Q They had to be read through by the accused?
A Yes.
Q And signed?
A Yes.
Q Did you ever force an accused to sign?
A No.
Q To sign minutes with which he did not agree?
A No, never. He could have refused to make the statement; I couldn't have done anything about that.
Q And these minutes were passed on to the Landgerichtsdirektor?
A No. I passed them on to the Reich Chief Prosecutor.
Q You passed on these minutes to the Chief Reich Prosecutor; did you ever retain any interrogatories which contained statements in favor of the defendants?
A I do not understand your question.
Q Did you present the entire material to the Reich Chief Prosecutor?
A Yes, at all times.
Q Witness, is it correct that in the case of crimes for which the People's Court was competent and about which you had to conduct interrogations, that they were always crimes in the sense of the penal code, the German penal code?
A Yes, always.
Q Witness, is it furthermore correct to say that a person accused of any such crime could only be arrested if there wore serious suspicions?
A Yes, serious suspicions had to exist.
Q Witness, therefore, actually, as far as your interrogations were concerned, you were always confronted with the question whether there was the definite suspicion against the accused that he actually committed the crime with which he was charged?
A Yes.
Q Is it correct, witness, that the question whether such a suspicion existed, had to be decided by you only on the basis of your judgment?
AAt first, It had to be decided by me alone, and later it had to be examined by the court when the case was scheduled.
Q But, you had to decide at first whether such a definite suspicion existed?
A Yes.
Q Witness, did you ever issue an arrest warrant at all, though in your opinion as a judge there was no suspicion?
A No.
Q Therefore, you only issued arrest warrants if on the basis of the investigation you had come to the conviction that there was a definite suspicion existing?
A Yes.
Q Did you deal any differently with foreigners?
A No, there is no difference.
Q Then, in the case of foreign workers who were accused of trying to have contacted the Czech Legion, you only issued warrants, if on the basis of your own investigation, you yourself were convinced that there was a definite suspicion?
A Yes.
Q Witness, what did you do in cases where already an arrest warrant existed, but where on the basis of your investigation you had arrived at the result that there was no definite suspicion?
A No such case occurred. Cases where a warrant already existed were very rare.
Q In general were people only under police arrest?
A Yes.
Q And you have the man put in arrest pending trial?
A Yes.
Q Witness can you recall a case where the Reich Prosecution brought a charge, although you had not issued an arrest warrant?
A Yes, I have to limit that question to the effect that I do not know of any case where the Reich Prosecution brought a charge, if I had refused to issue an arrest warranty that is how I should understand your question, is it?
Q Yes, in other words, you do not know of any case where the Reich Prosecution filed charges where you, yourself, had refused to issue an arrest warrant previously?
A No.
Q Witness, your experience in your work as an investigating judge extended over what field geographically?
A Bohemia and Moravia.
Q Witness, on the basis of that activity in Bohemia and Moravia, is it known to you that in the Protectorate, no Polish workers were employed?
A That, I do not know; I could not say anything about that. However, I have to mention that I got several cases where Poles were accused, but I no longer recall in what area, what region these acts had been committed.
Q Does that have to do with your activities as investigating judge or with the Reich Prosecution?
A Several cases came to my attention also while I was investigating judge.
Q Is it known to you whether these Polish workers were occupied in the Protectorate?
A No, that I cannot remember.
Q Witness, is it known to you that in the Protectorate, illegal recruiting offices of the Czech Legion were at work?
A I know that it was pointed out that there were illegal recruiting offices of the Czech Legion; of course, I could not make any observations. I only heard what the accused told me, and they, of course, did not state it as clearly as that. But, at any rate, I was informed that allegedly these existed.
Q Did the accused also tell you that these recruiting offices, whenever people applied to join the Legion, gave 1500 Crowns and forged papers?
A No, I cannot remember that.
Q Did the accused ever tell you that these recruiting offices smuggled the people over the border secretly?
A Well, there was a suspicion to that effect, simply because a number of people apparently were to some extent aware of the direction of the route they had to take to get to the border.
JUDGE BRAND: I am interested in observing the question which Counsel put, whether defendants, accused persons, had told the witness these things. I did not understand him to say that the accused persons had told him. He said there was a suspicion. I think it would be very interesting to know where the suspicions came from.
Q Witness, may I ask you to answer this question by the Court?
A Well, from the information which I received and from what the defendant, the accused, told me, I gained the impression, that there was an organization, a connection, if I may say so, in existence.
Q You assumed that from the statement of the accused?
A Not only, but in connection with what I had heard from other sources. Going through the files, one could find something; things that the police knew from other proceedings. And, that is what created this impression.
Q So, witness, if I understand you correctly, that impression was gained on the one hand from the statements of the accused?
A Yes.
Q And on the other hand from official information?
A Yes.
Q Witness, is it known to you that as far as attempts of the recruiting offices of the Czech Legion to bring people across the border were concerned, clashes with the German border guard occurred frequently?
A Violence?
Q Yes.
A Well, I cannot remember any such case.
Q Witness, is it known to you that among the foreigners there was a very good information service?
A That is the same thing as the other question. Partly from the information I received and partly from the statements made by the accused, I gained the impression that they had some source of infor mation.
Q Witness, is it known to you that in many cases, foreign workers, if they tried to cross the Swiss border ware returned by the Swiss border police to Germany?
A I can remember that was frequently discussed; that the border crossing was made impossible by the Swiss border guards.
Q Is it known to you that the crossing of the border into Switzerland was made impossible by the Swiss border guard because Switzerland was not in a position to take care of any more workers?
A No, I never heard of that reason.
Q Witness, you stated before that you never had issued an arrest warrant against a foreigner who was accused of trying to get in touch with the Legion unless on the basis of your own investigation, you had arrived at the result that a definite suspicion existed?
A Yes.
Q You have, furthermore, stated that you did not know of any case where the Reich Prosecution had filed charges, where you had refused to issue an arrest warrant?
A Yes.
Q Witness, may I summarize these to answers: You state that you do not know of any case where the Reich Prosecution at the People's Court, filed charges where you, yourself, were not convinced that there was sufficient suspicion that the accused tried to get in contact with the Legion?
A Well, that sufficient suspicion existed, as far as I was concerned, but it was a matter for the Reich Prosecution to examine whether that is sufficient to file charges. Later it was a matter for the court to examine whether they could sentence on the basis of the evidence.
Q Witness, you were only entitled to issue an arrest warrant if there was a definite suspicion?
A Yes.
THE PRESIDENT: You have gone over that very subject matter, over and over again.
Q Witness, were you ever asked by anybody to use unethical means to prove that a Czech had tried to get in contact with the Czech Legion?
A No, it was never demanded of me to use unethical means and I would have rejected such a demand.
Q You have received such assignments for investigation?
A Yes.
Q But, the assignments probably consisted merely in finding out whether they had tried to contact the Legion?
AAccording to the assignment, I mostly had to question the accused and the minutes of a police interrogation were available. There were, of course, cases where a witness had to be questioned. But all these cases were quite in order, under the penal code of procedure.
THE PRESIDENT: We will take the usual 15 minute recess at this time.
(Thereupon a recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: May it please the Court, I would like permission to continue the cross-examination.
BY DR. GRUBE:
Q. Witness, you testified just before the recess that commissions were given to you to make investigations into whether the defendant concerned really had connections with the Czech or other foreign legions.
A. Yes.
Q. May I ask you whether or not the following sentence -- on page 82 of the German document book, and on page 2 of your affidavit -is at least somewhat unfortunately phrased? I quote: "I had been instructed by the Public Prosecutor of the People's Court to bring the defendants somehow into a certain contact with the foreign legions."
A. If I should explain this sentence -
MR. WOOLEYHAN: (Interposing) Just a moment. Before the witness answers, I suggest that counsel ask him a question.
BY DR. GRUBE:
Q. Witness, do you maintain this sentence? Do you stand by it? May I perhaps -
A. Yes. I shall explain thisto you. It was as follows. From the previous interrogation by the police, the subject of the interrogation of the defendant was already to be seen, namely, the question as to whether he had had anything or had had nothing to do with the legion.
That is how the sentence was meant.
Q. You said that on the basis of the police investigations you had to deal with the question as to whether the defendant had anything to do with the legion?
A. Yes. That resulted from the connection between the facts which I sow from the files.
Q. You just said that you had the order to find out whether the accused had anything to do with the legion.
A. Yes.
Q. But you did not have tho order to absolutely determine that the defendant had something to do with the legion?
A. No; I had to ask him whether he knew anything about it and whether he had anything to do with it.
Q. And you gave those defendants the possibility to produce evidence in their defense?
A. I then requested them to tell me what they knew about it. Naturally , if they produced evidence in their defense I also took it down.
Q. All right, now let us go on to another question. Witness, as you have already stated before, from the 15th of July 1943 until January of 1944 you were working as assistant with the Reich Prosecution. May I ask you in what division you were working?
A. Department 6.
Q. And who was your superior?
A. Chief Public Prosecutor Dr. Huhnstock.
Q. In your capacity as assistant in the Reich Prosecution, did you also take part in session as a representative of the Prosecution?
A. Once I was assigned to a court session -- no, I believe it was even twice.
Q. Can you state which cases were concerned?
A. No, they were not cases on which I had been working before.
Q. Witness, in your affidavit, on page 4, you also state the following:
"During my activity as Assistant of the Reich Prosecution at the People's Court, I was concerned, among other things, with the drawing up of indictments. Chief Public Prosecutor Huhnstock, who was my superior, instructed me to base my briefs upon a closed case. In cases of parallel offenses, I copied such briefs word for word, with the exception of date and scene of the crime."
A. Yes.
Q. Continuing the quotation:
"I should like to mention hero that it was generally permitted to copy briefs if the offenses were the same."
Witness, may I first of all ask you, is it known to you that Dr. Huhnstock gave a closed case to you as a sample?
A. No, he did not give me a case as a sample, but when I had to draw up an indictment I looked for a case which had similar conditions, and I used that as the sample.
Q. Witness, may I ask you why you searched for a case as a sample?
A. Yes; the following reasons were responsible for that. The cases on which I had to work had the same circumstances as many cases which had been worked on before by others, therefore, a certain standard form in regard to extent and content of the presentations had been worked out, and at the time when I was working, this subdivision in typical cases; If I may say so, had already been advanced to a large extent so that
JUDGE BRAND (Interposing): May I interrupt you, Mr. Witness? I suspect that everyone agrees that there is no political or criminal significance of any kind in the use of forms in the preparation of indictments or briefs. I assume that it is done in every civilized country, and I don't believe you need to convince the Court, certainly not myself, that forms may be properly used in similar cases.
DR. GRUBE: May it please the Court -
JUDGE BRAND: I must suggest that you just go on to something else, if you will. Can't you go on to something else? We understand those matters, and did many years ago.
BY DR. GRUBE:
Q. Witness, the Reich Prosecution at the People's Court legally and truly had the same position as any prosecution at any other court?
A. Yes.
Q. Also, the Reich Prosecution was also bound by the instructions of the Minister of Justice?
A. Yes; in my opinion there was even a very close contact.
A. Witness, as any prosecutor, the Reich Prosecution also was bound legally to prosecute criminal actions. Was the Reich Prosecution also bound to filo an indictment if there was a suspicion, or was it necessary that in the investigation it had to be definitely proved that there was a punishable act?
A. No; in order to file an indictment it did not have to be definitely established that the defendant would be sentenced for certain. The reasons for suspicion did not have to be that compelling.
THE PRESIDENT: Dr. Grube, do you have a notion that this man is a defendant on trial? What he did isn't important at all. That line of questioning does not advance your defense.
DR. GRUBE: Mr. President, I am speaking of this question because the witness repeatedly -- well, at least once -- stated in his affidavit that indictments were filed oven though the act had not been proven.
JUDGE BRAND: I might venture one further suggestion, and that is that no all know that conclusive evidence of guilt need not be established before an indictment is filed. An indictment is the charge on which the evidence is later heard for the purpose of determining whether guilt is conclusive or not, and I think we understand that too.
BY DR. GRUBE:
Q. Well, let us go over to another point, Witness. Did the Prosecutor or the Reich Public Prosecution have the right to refuse filing an indictment because they did not agree tith the penal regulations which had been violated, that they did not approve of them?
A. No, for personal reasons the Prosecutor can, of course, not discontinue his activity.
Q. Did the prosecution or the Reich Prosecution have the right to refuse filing an indictment because it know that individual seantes of the court were used to issue especially severe penalties?
A. No. For that reason they could not refuse to file an indictment. That would have to be considered when they make their demand for sentence in their plea.
Q. Witness, you said before that in a German criminal proceedings the defendant is never examined under oath, neither can he give an affidavit.
A. No. No.
Q. The defendant in German criminal proceedings therefore has in any case the opportunity, the possibility to deny or to represent the facts differently without rendering himself liable for punishment?
A. Yes.
Q. In the German criminal proceedings there are also not any rules for evidence, definite rules?
A. Yes, evidence rules, which--
Q. Witness, I wanted to continue. Rules to the effect that the statements of the defendant or the accused, are considered to be true as long as they are not denied by another opposite proof?
A. No, there is no such rule. He is absolutely free to submit evidence.
THE PRESIDENT: Dr. Grube, if the Tribunal expected to remove to Germany to practice law, the points which you are developing might be instructive. But under the circumstances we hadn't thought of doing that, so this law lecture isn't even interesting to me.
Your line of questioning doesn't develop anything beneficial to the defense.
BY DR. GRUBE:
Q. I ask for permission to put only one more single question in regard to this point, and the question is concerned with, was and is the German Prosecutor forced to file an indictment even if the suspicion that a punishable act has been committed is based merely on circumstantial evidence?
A. Yes, according to the principle cf the free submission and evaluation of evidence, any evidence can be considered with the same probative value which the investigating official is granting it.
Q. Now let us go to another point, Witness, in your affidavit you mention also on Page 32 of the German document book, that is Page 2 of your affidavit, the decree regarding the punishment of Poles.
A. Yes.
Q. Could a Pole who left his place of work without permission be indicted before the people's Court even if he was not charged in the denunciation with having tried to establish connection with a Foreign Legion?
A. I cannot answer this question from memory without having the continent regulations before me. It is a question of competence.
Q. All right, witness. May I ask you, do you know for what delicts the People's Court was competent?
A. Exhaustively I cannot enumerate those delicts any more today. I, myself, only had to deal with treason and high treason. However, there were a number of other serious crimes all of which, as far as I remember, had a political background or a political basis.
Q. Just a moment, witness. May I show you the Competence Regulation, Paragraph 5 of the Competence Regulation of 21 February 1940. Did you read this regulation over?
A. Yes.
Q. Thus there are certain special types of crimes listed. Would you please enumerate then?
A. First, high treason, Paragraphs 80 to 84 of the Reich Penal Code. Further, treason, Landesverrat, Paragraphs 89 to 92 of the Reich Criminal Code. Third, attacks against the Fuehrer and Reich Chancellor, Article 94, Section 1, of the Reich Penal Code. Fourth, serious cases of damaging defensive means and endangering of the armed forces of friendly states paragraph 1, 5, of the decree to supplement penal regulations for the protection of the fighting forces of the German people of 25 November, 1939. Fifth, non denunciation of a planned crime, Paragraph 139, Section 2 of the Reich Penal Code, and as far as the intent of a crime which belongs to-
MR. WOOLEYHAN: One moment. Your Honor, I want to object to this whole business. In the first place this is already in evidence. In the second place, even if it weren't, it is defensive material for their case in chief.
THE PRESIDENT: I don't see how the reading of a statute has any possible bearing upon the cross examination of this witness relative to an affidavit. Dr. Grube, you may have a quarter of four to finish your examination and no longer.
BY DR. GRUBE:
Q. Witness, do you gather from this regulation that a general competence of the People's Court existed, or was the People's Court only competent in special cases?
A. The People's Court was competent for those crimes which are laid down in Paragraph 5 which I have just started to read.
Q. Thus it was competent only in these cases?
A. Yes.
Q. Could, then, an indictment before the People's Court be based on this statute against Poles?
A. Not according to Paragraph 5 which I have before me, not unless there was a delict which also violated a law in addition to the statute against Poles, which is enumerated here in Paragraph 5.
Q. Thank you. To that extent your remark on Page 2 of your affidavit seems to be not quite correct when you say there that another popular point of the Prosecution was to charge the accused who had fled from their place of work with the violation of the penal statute against Poles.
A. You have to understand this differently. The indictment was, of course, filed because of the delict for which the People's court was competent to judge, and in addition because of a crime according to the statute against Poles.
Q. But solely on the basis of the statute against Poles, solely because of loading, the place of work no Pole was sentenced by the People's Court, was he?
A. At least he could not be indicted. However, the People's Court could, once it had become competent through some kind of indictment, then also sentence the person if after--in the end only the delict against the penal statute against Poles remained.
Q. But the prerequisite for filing the indictment was always that there was treason or high treason present also?
A. Yes.
Q. Witness, in your affidavit you mention on Page-3, that is Page 83 of the German document book, 78 or 79 of the English, the case Stefanowicz.
A. Yes.
Q. May I ask you, were you present at this session of the People's Court?
A. No, at this session I was not present.
Q. From what then do you gather, witness, that the Prosecutor made the greatest efforts so that Stefanowicz would be convicted?
A. My statements in the affidavit are based on the perusal of the files of the case Stefanowicz which had been submitted to me.
Q. Witness, I have the file here. Can you tell me where in this file you could conclude that the Prosecutor made great efforts?
MR. WOOLEYHAN: One moment, please. I object to that question on the ground that the counsel has not established the fact that that was the same file that was shown to him previously, or if it was that it is complete as it was previously. No foundation had been raid for that question.
THE PRESIDENT: The objection will be sustained.
DR. GRUBE: Excuse me, Mr. President. I did not quite understand the objection which the Prosecutor made. It didn't come through very well on the translation. Could it please be repeated?
THE PRESIDENT: You may repeat it, Mr. Woolleyhan.
MR. WOOLEYHAN: I object to the question on the ground that no proper foundation has been laid by defense counsel to show that the file which he shows the witness and asks him to compare is the same file as the one he was previously shown and to which he refers in his affidavit.
DR. GRUBE: May I remark, Mr. President, I asked the Prosecution for the files which the Prosecution had in regard to all cases before the People's Court. One of the files which were given to me by the Prosecution is this particular file.
MR. WOOLEYHAN: I might inquire how I know it is in the same condition in which I turned it over.
DR. GRUBE: I did not make any changes in the file.
THE PRESIDENT: Dr. Grube, you have wasted a good deal of time in the course of your examination, and that is the reason why this tribunal was entirely justified in putting a time limit for the completion of your examination. Now if you find yourself in a position where you have some question in which you really were entitled to have answered, that is unfortunate for you. We will give you two more minutes; then this must be finished. But on that question, the objection is sustained.
DR. GRUBE: I have only asked for one single witness for cross examination, that is the witness Brem. I did not ask for any more witnesses.
EXAMINATION BY DR. GRUBE:
Q Witness, you thus did not take part in the session?
A No.
Q From the transcript of the session - this is not in the file - from the transcript of the session, can you gather how the prosecutor behaved during the session?
A I can not state that any more. At the time when the file was put before me, I read it through. Today, however, I can not remember this transcript any more.
Q Witness, do you know that in the German transcript of a court session, the plea of the prosecutor merely is put down; however, not his arguments?
A Yes.
Q From the transcript, you could thus not gather that the prosecutor made efforts?
A Yes, from the plea it could be apparent.
Q One final question. In your affidavit, on page 5 at the end you state that you had read the affidavit. Did you compose it yourself?
A No.
Q Who made it up?
A The interrogating officer, Mr. Einstein, composed it.
Q Witness, on page 1 there is the phrase: "Such cases were in the first instance investigated by the Gestapo."
A Yes. This is not the formulation which I used.
Q How would you say yourself?
A I must have said: "In the first attack, they were handled by the Gestapo."
Q In your affidavit, you used several expressions, like "Thierack's bloodthirsty judges", or "blood judges," or a sentence "which cries to heaven," "criminal laws," and so forth. Did these expressions originate with you?
A These expressions did not originate with me. It could only be that I used the last named expression.
Q Are these expressions in agreement with the opinion which you had until 1945 about the German administration of justice?
A These expressions are, if I may say so, in a rather flowery language. Basically, I consider then to be right. I even did so before too.
Q Now in conclusion, you state in your affidavit that the administration of justice had taken a course under Thierack's administration which was considered impossible by any objective judge.
A Yes.
Q Witness, if this was your opinion before 1945, why then did you not take the consequences and leave the service of the administration of justice?
A I considered it my task in the particular position into which I had been put to do my best and as far as possible to act as a brake wherever I considered it necessary. Thus, I tried always to fill my position which fate had entrusted me with, and in spite of the fact that I, in many cases, with inner reluctance followed the development, I tried to divert the excessive methods of the courts in as far as I was able to do so.
Q Witness, did you know more jurists who had the same opinion as you did?
A Yes.
Q Thank you. I have no further questions.
May I thank the Tribunal that I was allowed to continue my cross examination beyond the time limit set by the Tribunal. I ask to be excused if it was rather extensive, but as I said, this was the only witness whom I wanted to cross examine.
DR. SCHILF: Schilf for the defendants Klemm and Dr. Mettgenberg. May it please the Court, I have only a few questions.
THE PRESIDENT: To which particular affidavit will you direct your questions?
DR. SCHILF: My questions refer to the first affidavit of the witness: Exhibit No. 79, NG-316, Document Book 1-C; the German text begins on Page 81, the English on Page 77.
Q Witness, you stated what your professional positions during the last few years were. In these positions which you held, did you have sufficient opportunity to observe the practice of granting clemency pleas of the Reich Minister of Justice in order to judge it?
A No, I had this opportunity only to a small extent.
Q In your official position, did you have the possibility of observing the relationship of the then Minister Thierack with the president of the People's Court more closely and to judge it?
A I could do that only from the comparison of the moments which appeared in the literature.
Q That is only from the literature?
A Yes, only from the literature.
Q But you know that the former president of the People's Court, Thierack, then became Reich Minister of Justice?
A Yes.
Q Now in your affidavit on page 2 of the German text, you stated that after Thierack took office, the People's Court took on another line than at the time which Thierack was himself president of the People's Court. Is this sentence in your affidavit to be understood in that sense?
Q From the literature and from the fact that I found out about the sentences which were issued at the People's Court, I have made this statement in the affidavit.
Q So it is only a subjective conclusion that you drew?
A Yes.
Q Furthermore, in a few sentences you said a great deal as far as the fields are concerned regarding the policy of Thierack, that is the policy in regard to the administration of justice of Thierack, and that is regarding the guidance of penalties. May I ask you on what your personal experiences were based in order to be able altogether to make statements about the so-called guidance of penal execution?
A Those were based on the study of legal literature and on what I was told by colleagues about it.
Q Thus I understand you correctly that in your different official positions, you did not make your own experience, that is, experiences in the court or in the office; that you could not gather them?
A That is not saying enough. This picture which I made to myself was also confirmed by the things which I saw in my office.