DR. KUBOSCHOK: May I continue with the submission of documents? I had come to Document 61, and I had just started to read page 27. With the permission of the Tribunal, I shall continue to read:
"Even if that should happen, however, in an isolated case, it is to be expected that the public prosecutor will appeal against a decision arrived at during a trial, exhibiting such fundamental defects, with the legal measures at his disposal. The Divisions (Senates) of the four District Courts of Appeal, which are the courts of last resort in Polish matters, guarantee that they display in these cases by the way in which they deal with appeals that such high principles may not be left out of consideration and that they express this clearly in the reasons given for the verdict, although this is not absolutely necessary for the establishment of the sentence itself, because it is not a revised judgment but a sentence on appeal."
The next paragraph deals with the execution of a sentence:
"Even if every sentence can be carried out immediately, nevertheless it is self-evident that the authority carrying out sentences will not proceed to the execution if in an actual case the possibility exists that the condemning verdict can undergo a substantial change by legal measures to the advantage of the condemned person or even be changed into acquittal. It is completely self-evident that the severest penalty will not be put into effect before it has the force of law. This is also impossible because the decision of the supreme authority as to the execution or non-execution can only be brought about after the sentence becomes valid. It has also to be expected that the executing authority will stop the execution of the penalty if it itself or the public prosecutor - perhaps because of new evidence -- arrives later at the conclusion that the condemning sentence will not be permanent, or at least reckons with the not too distant possibility of such a result of an appeal or of a retrial."
On the next page - that is page 28- I read the paragraph dealing Court III !with legal remedies:
"The public prosecutor can 'lodge an appeal against sentences passed by the judge of a local court (Amtsrichter) with the District Court of Appeal. The period of time within which an appeal is to be lodged is two weeks.' The extension of the time limit is explained not only by the poor rail and postal communications in the a annexed Eastern territories, as compared with those in the other parts of the Reich: its explanation is to be found, above all, in the fact that it is also the duty of the public prosecutor to examine whether an appeal is to be lodged in favor of the condemned person. The condemned person will quite often suggest this to him. The public prosecutor will then require a certain amount of time in order to examine whether the new statements and evidence, which the defendant has perhaps given him when he suggested an appeal, justify an appeal. For that the summary examination of evidence offered will often be necessary, end that will take a few days."
I submit this document, No. 61, as Exhibit 27.
THE PRESIDENT: The exhibit is received.
DR. KUBOSCHOK: The next document, No. 62, is an affidavit by the witness obert Hecker, who has been examined before this Tribunal. The affidavit will show that in the Penal Decree for Poles, punishment provisions were included which one did not intend to abide by and did not in fact do so; that therefore the Penal Decree for Poles in order to counteract attacks of opponents, included provisions which were then disregarded when that decree was applied.
I shall read the second paragraph from that affidavit.
MR. WOOLEYHAN: May it please Your Honors, quite apart from the contents of this affidavit, I have a question with regard to its admissibility at all, and that question is based on this.
The witness Hecker was called for cross-examination in this court pursuant to affidavits which he had given to the prosecution. At that time it was made quite plain to all concerned that if other matters were desired to be elicited from the witness, he could, at that time, be made a witness for the defense.
I object to this affidavit being offered on the ground that it is not the best evidence and that the material contained therein could presumably have been elicited when the witness Hecker was on the stand.
DR. KUBOSCHOK: As far as I remember, the decision was made that in cross-examination the affiants could only be heard concerning their affidavits and the contents of their affidavits.
As to the question of credibility, that can be passed over, of course, since I could not doubt the credibility of Hecker. However, since the subject with which this affidavit deals was not touched upon by the previous affidavit. I believe that I had no right to question him on these matters in cross-examination.
Moreover, in the case of Suchomel, the Court has pointed out that even in such cases affidavits could be submitted later; at least, that is what one of my colleagues just told me.
MR. WOOLEYHAN: May the Court please, there is one point of Dr. Kuboschok's remarks which I would like to take exception to, and that is that I did not suggest necessarily that the material in this affidavit could have been elicited by him on cross-examination. I said the opportunity to secure the best evidence was available to him by making the witness his own, and that he was acquainted with that.
Moreover, with regard to the Suchomel affidavit, I believe the ruling was that the witness would be excused, subject to recall at some future time if a question arose.
I am simply objecting to this affidavit on the ground that it is not the best evidence.
DR. KUBOSCHOK: I believe one can find the answer in the general rules concerning cross-examination. In cross--examination I am not permitted to go beyond the subject which was dealt with in direct examination. In cross-examination of an affiant, therefore, I can not go beyond the scope of what was discussed in the affidavit.
TEE PRESIDENT: This raises a question which we will consider during the noon hour, and we will rule upon it when Court reconvenes at 1:30. In the meantime, we will postpone the further presentation of exhibits in order that the Court may read to counsel for both sides a ruling which we have prepared and in which I think counsel may be interested.
I suggest, Dr. Kuboschok, that you take your place here.
The Tribunal has given careful consideration to the questions which have been raised with reference to the sterilization laws and is prepared to make a ruling which we think may tend to shorten the trial of the issue concerning sterilization laws. The purpose of this ruling, stated in general terms, is to assure the defendants that it is unnecessary to introduce evidence or arguments in defense of sterilization laws if those laws are fair on their face and are fairly enforced. The ruling is made to facilitate an expeditious trial.
This is the ruling:
The Tribunal is aware of the prevalence of sterilization laws in many places as applicable to the sterilization of insane persons or to the case of carriers of hereditary diseases. We find that the wisdom and propriety of such laws is reasonably debatable, and we rule that the advocacy, enactment, or enforcement of laws for the sterilization of insane persons or of the carriers of hereditary diseases does not constitute any crime within the jurisdiction of this Tribunal, if the laws in question fairly provide for the protection by judicial process of the rights of persons affected thereby. The defendants need not defend against any action if it comes within the terms of this ruling.
In order that the defendants may not be misled by this ruling, which is in their favor, the following proviso is also set forth:
Without ruling at this time as to its weight or legal effect, the Tribunal reserves the right to hear and consider evidence tending to prove or disprove the advocacy, enactment, or enforcement of sterilization laws, decrees, orders, or practices if they tend to discriminate upon racial, political, or religious grounds against any person or group of persons, whether that discrimination appears on the face of the law, decree or order, or appears only in the manner of administration or enforcement thereof.
I have a few copies here in English; the prosecution may have one and the defense may have the rest of them.
We will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 2 July 1947.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: For the benefit of defense counsel, represented at the moment solely by Dr. Kuboschok, we will say that the Tribunal desires to consider portions of the record relating to earlier rulings before we finally pass upon the admissibility of the affidavit of Robert Hecker. It will not be received at this time. I f counsel have specific references to rulings made by the Tribunal before, we will welcome the references to the transcript. In the meantime we will look it up.
DR. KUBOSCHOK: I now come to document No. 63, a decree of the Fuehrer and Reich Chancellor on the exercise of the right of pardon in the occupied territories of Poland. I point out that according to the contents of this decree, the right to grant pardons is within the competence the governor general of the occupied Polish regions. I offer this document as Exhibit 28.
THE PRESIDENT: The Hecker exhibit -
DR. KUBOSCHOK: I have not assigned any number to the exhibit as yet.
THE PRESIDENT: You have given it no number ?
DR. KUBOSCHOK: No, not as yet.
THE PRESIDENT: And you are offering 63 as Exhibit 28?
DR. KUBOSCHOK: Yes, as Exhibit 28.
THE PRESIDENT: It is received in evidence.
DR. KUBOSCHOK: The next document, No 64, I shall offer as Exhibit No. 29. I refer to the contents. It is the decree relative to the administration of civil law in the incorporated Eastern territories. I refer to Article 1, No. 1 according to which the entire civil law, that is the civil code, and according to No. 2, the entire commercial law, according to No. 7 also the entire law of procedure, including the nonlitigoius affairs, (Freiwillige Gerichtsbarkeit,) are introduced without exception.
I furthermore refer to Article 4, that is the regulation which the defendant Schlegelberger mentioned which was introduced in order to calm the opponents, which, however, in view of the nature of civil law and the nature of the litigations, had no practical importance. Furthermore, I refer to Article 5, No. 1, which was discussed by the Defendant Schlegelberger, as to whether also a charge made by a Pole had to be examined in advance by the President of the District Court of Appeals. Paragraph 2 of this Article 5 is a so-called Kannbestimmung. That means the president of the District Court of Appeals had free discretion as to whether he wanted to refer the case to the Gau-leader or the Reichsstatthalter. The President of the district Court of Appeals, therefore, was in no way bound, by this regulations. I offer this document in evidence as Exhibit 29.
THE PRESIDENT: No, 64 is Exhibit 29, is that correct?
DR. KUBOSCHOK: It is received.
DR. KUBOSCHOK: I now come to the next document, No. 65. First I have to discuss a technical question in regard to this. We are concerned with a document which was contained in the document book of the Prosecution under No. R. 139. The Prosecution did not introduce these documents as exhibits. But now I want to do so myself. Since I only have the document book and therefore no certified copies which I can make of the photostat or of the original, I am in a difficult situation in certain respects. I have made an application to the General Secretary that the photostats from the archives should be put at my disposal so that I can submit them to the Court as Exhibit. I was told that the Tribunal should give this order to the Secretary General. Therefore I request the Tribunal that these photstats should be made available to me. I shall then introduce them as exhibit.
THE PRESIDENT: Do we understand this matter correctly, Dr. Kuboschok? Your document 65 which is to be exhibit 30, that you know now to be a copy from the photostates, do you?
DR. KUBOSCHOK: Yes.
THE PRESIDENT: But you haven't the photostats in your possession?
DR. KUBOSCHOK: No, I don't have them yet. I have only the document book which the prosecution submitted and I copied from their document book for my document book.
THE PRESIDENT: Can this matter be simplified by stipulation with the Prosecution?
DR. KUBOSCHOK: I just received an answer to my application. It is in English and I can't read it so fast.
MR. WOLLEYHAN: Mr. Lafollette has made this notation on this request that Dr. Kuboschok has. It says here: July 1, 1947. R139, which appears on the first page of this document we are talking about, was never introduced because of objections of the defense, sustained by the Court. Therefore it is not in the archives. It must still be in the document room of OCC. I don't know the procedure for getting it. I assume that Defense Center can apply to the document room. If that fails, then I would suppose an application to the Court for an order on the OCC document room will get results. Signed, LaFollette.
The point is, Your Honor, that this document was not introduced into evidence by the Prosecution because of objections of the defense which were sustained, and therefore the photostats are not in the archives.
THE PRESIDENT: But your document book shows a certificate, no doubt, indicating that the instrument is authentic?
MR. WOOLEYHAN: Yes, Your Honor.
THE PRESIDENT: If you have no questions as to be authenticity of it and have yourself offered it, you would have no objection to it being received?
MR. WOOLEYHAN: The matter could be handled by stipulation, Your Honor, if I may be permitted until the afternoon recess to look at the Document Book. I suggest it be postponed after the afternoon recess.
THE PRESIDENT: I think that you can stipulate in a manner satisfactory to Dr. Kuboschok. If there is no stipulation, Dr. Kuboschok we will make an order for the production of the document.
DR. KUBOSCHOK: I shall skip this document and I shall go on to the next one.
THE PRESIDENT: Wouldn't it be wise to let it keep its exhibit number? I have no doubt it will be received.
DR. KUBOSCHOK: All right. Then I shall reserve Exhibit number 30 for this document, as exhibit I shall offer 31, my document 66. It is the decree of the Fuehrer and Reich Chancellor concerning the founding of the Protectorate of Bohemia and Moravia. I refer to Article 1, which orders the incorporation of this territory into the Greater German Reich. I refer to Article 5, according to which as guardian of the interests of the Reich, the Reich Protector of Bohemia and Moravia is designated. Moreover, I refer to the contents and ask to have it accepted as Exhibit 31.
THE PRESIDENT: The exhibit is received.
DR. KUBOSCHOK: The next document, No 67, is an ordinance with regard to the decree mentioned before. Article 1 again deals with the position of the Reich Protector. I offer this document in evidence as Exhibit No. 32.
THE PRESIDENT: It is received.
DR. KUBUSCHOK: The next document, Document No. 68, is an ordinance concerning legal provisions of the Reich for the Protectorate of Bohemia and Moravia. I refer to the contents and request you to accept it as Exhibit 33.
JUDGE BRAND: It is received in evidence.
DR. KUBUSCHOK: The next document, No. 69, is an ordinance concerning the introduction of German jurisdiction in the Protectorate of Bohemia and Moravia. I refer to Article 6 on page 57 of the Document Book. The regulation says that German subjects will come under German jurisdiction. Paragraph 2 of Article 6 says that persons who are not German subjects will come under German jurisdiction for punishable offenses only for the crimes which are mentioned there. I refer to the rest of the contents and ask you to accept it in evidence as Exhibit 34.
JUDGE BRAND: The exhibit is received.
DR. KUBUSCHOK: The next document, No. 70, is an ordinance governing the execution in the jurisdiction of the Protectorate of Bohemia and Moravia. According to Article 1, the regulations which are to apply to German subjects are laid. down. The laws which are to apply are listed. On page 65 of the Document Book is Article 15 -this lists those legal regulations which apply also to non-German subjects. I refer to the rest of the contents and ask you to receive it in evidence as Exhibit 35.
JUDGE BRAND: The Exhibit is received.
DR. KUBUSCHOK: I now come to Document 71. An affidavit by Dr. Erich Schweitzer, MD, the personal physician of the defendant Schlegelberger for many years. I read from the second paragraph:
"According to my recollection, former State Secretary Dr. Schlegelberger and his family were under my medical care since the year 1937, certainly since 1938. I became very closely acquainted with the entire family as a result of the numerous illnesses which all the members of this family had during these years.
In this capacity I gained the positive impression that the Schlegelberger family were cultured and highly intelligent, who did not evidence in the slightest any of the usual outgrowths of a Nazi big-wig. In every respect, their manner of living was simple and retiring.
"Dr. Schlegelberger must have been aware of the fact that I was half Jewish, even before my first consultation. In spite of this fact he availed himself of my services, a practice which even non-party members in leading positions quite often hesitated to follow in these years. I know also that Dr. Schlegelberger had Jewish school friends whom he helped during the days of oppression; also, that Frau Schlegelberger had been operated on by a Jewish physician. I am convinced that Dr. Schlegelberger would never, of his own volition, have undertaken any actions against Jews or half-Jews if he had not been forced to do so by the political authorities. On the contrary, based upon acquaintanceship of almost ten years with him, I am of the opinion that he exerted every effort to alleviate the grievous fate of those persecuted for racial and political reasons. The political situation existing in Germany at that time did not permit a clear decision on behalf of those persecuted for racial reasons. The pressure of the Party authorities increased from year to year; had he adopted an uncompromising stand for the Jews, Dr. Schlegelberger not only would have seriously jeopardized his own position but in all probability would have advocated an even more radical solution.
"I soon became aware that Dr. Schlegelberger was in no way a typical National Socialist, and that he was retaining his position simply to check, so far as possible, the impending decadence with regard to law. In consideration of the state of his health, I continually advised him in 1941 to retire. However, his answer to me was always that he could not follow my advice for his leaving would be synonymous with the end of justice.
"It was also significant that even during the period of the greatest successes of the German armies Dr. Schlegelberger said to me, 'the hybrid is not growing into a monstrosity.'" I refer to the rest of the contents and ask you to receive the document in evidence as Exhibit 36.
JUDGE BRAND: The Exhibit is received in evidence.
DR. KUBUSCHOK: The next document is an affidavit of the former Reich Minister of Justice, Dr. Eugen Schiffer. Dr. Schiffer is Jewish and was Reich Minister of Justice during the time of the Weimar Republic. The affidavit deals with the fact that Dr. Schlegelberger offered him support and help. I would also like to point out that today in the Russian Zone Dr. Schiffer holds, so to say, the position of the Minister of Justice, I refer to the contents and ask you to accept it in evidence as Exhibit 37.
JUDGE BRAND: Exhibit 37 is received in evidence.
DR. KUBUSCHOK: The next document, No. 73, is an affidavit of the married couple Rosenbaum. The husband is a half-Jew. His wife is Greek. The affidavit was sent to me by the married couple Rosenbaum without my soliciting it. The contents shows that Schlegelberger very energetically stood up for the interests of the couple Rosenbaum in a political trial. In the appendix are inclosed the letters which I received from the couple Rosenbaum in order to clarify their case. I ask you to accept the document in evidence as Exhibit 38.
JUDGE BRAND: The Exhibit is received in evidence.
DR. KUBUSCHOK: The next document, No. 74, is an affidavit of Frau Maria Koffka. I read starting with the second paragraph:
"I have known Under Secretary Schlegelberger since approximately 1919, since I was then librarian at the Reich Ministry of Justice. In the year 1932 I married Hans Koffka who was Ministerialrat at the Reich Ministry of Justice and who has since died. Beginning with the year 1935 he had considerable professional difficulties because the Office for Racial Policies, (Rassenamt), had ascertained that he had a Jewish grandfather.
Only thanks to Herr Schlegelberger's understanding consideration was it possible for my husband to stay in office in spite of his parentage. Herr Schlegelberger opposed again and again Herr Freisler's demands for my husband's release from his position. In the Ministry he continually emphasized his very friendly attitude toward my husband and also was a frequent visitor at our house; by no means did he visit all Ministerialraete in the same way.
"Also in the year 1942 when my husband acquired a serious pulmonary disease and the restitution of his ability to work could not be expected, Herr Schlegelberger kept him in office and saw to it that he would continue to receive his full salary. He also visited my husband in a most friendly manner during his illness. Herr Schlegelberger was fully aware of the fact that my husband was very much opposed to the Nazis and that he emphasized this at every opportunity. I know from many discussions held at our house that a great part of the gentlemen who were members of the old Ministry of Justice were against Hitler, but thought that it was their duty to remain in office in order to counter-balance Freisler. I also remember that it was said that most of the gentlemen had joined the Party because Himmler had reproached Guertner that the attitude of the Reich Ministry of Justice was reactionary and wanted under this pretext to gain greater influence over the Reich Ministry of Justice. Schlegelberger wanted to prevent this by all means."
I request that this affidavit be accepted in evidence as Exhibit No. 39.
JUDGE BRAND: The Exhibit is received.
DR. KUBUSCHOK: The next document, No. 75, is an affidavit by Kammergerichtsrat Dr. Alexander Cohn. I read the second paragraph....
MR. WOLLEYHAN: May it please the Court, the statement to which Dr. Kubuschok has just referred on page 87 of the Document Book-
I object to as being inadmissible, on the ground that it says, in its face, it is a statement in lieu of oath. That being so, it must conform to Rule 21 of the Uniform Rules of Procedure. Under subparagraph 5 of Rule 21 we find that any preamble in a statement in lieu of oath must contain, among other things, first, a warning to the deposee that what he states is subject to his own punishment if it is not true, and secondly, that he realizes that what he states is to be submitted before this Military Tribunal, in Nurnberg. Now, neither of those two material requirements are complied with in this statement. On that ground I object to the document being admitted.
DR. KUBUSCHOK: The affidavit was taken down by a Notary. The taking of affidavits by a Notary is subject to special regulations. The Notary has to point out to the affiant by virtue of his office, what the meaning of an affidavit is, and that a person who gives an untruthful affidavit renders himself liable for punishment. That is the official duty of the Notary, and if the Notary has taken down the affidavit this proves that this formality has been fulfilled, even if it does not state so expressly in the affidavit.
JUDGE BRAND: Have you a copy of our Rules there?
MR. WOLLEYHAN: I have, your Honor.
JUDGE BRAND: May I see them?
Court No. III, Case No. 3.
MR. WOOLEYHAN: Sub-paragraph 5.
DR. KUBUSCHOK: May I also point out that in the introductory formula of the affidavit reads in cognizance of the meaning of an affidavit; that includes the knowledge of rendering oneself liable for punishment if one gives a false affidavit. The mistake perhaps was made here because the notary public--and the affiant is a Kammergerichtsrat, that is a judge of the Supreme Court of Berlin, and he naturally knows the meaning of making a false affidavit.
THE PRESIDENT: Apparently, however, he did not know the wording of the rule of this Tribunal, and it is apparent, on the fact, that the statement in lieu of oath does not comply with the requirements of the rule of the Tribunal to which reference has been made. In its present form, therefore, the offer is rejected.
DR. KUBUSCHOK: Document No. 76 is an affidavit by Dr. Adalbert Keil. I read the third paragraph on the second page of the affidavit: "From this conversation I obtained a deep impression of the extraordinary difficulties a man like Dr. Schlegelberger, with an incorruptible sense of justice, faced through a government whose measures were not in accordance with his conception of law and justice. After this conversation, I discussed with Dr. Walter Ballas, Attorney at Law at Essen, the individual case of Dr. Cohn, discussed in its course and Dr. Schlegelberger's endeavor to help him too."
I ask you to accept this document in evidence as Exhibit 40.
THE PRESIDENT: The exhibit is received in evidence.
MR. WOOLEYHAN: One moment, Your Honor. I am sorry, Your Honor, I did not have a chance to examine it.
THE PRESIDENT: We will withhold our ruling; we understood there was no objection.
MR. WOOLEYHAN: My analyst confirmed from the original German document that there is no indication on the original exhibit that the deposee had any idea that this was to appear as evidence before this Court. If it is a statement in lieu of oath, I make the same objection Court No. III, Case No. 3.now that I made to the preceding offer.
We regard that as being a fundamental and necessary part of these documents because authentication is difficult enough in any event. And also, Your Honor, there is no warning that there are penalties for not speaking the truth.
THE PRESIDENT: It appears on a very hasty inspection that it does not purport to be a statement in lieu of oath, and is not in the form required; and it also appears on hasty inspection that it was not sworn to as an affidavit.
DR. KUBUSCHOK: Yes, it is an affidavit. The affiant declared I depose the following in lieu of oath. That is about the sixth line from the beginning of the second paragraph after his address it says: and he declared -- I depose and declare what follows in lieu of oath.
THE PRESIDENT: The same objection applies, Dr. Kubuschok. It doesn't comply with our rules. Furthermore, for the future, of course, counsel realize that any witness could write out a statement and say I declare this an oath, but that wouldn't make it an affidavit. The jurat, the certificate of the notary public that this was sworn to is the authentic evidence of the existence of an affidavit.
DR. KUBUSCHOK: Your Honor, according to German law there is no oath before a notary. The notary is not allowed to administer an oath. He can only take an affidavit and certify it; and swearing in by a notary does not exist under German law.
MR. WOOLEYHAN: That being the case, Your Honor, I object now, although it is a bit late, to every affidavit offered in this book. If the notary is not capable of administering an oath, ergo, there cannot be statements under oath; and, therefore, it must be completed in the proper form of a statement in lieu of oath, which they are not in their present form.
DR. KUBUSCHOK: Your Honor, it is impossible in effect to have every affidavit taken under oath before an Allied authority. Before a German authority we cannot have an oath of that kind administered. There are no such regulations, and, therefore, in all Tribunals, up to Court No. III, Case No. 3.now, an affidavit has been accepted in the form in which the German penal law imposes a penalty if it is a false affidavit.
I emphasize that the most solemn form of an affidavit under German law is the deposition of an affidavit before a notary. If the objection of the Prosecution would be sustained, then certainly the majority of the preparations of the Defense, not only my own, but also the other Defense Counsel, would be completely nullified. It is impossible always to go and visit the individual witnesses and to certify the affidavit as a Defense Counsel because we don't have sufficient time.
MR. WOOLEYHAN: Your Honors, I am not concerned with the expediency of the defense. I am concerned with the authenticity of these documents. The situation under German law which Dr. Kubuschok has broached to you, that is the inability of notaries to administer oaths, is the very situation to take care of which Rule 21 was promulgated. That provides an easy method to authenticate under German law, and I object on the ground that it has not been complied with.
DR. KUBUSCHOK: I believe that we are talking about two different things. The difficulty apparently lies in the fact that American law apparently knows only the oath as such, but in German law the affidavit as such is admitted and also is protected by penalties if it is false.
THE PRESIDENT: The belated objection on the part of the Prosecution to other affidavits which have already been received is overruled. The Exhibits have been received and at the time of their receipt no question was raised.
MR. WOOLEYHAN: Was Document No. 76 offered?
DR. KUBUSCHOK: Yes, 76 has been offered.
MR. WOOLEYHAN: My objection to that was timely, I believe, Your Honor.
THE PRESIDENT: That objection was timely; that is correct.
MR. WOOLEYHAN: Then, if I may ask for a repetition, what was Court No. III, Case No. 3.the ruling on that?
What was the Court's ruling on Document No. 76?
THE PRESIDENT: There has been no ruling. The ruling on Schlegelberger Document No. 76, which has been offered as Exhibit 40, will be postponed for further consideration and the examination of the rules of this Tribunal.
DR. KUBUSCHOK: I shall now read from Document Book 1.
THE PRESIDENT: You may proceed.
DR. KUBUSCHOK: I refer to Document No. 1, an affidavit of the former President of the District Court of Appeals, Wilhelm Schwister. The certificate is at the end of this affidavit, on page 4. May I read from the beginning:
"I met the subsequent Under Secretary SCHLEGELBERGER in the twenties, then a Vertragender Rat (or Ministerial Director) in the Reich Ministry of Justice as far as I know, when I was employed as Ministerial Councillor from 1920 on and later from 1927 on as President of the Prussian Judges' Examination Board in the Prussian Ministry of Justice. At that time I always regarded him as a staunch supporter of the idea of first-rate, impartial and politically independent Judiciary as well as an excellent scholar of law. In both respects he enjoyed the great esteem of the judges of the old, strictly professional and independent school. I am convinced that, in his heart, he continued to cling also during his later activities to this ideal of a just, scientifically trained and independent Judiciary on a high moral level and that he furthered it to the best of his ability. Thus, he apparently gained the special confidence of the similarly minded Reich Minister GUERTNER whose main support he was acknowledged to be. SCHLEGELBERGER's real adversary was, in my view, the notorious Under Secretary FREISLER whom I have always considered to be the evil spirit in the National Socialist Judiciary. In contrast to him SCHLEGELBERGER has never, to my knowledge stood out in a party-political manner."
DR. KUBOSCHOK: I skip the next paragraph and read the second paragraph on the next page:
"Meanwhile, after the reform of the Reich judicial system, the latter, as Under Secretary, had also taken over, along with Freisler, the administrative personnel matters of a part of the Prussian District including Duesseldorg. Schlegelberger immediately showed that he thoroughly disapproved of the abuses especially of the violent methods of Nazism and particularly welcomed the reports aimed at preserving judicial independence. I gained the impression that he was, in his heart, not a Nazi at least not an active one. He himself, and in the name of Guertner, even expressed his appreciation of my attitude toward these abuses. He, as well as Guertner approved and supported my actions especially against shady elements in the Nazi movement. In this respect Schlegelberger differed entirely from Freisler who secretly aided such elements. In other respects, toox, the strongest rivalry obviously existed between the two Under Secretaries at that time. This antagonism revealed itself especially when approximately in 1936, in a report lasting several hours, I prevailed upon Guertner, in the face of strong opposition by Freisler, to carry out several disciplinary measures concerning instigating or abetting party political acts of violence. This I could not have achieved without the vigorous support of Schlegelberger who strongly opposed Freisler.
"Later on, also, after Guertner's death I had the impression that Schlegelberger certainly often had a difficult time with the unrestrained and politically more influential Freisler concerning for instance the preservation of judicial independence."
I skip the next paragraph and continue.
"On the whole, Under Secretary Dr. Schlegelberger has, I am convinced, done all in his power to oppose the abuses in the administration of justice in the face of the development which National Socialism, growing ever more violent, had assumed through the years. I have estimated him Court No. III, Case III as being an honorable man of independence in contrast to the evil spirit of Freisler.
Also during his management of affairs, at least in my district, and except for comparatively few instances, the courts preserved their independence and adhered to a professional, fair administration of justice, untainted and uninfluenced by political considerations. Had he left his position earlier he would have then made room for the unrestrained rule of Freisler, Frank or Thierack, which would have been well nigh inevitable. It would also then have been impossible for me to hold my position in view of my ceaseless struggles against the abuses, as the party agencies again and again and again kept me in the face of great difficulties. This, and indeed the whole situation, was changed fundamentally when Thierack replaced Schlegelberger."
I submit this document as exhibit No. 41.
Mr. WOOLEYHAN: May it please the Court, from what appears in the English document book, this statement just read by Dr. Kuboschok, constitutes a statement, which the person writing it, declares under oath was true, and apparently he administered the oath to himself because there is no indication otherwise. The signature, Dr. Kuboschok declares was written in his presence, and witnessed by him, but there is nothing whatsoever, on the face of the document, that this is a sworn statement as to the contents there offered or even a declaration in lieu of it. Furthermore, Dr. Kuboschok, as shown here, is not competent to certify anything other than what he has done, namely, the signature. If Dr. Kuboschok is a notary, that does not appear. If he is not, my objection is strengthened. And, if he was a notary he was obviously operating outside of hie realm. For these reasons, I object to the admissibility of this statement.
DR. KUBOSCHOK: I must say that the objections of the representative of the Prosecution begins to become un-understandable to me. It is obvious that I cannot administer an oath; even if I were a notary, I would not be allowed to administer an oath because a notary, too, cannot administer an oath.