Q Witness -
THE PRESIDENT: There seems to be a good deal of repetition in your examination, Dr. Schilf. We hope that you will not extent that line of questioning any further unless you see something more important than we have yet heard.
DR. SCHILF: May it please the Court, for your clarification I would like to say only that the affidavit as such did not give a very clear picture, and I am trying to find this clear picture in the cross examination.
THE PRESIDENT: However, the subject about the conversations during the night in concluded now.
JUDGE BRAND: The difficulty is that the long and continued repetition has not clarified it for the Court at all.
DR. SCHILF: May I say for me neither because the witness did not make any clear statements, clarifying statements.
Q Witness, you just said the agreements in detail are not known to you?
A No.
Q How they were supposed to act if the enemy were approaching; are the secret directives for the evacuation of penitentiaries and prison in the Framework of the evacuation of endangered Reich territories known to you?
A Yes.
Q Is this heading known to you?
A Yes, the directives were to the effect that in the case of an approaching of the enemy the institutions were to be evacuated, and, in general, it had been provided in these directives that the territories which were endangered were evacuated in time so that it did not take place when the enemy was immediately there. Such a transfer took place already before, as, for example, in northern Germany and western Germany, there it was carried out at an earlier time, and in the same way also in the eastern territories.
Here we were concerned with a case where the enemy was already immediately before the gates of the city. Whereas, otherwise, in general, the evacuations took place when the enemy was relatively far away still, so that the evacuation could take place in an orderly manner.
Q These directives which you are talking about -- I have a copy of them in front of me. It is Exhibit 290 of the Prosecution, Document NG-030, Document Book VII-B. In order to find out whether you are referring to those directives you have just mentioned, I would like to submit, to show, those to you. (Document is handed to witness)
A These I am only learning about now...these directives which were shown to me in my interrogation-
Q They were shown to you in the interrogation?
A Yes, during the interrogation. It was not shown to me before.
Q These directives consist of about six or seven closely written pages; during your official activity you did not know these directives?
A In any case, not in this form. There were directives but in this form about a transfer to another office--that I did not know about.
Q Can you say if these directives according to the file numbers which I have here were worked upon in Department 5--that is, in your own division, own department? Who was in charge of the working on these directives, or who worked on them? Who was the expert or the associate?
A Well, the matter was this. I was the referent, the expert for these matters. I did not issue directives or sent them on to the particular prosecutors. I only worked them out myself on the occasion of discussions which took place at first concerning northern Germany, and then, later on there were discussion with the General Public Prosecutors in the West. And on this occasion certain directives to the General Prosecutor in Linz was not done by me. And I do not know who did it. Before I was interrogated -
Q Witness, you stated further that according to your statement today, three or four days later you had this conversation with Dr. Eggensberger.
A Yes.
Q Dr. Eggenberger, as you say, gave you a typewritten copy of a note?
A Yes.
Q The word "vermerk"--note or memorandum-is somewhat indefinite.
Was that the telephone note; was it the telephone note? Was it a transcript record, or what was it?
A It was a note about the telephone conversation, about the documents which he had obtained through the conversation with the General Public Prosecutor at the Kammergericht.
Q There were, I would like to say, facts?
A Yes, next to each other, yes.
Q They show what he had discussed with the General Public Prosecutor, and above that, that what he, hemself, with his documents, had found out.
A Yes.
Q On the basis of his documents?
A Yes, yes; not on the basis of his documents, but after his discussion he had during the night, telephone conversations with Sonnenberg. And then in order to get the basis about it, how the connections were, he discussed it with the General Public Prosecutor. And he asked later what were the connections of this evacuation. And this he also included, incorporated in his telephone note. And he gave me a copy of this -- which was then in my office safe.
Q How long was this note?
A Oh, it was about one page long.
Q In this note, was there any discussion about the fact that Eggensberger got in touch with the defendant Klemm outside of Eggensberger?
A No, that was not in there.
MR. LaFOLLETTE: I don't understand it. Excuse me.
DR. SCHILF: May I repeat the question?
MR. LAFOLLETTE: Yes. I didn't understand it.
BY DR. SCHILF:
Q In this so-called "vermerk", this so-called note, which Eggelsberger-
MR. LEFOLLETTE: Excuse me. The man's name is Eggensgerger, E-g-g-e-n-s-b-e-r-g-e-r.
THE WITNESS: E-g-g-e-n-s-b-e-r-g-r-r--Eggensberger.
BY DR. SCHILF:
Q This note by Eggensberger--the name of Klemm was not in it at all?
A It was like this. That in the note there was mention made that the affair was discussed with the General Public Prosecutor and the Under-Secretary, the Staats-Sekretaer.
Q But it was only a report of that what Hansen was supposed to have told Eggensberger?
A Yes, of course, that was not in the note but he told me that later, that these things that he found out which he had included and incorporated in the note, that the information he had received from the General Public Prosecutor--and he did not mention that he had discussed this matter with the State Secretary, Under Secretary. In the note itself there was nothing that he had discussed the matter with the General Public Prosecutor. He later told me about it, that he wanted to state the fact completely. He was competent for the district of the Kammergericht, it was his own district. And in the note, itself, there were only these facts. And since we were always talking to each other, he told me, "I have this knowledge from the General Public Prosecutor."
Q You never said he heard anything from Klemm?
A No.
Q Now, this so-called note, was supposed to refer to an agreement?
A To an agreement between the Reich Defense Kommissar, a discussion between him and the General Public Prosecutor--about which, the State Staats-Sekretaer or the Under Secretary had knowledge.
Q May I ask you to repeat how it could have been in the note?
A That in regard to the evacuation of Sonnenberg, discussions between the General Public Prosecutor at the Kammergericht and the Reich Defense Commisar had taken place--discussions had taken place-and that the Under Secretary had been informed about these discussions.
Q You just said "informed," and If I understood you correctly before you said he had "knowledge" about it?
A Yes, the matter was discussed between the General Public Prosecutor and the Under Secretary.
Q If the word "agreement" however, appeared, then do I understand you correctly if I say that the "agreement" was made between the General Public Prosecutor and the Reich Defense Kommissar, Stuertz, and that Klemm, as Under Secretary only got knowledge of this agreement?
A Yes, in some form or other, the Under Secretary and the General Public Prosecutor discussed it.
Q May it please the Court, in regard to the Exhibit 427, I have no further questions. It would be possible, however, in regard to the earlier exhibit, in regard to the Nacht und Nebel matters (Night and Fog) I would hate a question. But I would like to suggest that this would be done after the noon recess.
THE PRESIDENT: As to the Night and Fog exhibit, which we understandis Document 737, there has been a cross-examination of that document and no further cross examination is to be permitted on that subject.
MR. LA FOLLETTE: No, no. Your honor is misinformed. That is the document upon which there may be cross-examination.
THE PRESIDENT: Yes, I had the two confused. That is right.
Well, any further questions. Then at this time -
JUDGE BRAND: I should like to ask the witness one question. What happened to the prisoners who were not evacuated? What was done to the prisoners who were not evacuated from the prison?
THE WITNESS: As far as I was informed, the prisoners were shot by the Gestapo.
THE PRESIDENT: I should like to ask a question. In your affidavit you stated that by agreement that part of the prisoners were evacuated and another part remained behind and were shot. Now, are you able to tell the Court how those were classified? That is, what class of prisoners were evacuated and what other class were shot?
THE WITNESS: No; according to what basic principle the prison directors took prisoners along? That I did not find out. I did not know what principles applied. I only found out that a part of the prisoners were taken along and a part was left behind. What principles were decisive in this selection, and whether the General Public Prosecutor had issued directives previously for this---that I do not know.
THE PRESIDENT: Is there any further direct examination on the part of the Prosecution?
MR. LA FOLLETTE: If your Honor please, as I understand Dr. Schilf, he wants to go to the other matter after the noon recess. I do think I am entitled to say in view of the Court's question that if the connecting matter in this matter is Exhibit No. 293, Document NG-741, on the last questions which the Court asked, that is in evidence.
THE PRESIDENT: Those matters can be taken up after we reconvene.
At this time we will take the usual noon recess until one thirty o'clock.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Tribunal is again insession.
MR. LAFOLETTE: May it please your Honor, I would like to petition the court for a variation in the schedule of cross-examining any present witnesses. The prosecution's next witness is the witness Eggensperger, who has come here as a voluntary witness from the French Zone. If he cannot be heard this afternoon it will be necessary for him to stay over the whole week-end, and he is presently employed there and would like to return. For that reason I would like to request that presently any further cross-examination of this witness be restricted to his testimony this morning, and his affidavit of this morning, that then we may be permitted to offer the witness Eggensperger on a related testimony relating to the subject matter, and then recall the witness Hecker for cross-examination on the Nacht und Nebel affidavit. It seems that that would make a more orderly proceeding and would not be unfair to any one.
THE PRESIDENT: In other words you request that this witness stand aside and let the other witness testify?
A. LAFOLLETTE: Unless Dr. Link desires to cross-examine this witness now on his testimony up to date. I don't know. There will be no crossexamination on Nacht und Nebel of this witness.
DR. LINK (for the defendant Engert): If the Tribunal please, I want to start my cross-examination of this witness.
Q Witness, we know from your first interrogation, and you have repeated today, that you worked in the Department V of the Reich Ministry of Justice. That is correct isn't it?
A Yes.
Q You furthermore stated today that you worked in the Department for penal Execution, and that the transfer of the prisons belonged to the sphere of activities of this Department. You furthermore stated that the tasks in this field of transferring prisons were not contained in individual directives, from individual agencies, but that rather the directives were given to you by lectures in Nothern Germany, or Western Germany, and they were general directives.
Is that also correct?
A Yes.
Q Would you please explain this matter to the tribunal a little bit more indetail--that is, of what consisted the tasks of the Department V, and your own task in this matter concerning the evacuation and transfer of prisons.
A The activities of Department V consisted in caring for a timely transfer of prisoners, and they had to make the rooms and accomodations available for this transfer. The transfer of prisoners originated from two considerations: On the one side because of the danger of air raids and on the other side because the enemy came closer. Therefore, the various districts had to receive information where they had to transfer their prisoners in such cases. The first plans of this nature were formulated for the West, considering that the air raids took place in this area. Then plans of the some nature were formulated for the North because of the possibility of an invasion of this area. Thus, for every district it was determined where the district would transfer its prisoners if the need arose. The competent general attorneys approached the districts which were in their field of tasks for these purposes, and they together established to what penitentiaries the prisoners should be sent if the need arose.
Q Witness, is it true that you declared this morning that concerning the field in which were an expert, the question of evacuating penal execution penitentiaries in the framework of evacuating the area of the Reich, that you do not longer recall all matters. Therefore, I have to ask you, and I quote from the document--Exhibit 290 in the Document Book 7-B: Its states there: "The individual evacuation because of the required knowledge of local conditions and the necessary collaboration with the local administrative and party organizations, have to be left to the greatest extent to the competent attorneys-general.
These directives can only given hints." Does that mean you worked in this matter, and gives a clear picture of it?
A Yes. These are only general directives which have been issued. The matter was slightly different when it concerned the North. At that time--I don't exactly recall when it was--there were, repeatedly, conferences at Hamburg, conferences which I attended myself, but then was appointed for this whole area, an attorney general who, after that, had to execute all these various measures. Apart from that, I myself did not participate in these conferences.
Q This last restriction, however, does not concern the field of task of the local court, to which Sonnenburg belonged.
A No.
Q May I then take it from your previous answer, that the execution --that is, the evacuation of the various penitentiaries, had nothing to do with your work, and that the general public prosecutors had to execute these matters in accordance with the directives by the penitentiaries.
A Yes. These conferences were a matter for the general public prosecutors, and did not depend on the Ministry.
Q May I bring this answer into connection with the fact that according to your affidavit, the statement which you made this morning, that you had nothing got do with these matters of Sonnenburg, except your contact which you had quite by accident?
A Yes, that is correct. Otherwise, I only had knowledge of the trans fers which had already taken place, and that happened either when I had a phone conversation with the competent man, or else on the strength of the monthly reports where I saw that prisoners had been transferred to other institutes.
Q Witness, may I remind you of the following: This morning you stated that you heard for the first time of the evacuation plans at Sonnenburg, because the general public prosecutor Hanson, who was competent for Sonnenburg, discussed the matter with you and told you that- as you expressed it- conversations and conferences, had been held-but that he had no authority to give you closer details concerning this matter.
He suggested that you might talk to the State Under Secretary concerning this matter. Don't you think it is rather striking, witness, or was it quite in line with the usual measures, that you had no connections whatsoever with these individual cases and that the general public prosecutor told you, "I can't tell you what we have talked about."
Court No. III, Case No. 3.
A Well, I conceive that in the following manner. I thought that was a matter which had been considered top secret and the publication of which, to me, was not considered necessary because I was not familiar with the details of the matter. Thus, only the general information seemed necessary and opportune to the general public prosecutor in order to give me some knowledge of the matter.
A But according to the opinion of Mr. Hansen, what was the matter you were to talk over with the Under Secretary of State if you were not to receive any knowledge of the preceding conferences?
A Yes. Well, the Undersecretary of State had authority to give me the information.
Q You did not think it unusual that the general public prosecutor did not consider himself authorized to give you the details of this matter?
A No, in itself that was not unusual.
Q Is it correct if I say that the reason was that you actually were not officially concerned with this matter?
A No, but it might have been possible that from these conferences some general facts arose which might have been of importance for me. Therefore, he told me that I should talk with the Undersecretary of State, and that the discussion of this matter with the Undersecretary of State might have been of some interest for me.
Q May I furthermore assume, concerning this conference which took place about the 30th of January in Sonnenburg, that you came from Sonnenburg and that you, according to your affidavit, as an expert reported, then took service in the Reich Ministry of the Interior and that this was not a telephone service in Department V, but rather in the Reich Ministry of Justice?
MR. LAFOLLETTE: Just a moment, please.
I am sorry; I must be terribly stupid. I object to this question because I find it completely unintelligible. I don't know what it is that the witness is asked; or perhaps it can be repeated.
Court No. III, Case No. 3.
I don't believe the witness can answer the question, because it is so involved that I can't understand what is asked of the witness.
Furthermore, I call the Court's attention to the fact that the counsel is of counsel for the defendant Engert, and while of course he must be entitled to pursue his cross-examination as he sees fit, I find nothing in this line of questioning which is calculated to in any way conflict with the witness' testimony or that the witness' testimony in direct involved the defendant Engert. Therefore, this cross-examination seems to partake of a second cross-examination on behalf of at least other defendants than the defendant Engert. For that reason, I object to cross-examination which is not calculated to elicit some answers from the witness which are pertinent to the defense of counsel's particular defendant.
DR. LINK: If Your Honor please, I will try to clarify this matter.
BY DR. LINK:
Q Witness, you have testified that as an expert reporter, or acting expert reporter, you had to receive telephone calls about the 30th of January. Did you make these telephone calls on that particular night because you were assigned to that service? And is it an accident that you, as an official in Department V, received these phone calls and answered them after you took information from the Minister of Justice? Or did it belong to your tasks in Department V to be reporter on duty? In other words, in the Reich Ministry of Justice was there a telephone service in every department, or were you the man who, during that night in the Reich Ministry of Justice, had to receive all phone calls which arrived?
MR. LAFOLLETTE: The last part of that I can understand.
A During the last months I constantly lived in the Ministry, and, therefore, I could be found very easily every night. Normally, as far as the assignment was concerned, there was one expert reporter for every night, and he was not in charge of a special depart Court No. III, Case No. 3.ment, but for the whole house.
The phone calls of that particular night I could only conduct myself, because the official of another department, it is true, could have called up the Minister, but he could not have conducted the further phone conversations.
BY DR. LINK:
Q Well, witness, that does not answer my question. You testified here under oath that you made these phone calls as reporter on duty. Is that true, or were you called because you were in Department V?
MR. LAFOLLETTE: I thought the witness answered that.
DR. LINK: No, I don't see that he has answered it. A "yes" or a "no" is sufficient; half a sentence.
BY DR. LINK:
Q Haven't you understood? Will you tell me how it was?
A Well, the situation was the following. The chief of the department, of course, tried to get somebody from Department V, and then he reached me during the night.
Q Well, then, you did not conduct the conversation, as you said in your affidavit, as Referent on duty?
A Well, the difference is that at the same time I was reporter on duty and an official of Department V; I took the phone call in both capacities.
DR. LINK: I have no further questions on that matter, Your Honor.
MR. LA FOLLETTE: Excuse me just a minute. I only ask to clear up the interpretation. This man is not saying that he was a reporter; he is saying that he was an official. I think it would at least help me to understand if the interpreter understands that the word is translated "official" on duty, and not "reporter". I don't know what a reporter is.
THE PRESIDENT: Well, he said he took it in both capacities, and that certainly ought to be pretty nearly final.
MR. LAFOLLETTE: He was an official, he wasn't a reporter in the sense of making a report.
BY DR. LINK:
Q One further question, witness. Why did you see no reason to inform your department chiefs of this phone call, and you approached, rather, the general public prosecutor and then the Reich Minister of Justice on your own initiative?
A I did that because the department chief was not present in Berlin at that time. The decision had to be made immediately, and the chief of the department was not in Berlin.
THE PRESIDENT: One moment, please. Entirely aside from the character of this cross-examination, there is another matter that I think we should take up at this time. I can see no reason why the cross-examination of this witness on this particular line could not have been postponed as well as the further examination on the part of Dr. Schilf. It was the suggestion of the Prosecution counsel to let this go on, but I want to say now that we will be adjourning at an earlier hour this afternoon, and if you want to dispose of the other witness and get through with him, you had better take that into account now.
Does the Prosecution have any wish about this matter?
MR. LAFOLETTE: I appreciate it; Your Honor is quite right. I had thought, or I could see for myself no reason why this examination should be extensive, because I could not see that counsel's defendant was directly involved. Dr. Link can help me a little. If he contemplates that it is necessary for him to continue for some period of time, I would then ask the Court to permit this cross-examination of this witness on any matter be held until after we have heard the witness Eggensperger.
THE PRESIDENT: Until after the other witness has been disposed of.
MR. LAFOLETTE: I did not hear what Dr. Link said through the translator.
THE PRESIDENT: We didn't hear it either.
DR. LINK: I will be through in just a minute, if Your Honor please.
BY DR. LINK:
Q You told us, witness, that this case Sonnenberg, as far as the tasks of Department V were concerned, within the framework of the directive on the transfer of prisons, was not connected with Department V in this connection. I think that is what you told us, isn't it? Then I have to ask you whether your department chief was competent in some manner, as far as you saw it.
A No, he was not competent for this individual case.
Q In conclusion, I want to ask you this. During these conferences which took place at Hamburg or Western Germany, concerning these hints in the directives, was the question dealt with at any time that not all inmates of prisons were to be transferred, or would be transferred, or could be transferred? Or did your department consider it self-evident that the total number of inmates - with everything that belonged to that - were to be transferred?
A The directives provided only for the transfer of certain groups of the inmates. Not all the inmates were to be transferred. There were prisoners with shorter terms who were to be released, or whose transfer was not considered necessary. Only prisoners who had longer prison terms, or who were otherwise dangerous, were to be transferred. The others were to remain on the spot. And, as far as possible, there was to be a transfer if there was an immediate danger. In most of the cases it was possible to execute these directives.
I didn't hear anything at that time. Of course, there were some difficulties; for instance, in cases when a timely transfer met with resistance from the Reich Commissioner for Defense.
Q. Witness, what were the directives that you were just referring to?
A. I was referring to the general directives pertaining to the evacuation of areas in cases of endangerment by the enemy.
Q. You were not speaking of the directives which had been shown to you this morning and which you don't know?
A. No. I am not referring to those directives. The directives which were shown to me this morning were not issued by me in this form. They somehow partly correspond with what came out of these conferences which have been discussed here.
Q. How can you say that, witness, that partly they corresponded to the subject matters of the conferences?
A. Because these directives have been submitted to me at one time, but only now.
Q. You testified this morning that all foreigners who had come from abroad and also apart of the Germans were then, as far as you heard transferred. Did you say that, for instance, foreigners stayed at Sonnenburg?
A. No. As far as I know, the foreigners had already been transferred previously.
Q. You have not alleged, and you cannot allege that Poles or other foreigners were in the group of those who remained at Sonnenburg?
A. No. I only know that Poles, together with their warden, had gone away because that was an institute which had been added to the penitentiary later on.
Q. And you know that from Mr. Eggensberger, or from whom?
A. No, that I heard of through a telephone call which came later on.
Q. Thank you.
MR. LA FOLLETTE: If Your Honor please, I would like to ascertain whether there will be any more cross examination of this witness on his testimony today later and not at this time, or further cross examination will be on the subject of Nacht and Nebel--that is, if we can.
THE PRESIDENT: May we inquire whether any of the defense counsel desire at any time to cross examine this witness on the same subjects which had already been inquired of? (No reply) Apparently no; so this witness may temporarily stand aside, if you wish.
MR. LA FOLLETTE: Thank you, Your Honor; and I'd like to have the witness Eggensberger called. The witness will testify in German.
EUGEN EGGENSBERGER, a witness, took the stand and testified as follows:
JUDGE BRAND: Hold up your right hand and repeat after me the following:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath).
JUDGE BRAND: You may be seated.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q. Will you state your name and the work at which you are presently occupied, please.
A. Eugen Eggensberger; at present I am an official with the District Director's office at Tuebingen.
Q. You recall being on night duty in the Ministry of Justice late in January or early in February 1945 at which time you received a phone call with reference to the evacuation of the Sonnenburg prison?
A. Yes, I remember that.
Q. At that time, what was your position in the Ministry of Justice?
A. I was an official in the penal execution department. During this phone call, however I was the official on duty; that is, I had night duty from this one evening to the next morning and I was the official to whom all important phone calls had to be channeled.
Q. Do you remember the general subject matter of the phone call that came to you with reference to Sonnenburg prison?
A. Well, the question was the evacuation of the Sonnenburg penitentiary. The general public prosecutor Hansen, called me up during that night and told me, in the course of this telephone conversation, that he had to inform me of something concerning the Sonnenburg penitentiary. He told me that during that particular night, the prisoners of the Sonnenburg penitentiary would be handed over to the Gestapo, that a detachment of the Gestapo had already arrived at Sonnenburg, and that the action was under way; the prisoners were being handed over to the gestapo. This information came as quite a surprise to me. It is true that I knew from the previous days that the evacuation of Sonnenburg was discussed. Hansen told me that this evacuation or rather this transfer of the prisoners being carried out was because the enemy constituted an immediate danger to the prison. I asked the General Public Prosecutor Hansen from whom this directive had originated about this matter, and Hansen answered, that it had originated from an order of the Reich Defense Commissioner and Gauleiter.
Q. Did he say whether or not it had been approved by any one in the Ministry of Justice to his knowledge?
A. I had asked him that and I said, "Does the Ministry know anything of this directive?" And to that Hansen answered, "Yes, this matter has been discussed with the Under Secretary of State Klemm." And from his remarks I gained the impression that conversations had taken place, at least that is the form in which he told me that, and that Klemm and not the Minister--that Klemm had requested and bad said that he approved the matter and that the matter had his approval.
Q. Now, I ask you whether or not you made any notation of this conversation at any time while you were on night duty?
A. Well, this information was one of the customary ---I mean not as far as its contents are concerned-but the fact that such information was given was quite customary. After the telephone conversation, it is true I took some notes with a pencil, but only in the morning when I started the day duty, I made a few notes concerning this matter; that is, a telephone note. And this was to be submitted to the competent official.
Q. Did you discuss it with any one that morning then? That is, particularly the notation that you made and the conversation?
A. Well, for the reception of this note, the official was competent, and in this particular case it was the president Hecker. From a conversation, a case identical a few days before with Hecker, I knew that there had been a night telephone call concerning this Sonnenburg matter, but I also knew that at least officially he was competent and therefore I submitted this file notice to him.