Would you consider that an infringement of the principle of no bis in idem-- the principle of double jeopardy?
A I should like to say that I think that question is based on an incorrect premise. The nullity plea and the extraordinary objection were intended to destroy sentences which were legally valid and to reopen the trial and have a second trial.
Q Mr. President, would you consider as correct, or as incorrect, the view that the principle of ne bis in idem means that a person cannot be given two sentences for the same offense? Would you consider that correct or incorrect?
A That is right.
Q Do you believe that, apart from the contents of this principle, the principle of ne bis in idem has further meaning?
MR. LaFOLLRTTE: I object to that question as being too indefinite. I don't know what further meaning counsel refers to. I mean, I think there should be some further identification on cross examination as to what he has in mind. Maybe there are many further meanings.
BY DR. BRIEGER:
Q It is difficult, particularly concerning such legal concepts, to commit oneself to make binding statements. However, I wanted to express this: Are the contents of this principle exhausted by that, or has the principle a further meaning? I think I have made myself clear on that.
A I cannot say that. I have not yet completely understood what you mean by your question.
Q I do not want to make you give any certain answers by what I say, and therefore it is difficult for me to formulate my question. Perhaps I can clarify my question by giving an example.
Would you consider it an infringement of the principle of ne bis in idem, double jeopardy, that, when a man was sentenced for robbery and when the sentence became legally valid, shall we say because of the man concerned, and because another court considers the sentence far too lenient, in an entirely different part of Germany a new proceeding is started and, on the basis of a new sentence, he is given a new punishment?
THE PRESIDENT: We haven't received an answer yet. Don't ask another question until you get the answer.
MR. LaFOLLETTE: The answer didn't come through on translation.
THE PRESIDENT: No, it had no opportunity.
JUDGE BRAND: What did the witness answer?
THE PRESIDENT: He didn't answer at all.
THE WITNESS: That is a violation of the principle.
BY DR. BRIEGER:
Q Would you also consider it a violation of this principle if a sentence has been quashed by way of a nullity plea or by way of an extraordinary objection and the new court sentences the defendant again to a new punishment, quashing the first sentence?
A My answer to this question depends upon the meaning and one's view of the meaning of the extraordinary objection. In the course of my testimony the question has been touched upon that the two Oberreichsanwaelte, chief prosecutors, received their directives from the highest Reich authorities because such quarters considered certain sentences too lenient. It was apparently believed that the terror effects which were caused by the Special Courts and the People's Courts -- that is, these terror effects which were intended by the People's Courts and the ordinary courts had not been sufficiently realized. If one considers that with this remedy of the extraordinary objection we are concerned with a bit of modernized cabinet justice concerning the question, that here the meaning of this procedure regarding an infringement of the principle of ne bis in idem was aimed at, then I must affirm that question.
BY JUDGE BRAND:
Mr. Witness, may I ask you a question, for information, concerning the matter you have just testified upon?
When, with reference to the time that sentence is pronounced, is the nullity plea introduced; before or after?
A I didn't quite understand. After what moment?
Q After a man has been sentenced, is there provision that the nullity plea may be invoked, after sentence has been pronounced?
A Yes.
Q And am I correct in assuming that the nullity plea is in the nature of a motion to set aside a judgment -
A Yes.
Q -- which has been pronounced?
A Yes.
Q Can the convicted defendant make such a motion? Can he invoke the nullity plea? The defendant?
A No, the defendant cannot.
Q Under the provisions of the decree for the formation of special courts, I read, in Section 16, "There is no legal appeal against decisions of the special courts." Prior to the enactment of that provision, was there an absolute right on the part of a defendant to appeal at his own option?
A Yes, in the ordinary procedure there was.
Q Then after the appeal provision was revoked, the possibility of opening a sentence did n t depend upon any action by a defendant but, on the contrary, was in the discretion of some public officer only? Is that correct?
A Yes.
Q Was that also true with reference to extraordinary objections?
A Extraordinary objections could only be made by the Oberreichsanwalt, the Reichsgericht, or Volksgericht.
Q And when he made the extraordinary objection, was the determination of the question as to the reopening of a case decided by him, or was his extraordinary objection submitted to a court for a decision?
A It was submitted to a special senate, which was built in the Reichsgericht and in the Volksgerichtshof.
Q But am I right in assuming that it could not be submitted unless the public officer submitted it?
A Yes, that is right.
JUDGE BRAND: Thank you.
MR. LaFOLLETTE: The case went, but the court before which it was filed made no finding; they simply automatically sent it some place else, it was automatic in its operation?
THE WITNESS: Yes.
JUDGE BRAND: My interest was in the question as to whether these remedies -- the extraordinary objection and the nullity plea -- could in any event be invoked by the defendant or his counsel, and I think I understood that they could not.
MR. LaFOLLETTE: Not in the same capacity, certainly.
DR. BRIEGER: Mr. President, my questioning will go on for at least another quarter of an hour, if not 20 minutes, and therefore I am asking you whether you wish me to continue or whether the Court now wishes to go into recess.
THE PRESIDENT: We certainly have time for one more question, and we wish you would employ the time.
DR. BRIEGER: One question, yes.
BY DR. BRIEGER:
Q Witness, concerning the examination of the extraordinary objection or the nullity plea on the one hand, and on the other hand the cancellation of sentences by the Cassation Court, would you see a parallel there in the Denazification Board or would you not? And would you give us your reasons, please?
A I have already said earlier that the Denazification procedures are of quite a special nature, conditioned by the circumstances of the Third Reich and their consequences, and that they can in no way be compared with any other procedures.
Q If I may recall to your memory that the Denazification Boards, in their verdicts, can make rulings which are decisive for the whole existence of the persons concerned, that they can sentence the persons to go to camps, that they can confiscate their property, and so forth, would you assume, on the basis of that, that only in this respect the Denazification procedures are similar in their effect, or that they are something entirely different? -793
A. I would like to refer to the statement I made in detail one or two days ago when I gave my view on the nature of the denazification proceedings and said that amounted to making people responsible for the damage by the Third Reich, and I do not wish to repeat that now because the Tribunal does not desire such a repetition.
MR. LAFOLLETTE: If Your Honor please, both the question and the answer have been stricken. I objected to the question once before on the ground that it goes outside the range of any cross examination. But it has been answered before and I don't think it makes any difference if it stays in or out. But if it would be possible to make an automatic objection, I would like the Court to note that I am objecting to any interrogation with reference to denazification proceedings because they come without the range of the questioning in chief and clearly within there is no analagous situation. They come without the range of any period of law which we have under consideration and they are the result of actions arising out of an unconditional surrender and the action of Allied governments, which are not comparable under any circumstances. And in a sense, since this procedure must be adaptable, I am making that automatic objection to any further questions of that kind and ask the Court to have it in mind if any such questions are asked. I can't get to this microphone fast enough.
THE PRESIDENT: I think we have ruled on questions of this character and have ruled that they are not permissible. We should now say that whether the exact question has been asked before, the questions that are now being asked do evoke the same answers which have been given before. There should not be this continued repetition.
We will take a recess at this time.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION
THE MARSHAL: The Tribunal is again in session.
DR. BRIEGER: Your Honor, in view of the fact, that the powers of concentration of this witness have been taxed to the utmost since the day before yesterday, I have decided to take account of this. I will refrain from further questioning this witness with the exception of a very brief question.
Mr. President, the day before yesterday you pointed out that you had a friend who was a high ministerial counselor in a Ministry. He told you approximately the following, "I remain in office in order to prevent worse things." In regard to this testimony, I would like to ask you the name of this gentleman. What is his address? And in what Ministry was he working?
A We are concerned with the late Minister-Counselor, Dr. Willke who was in London with me. He was in the Ministry of Defendant Schlegelberger one or two years after the Nazis came to power. On the occasion of a meeting, I asked him why it was that he and Defendant Schlegelberger were going along with us. He said, "We are there in order to prevent worse events." That is what he told me at the time.
Q Did this answer apply also to the Defendant Schlegelberger?
A I assume so because my question concerned aim also. However, I expressed my doubts to him about preventing, permanently, worse things in National Socialism.
Q Do you still remember his official title and capacity in the Ministry of economics?
A No. He was ministerial counselor.
Q In which division?
A That I do not remember.
DR. BRIEGER: Thank you very much.
DR. MARX: Dr. Marx for the Defendant Engert. Mr. President, I ask your permission to put several questions to the witness.
BY DR. MARX:
Q Witness, yesterday you mentioned the person of Defendant Engert in connection with a so-called Action Engert in Schweinfurt. In the course of your testimony, witness, you furthermore said that the Defendant Engert exerted strong pressure on officials of the Justice Department in his district in order to force them to enter the Party?
A Yes.
Q Is that correct?
A Yes, according to statements of the officials in the denazification proceedings.
Q Is the following therefore correct? The officials in question only made this known in the course of denazification proceedings?
A The Chairman of the Advanced Investigation Committee told me that as he submitted to me a list of 25 officials who had made this declaration to the Preliminary Investigation Committee.
Q Witness, can you still remember in what category these civil servants were? In the majority, were they higher justice officials or medium ones?
A They were in the medium categories, but there were also some judges among them.
Q Do you know when Engert became president of the District Court in Schweinfurt?
A In March, 1934.
Q When did he complete his activities as president of the District Court?
AAugust 1934.
Q Witness, do you know whether at that time there was a suspension of admissions to the Party?
A I believe there was such a temporary suspension of new admissions. However, according to the statements of these officials, Engert was supposed to have told them that the Party was open to them in particular and he advised them to join the Party as quickly as possible.
Q What did they mean by "excertion of pressure?" Did they make any charges?
A The persons concerned referred to the fact that Engert excerted pressure especially through the acting official inspector Klein who excerted pressure on lower officials and those in the middle categories. He excerted pressure constantly by means of Mr. Klein.
Q Is Mr. Klein still officiating?
A No. He has been dismissed. I believe he has even died.
Q I have a final question. Was there an exact investigation made as to whether these individual persons entered the Party?
A They entered in 1934. It was strikingly noticeable that a large number of officials in the District Courts with whom I became familiar in the year 1935, entered the Party in the years 1935 and 1937. At that time the entries into the Party were large.
Q Therefore, they must have made an exception for the Schweinfurt District Court as far as the closing of the party was concerned?
A Yes. I said that. Engert pointed out that the Party was open to these people for a short time, and that this was an exception.
DR. MARX: Thank you. I have no further questions.
DR. ORTH: Dr. Orth for the Defendant Altstoetter.
BY DR. ORTH:
Q Witness, is it correct that under German criminal and civil law there was a strict distinction between criminal and civil proceedings before as well as after 1933?
A Yes.
Q Is it correct that in criminal proceedings, criminal judges, criminal chambers and criminal senates made decisions; and that in civil proceedings, civil judges, civil chambers and civil senates were separated; that there were two different organizations?
A Yes.
Q Is it correct that the Special Courts and the People's Courts did not have anything to do with civil matters?
A Yes. They had nothing to do with civil matters.
Q Is it correct that the civil proceedings, since 1933, were not at all changed in any direction which could be described as typically National Socialistic or contrary to the National Socialistic World Order or ideology?
A That is correct in as far as the institution of hereditary health courts is not considered.
Q Is it correct that the extraordinary objection was not applied to civil matters?
A Yes.
Q Do you know any single case in which a sentence in a civil case was contested by a nullity plea?
A No.
Q Did judges and lawyers ever complain to you that the Ministry of Justice influenced or curtailed the independence of the judges in civil cases?
A I do not know any definite decrease in measures in that respect.
Q Did you determine whether the civil jurisdiction was used for the establishment of the National Socialist regime?
A No. I do not have any particular experiences in that respect. I did not make any experiments.
Q You have stated that in the course of their experience in the field of the administration of justice from 1933 to 1939, the Tribunals also must have known about the excesses of the SS, the Gestapo and the SD, especially since the conditions in the concentration camps were known among the population in Berlin.
A Yes.
Q Can you maintain that the population in other localities also was equally well informed about the conditions in concentration camps?
A My experience is limited to Berlin. However, from Breslau, too, I was told about such things.
Q Do you believe that a ministerial director who in 1934 came to Berlin as a foreigner from a different place and worked in the Reich Ministry of Justice in the Division for Civil Matters -- was in charge of it -- who did not have his own apartment in Berlin, that such a man could have known about the conditions in concentration camps?
A If he did not live like a hermit, he must have heard about it within a short time after he arrived in Berlin, especially since he must have had conversations with his colleagues from other departments of the Ministry of Justice.
Q You stated that from the formation and the development of criminal law and criminal order of procedure, every jurist who evaluated the situation correctly, must have concluded, without any difficulty, that the development during the war was constantly taking a turn for the worst and would have to lead to the elimination of the principle of the Rechtsstaat, the Constitutional State. Witness, do you believe that this applies also to a judge who until 1939 was active at the Reich Supreme Court as judge in civil matters and who concerned himself there only with his own field?
A I cannot imagine that a judge in the Reich Supreme Court, even if he was active only in civil matters, did not know about the establishment of the people's court and the special courts, in that he would not occasionally have read literature in criminal law for one reason or another.
Q A final question. Did you know the Ministerial Director Hesse (Ministerial Dirigent)?
A No.
Q Thank you.
CROSS EXAMINATION BY DR. KUBOSCHOK:
Q Dr. Kuboschok for Schlegelberger and von Ammon. I return to the discussions about the extraordinary objection. An example: A trial in a special court. The prosecutor has made his statements; the defense has mad its application; the court has made its decision and passed the sentence. Two cases: The Tribunal has remained within the orders of the prosecution in its sentence. Witness, what could the prosecutor whose application was not fulfilled, what could he do?
AAt the people's court?
Q No, at the special court. The prosecutor was not satisfied with the sentence.
A There was no legal recourse.
Q What could he do otherwise? I ask you to keep in mind the extraordinary objection.
A He could, since the judgment had legal validity, since there was no legal remedy, within a year he could make application to the Reich Supreme Court, first of all according to the decree of 1940, only he could raise an objection because of serious doubts concerning the correctness of the judgment and so he could go to the extraordinary extent of the Reich Supreme Court.
Q In other words, he could initiate the raising of an extraordinary objection?
A Yes.
Q The second case: The sentence went beyond, was objectionable to the defense counsel. The defense counsel is not satisfied with the sentence Now what could the defense counsel do?
A He could not introduce an extraordinary objection; however, he could apply to the prosecutor to make an extraordinary objection.
Q Could he not do the very same thing what the dissatisfied prosecutor did in his own case, namely, to make an application to the chief public prosecutor and there to initiate the extraordinary objection?
A Yes, that is what I said, to initiate it there.
Q In other words, the dissatisfied prosecutor had the same legal rights -- privileges -- as the dissatisfied defense counsel?
A With the difference that the chief public prosecutor could decide, on his own part, whether he would like to submit the extraordinary objection for the defense counsel; that is, the defense counsel was dependent upon the decision of the chief Reich prosecutor, or the Oberreichsanwalt, while the public prosecutor did not depend upon this.
Q I am always referring to the public prosecutor at the special court who was dissatisfied. He, too, had to appeal to a higher authority: the Oberreichsanwalt (chief public prosecutor), upon the suggestion of the defense counsel, or the public prosecutor of the special court submitted such extraordinary objections.
A I do not know any individual cases. In this connection, in regard to the extraordinary objection, I would like to point to a remark in Dallke, a commentary which is known in wide circles. It is the edition of 1942, 33rd Edition, Page 1447, it is footnote 5 to Article 3: "The extraordinary objection is not a legal remedy, also, not an application for reopening of a case; but it is an immediate form of the highest legal authority of the Fuehrer. It is a negative form of the right for information of the juror, as the Fuehrer and supreme commander of the Wehrmacht, as he is entitled to it." For comparison, Article 410-A, wherein a military penal procedure is referred to.
Q I am now coming back to these special courts. How many members of special courts did you know in your social life and with how many did you speak?
A With members? None of them.
Q So everything which you have so far told about practically, you know from circles who are not members of the special courts?
A The special judges were appointed by the president of the district court of appeals. They were selected by him.
Q May I point out to you that you are mistaken in this case, for it is the president of the district court who had the right to determine who would be members of the special courts.
A In the order of the 21 February 1940, Article 11, Section 2: "The chairman and the permanent members, as well as the regular deputies, in case one would not be available, on the basis of the order regarding the division of labor on the 21 of January 1943, Reichsgesetzblatt (Reich Legal Gazette), Page 1286, are appointed by the president of the district court of appeals from the number of the judges subordinate to him. The president of the district court of appeals, according to the provisions of this law, regulates also the division of labor."
Q Do you know the previous regulation?
A I do not have the provision here.
Q At one point in your testimony you said that the judges of the special courts represented the elite of Nazism. How much do you know about the persons on special courts, personally about the members of special court
A On the basis of the reports, which information I was given, regarding the appointment of the defendant Rothaug, as successor, that these were judges who were known to be special National Socialists. I could not conclude from that, and from the purpose of the institution of Special court that in other cases it was not different.
Q Is it not very dangerous from one individual case, concerning on individual person, to make, to draw a conclusion regarding hundreds and thousands?
A I said already that in addition to this one example, I had considered the meaning and the purpose of the institution so that the example was considered in connection with the purpose of the special courts, and that is what made me draw this conclusion.
Q Witness, I shall prove to you that it is very dangerous, from a subjectively supposed meaning of a regulation to conclude from that as to facts regarding the composition of the personnel of special courts. I, myself, perhaps am more than an expert because I could observe a very large number of special courts. What do you say to the following, for it will seem surprising, but it is the fact that not an inconsiderable number of judges were not even party members, so certainly they did not belong to the elite.
MR. LAFOLLETTE: If your Honors, please, I object to the question because it is a form of testimony by Dr. Kubuschok. I have already taken the stand myself and permitted myself to be interrogated under oath by Dr. Kubuschok, and if sometime he wants to testify about this, may be he will return the courtesy; but, it is not proper cross examination.
DR. KUBUSCHOK: I consider it absolutely important in cross examination to determine whether this witness actually testifies from his own practical experience; first whether he is an expert, and secondly whether he has the necessary factual basis for his actual statements in order to show that this is not so. 803
THE PRESIDENT: The Tribunal is quite ready to rule on this. We have already ruled, when other Defense Counsel have been at the desk, that it isn't proper to make an affirmative statement. If you have a different point of view of the law from that which the witness seems to entertain, you have a way of proving that either by your own testimony or the testimony of some other witness; but it isn't proper to make an affirmative statement in the course of cross examination. The objection will be sustained.
BY DR. KUBUSCHOK:
Q I now put the following questions, witness. Do you know that in other infrequent cases members of special courts were not party members?
A It is not known to me, but I assume that it was like that. Before an appointment, and before being entrusted with this office; before being appointed to a special court, and in accordance with the general practice in personnel matters, some statement about the personality of the person concerned, an official statement is necessary; and in this statement, during the time of the Nazis, and this thing I know from hundreds of such official statements, a statement about the National Socialist reliability has to be made; an extensive statement to this effect. From the form of the statement one can see, even to day, whether it was only some statement in favor of the person, a perfunctory statement, or formula to say that he was a good Nazi, and this formula was a good sign to me that we were not concerned with a real National Socialist, but only a person whom it appears made the statement about him did not want to put any particular difficulties in his way. I consider it impossible that somebody was appointed to a special court if in the official statement there was not a statement to the effect that he was especially reliable in a National Socialist sense. That is a conclusion which I drew from the experiences which I had from the reading of personnel files. Therefore, it is not a question whether the person concerned was a member of the party; it is well known that there were very fanatic Socialists who avoided joining the party and who because of that were allowed to remain outside the party, because it seemed not undesirable to have people like that too who were Nazis and did not join the party.
Q Witness, you answered my specific question in a general manner. Please describe to me specifically the appointment of a special court judge the appointment of judges to a special court. How was this done? As president of the District Court Appeals now, you will probably have found out about this from the files.
AAbout the appointment of judges to the special court, I did not find out because such files are no longer with the district court; they have been forwarded.
Q Therefore, you do not know whether and by whom such political statements in the appointment of judges to special courts were made.
A If the president of a district court were asked to make a statement about a judge, he also made a statement about the judge's political attitude. I never saw an official statement during the time of the Nazis in which the political attitude of the person concerned was not mentioned.
Q The appointment to be judge of a special court is written down in the personnel files of that person. Therefore, I am surprised, that you do not know of such files and have such files at hand now, since the personnel files of the judges in your district could hardly have been destroyed.
A I made special inquiry regarding the personnel files of Rothaug, but they had been taken away from Schweinfurt.
Q Now, we turn to another group of questions, a knowledge of misde** in concentration camps. You have described in detail, how from the circle of your friends, and especially your Jewish friends, you wore informed about this.
A Yes.
Q Is it correct that the knowledge of the events in concentration camps were in a sort of relationship to the nature and extent of the circle of your acquaintances?
A The extent of the knowledge depends upon this without a doubt, but the facts did go beyond these circles of friends; the circle of friends is not exclusive, but one goes into the other; they are interlocked. I knew that in the Third Reich there were less and less circles as time went on in which there were Jewish people; but I even saw that in other circles there was knowledge of these goings on in concentration camps.
Q Witness, from 1939 to 1941 you were in a position in the police department in Berlin. In this official capacity were any facts known about these things in this office?
A No, not about this question.
Q Even though you were working in the administration of the police department, and in the police department, there were among them, subordinate to the police education department, which seems to be a type of concentrate camp.
A I did not have anything to do with the camps.
Q In your official capacity you did not find out anything about it
A No.
Q. Witness, until 1941 you were in friendly relationship with Dr. Jacobi?
A. Yes.
Q. Did you before that time, from 1933 on, discuss the problem of immigration with Dr. Jacobi?
A. That was discussed generally. I cannot say whether it was discussed with him or whether I discussed it with him, but I consider it for certain that generally I did discuss it with him in general.
Q. Is it true end especially tragic that the number of Jews who after 1941 were killed were those who had hoped that the conditions would not go into unjust channels into which they later went?
A. That is connected with the temperament and character of the persons whether they were pessimists or optimists. There were some who unfortunately thought that National Socialism would run down very quickly and they thought they could survive that. On the other hand, there were others who from a certain fear for their lives, and as long as the appeal for their subsistence kept them from immigrating, that is the pensions which they received.
Q. Witness, were there not also a large number of people who in the serious consideration over this question also said again and again, if the conditions have reached such a point now that it practically really - cannot go down hill to a further development of injustice any more. Not a large number of people. During all the years from 1933 on did they not have that fear or feeling?
A. Yes, there were those people who felt that it was so bad that it could not get any worse, perhaps. We have survived it, but it did become worse all the time, and they had to be wounded. Some of them - it depended upon the human nature, some listened to the warnings and there were others who did not listen.
Q. Once during your testimony you said reasonable human beings who stood in daily life would have to be able to see in 1933 with certainty - to predice with certainty - that matters would take the course they actually did take later?
MR. LAFOLLETTE: I think that interpretation should be 1939.
INTERPRETER: I am sorry, sir, 1939.
Q. (continued) I believe these cases which we just discussed, those cases whom you call optimists, that those cases did not belong to those people?
A. They are always optimists.
Q. Witness, you stated that after 1933, outside of your pension, in addition to your pension, you lived on the money you received from your publications, things you wrote. Until what year did you write for publications?
A. That is not limited since from 1909 until now I worked as a writer.
Q. Also during Hitler's regime?
A. Yes, everything which I wrote during the Third Reich and which was published at that time I collected, and at any time I showed it to everybody and said what I write I can still stand up for, even after the collapse of the Third Reich. This was only literary and asthetic writing, every single word.
Q. Are you a member of the Reich Culture Union Chamber?
A. Yes, I am.
Q. You are a friend of Dr. Jacobi. Dr. Jacobi has written treatises about different kinds, that is, of the most varied legal problems, which are the basis of these trials. Did you yourself take part in these writings?
A. No, I have already told that to the Tribunal. I read these writings and examined them and made some remarks or footnotes of a nature which seemed important to me about the development of the administration of justice.
Q. Then you returned them to Dr. Jacobi?
A. No.
THE PRESIDENT: Does any of the defense counsel desire to cross examine this witness?