Also, it prevented these defendants from being dealt with without the protection of the court and being turned over to the police.
DR. KUBUSCHOK: 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 of the supreme authority of the state should be omitted, and in the place of the word "sovereign", the word, "defendant" came over the channel.
BY DA. KUBUSCHOK:
Q. According to Exhibit 346,retroactivity of the decree concerning Poles and Jews was ordered. What can you say in that connection?
MR. LAFOLLETTE: I did not get the Exhibit Number.
DR. KUBUSCHOK: Exhibit 346.
A. I have described how great the pressure on the part of Himmler and Bormann had been. Ye had just succeeded in calming these parties down. They had had quite different ideas of the practical application, but now Greiser 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 three 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 towards introducing the Standgerichte, the civilian court martial, in the incorporated Eastern territories; Exhibit 345.
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 Standgerichte, civilian court martial. One could not quite by-pass that desire in the decree concerning Poles and Jews, but it was possible to establish an obstacle. I did so including the provision that Standgerichte, civilian court 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, by-passing 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.
If the Prosecution, in the table of contents of the document book, states that the right for pardon had been transferred to party officials, that is not correct, because the right for pardon was transferred to the Reich Governors, and the Reich Governors are officials of the State.
Q. According to Exhibit 360, in the case of sentences of Poles, one did not deprive them of their civil rights explicitly.
The formal style and wording used was that the rights which they should have according to Paragraphs 32 to 34 of the Penal Code were taken from them. What can you tell us about that?
A. The forfeiture of as the Penal Code says "civil rights", of course, would only have importance for German citizens. Essentially it means the loss of the active and passive right to vote, the right to vote and the right to be elected, and political rights of various kinds. On the question of the so-called Volksdeutsche, people of the German race, citizenship and citizen rights were frequently in doubt.
Therefore it was intended to find a more neutral formula to take into account these rights which in serious cases such as life terms happened to be expressed. For Poles, therefore, this clause was without meaning unless there was an intention to have them included in the German people's community at a later date. Besides, I am of the position that this neutral language which I think states the forfeiture of rights according to paragraphs 32 to 34, hits the defendants less hard than the explicit statement that he be deprived of civil rights.
Q Exhibit 254 contains a letter to Hess dealing with the rejection of anew amnesty and a limitation of prosecution against punishable acts in detail. Will you please explain that letter?
A The deputy of the Fuehrer upon the request of SS officials had suggested a new amnesty which went far beyond, the amnesty as Hitler proclaimed in October 1939. I objected against an amnesty of that kind and it was never proclaimed. In giving the reasons for my position I said that small cases of theft - that was the expression of the deputy fuehrer - during combat action or shortly after, should only be prosecuted if there were serious reasons to do so. This took into account the special conditions of lack of order at the time of the account and it was in accordance with specific directions contained in our code of criminal procedure, paragraph 153, section 2, that the prosecution can desist from filing an indictment for an act which could not be punished by a penitentiary term but only by prison confinement or fine in case in such an act the guilt of the culprit is small and the consequences insignificant. The prosecution pointed out in the last sentence of my letter according to which in case I should he informed of such an individual case I had promised a sympathetic examination of cases of that kind.
Q The prosecution has submitted a notation which you made on the 30th of August, 1946, where you mention the Oberlandesgerichsprae sident Draeger in Koenigsberg as official of the first order.
The prosecution brought this statement on your part in connection with a letter by Draeger to the Ministry of Justice on the 23rd of January 1943. Will you please state your position concerning the charge of the prosecution.
A Draeger was the President of the District Court of Appeals at Koenigsberg, that is to say the District Court of Appeals of my home province. Therefore, as can be easily understood, I scrutinized his activity with specific interest, and was in a position to find out tine and again that Draeger was an extraordinary expert in his field but I saw furthermore that in connection with the brutal behavior of Gauleiter Koch he had a very difficult position and that he defended himself against Koch with courage and wisdom. Therefore, my good opinion of Draeger was based not only on matters of his professional field but also on his political attitude. The letter of January 23, 1943 was at a time when I was no longer in the Ministry.
Q I should like to refer to another complex of questions. Witness, in the course of this procedure you often heard that persons against whom prosecution was pending or who had already been sentenced were turned over to the police. How did it come to these transfers to the police?
A These transfers are a very sad chapter for anybody who ha.s a sense of justice. They came shortly after the beginning of the war* in 1939. From publications in the press, Guertner found out that the police had killed people. Guertner made notations about these notices in the press and they were filed and gave a compilation of these notices from Lammers to Hitler together with his compiled notes and he explained the situation in particular. The purpose was clear: Hitler should be made to discontinue these things. Lammers actually submitted these compilations to Hitler but told Guertner later Hitler had said that he had not given a general directive to carry out these shootings but in individual cases he could not do without these measures because the courts, that was military courts as will as civil courts, were not able to take care of the special conditions as created by the war.
And, Lammers at the same time announced that Hitler in a further case had already ordered the execution by shooting.
Q I refer to Exhibit 284.
A I am certainly not making a mistake in saying that that decision on the part of Hitler was probably the most serious thing which ever happened to this man Guertner whose main intention was to serve justice; that was an order which Hitler had given through administrative channels to the police and the execution of which was assured on the basis of means of power then prevailing. The attempt on the part of Guertner to re-instate the respect for court decisions, therefore, had failed, but he was not satisfied by that. He wanted to assure that the administration of justice should be given the authority to intervene in time and to make the attempt at least to thwart the execution of the order given to the police. That, of course, was only possible if the Administration of Justice in time was informed about the order that had been given to the police, and that request on the part of Guertner was actually granted. Subsequently the Administration of Justice as a rule was informed by Hitler's Adjutant, Schaub, wherever an order of that kind was given to the police.
The question, therefore, as to how after one has been informed one can make as attempt to prevent the execution of Hitler's order, brought with great difficulties, particularly because the police had a time limit of 34 hours after which it had to report to its superiors that the order had been executed. Guertner then was of the opinion that for these matters he had or assign the one official in his Ministry whom he could use as a capable man with the police --who shared Guertner's opinion in these matters -- end from whom one could expect, on the basis of previous experiences, that he would be clever enough. Guertner therefore charged the co-defendant Joel with that mission.
When that information -- the information of such an order -- was received, feverish work started. First one had to try to extend that time limit of the police; that is, to persuade the police to delay the report. That alone brought about great difficulties because the police official incurred great risk. But in some individual cases, it succeeded. At the same time, the files of the case were called to Berlin and all other bits of information which probably had caused Hitler to order the transfer of that person to the police. Then a detailed report was made of the act and the culprit which justified the sentence, and telephone calls took place with various agencies whenever that seemed to have chances for success. Some individual cases were successful. But if it could not be achieved that the order turning over the individual to the police was rescinded, although everything had been tried, then there was no other alternative than to issue a directive to the authority which was about to carry it out that they should no longer resist but turn over the man to the police.
THE PRESIDENT: We have past our time for the recess. A fifteen minute recess, gentlemen.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. KUBOSCHOK: (Attorney for Defendant Schlegelberger)
Q Before the recess you were explaining the attempt to intervene on the part of the Ministry of Justice in the matter of transferring cases to the police. Will you continue, please.
A I explained, with the permission of the Tribunal, that the attempts to intervene on tho part of tho Ministry of Justice were successful in some cases, but, if all possibilities had been exhausted, and if in spite of that, he had not succeeded in having the order issued by the police withdrawn, nothing was left but to issue the instructions to the executing authority not to offer any resistance but to hand the man over to the police when they requested him. If the Reich Ministry of Justice had failed to give the man up, the police would have broken the resistance by force; the condemned person could not be saved. During the war civil and military commando offices in numerous cases were charged seriously that through a defense which they had to consider as useless they had sacrificed the lives of many people. Such a useless sacrifice it would have been if the Reich Ministry of Justice had instructed the executing authorities, via the executive office, to resist against the police. The subject of this sacrifice would have been not only threats on officials or civil servants, but the entire Administration of Justice, which would have been eliminated and its opponents would have triumphed. The acting official in the Ministry would have been eliminated as saboteurs) and, already at that time he would have been replaced by a person who willingly and without exception would have put the Administration of Justice in tho service of the party. Under these points of view, the individual cases of transfer, which the prosecution has described, has to be evaluated. I, myself, after taking charge of the Ministry of Justice, immediately established contact with Minister Meissner in order to determine basically that no order for transfer made by the police was to be executed as long as the Administration of Justice did not have a report.
This intention of mine was again foiled by Bormann. A letter from Meissner to me makes this apparent. Hitler had me informed by Bormann that the asking of the opinion of the Ministry of Justice was not necessary. Meissner, who shared my opinion, asked me in spite of that, in those cases where the Ministry believed that Hitler was not properly informed, that they should sent a report to Meissner. I did that in all cases.
Q The letter of Meissner, of 22 April 1941, is Exhibit 200. What can you explain about the individual cases in Exhibit 261, the report of the General Prosecutor to the highest Prussian Court of Appeals, of the 27th January, 1942; and in a situation report of 31 March, 1942, the cases Skippel, Skimelinski, and Gomolinski are mentioned. What can you say about these individual cases?
A I merely recall the case Gomolinski, and in regard to this also only the main points. I know that in this case that we succeeded in having the execution of the transfer order postponed for a period of time of some length. In the meantime the utmost efforts were made to prevent the transfer to the police. However, I recall that we were unsuccessful in that case. I can say with certainty that in all other cases too, as I have described it, serious efforts were made to intervene.
Q What do you have to say about the Markus Luftglas case who was transferred to the Gestapo, Exhibit 88?
A This case, too, I mainly no longer remember even though the name recalls some certain memories. In my statements I have to refer to the documents that have been submitted, and by referring to them I would like to determine the following: The Fuehrer Order to the police was given to the Reich Ministry of Justice on the 24th of October, 1941, through the usual channels by the presidial chancellory. That nothing happened in this case is absolutely impossible. It would have been unexplainable why my letter to Lammers in which I informed him of the release was written only four days later on the 29th, for letters of that kind were as a matter of course in our office answered immediately. The fact that our letter is dated only 29th shows me rather that in the meantime unsuccessful interventions had taken place.
Now I notice that in this letter to Lammers I informed him that Luftglas had been transferred to the police for the purpose of execution. That is noticeable because the information about the orders given by the police never said anything about executions but merely had transfer as the subject of the order. If in this letter to Lammers I, therefore, informed him that Luftglas was transferred for the purpose of execution, this can only be based on the information we received from the police, and I am quite sure that I formulated the letter in that way in order to inform Lammers how the direct Fuehrer Order -- that is, the order to the police actually was worded -- and in order to point out to him what such transfer orders as we were given led to.
In conclusion in regard to this question of transfer I would like to say the Hitler Order went to the police by administrative channels. The police had legally and by authority the possibility to execute the order. The Ministry, on the other hand, had only one weapon, and that is the word. If this weapon remained without success, the Ministry was defenseless and had to submit to force.
Q In Exhibit 75 you made the suggestion for a confirmation of the sentences by the presidents of the district courts of appeal. Under what circumstances and for what reasons did you make that suggestion?
A This suggestion to have the sentences by the courts confirmed is in a close causal connection with this practice of transfer, to describe it briefly, which I have just told you about. Hitler's Reichstag speech of April, 1942, left no doubt in my mind that these interventions would increase, and my suggestion was to the effect that Hitler should delegate the right, the prerogative which he reserved for himself, to the Ministry of Justice and to the presidents of the district courts of appeal. If this had been achieved, the whole matter would have remained in the hands of the Administration of Justice, for even the applications for non-confirmation according to my draft were supposed to be made by the general public prosecutors who in turn had received instructions from the Ministry.
My letter in regard to this question of confirmation shows again what means I had to use. I could not reveal the real reason if I did not want to be unsuccessful from the very beginning. Bormann, however, in this case saw through my reasons. In a letter from Bormann to Lammers, Bormann writes: this attempt was again a confirmation of the will of the Administration of Justice to keep these matters in their own hands, as, for example, the question of analogy or the extraordinary objection or the nullity plea, but in the Ministry of Justice there was not the will to apply these means with the necessary severity.
Above all, Bormann saw clearly that if my draft would have become law, the intervention right of Hitler's would have been destroyed by one stroke. All the presidents of the district courts of appeal wore supposed to pronounce their decisions in Hitler's name, and. if they had. confirmed in the name of Hitler, Hitler could no longer have attacked their opinion. If I may use a common saying, I can say that Bormann, the fox, did not fall for the trap. In that connection, perhaps.
I may point out two points. Lammers remark in the document shews that I refused to have the party drawn into this confirmation procedure basically. Furthermore, the document shows how I lead to go about such things. These confirmation sentences existed in the case of military courts, that is, also in the case of Luftwaffe courts which were subjected to the commander-in-chief of the Luftwaffe, that is Goering. Thus I could count an understanding for my suggestion in the case of Goering, and, therefore, I secured his support through a special oral report on my suggestion.
Q Were you also competent for clemency questions?
A Yes. Since the time when I took over the Ministry of Justice, that is, since 30 January 1941.
Q Please give me a description about the competency of the clemency question?
AAccording to German law, clemency includes two questions: first, to pardon a penalty has become final or to make it more lenient, or to eliminate entirely, that is, the actual pardon, the right of pardon; and, secondarily, the so-called quashing. That is a right before a case has been legally decided to order that there should be no trial. Then clemency was the competency of the head of the State.
Through a decree of 1 February 1935 Hitler in addition to the right of quashing the proceeding had reserved to himself only his personal right in case of death sentences or cases of high treason and treason. In the remaining cases he delegated the right to issue pardons to the Ministry of Justice. This delegation of authority was extended by decree of 3 September 1939 to the effect that the Minister of Justice also in the cases which Hitler had reserved to himself, as I have just mentioned, could order the execution of the carrying out of the sentence on his own. If, on the other hand, in these cases he thought that a pardon should be granted, he had to obtain the decision of Hitler through the mediation of Under-Secretary Meisner. Later on this was changed. A clemency proceeding itself was laid down in the regulation about clemency of 6 February 1935, and in the case of death sentences the already-mentioned Article 453 of the Penal Code, of Procedure, was relevent.
This Article said that no execution could be carried out a s long as there was no decision by the person who had the right to grant a pardon and who had to be informed about this case.
This decision that the right of pardon should not be used: During my time in office, and also during Guertner's time, was signed by the Minister, even when Hitler had decided himself, that is, the wording of the decision about the clemency question as it is submitted here in the document, does not show whether the clemency pleas was decided upon by the Minister of Justice on his own, or with a refusal by Hitler.
Q. I do not believe that we have to go into the technical details in the right of the clemency question. The Almeier affidavit, exhibit 441, gives us a clear picture. However, it seems to me to be essential that you should describe to the Court under what point of view your decisions were made, and in the clemency question, in the case of death sentences?
A. In the foreground, I would like to put this statement, namely, that the Minister of Justice acted as a deputy of Hitler; therefore, he had to take Hitler's will into consideration, and above all from the way Hitler had made decisions about clemency pleas, he had to gather what possibilities existed all together to make a positive decision, that is, to grant a pardon. All of those possibilities were exhausted to the limit. To get through with the clemency plea to Hitler, that was the Chief of the Presidial Chancellory, Meissner. In the cases where I desired to have a pardon granted I referred the written clemency plea to Meissner; then, in addition I went to Meissner in person and consulted with him extensively in what manner this individual case could, so to say, be made palatable to Hitler. Meissner also followed my suggestions: frequently he succeeded even in rather weak cases, and he told me how frequently, for weeks he had to let cases remain in the files until he succeeded in catching a favorable moment, and to make use of Hitler's personal pecularities.
In any base, I can say with a good conscious that within the limits imposed upon me, I also had a tendency for leniency, and that in numerous cases I succeeded in getting a pardon which if I had dealt with a case in accordance with my duty, but only officially, I would never have achieved.
Q. In exhibit 458, three cases of death sentences are mentioned, in which a report by the competent Oberstaatsanwalt was given by telephone; these cases seem to be in contradiction to the careful written wording of the cause given in the Altmeier affidavit. Please make some statement about this.
A. No, they are not in contradiction. These cases have been worked on equally carefully as all other cases. The pecularity was only that in the written clemency report a few supplementary remarks, in which a mis-understanding because the telephone was being used, was out of the question, were made. Incidentally on this occasion, and I think this is apparent from the document, I pointed out that in this limited scope, I did not desire telephonic supplement, but always required that everything be handled in writing.
Q. The Prosecution has submitted the document regarding the execution in cases against Poles in the People's Court, in that it confirms your decision that you did not make any use, of the right of clemency, which was given to you by the Fuehrer; this is Prosecutions exhibit 137. Can you explain this?
A. Yes, certainly, I would like to do that. For the reason which I explained before, from the wording of the decision about the clemency plea, one cannot conclude with certainty whether Hitler made the decision or whether I did, but let us start from the assumption that I made the decision on my own, because I considered submitting this case to Hitler held no promise for success.
These defendants had been condemned because they belonged to an organization which represented tendencies for greater Poland, nationalistic tendencies; this organization aimed at the Incorporation of extensive German territories, and to a greater Poland which was to be merely created, the territory up to the river Oder, which has been mentioned these days quite often. That these efforts represented a clear and very dangerous case of high treason, for which according to the existing laws, the death sentence was applicable, that is obvious. A pardon by Hitler was out of the question. But, may I be permitted, on this occasion to point out expressly that in clemency questions, I was never influenced by the question as to whether the condemned persons were Germans or foreigners; this applies especially also in regard to the Poles. The difficult duty of deciding on clemency questions I also took very seriously and objectively and free of political tendencies, and the decisions which I made, was made merely on the basis of the law, on the basis of the seriousness of the act, and the practicable possibilities which existed to succeed with Hitler in the case. Moreover, the pardoning of Poles, did not occur frequently.
Q. From exhibit 367, there is a correspondence with Meissner regarding the execution of sentences in cases against Czechs. Can you explain the letter you wrote to Meissner on 13 March 1942?
A. The difficulty is that my letter to Meissner is not here. Therefore, I have, from the answering letter from Meissner to me, I have to reconstruct the case.
I know the following about the case itself: In 1940 when Freiherr von Neurath was Protector, it had been ordered by a Fuehrer decree that death sentences against members of the Czech Resistance Movement should for the time being not be carried out. It was believed that with the increasing military successes of Germany, the activity of the Czech Resistance Movement would gradually subside. Hitler did not want to create martyrs. That would only have increased the resistance.
However, he ordered very clearly that if the Resistance Movement should increase again the sentences must be executed for the purpose of a deterrant. Toward the end of September, 1941, Heydrich became Deputy Reich Protector and was given the order to break the newly developed Resistance Movement. Soon Heydrich instituted policecivilian courts martial. Although the Fuehrer Decree of 1940 already lost force and sentences would have to be executed I did not take any steps. In March 1942, however, the question became acute when Heydrich called me on the telephone and said that as far as he knew, several members of the Resistance Movement who had been sentenced to death, were still under the custody of the Administration of Justice. He urged execution. He pointed out that due to the change in course, which was being followed, the Fuehrer decree of 1940 had been outmoded for a long time and the execution should have been carried out.
Since I had to count on an intervention on the part of Heydrich with Hitler, I now turned to Meissner. That the prerequisites of the 1940 decree were no longer existent, was a fact that could not be disputed. Now in trying to reconstruct the situation, I can no longer say with certainty whether I reported this in my letter as Heydrich's opinion or as my own; but in any case, the situation was so obvious that Meissner could not object to Heydrich's request. He refused to comply with my wish to submit the matter to Hitler because the Reich Protector, alone, was competent. Even at this point, I did not give in entirely.
I now turned to Lammers. He did not share Meissner's opinion, but believed that even at this point, Hitler still wanted to refrain from the execution. He said that he was ready to comply with my wish and report the matter to Hitler.
What happened after this, I regret I can not say anything about that. My memory is not sufficient to tell you about that, and in the submitted documents, I do not find anything about that either.
Q The Prosecution reported about the quashing of the proceeding against a certain Klinzmann who because of kidnapping and bodily injury while in office, had been sentenced to six years. This is contained in Exhibit 107. How did that quashing of proceeding come about?
A Klinzmann was a police official in a small town, Seehausen. The population of that locality was terrorized by a group of juvenile criminals. There were numerous thefts especially and cases of arson. To this band belonged three people who were mentioned by name: Brand, Utesch and, this is important, Bloedling. Klinzmann, the police official, received the order from a superior to proceed with severity. He interrogated the people and since Brand and Utesch gave an impertinent answer, he hit them both over the head. Klinzmann had arrested Bloedling because he refused to work after he was denounced by his employer, and only after two weeks did he bring him before a judge.
T his interim he used in order to find out whether Bloedling had not participated in one of the large cases of arson. These investigations brought about a positive result. Bloedling confessed that he committed intentional arson and was sentenced to death. While Bloedling was in police custody, Klinzmann boxed his ears twice when he gave impertinent answers and on occasion of an attempted escape during the night he hit him once with a bludgeon when Bloedling pretended to be asleeppin order to prevent investigation. The court found out that Klinzmann was an especially conscientious and good civil servant who so far had not been reproached or charged with anything.
He went after criminal gangs conscientiously and one could thank him only for the fact that there was again peace in the locality without thefts and arson.
Brand, Utesch and Bloedling were slackers, liars and criminally inclined people. These findings justified clemency. Through the extraordinary objection the proceeding was pending again and could be squashed. Thus the possibility Was given to rehabilitate the official in his position and to prevent his being made subject to a disciplinary proceeding. The purpose of squashing the proceeding was for the purpose of avoiding such severe measure.
Q What can you say about the Katzenberger case about which the Prosecution talked, Exhibit 152?
AAbout that I can say only that I heard about the Katzenberger case when it came up by way of a clemency plea. I suggested to Hitler to grant a pardon. Hitler refused to pardon Katzenberger.
Q With Exhibit 463 and Exhibit 420, documents about the Gruenspan trial were submitted. This was the attack on the German attachee von Rath in Paris. Please make a statement about this.
A The Propaganda Ministry and the Foreign Office had the desire to exploit the Gruenspan trial, propagandistically, to a large extent. Due to Hitler's desire, both Ministries intervened in the carrying out of the trial. I do not need, probably, to state the reasons why for me such a propagandistic exploitation of a trial was unpleasant. I disliked it. One of the important men in these affairs, did not comply with the truth. It was discussed, that possibly the defendant Gruenspan could claim that in regard to the attache, Von Rath whom he had shot, had had a sexual relationship. He would not put a political but a personal motive at the basis of his action.