AAt that time such a thing was not generally known, that people were tortured to death and such, that did not happen during those years.
Q During what years do you speak?
A I am speaking about the years when the first attempts were made to take over the matter, when the concentration camps were instituted, in the year 1934 and the following years.
Q In later years do you know whether the death rate in the concentration camps was higher or lower than that in the prisons under the jurisdiction of the ministry of Justice?
AAt the beginning of the war in 1939, at that time, it appeared, as far as we could find out at all, that actually over in the concentration camps more people died than in our prisons.
Q. You state that this program of transferring inmates from your prisons to concentration camps officially began to operate at sometime in 1942. Was that before or after Thierack became minister?
A. This program of transfers to the police began after the resignation of Thierack.
THE PRESIDENT: Will you ask him that question again?
Q. This program of transferring inmates from prisons under the jurisdiction of the Ministry of Justice through the police to concentration camps, did that program officially begin to operate before or after Thierack became minister?
A. Only after Thierack became minister did it begin.
Q. It did not begin so long as Guertner was in office, is that correct?
A. Only afterwards it began.
Q. And you have said that Guertner feared and disapproved the program, is that true?
A. Yes, that's correct.
Q. And he refused to enter into it, is that true?
A. Yes.
Q. Now, Senate President Hecker, after the transfer program that we have just discussed officially commenced to operate under the ministry of Thierack. Describe, please, the division of labor with respect to that program in your Division 5.
A. This transfer program intended to transfer Jews, Russians, gypsies, Poles, people in security detention, and prisoners who had been sentenced for more than eight years who were regarded as incorrigible. In the basic decree it has been laid down what prerequisite had to exist for the transfer. These prerequisities were laid down in an unequivocable manner that Jews, Russians, and gypsies who had to be transferred to concentration camps as a general rule found Poles who had been transferred to the extent that they had received sentences more than three years and as regards those in security detention with the limitations and restric tions that those who probably might later be released should not be transferred.
These groups who thus, according to a definite regulation, had to be transferred now, Jews, Russians, Poles, and gypsies, as well as those in security detention, who probably could not be worked. These were dealt with in Division 5, Renal Execution.
Q. Could you describe from your knowledge of its operation the task and functions of the secret Division 15 that was founded in the Ministry of Justice in the Summer of 1943?
A. The Division 15 which was formed anew had the task to find out which prisoner who had been classified as those in security detention with the possibility of correction and which had been sentenced for more than eight years, which of them had to be classified to be sentenced over eight years, that is, it means Division 15, entered in contrast with Division 5, had to examine each individual and find out whether they should be transferred. Thus it ha.d to determine an individual case whereas Division 5 was concerned only to transfer those people who had been classified by the groups for transfer.
Q. Then, if I may recapitulate, what you have just said, the work of Division 5 was to transfer certain racial groups to concentration camps whereas the work of Division 15 was to transfer certain individual asocial persons to concentration camps, is that correct?
A. Yes.
Q Now, Senate President Hecker, can you briefly describe the mechanics of your work in Division 15 with regard to the transfer of these racial groups to concentration camps?
A. The method was as follows: In Division 5 the institution - the prison - handed over lists of the prisoners who came under this decree and they were divided into individual groups. This list was submitted with gypsies, Russians, columns of gypsies, Russians, and Poles. These lists were in Division 5, examined. Then the formal prerequisite, that is, the length of the sentence, belonging to the searching group, were met according to these lists. After these prerequisities had been deter mined, the lists were handed over to the RSHA so that the RSHA got the initiative in the transfer of the prisoner.
Q. If I may interrupt one moment, just to make it very clear, over what position and party formations did the RSHA have control?
A. It was an office of the Gestapo, Geheime Staatspolizei. We, ourselves, handed the list over to the RSHA, which was competent for the Gestapo.
Q. Aside from the Gestapo, in addition to that did the RSHA have control over the SS, a.s far as you know?
A. I can't tell you that; I don't know that.
Q. But you do know that the RSHA controlled the Gestapo?
A. Yes.
Q. Now, you speak of these lists by which these transfers were reported. Who else received copies of these lists within the Reich Ministry of Justice?
A. Copies of the lists were not handed on but compilations, that is, the figures, the number of prisoners, who had been selected for transfer, and those figures were handed on to the Gestapo. These figures were compiled and they were submitted to the division chief and by him to the Ministry, the Chief of Division 4, the Criminal Division, and to the Chief of Division 15. That is, those divisions who were interested in finding out how many prisoners were ea.ch time reported for transfer and later turned over by the police.
Q. You say, then, that compilations of the lists of those prison inmates who were transferred to concentration comes from Reich prisons were sent for the information of the Minister Thierack, Division 4 of the Ministry, Division 5 of the Ministry, and Division 15, is that correct?
A. Yes.
Q. Now, at this time you are speaking of, that is 1942 and 1943, who was head of Division 5 - your boss?
A. Ministerial Director Marx.
Q. I believe that word is M-a-r-x, is it not?
A. M-a-r-x.
Q. At the sane tine who was head of Division 15?
A. Ministerialrat Engert.
Q. Senate President Hecker, the sound control advises - will you please talk lower? Just pitch your voice lover; it's coning through much too loud.
A. Yes.
Q. Thank you. You say Engert was head of Division 15 at this tine?
A. Yes.
Q In later years, did he ever hold any other position in addition to being head of Division 15? Did Engert?
A Yes, in 1933 he took over simultaneously the Division 5 -became chief of it.
Q In other words, in the summer of 1943, Engert became your boss; is that true?
A Yes.
Q And from then on he was head of both Division 5 and Division 15; is that correct?
A Yes.
Q Did he remain so until the end of the war?
A Yes.
Q In your work in Division 5 did you receive any orders from Engert?
A Orders?
Q Let me clear that up. That wasn't very clear. Did you receive any orders in the course of your work in Division 5 concerning what you were officially charged with doing in carrying out this transfer program we have been discussing?
A The task which I had to execute according to the program here in the year 1942 given to me by my then division chief, and according to these directives I then continued to carry out the work.
Q Did you ever confer with Engert on this program?
A Yes, when at that time he took over the office, also to become chief of Division 5, at that time I explained to him the guiding principles according to which we acted, and he took this program which resulted from the duties. He approved it and ordered me to continue my work as I had done so far under the former leadership.
Q After Engert took control as your boss and head of Division 5 from that time until the end of the war from your personal know ledge of the records can you estimate how many Jews were transferred from Reich prisons to concentration camps?
AAltogether probably about 300 Jews were transferred. Of these, after 1943, that is, after Engert took over as chief of office of the division about 100 more must have been transferred during his time in office.
Q During the same period of time, that is, from the summer of 1943 when Engert took control of Division 5 until the end cf the war, how many Poles were transferred from Reich prisons to concentration camps?
A Poles -- I estimate that the total was about 300 and the division from 1942 until Engert took over the office about onethird of the total was transferred during the time. When Engert was chief of the division about two-thirds.
Q Now, Senate President Hecker, I am going to ask you a hypothetical question: If at any time after Enger took control of Division 5 if he had said to you that Minister Thierack did not officially charge him with supervising and directing the transfers of Jews and Poles to concentration camps because Engert would have opposed such a program. Would that be a correct statement by the defendant Engert?
A Towards me he never made such hints.
Q Witness, if he had said that to you would it have been the truth? Would it have been correct?
A I have no reason to think that.
DR. KOESSL: For a moment please. Dr. Koessl as Deputy for Dr. Marx, for the defendant Engert. I object to this question because the witness has already said that he does not know anything about this question. In addition, the witness cannot state an opinion to a hypothetical question which is assumed for a time which is long past.
THE PRESIDENT: We see no objection to the information, but it seems to be desired by the Prosecution but we think the question is so involved it should be partially reframed.
JUDGE BRAND: Mr. Prosecutor, doesn't your question merely relate directly to the question as to whether Engert approved or disapproved of this procedure? You can ask that without a hypothetical question, if the witness knows.
Q Senate President Hecker, from your personal observation during the course of your official duties in Division 5, so far as you observed did Engert approve or disapprove of the transfer of Jews and Poles to concentration camps?
A He never stated his opinion in regard to this question because this action was already going on and, therefore, was not open to discussion. That did not enter into the question any more.
Q You say that he didn't state his opinion at any time because the program was already in progress; is that so?
A Yes.
Q Did Engert, as your boss, within your knowledge or observation ever do any affirmative act itself or impede this progress?
A No.
MR. WOOLEYHAN: That concludes the direct examination.
THE PRESIDENT: Do any of the Defense Counsel desire to cross examine this witness?
DR. KUBOSCHOK: (Dr. Kuboschok for the defendant Schlegelberger):
Q Witness, you said Minister Guertner was opposed to the transfer of the group which we have discussed into the concentration camps. Under Minister Thierack the transfer has been ordered between the era of Guertner and Thierack and there was a term of office of Schlegelberger who was Minister of Justice, and thus for the time when Schlegelberger -
MR. WOOLEYHAN: May it please the Court, I object to the introduction and cross examination of an official who was not mentioned in the direct examination and who was in an entirely new field of testimony.
JUDGE BRAND: It was your position, was it not, that Schlegelberger came in as actual minister between Guertner and Thierack?
DR. KUBOSCHOK: Yes, your Honor.
MR. WOOLEYHAN: May I further point out, if the Court please -
THE PRESIDENT: On the theory that this procedure of transfer of prisoners did not start until Thierack came into office, it would seem that that question would net be proper. The objection, therefore, will be sustained. If we are wrong, about cur dates and about the time cf the succession, we should like to be advised.
DR. KUBOSCHOK: Guertner was until 1941 Minister of Justice. He died. The office of Minister of Justice was until August 1942 -there was no new minister appointed. During that time from the death of Guertner until August 1942 when Thierack was appointed Minister of Justice, Schlegelberger as Under Secretary, states secretary, was acting Minister of Justice, was in charge cf the Ministry of Justice. Since the witness mentioned that Guertner was opposed to the transfer of the group and that he resisted and then, since the witness immediately went over to the era of Thierack it is for the defense of the defendant Schlegelberger important to find out what happened during his time in office, and how he -what position he took towards the position of transfer during that time?
THE PRESIDENT: Is the Prosecution in a position to controvert those dates in that line cf succession?
MR. WOOLEYHAN: The dates are correct, your Honor.
THE PRESIDENT: In that event, it would seem he is entitled to have his client Schlegelberger to have it brought clearly whether this new plan -- this plan cf sending to concentration camps was in operation during his term cf office as Secretary.
MR. WOOLEYHAN: I believe his direct examination developed that the program to which we referred did not go into this official operation until the assumption of office of Thierack.
THE PRESIDENT: If the witness would say that, it would change the face of this whole examination, but I don't believe he has made that clear -- to my mind certain.
MR. LAFOLLETTE: If Your Honor will permit the prosecution at this time to ask that question directly so that we may possibly avoid a long examination.
THE PRESIDENT: It's rather unusual but we will permit that question to be propounded in view of the confusion that seems to have arisen.
MR. WOOLEYHAN: Senate President Hecker, did the program for the transfer of prison inmates from Reich prisons to concentration camps begin officially or did it not begin officially after the assumption to office of minister Thierack?
THE WITNESS: It began only after Minister Thierack took over the office.
THE PRESIDENT: Under the circumstances, there will be no cross examination concerning Schlegelberger's interim period.
DR. KUBOSCHOK: Then I would like to ask one more question. Witness, you stated before that the efforts on the part of the RSHA at the time of Guertner-- that they made constant efforts to effect the transfer of the groups into concentration camps. Did these efforts of the RSHA take place also during the time of Schlegelberger, 1941 until August 1942, even in a stronger form?
THE WITNESS: From my own knowledge, I cannot testify as to this; however, I assume that during this time too, the attempts were continued and that probably they were increased during the time where there was no actual minister.
MR. LA FOLLETTE: I would like to move to have that answer stricken, because the witness states that he does not know, and only states an assumption after stating he knows no facts.
THE PRESIDENT: We will take the answer for what it is Worth. Does other counsel desire to cross examine?
DR. KOESLL: Dr. Koosll as deputy for the defense counsel Dr. Marx for the defendant Engert. I ask the High Tribunal to grant permission that the defense counsel of the defendant Engert should enter into tho cross examination only after ho has been given the opportunity to discuss these statements of the witness with his defendant who is absent.
THE PRESIDENT: May we inquire at this time, Dr. Koessl, the condition of the health of Dr. Engert?
DR. KOESLL: according to the information I have, Dr. Engert is not yet able to appear in the session; however, I don't know any more details.
THE PRESIDENT: At any rate, Dr. Engert has been excused and has not been present during this examination. The same rule would certainly apply to him which has been applied to Dr. Rothaug, and it will seen therefore that counsel is under that rule and within his rights.
MR. WOOLEYHAN: We'd like to point cut to the Tribunal, if we nay, that we have have no quarrel, of course, with the rule. That is perfectly acceptable. But it may have to be modified in the future in view of an unsubstantiated report that tho prosecution got yesterday to tho effect that the two defendants may be removed to a hospital in Garmisch tomorrow. That being so, the delays necessitated to confer with counsel will be very great.
THE PRESIDENT: It seems as though the time has come to have a further careful medical examination of both of these defendants and brought before this Tribunal so we will be better able to judge these matters. We excused them on the ground of illness. Will it be possible to continue this examination in tho absence of the opportunity to interview Dr. Engert?
DR. KOESSL: bay it please the Tribunal, it is unfortunately not possible to continue the cross examination now since I am not concerned with the case Engert. I did not deal with it-- and of course I assumed that it was obvious that the rule which had been made for defendants who arc not present would apply also to the defendant Engert.
THE PRESIDENT: Dr. Koessl, the reason you now give-- I will not call it an excuse--but tho reason you now give is not as good as that which was offered on behalf of Rothaug.
The trouble with you is that you do not represent the defendant Engert. He has counsel assigned to him and approved by this Tribunal. He should be here looking after his client's interests. You don't have any better rights than Dr. Marx would have if he were here. I think we will require that the examination go ahead to some extent to f ill in the time.
DR. KOESSL: The defense counsel for the defendant Engert is just at the moment with the defendant Engert in order to discuss the matter since tho announcement that the witness would be introduced was only given us late last night.
MR. WOOLEYHAN: Your Honor, that notice was filed two-and-one-half days ago.
THE PRESIDENT: How long have defense counsel had access to this affidavit which was introduced this morning?
MR. WOOLEYHAN: Ever since the document books were distributed and sometime before that, which has been a matter of weeks.
THE PRESIDENT: There is a great deal of matter in that affidavit concerning which the cross examination could proceed without any difficulty. These trials must be expeditious. We can't have deals on unsubstantial grounds.
DR. KUBOSCHOK: Hay I make a statement with respect to this? Yesterday during the course of the afternoon, through a notice on the blackboard, we were informed that beginning today the witness Hecker will be called. In the hospital, the defense counsel has tho possibility to discuss matters with his clients only until six O'clock in the evening Therefore, I believe that the defense counsel had no opportunity yesterday after he gained knowledge about the notice that Hecker will be examined to discuss the matter with his client.
MR. LA FOLLETTE: If Your Honor please, I think this confusion arises out of the difference between the technical compliance with the rule and the courtesies which the prosecution has attempted to confer. We have served notice long before--at least 24 hours before-- the 24 hour period required that we would examine this witness.
Because of the nature of the examination of witnesses and the unpredictable period of cross Examination, we did not know at just what time we could pet this witness on.
But I think that all defense counsel are bound to take notice of the written notice and to be in here. We will attempt to accommodate them, but I see no excuse for Dr. Marx' not having taken notice of the official motive given to him that this witness would be examined. I am not concerned as to when it gets on the blackboard; I am concerned about when we sent it to the Defense Center.
DR. SCHILF: DR. Schilf for the defendants Klemm and Mettgenberg. May it please the court , the notice on the blackboard was in the Defense Counsel Center, only yesterday after the court had adjourned in the afternoon. I myself only was informed at a quarter to five after the session was over. It is impossible that any one of us, who was present during the session could have been informed about that. It follows therefore, that the 24-hour rule was not maintained in this case. It is possible that the gentlemen of the prosecution made the announcement that the witness will be examined today-- that they gave the announcement to the Chief of the Defense Information Center. Unfortunately, however the Defense Information Center moved during the course of these days and for this technical reason it may be explained that the defense counsel as such received the notice only last night after the session or could find out about it only after the session last night.
THE RESIDENT: We think we are ready to rule on this entire matter.
MR. LaFOLLETTE: I would like to say one more thing to clear up the position of the Prosecution. I realize that the Defense Information Center was moved, but I am positive that it was yesterday afternoon, or before noon, or the evening before, that a young man whose name I have forgotten, a member of the Defense Counsel, who stated to me that he was Assistant to Dr. Marx, asked me when this witness would be on the stand. As I recall, I told him then that it would be on Friday. Now, that was more than last evening, I know. Now, I do not insist upon the immediate cross examination, but I want to make it clear that we have attempted to comply with the rule and that if we can't anticipate when these people are going on, it is not our fault; I think Defense Counsel should be instructed.
THE PRESIDENT: We arc now ready to rule. We are now within five minutes of the time we intended to adjourn for our usual noon recess; and we Trill, therefore, instruct the Marshal of this Court to communicate immediately with Dr. Marx and have him here at two o'clock for this cross examination.
DR. KOESSL: May it please the Tribunal, the Deputy of Dr. Marx was already called up by me on the phone during the recess, during the morning recess. I could not reach him personally at that moment and, therefore, I told his secretary to inform him immediately. I therefore assume that immediately after the noon recess he will be present.
THE PRESIDENT: We will, therefore, recess at this time until two o'clock this afternoon.
A recess was taken until 1400 hours.)
AFTERNOON SESSION
THE MARSHAL: All persons in the Court will find seats.
The Tribunal is again in session.
THE PRESIDENT: Are the Defense Counsel ready to proceed with the cross examination?
DR. LINK (for the defendant Engert): Hay I be permitted to first of all give a short personal explanation to clear up and to provide an excuse. My colleague, Dr. Marx, with the approval of the Secretary General, has gone, in professional matters, to an internment camp near Hamburg. I am representing him. I have been deputized for him. Two days ago I inquired from the Prosecutor whether within the near future it was to be expected that witnesses against the defendant Engert would be examined and I heard that possibly on Friday, or next week, the witness Hecker might be examined. Since yesterday, after the afternoon session, which I attended, no announcement had been made as yet. I believed that I could use this morning to visit the defendant Engert at the hospital and to discuss matters with him. I would ask you to excuse me, if thereby I caused a disturbance this morning, I would ask the Tribunal to confirm to me whether for the defendant Engert, who for an unknown period of time, will not be able to attend his trial, whether he will be allowed, concerning witnesses for the Prosecution, whether it will be permitted that cross examination which may be necessary, can be postponed until such time as the defendant has time to hear about the statements, through me. I am in a position to carry out the cross examination of Hecker, but I would ask for a decision, which in the case of future witnesses, my suggestion will and might be adopted.
THE PRESIDENT: Maybe we should inquire whether it is likely that any other witness will be called who will apply particularly to the defendant Engert?
MR. WOOLEYHAN: There will be one further witness called of particular relevance to the defendant Engert, and possibly two -- at least one.
THE PRESIDENT: You do not mean today?
HR. WOOLEYHAN: Not today, they are not as yet physically available in Nurnberg.
THE PRESIDENT: You are advised as other witnesses are called whose testimony will pertain more particularly to the defendant Engert, you will be given an opportunity to confer with your client before being required to cross examine, but we, of course, desire that the period will be as limited between the direct examination and the cross examination as possible.
Now, we heard it stated this morning Engert might, at least there might be a removal of the defendant Engert to some other hospital outside of Nurnberg. We want to say now that there must be no removal of the defendant Engert from Nurnberg without the matter having been previously approved by this Tribunal.
MR. WOOLEYHAN: Your Honor, it should not be overlooked that the possibility of removal also applies to the defendant Rothaug, and we should not like to have them removed to inaccessible places without the Tribunal's permission.
THE PRESIDENT: What I have said, of course, applies to the defendant Rothaug.
Dr. Link, you are willing now to proceed with the examination, and you feel that it is no hardship on you to do so?
DR. LINK: Yes.
CROSS EXAMINATION BY DR. LINK:
Q Witness, if I am correctly informed, you were in division five of the Reich ministry of Justice, in a position, and not in division fifteen? Division five, according to your testimony today, among other things, the general transfer of Poles, Jews, and Gypsies to the RSHA was dealt with; is that correct? Here the transfers of the so-called asocial elements depending upon an individual examination of each Case which was dealt with by division 15; is that correct?
A Yes.
Q This morning the question was asked as to whether the method of work at division 15, concerning such transfers which could, you described that in brief, and in your reply dealt with lists which referred to Jews, Gypsies and Poles -
MR. WOOLEYHAN: If it pleases the Court, if I remember correctly, and I am sure the record will bear me out, the answer which counsel just described was given by the Witness with regard to division five and not with regard to division fifteen; is that correct Witness?
THE PRESIDENT: Let the Witness answer now.
(No reply from the Witness.)
DR. LINK: I only meant to clear up a possible misunderstanding.
Q It is a fact, therefore, that as concerns the working methods at division fifteen, as far as examination of these asocial elements are concerned, you cannot give any testimony?
A No.
Q Hay I remind you of your affidavit, of which you are familiar, in particular, of the passages on page four of the German text, where it says in the middle of the page: "With him, that is Engert, repeatedly discussed the transfer cf those groups, that is to say the groups who were examined individually, and I was given the instructions from him that that scheme was to be continued." If I am correctly informed, you said on direct examination that under Engert you were concerned with the continuation of a check which resulted from an instruction by the Minister of Justice, Thierack. Did Engert have any scope and why were instructions required as to the stopping of all continuation of that scheme?
A Instructions, when he took over the division, he had to decide whether the work of the division was to be continued in the same manner as before. The activity concerning the transfer, the fact that the transfers was decided, while the general ruling does not affect the fact that when you assume a new division, you have to decide whether you wish to continue the work in the same manner as before or not.
Q I understand. Is it correct that the technical continuation -that you were referring to technical continuation of office matters, and that you were not considering fundamental changes possible?
A The fundamental changes would only have been possible if Engert, for his part, would have gone to sec the Minister and had made opposition toward the continuation of carrying out the decree; that was a possibility.
Q Would you consider that that possibility could be in theory or in practice?
A I do not believe that the Minister which had changed his decisions could only have said that under those circumstances, I cannot take over the position.
Q Yes. At the end of the direct examination, questions on that subject were put to you asking you as to whether you could observe that Engert, as a successor of your predecessor Marx, had done anything to delay the program. You said, no, in your answer?
A Yes.
Q Regarding the technical execution of these transfers -- of the general transfers, was anything changed under Engert, compared with Marx?
A No, conditions remained the same. The lists were still submitted and were passed on.
Q One thing more. Is it correct or not that those general transfers were also in effect interpreted, as far as your competence is concerned; that it was ascertained whether the person concerned was a Pole, Jew or Gypsy, nothing else?
A No, and in the case of Poles, there was something else. It was established whether he had been sentenced to imprisonment in excess of three years.