich, Regional - and County administration. According to the Sense of the context these were, moreover, the heads of important main offices.
In order to be able to maintain Count IV against my client, the prosecuting authority had to prove that my client, in his capacity as National Socialist section leader, had been in charge of a staff office. But it was we, although according to the proceedings we were not at all bound to do it, who proved by the affidavits of WALDMANN and SAUMERT, Exh. C. No. 3, Doc. No. 63 and Exh. C. No. 133, Doc. No. 136, that my client had not been in charge of an office of the NSDAP and had neither the right to sign nor to give instructions. It has been proved by the statement of my client as well as by his personal record (Exh. No. 406, Doc No.) that he had only the right to speak as regional speaker, occupied the lowest rank as political leader, and - as proved by the witness KUESTNER, protocol page - was not prominent at all.
If my client had been in charge of an important Gau office it would of course have been clearly shown in the personal records as well as in the judgment of the Party Court, which would have enabled the Prosecution without any difficulty to furnish the evidence.
Your Honors. This concludes my statement. Before closing, however, I would like to express my full confidence in this Court, that it will carefully weight the assertions advanced by both sides on the strength of the evidence submitted in the case of CUHORST and will arrive at a just sentee.
10560-P CERTIFICATE OF TRANSLATION 17 October 1947 We, MONICA WELLWOOD and SIDNEY L. GATES, hereby certify that we are duly appointed translators for the German and English languages and that the above is a true and correct translation of the Final Plea Cuhorst, pages 46 - 55.
MONICA WELLWOOD ETO No. E 00525 SIDNEY L. GATES ETO No. 20180 CERTIFICATE OF TRANSLATION 17 October 1947 We hereby certify that we are duly appointed translators for the German and English languages and that the above is a true and correct translation of Final Plea Cuhorst.
Paul E. GROPP, Civ. No. B-397 975; (Pages 37-40, 43).....................
Frederic L. PERA, Civ. No. B-397 943, (Page 42) .....................
Ursula RUDMAN, Civ. No. 20 130, (Page 41)...................................
Dr. Siegfried TAUBER; AGO A-443 415, (Pages 44-45) .......................
10560-Q Concerning what I stated yesterday, about cases 1 to 14, I should merely now like to give the Tribunal the exhibit numbers which should be entered in the record.
THE PRESIDENT: I suggest that you make a memorandum of them in writing and give one copy to the prosecution and one copy to the Secretary General. It will be unnecessary to read them out in open court.
Dr. Kubuschok you may proceed.
MR. LaFOLLETTE: During the presentation of this argument, Your Honors, a statement was read into this record as part of the closing speech, from an alleged exhibit which this court has expressly excluded. It was document 6l Cuhorst document. It was a document which contained derogatory matters against the interrogator, Mr. Einstein.
I cannot overlook the fact that on the face of the record, this was done deliberately. I not only ask that that part of the speech be stricken from the record, but I move the court to take such action as it deems proper against the counsel who engaged in that activity.
THE PRESIDENT: We will head Dr. Kubuschok at this time without further argument.
DR. BRIEGER: I see that I made a mistake. I quite agree that that should be stricken from the record. Last night I incorporated that, and it somehow escaped my notice, because I have been under such a strain. Will you please forgive me?
THE PRESIDENT: You may proceed Dr. Kubuschok. We have no ruling to make at this time.
Will you be so kind as to read until 10 minutes of 11, and we will take our recess for 10 minutes. I am sorry to interrupt you, but we should utilize every moment.
BY DR. KUBUSCHOK for the defendant von AMMON:
May it please the Tribunal, the defendant, von Ammon has been indicted of war crimes and crimes against humanity in connection with his activity as "referent" in section 4 of the Reich Ministry of Justice dealing with the night and fog matters. (Night and Fog Courts).
The indictment pertaining to the crime against humanity has not been dealt with in the closing speech of the Prosecution. Permit me first to go briefly into the fundamental questions resulting from the discussion about the night and fog eases (NN F elle).
The indictment sees a violation of the Internation Law in the fact that the prisoners were brought to Germany and that they were sentenced and held in custody by the judicial authorities. In contrast to this the following is to be stated:
The judicial administration was given jurisdiction over MN prisoners (night and fog cases) and has actually dealt with them only at the time these prisoners were placed under the jurisdiction of the judicial authorities.
The transfer of the prisoners to the Reich was carried out on the basis of the Hitler order which already was in force before the judicial authorities took over the NN cases. The transfer of these prisoners was carried out by the Wehrmacht which in many cases made use of the Gestapo for this purpose without that the justice administration had given any general or special instructions to this effect. Consequently the performance of the judicial authorities is caused by the prisoners presence in Germany, a fact for which these authorities were not responsible. Therefore they cannot be held responsible that the prisoners were brought into the territory of the Reich."
"Is it a violation of the International Law if legal proceedings are started against a citizen of an occupied country by a civil court of the occupying power?
The International Law does not contain rules an a result of which the citizen of an occupied country has the right to be tried at any designated place or in his own country and to be held there is custody. Such a rule, which is neither contained in the regulations of the Hague Convention for Land Warfare, nor stems from the customary International Law, would actually be untenable. Every occupying power carries on proceedings which arc considered essential for its protection on the basis of the generally recognized rules of occupation.
In accordance with the actual occurrences these proceedings are generally conducted by military courts. As a role it is up to organization of the military court to decide where the proceedings are to take place and where the prisoners arc to be held in custody. It cannot be done a.ny other way. I call attention to the completely clear cases where people living in an occupied border district must necessarily be taken to a court of a town within the territory of the occupying power. In any case, the higher the court passing sentences is, the latter must be so much farther away in distance from the front or from the occupied district itself. In any case there is no provision in the International Law granting an accused person of the occupied district the right to be tried within the boundaries of the occupied district.
In the same manner, no rules exist which prohibit that persons of the occupied district are tried by a civil court instead of the generally customary military court. This could not be for the reason that the jurisdiction of a civil court in general never produces a disadvantage for the accused since the proceedings before a military court in all countries necessitate certain essential limitations.
A violation of the International Law in the NN cases cannot be derived either from the application of the substantive law. The courts entrusted with the passing of sentences have judged in accordance with the same provisions of the substantive law as they would have been applied by the military courts of the occupied territories. They themselves lie without any doubt within the framework of the International Law. Acts committed against the occupying power are always severely punished.
The Prosecution has claimed that in hundreds of NN cases the penal provisions pertaining to high treason had been applied. This allegation is an obvious error. It is a fact that there was not a single case in NN causes where an indictment had been served or a sentence had been passed for high treason. There is not the slightest support for the allegation of the prosecution, neither in the cited exhibits, 320 and 330, nor in any other submitted document.
It has sufficiently been mentioned in the evidence what sort of criminal acts have been tried by the NN Courts. If the list submitted with Prosecution Exhibit 334 also contains the "advancement of communist aims" in the factual description of some cases, I could for instance refer to the accusation, contained in Prosecution Exhibit 309, against the student L e w as an illustration for the fact that cases of that kind too were subject to be prosecuted as an attack against the occupying power."
THE PRESIDENT: We will take a recess until 11 o'clock.
(Court in recess until 1100 hours)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: We understand that it is the desire expressed by the defendants that we continue until 12:30 rather than recessing at 12:15. I understand that correctly do I Dr. Kubuschok?
DR. KUBUSCHOK: Yes, Your Honor.
THE PRESIDENT: Your are the final speaker for the Defense are you not?
DR. KUBUSCHOK: Yes, Your Honor.
MR. LAFOLLETTE: Your Honor, there will be a rebuttal. I don't know that it will consume the full hour and a half, but there will be a rebuttal.
THE PRESIDENT: Well, you'll be prepared to commence this morning won't you?
MR. LAFOLLETTE: Yes, Your Honor, if necessary, probably Mr. King. I would prefer it the other way, to have Mr. King do it, but we'll make progress on it.
THE PRESIDENT: You may proceed, Dr. Kubuschok.
The indictment also claims that the procedural regulations applied to the NN-proceedings are contrary to International Law. For any court procedure the unwritten requirement is that it must enable the court to arrive at a just judgment. Expressed negatively: There must be no rule which would make it possible that an accused be sentenced to a punishment provided by the law for certain facts, without sufficient establishment of these facts. The particular regulations that in variance to the Code of Criminal Procedure were in force for the NNproceedings have been described in detail by the defendants Schlegelberger, Mettgenberg and v. Ammon during their interrogation. The mainpoint of their testimony was: If through a limitation of the possiblity to procure evidence the facts could not be established with absolute clarity then in view of the principle " in dubio pro reo" the accused had to be acquitted. In this respect I also refer to the affidavit Schiffmann (Ammon-Exh. 11). Concerning the limitation imposed upon the defense alleged by the indictment I may in order to avoid repetitions refer to the testimonies of the defendant v. Ammon.
I request also to consider the following: The indictment contends that the trial before inner German Courts is illegal. According to this opinion the proceedings would have had to be brought before the Military Tribunals in the occupied territories. But then it must be held against the indictment, how a procedure before the Military Tribunals would have been conducted. Only if the proceedings before inner German NN-Courts show deviations in disfavor to the accused compared to the proceedings of the Military Courts; only then could the procedural regulations of the NNproceedings be subjected to reproach at all. The point of view applied by the indictment so fur is wrong. Not the generally valid inner German regulations in criminal proceedings, but only the procedural rules of the Military Courts are the criterion in judging the rules of procedure for the NN-cases. The "decree concerning military jurisdiction during war" to be applied by the military Tribunals in the occupied territories did have essential limitations compared to the "Code of Criminal Procedure". In particular; the limitations concerning the defense went much further in the "Kriegsstrafverfahrensordnung" than the defense limitations in NN-cases shown in the Prosecution Exhibits 314 and 317. At any rate even by critical evaluation of all the procedural limitations imposed upon the NN-cases; one cannot say that they have brought about any conviction insufficiently founded. The indictment failed to prove that any accused was convicted on the basis of insufficient evidence caused by limitations. By way of counter-evidence the affidavit Schiffmann shows a careful and conscientious establishment of evidence through the NN-Courts. Therewith only the reproach of secrecy towards the outer world and towards the relatives of the accused remains. In this case it must be stated, too, that internationally codified rules or international common law do not apply to this problem. The accusation can therefore only be made from the viewpoint of a crime against humanity. Considering the reason, is this secrecy rule, as effected, an inhuman action?
Of course, it cannot be denied that this secrecy is a real hardship both for the person affected and his relatives. Uncertainty concerning one's own fate and that of one's relatives is a deplorable state of affairs. To a certain limited extent the uncertainty about the future resulting from every criminal trial is inherent in the matter, and cannot be avoided. Of course, it is considerably more harrassing to worry whether a relative is still alive, where he is, and under what conditions he lives. Under normal conditions there is no reason whatsoever to create this atmosphere of uncertainty at a criminal trial. Concerning the Night and Fog cases Hitler and the Military Commands insisted that this uncertainty was essential for deterring the growing resistance movement. Von Ammon was not in a position to assess adequately the size of the resistance movement and to what extent it could be countered militarily. In this respect I also must oppose the views held by the Prosecution, that during his travels into the occupied Western territories - the Prosecution mentions numerous travels, while actually only one trip each to Paris and Holland can be referred to - von Ammon could have assessed whether the continued secrecy rule was still necessary. That is not the case. The information von Ammon was able to gather was solely the new historical fact that the resistance movements in all occupied territories had been expanding since the beginning of the occupation. Decisive is, however, that he certainly did not learn, during his travels into the occupied territories, that the resistance movement was decreasing, which fact might have possibly lessened the dangers to security, previously recognized by the Wehrmacht Commands. Therefore, Ammon worked on the premise that secrecy was a necessity. He concluded that secrecy was justified and that its enforcement served a certain puspose. In order to avoid an exclusive death penalty adjudication, the Minister of Justice was compelled to accept this relentless secrecy rule. Was not the justification of this decision daily demonstrated to von Ammon by the fact that the great majority of sentences of the Night and Fog Special Courts only rarely, and the People's Court sentences only partly, pronounced the death penalty, as the evidence has proved, particularly the affidavits Boetticher, Osterkamp, and Nitschke Exhibits 5, 8 and 10?
Was not the expediency of the means - the secrecy rule - justified in view of the results achieved to avoid passing numerous death sentences? In keeping with its purpose the secrecy rule had also to be maintained when a case was dismissed; and even after a short imprisonment had been terminated. The ruling to delay the proceedings; which was made in number 6 of the Implementation Decree dated 6 February 1942; also took this fact into consideration. This ruling has been in force for a short time only. During the initial period of starting the Night and Fog proceedings it was not applied in practice; as Ammon testified in the witness stand. Thierack abandoned this artificial attempt in connection with trial procedure, which aimed at an extension of judicial detention. He rather accepted the legal status which existed after a case was dismissed, or after the termanation of a prison term. The authority delegated to the Ministry of Justice for carrying out the trials and executing the sentences of the court was ended in these cases. The official agency from which the authority had been derived; the Wehrmacht; thereby acquired jurisdiction over the prisoners again. The prisoners had been sent to the Ministry of Justice by the police; now they automatically fell back into the latter's hands. To be sure, in other criminal trials the Ministry of Justice was under an obligation to lift the restriction on the freedom of a prisoner of its own initiative after the investigating or penal custody had ended, since it had itself ordered the restriction of freedom in a trial conducted by virtue of its own right. Here; however; it was otherwise. For reasons of secrecy the prisoners had been brought to Germany at the order of the Wehrmacht, which was authorized to issue such orders. So far as in connection with a delegated count trial and executions of punishment they could remain in the custody of the Ministry of Justice they were left to the latter. When this essential condition ceased to exist the original status came into effect again. This legal situation became still more clearly apparent when the "Nacht and Nebel" cases were taken away from the Ministry of Justice by an order of the Fuehrer in September 1944 and the prisoners were given back to the police.
I refer to the Huelle affidavit (Ammond Exhibit 4) which shows that only technical questions concerning the return of the prisoners were still brought up for discussion in the conference convened by the Wehrmacht. Moreover, it is significant that von Ammon and the witness Hecker - as the latter testified in cross-examination on 12-5-1947 - could never once express their opinions to such an extent, either, and reserved to themselves the right of obtaining the Minister's decision. From the testimony given in Court it appears that Thierack made his resolution in accordance with the order issued the Fuehrer and the decision of the OKW without von Ammon having had an opportunity to make an oral report. As a matter of fact, the return of the prisoners to the police was only carried out to a small extent, as was shown by the reports of Hecker, Schirmer and Prey. Section V. which was in charge of prison matters, was actually responsible for the return of the prisoners. I cannot leave the statements of the Prosecution in their Exhibit 310 uncontradicted. This document is a copy of a decree of the Main Reich Security Office which was intended for the official inter-office use of the Gestapo. This decree never came to the knowledge of the Ministry of Justice; the defendants have actually seen it for the first time during this trial, as the defendant Mettgenberg has testified as a witness.
The decree of the Main Reich Security Office was issued on 2.8.1942, and therefore at a time when the police, in accordance with regulation, had nothing to do with guarding prisoners, apart from transporting them to Germany. The Ministry of Justice, just like the OKW, proceeded from the principle that all prisoners brought from the occupied territories to the Reich were turned over to the Ministry of Justice by the police, as is shown by Ammon's note of 26 May 1943 in Prosecution Exhibit 381. On the other handk it is stipulated in the decree of the Main Reich Security Office that in cases where it is not possible to turn the prisoners over to a Special Court they should be sent to a concentration camp.