Furthermore, all the facilities of nullity pleas and so forth could no longer be gone into. These effects of tho threat to the Reich by the enemy lead in some cases to a paralyzing of the administration of law and that made it necessary to introduce a new type of administration, which in Germany was effected. The Courts martial were to prevent a negative development.
Q.- What type of offenses were to be dealt with by these civilian courts martial and what procedure was to be observed.
A.- The Courts martial were to sentence such cases as were connected with the defense of tho Reich and the maintenance of law and order. According to the decrees covering courts martial the offense to endanger the resolution to fight or the resolution to defend. Proceedings were to follow the provisions laid down in the Code of Criminal Procedure which had been very strongly simplified. Nevertheless, courts martial had observed in their proceedings the most important principles of protecting the interest of the defendant. The defendant's right to be heard, oral trial, admission of defense counsel, thorough presentation of evidence, a freedom of the judge to go into the evidence, a vote among tho judges and so forth.
Q.- Who decided about tho confirmation and execution of a sentence arrived at by the civilian courts martial?
A.- Every sentence of the Court needed the confirmation of the Reich Commissioner of Defense. He decided whether a. sentence should be executed or clemency applied. The Court martial itself was not competent in these cases.
Q.- Did the Reich Defense Commissioner take the same position as that formerly taken by the Reich minister of Justice?
A.- No, the competence of the Reich Commissioner of Defense went beyond that of the Reich Minister of Justice Whereas the Reich Ministry of Justice could, when it did not approve of a sentence, deal with it only through a nullity plea in order to have the trial re-opened before the Supreme Court, the Reich Defense Commissioner could, if he thought a sentence was unjust, himself suspend sentence and order that a new trial be opened. He could also confirm the sentence and order that the man should be pardoned, and all of this, however, without referring to the higher authorities. A sentence arrived at by a civilian court martial depended, in other words, entirely on the Reich Commissioner of Defense. Only and if he had confirmed the sentence, it was final and the sentence could be carried out on that basis. The same conditions applied here as under Wehrmacht jurisdiction.
Q.- The witness Eichinger on the occasion of interrogation by German authorities, which have been submitted here. Prosecution Exhibit 150, said that you had been an adviser of a Gauleiter who was also a Reich Commissioner of Defense when the civilian courts martial were constituted. Will you tell us something about that?
A.- When civilian courts martial were decided on for the area of the Reich Commissioner of Defense in Nurnberg I was in the Wehrmacht and, therefore, had no influence on this. Particularly I did not as Eichinger says recommended the Reich Defense Commissioner Holz in this Commission, nor did I have any influence as to who should be appointed to the position in these Courts Martial for the reason that all the conditions under which the courts martial. were to be appointed were quite in order.
Q.- Will you please tell us how you came to be on the civilian courts martial?
A.- On the 2nd day of April 1945, my superior officer showed me an order of General Commando 13, which was the district responsible for me as a soldier, that for the duration of four weeks I was to be transferred to the civilian courts martial in Nurnberg, that I should report to the Reich Defense Commissioner in Nurnberg forthwith.
I was not dismissed from the Wehrmacht; I remained a member of tho Wehrmacht. This was a military order which I could neither refuse nor turn down unless I deserted.
On 3 April 1945 in accordance with orders, I reported to tho Reich Defense Commissioner Holz in the early morning, and there, after a brief speech, just as all tho other members of tho courts martial wore, I was obligated.
Q Who were the other members of that civilian courts martial?
A The prosecution was Chief Public Prosecutor Schroeder, by appointment of the Reich Defense Commissioner; the associate judges were tho Gau Inspector of the NSDAP, Haberkern, and a representative of tho Wehrmacht, a Major whose name I do not remember.
Q Witness, did you have influence on the indictments served by the courts martial?
A Not in one single case did I have any influence on an indictment served by Schroeder. Quite generally, I had agreed with Schroeder that ho should deal only with grave and clear cases. Schroeder was not always in a position to do that, because he was committed by tho orders of tho Reich Commissioner of Defense. On the other hand, the Reich Defense Commissioner never exercised direct influence upon the decisions of tho courts martial; he did not interfere with the work of tho judges. At any rate, he never discussed a single case with me, neiter before nor after the case in chief. As far as I am concerned, he respected tho independence of a judge.
I should like to add that as far as Reich Commissioner Holz was concerned, I saw him for the last time on 3 April 1945 when I was obligated in my now office.
BY THE PRESIDENT:
Q May I ask you a question please? You were tho presiding judge, were you not?
A Yes.
Q Just prior to your appointment and qualifying, were you still holding the office of a judge of a criminal court?
A No, I was a soldier in the Wehrmacht.
Q I noticed that tho statute provides that the court martial consists of a judge of a criminal court, a member of tho Political Leadership Corps or a member of tho NSDAP, and an officer of the Wehrmacht. You were not then a judge of a criminal court when you were appointed?
A Well, this decree, Your Honor, only wants to say that tho presiding judge can only be a man who has the qualifications to exercise tho functions of a judge.
Q That is your interpretation of the statute. Now the civilian court martial tried civilians, did it not?
AA civilian court martial, yes.
Q And when the Reich Commissar was not available, tho public prosecutor was authorized to act in his place in approving sentences, wasn't he?
AAccording to tho decree concerning civilian courts martial, tho prosecution was authorized to do so if the Reich Commissioner was not available.
Q Did you ever pronounce any sentences or any judgments other than a judgment of death or a judgment of acquittal?
A Only three types of decisions were possible with a court martial: The sentence could be either death, acquittal, or turning the case ever to a normal court.
Q And did you follow that provision?
A I always followed that provision. I shall give more details about this when I describe the working of the courts martial, but if I felt that the death sentence was not warranted in a case, but merely a term in prison, I would turn the case over to a normal court.
Q And did you make such orders, turning over cases to normal courts?
A Yes, in three cases.
THE PRESIDENT: Thank you; that is all.
BY DR. SCHUBERT:
Q Witness, will you please toll us the principles according to which you observed the decree covering civilian courts martial, and particularly the provision that the sentence must be tho death sentence when any punishment was necessary? What was your interpretation?
A From the outset there was a fairly outspoken difference of opinion between myself, on the one hand, and Prosecutor Schroeder on the other, who agreed with the opinions of the Reich Defense Commissioner, and also particularly the man in charge of tho Gestapo. Tho question concerned hero was whether the decree covering civilian courts martial would amount to substantive martial law. I did not think so, but tho others arrived at that opinion on the basis of their interpretation of subsections 3, and 4 of tho decree covering civilian courts martial. From these legal provisions they concluded that all offenses endangering the German fighting vigor, or fighting spirit, should be followed by a death sentence; that is to say, if an offense endangered these things and tho guilt of the perpetrator was proved, the death sentence must be arrived at, and that acquittals could only be possible if and when sufficient evidence could not be produced, and tho turning of tho case over to a normal court could only be done if and when tho Question of guilt was an open one because, under the conditions applicable to a civilian court martial, exhaustive evidence was not feasible.
The practical effect of this interpretation of the decree of civilian courts martial would have been, for instance, that less grave cases of undermining of military morale, even possibly offenses under tho Malicious Acts Law, would have had to be punished by death.
I did not conform with that interpretation of the decree, I opposed it from the very beginning, and I advocated the view that this decree was purely a decree covering procedure.
Q If I understand you correctly, witness, you inflicted the death sentence only if and when tho Penal Code -- outside of the decree covering civilian courts martial, as far as tho act at issue was concerned -- would have commanded tho death sentence.
A Yes. The courts martial applied the same law as was applied up until that time by the normal courts. No intensification of tho then existing laws was arrived at by the court martial, and the principles of jurisprudence as developed wore always observed without any change by me at the court martial.
Q What about your associates? What did they think about the reasons which you have just given?
A I had difficulties at first, but later on I won the day with my associations as far as my principles were concerned. I achieved tho fact that the courts martial in Nurnberg did not intensify jurisdiction, as had been the rule in Nurnberg up until that time.
Q How many cases did these courts martial try?
AAs I remember it, the civilian courts martial had ten sessions and dealt with twelve defendants. Among the twelve defendants, ten had been indicted for political offenses, most of then undermining of military morale, but also aiding and comforting the enemy; one defendant had been indicted for looting, and another one for a particularly grave offense under tho war economy regulations. Among the ten defendants who had been indicted for political offenses, three defendants were acquitted. In three other instances, the case was turned over to a normal court, and in four cases they were sentenced.
Q You were speaking about twelve cases, weren't you?
A The two defendants who had been indicted for looting or for offenses under the war economy regulations were also sentenced.
Q What was the end of the courts martial?
AAs the enemy armies approached Nurnberg, we were to transfer the courts martial to a place which was not in the immediate fighting zone.
That order came from the Reich minister of Defense. The date as of which this order would have come into effect was at lunch-time on 16 April 1945. At that time we had what we called an armed alert, which meant that the allied forces were approaching Nurnberg. In view of the military situation, Schroeder and I agreed to discontinue tho work of the courts martial. Tho battle of Numbers lasted from 16 April until 20 April, and the courts martial did not exist any longer.
Q I am coming back to your answer once again that you had dealt with twelve defendants. Is it true that 25 members of the Volkssturm, the Home Guard, were to be tried?
A Yes. Twenty*five members of the Home Guard had been arrested by the Gestapo because, if I remember the event correctly, they did not follow an order when they were told to go out and fight. At that time I took the view that I was not competent for this case because, as members of the Volkssturm, the men concerned were under the jurisdiction of the Wehrmacht and not the general administration of Justice. Schroeder, as the representative of the prosecution, was subjected to strong pressure to have those 25 men tried by the courts martial, but I told Schroeder categorically that any such thing would be illegal and that therefore I would refuse to have the indictment served. I cannot tell you what the end of all this would have beep but as the armored alert occurred on 10 April, nothing further was heard of the matter.
Q I shall now discuss the various cases tried-
THE PRESIDENT:
Q Witness, I am not sure that I understood your testimony on one point, and I would like to clear it up. I did understand that your work was under the Reich Commissar, but did you say that the Reich Minister of Justice could institute a nullity plea as to judgments of the civilian court martial? I thought you said that, and I am not sure that I am right.
A No, I did not say so Your Honor.
Q Well, was there any court in the Ministry of Justice to review any of your judgments by any means?
A I think that was quite impossible. Under the decree covering civilian courts martial, I think that would have been out of tho question, However, this is purely my interpretation, if Your Honor please.
Q Were reports made to the Ministry of Justice?
A You mean about the activities of the courts martial? No, we no longer had any contact with the Reich Ministry of Justice.
THE PRESIDENT: I think I misunderstood your testimony. Thank you.
BY DR. SCHUBERT:
Q What was the first case tried by the civilian court martial?
A The first case was that of Montgelas.
Q What did you know about that case when you came to the court martial?
A I did not know anything about the case. I had been a soldier since T February 1945, and the remarks which it was alleged that Montgelas had made were made at about the end of January 1945. Then, after the investigations made by the Gestapo the thing was turned over to the Public Prosecutor's Office in Nurnberg by the middle or end of February, still at at a time when I was with the Wehrmacht. I had ho personal contacts or correspondence with the Prosecutor or the Gestapo or the Gauleitung. Therefore, I knew nothing about this case before I started with my work with the civilian courts martial.
Q The witness Mueller, in Exhibit 149, says in this connection that the whole thing had been prearranged and that you were guilty as a participant in this conspiracy on the part of the Gauleitung to exterminate a political opponent. What can you tell us about that?
A I have explained just now that as far as the case of Montgelas was concerned, and as long as the case was still with the Gestapo, I had nothing to do with it. These reproaches are quite unjustified.
Q When the members of the civilian court martial were obligated, was the case of Montgelas discussed?
A Whom we were being obligated on 3 April 1945, not one word was said about Montgelas. I myself neither discussed the case then nor at a later time with the Reich Defense Commissioner for Defense, nor could I make any observations that the Reich Defense Commissioner was particularly interested in this case.
Q The witness Eichinger says this is Exhibit 150, and I shall quotes "Obviously, Oeschey and Schroeder saw the files, available at the prosecutor's office, and picked out those cases which they thought were particularly suitable to be tried before the civilian court martial.
On that occasion they must have come across the Montgelas file."
Is that true?
A No, after we were obligated on 3 April 1945, Schroeder and I went to the Palace of Justice in order to get an office. On that occasion Schroeder told me that he had orders to start at once, and for that reason he wanted to go into the matters which had accumulated on his desk because he had to prosecute them before tho civilian court martial. He did not mention any specific case, nor that of Montgelas.
As I remember, on the same day, the 3rd of April, Schroeder made out the indictment in the Montgelas case and passed it on to me without my exercising any influence on the indictment.
Q Schroeder had made out the indictment on the basis of evidence which had not been turned over to the People's Court or tho Chief Public Prosecutor with the People's Court, and that was included in the file. I believe that consisted of copies of the record of the interrogation of the investigating judge, and Schroeder retained a copy. Ag far as I was concerned, these documents wore inadequate for the trial. That was the reason why I caused a copy to be made of the police investigations and their files, and the files were then complete.
Q How was it that you thought the court martial was competent here, although the thing had been passed on to the Chief Public Prosecutor with the People's Court.
A The prosecution in Nurnberg remained competent for this case as long as the Chief Reich Prosecutor of the People's Court confirmed that he was now in charge of the case. That, however, never happened. When the files were sent to the Chief Reich Prosecutor with the People's Court---
THE PRESIDENT: Just a moment. I wonder, in fairness to the witness-- Does he mean that- they retained jurisdiction until the Chief Reich Prosecutor at the Peoples' Court confirmed that he had assumed jurisdiction?
THE WITNESS: Yes quite. This is a usage in Germany.
The Prosecutor who
THE PRESIDENT: After he had confirmed that he assumed jurisdiction, then you would say that the civilian court martial no longer had competency for the case?
THE WITNESS: The prosecution with the civilian court martial would ho longer have been competent to indict the man before the civilian court martial.
THE PRESIDENT: I think the translation was a little inaccurate in that. It is all right, now.
A (Continuing) When the files were sent to the Chief Reich Prosecutor, that must have happened shortly before the air raid in February 1945, and most probably, on that occasion, the files were lost; at any rate, they never reached the Chief Reich Prosecutor's Office.
DR. SCHUBERT: May I remark in this connection that the witness Rothaug, in his capacity as Chief Reich Prosecutor with the People's Court, has confirmed that as a witness on tho stand here.
BY DR. SCHUBERT:
Q Two witnesses, Eichinger in Exhibit 150, and Mueller in Exhibit 149 of the Prosecution, are of the opinion that the civilian court martial had not been competent, because what Montgelas had done had been done before the civilian court martials had been instituted, and it had gone back so far that the will of the people to resist could no longer be influenced. Will you please give us your comments about that?
A There cannot be any doubt that we were concerned here with the crime of undermining of military morale, and that crime can endanger the people's will to fight and resist.
Therefore, under Paragraph 3 of the Law against undermining Military Morale, a civilian court martial is definitely competent. It is without importance here, of course, that that the deed had been committed before the civilian court martial had been instituted. The principle that nobody can be withdrawn from his competent judge, cannot apply in cases-
THE PRESIDENT: When was the act committed?
THE WITNESS: About the end of January, 1945.
THE PRESIDENT: '45?
THE WITNESS: Yes, '45. I said just now that the principle that nobody must be withdrawn from his competent judge cannot be applied here, because the competent judge did not have the chance to work on the case, because as the administration of law had been impaired, this should have been made up for by the institution of the civilian court martial. What Count Motgelas did was not prosecuted under martial law, but purely under the Extraordinary War time peace decree which was in effect since 1939.
BY DR. SCHUBERT:
Q You have explained that the file about the case was complete. What did you conclude from the files as to the facts?
A What I am about to say now I am saying Entirely from my memory. I did not have the chance during this trial here of studying any evidence and documents. But I believe that I do remember these things with reasonable certainty. From the files I have found these facts. Shortly after the events of 20 July 1944 Count Montgelas was suspected of belonging to a resistance movement connected with the conspirators of 20 July 1944. Since the autumn of 1944 Count montgelas was systematically and constantly supervised and watched and shadowed by the police. Every step of his was shadowed. His letters were screened, his friends and acquaintances were also checked up on, and so forth. By the end of 1944 Count Montgelas paid a visit to Nuremberg, and at that time in the dining room of the Grand. Hotel he met a lady whom it was alleged he did not know before. They allegedly talked to each other about art. Towards the end. of January, 1945, Count Montgelas came back to Nuremberg and again in the Grand. Hotel he met this lady. According this statement this was a purely accidental meeting. The conversation which he held at the end of January 1945 was concerned at first with art, it was alleged, and in this connection Count Montgelas said that he asked the lady to go up to his room in the hotel and look at a few pictures which he had with his.
Actually this lady said yes, and the police official who kept shadowing Montgelas want to the adjoining room in the hotel and from there If I remember correctly, by using a mechanical appliance, listened in to everything Count Montgelas and the lady said and took shorthand notes. What the police official took down and which was later on part of the official files contained many pages. I am not longer able to give you all the remarks which Montgelas made to this lady, containly not verbatin nor in their right order in which they were made but those things in tho conversation I remember according to their trend. For some reason the conversation switched over to politics. Montgelas at first made derogatory and insulting Remarks about Hitler and a few other persons, I believe Goering and Goebbels, and then he added roughly this remark; Hitler was solely responsible for this war. Moreover, he had been proved to be an amateur in military natters, but nevertheless he had kept interfering with his generals' work, and anything said by Hitler or spread by his propaganda were lies and rubbish, particularly the promise that now weapons would soon be used and they would decide the war in our favor. There was only one solution for the German people, and that was to eliminate Hitler. Count Stauffenberg on 20 July had blundered. He should not have saved himself. He should have shot Hitler down. But that could be made up for soon. A now group had been formed. They wore all prepared to overthrow and kill Hitler. He, Montgelas, could not understand the soldiers who were still ready to fight for Hitler and obey Hitler. This only possible because they were still officers who remembered the oath which they swore, but people were being enlightened of this point and the German people would be told about what they call their Fuehrer and would be asked to resist.
He, Count Montgelas, had been active for some time in these things. Only the elimination of Hitler and his system would make our enemies to end the war and allow the German people to live under bearable conditions. That, as I recall it, was the gist of the conversation, which did not go on in the sense that Montgelas made a coherent speech or lecture. It was a conversation consisting of questions and answers, because according to the notes, the lady repeatedly contradicted Montgelas and attempted to prove to him the contrary and then Montgelas and swered back with the result that without any difficulty one could see that Montgelas here endeavored to convince the lady of his views and win her over to his side.
THE PRESIDENT: May I ask you a question? How many witnesses testified orally at the trial?
THE WITNESS: One witness.
THE PRESIDENT: Who was that?
THE WITNESS: The police official who had listened in to the conversation.
THE PRESIDENT: Did the woman testify?
THE WITNESS: The woman could never be found again. Count Montgelas refused to give her name.
THE PRESIDENT: Did the policeman orally at the trial tell about the long course of spying which ho had done in watching Count Montgelas?
THE WITNESS: On the day in question when Montgelas arrived in Nuremberg he was always shadowed.
THE PRESIDENT: I am asking you how you found out about it, about the long course of shadowing.
THE WITNESS: Montgelas was under constant police supervision.
THE PRESIDENT: How did you find out about that?
THE WITNESS: That became clear from the police files.
THE PRESIDENT: Was there any testimony about it given verbally at the trial?
THE WITNESS: It was confined by the police official who was examined in the trial.
BY DR. SCHUBERT:
Q Were there any indications for the fact that this lady was an agent of the Gestapo?
A There werenno indications for that. The police official whom I asked about that denied this and Montgelas himself also thought that this was an unlikely assumption.
Q Did Count Montgelas confess?
A Montgelas denied at first, but when he was interrogated by the Gertapo he made an extensive confellion. That confession he repeated to the investigating judge, and in all essential points in the main trial he continued to confess. In view of the fact that his conversation had been listened in to and taken down verbatim Montgelas simply acpuiesed in his fate and confessed. He had no chance to deny anything.
JUDGE HARDING: Was this more severe interrogation that he was given by the Gestapo?
THE WITNESS: The remarks which were taken down by the police official, he confessed that he had made those remarks to the lady in the form which the police official had listened into.
JUDGE HARDING: Was this a more severe interrogation that he had before the police?
THE WITNESS: No.
JUDGE HARDING: How do you know that?
THE WITNESS: Montgelas would have brought this out in his trial, if this confession had been forced from him. After his interrogation by the Gestapo, Montgelas was turned over to the Court and the investigating Judge Eser in interrogated him. I myself know Eser personally and I can well say that Montgelas had every chance to tell Eser without any fear whatever he wished to.
THE PRESIDENT: We will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
CONTINUED DIRECT EXAMINATION RUDOLF OESCHEY (Resumed) BY DR. SCHUBERT:
Q Thank you. We have got to the Montgelas case. When did you first set it for trial and whom did you have summoned to the trial?
A It was either on the 3rd or at the latest early on the 4th of April 1945 when I set the trial for the 5th of April at three o'clock in the afternoon. When I set the date for the trial I also ordered that the defendant be summoned to appear, that the Police President be summoned as a witness and the defense counsel be summoned to appear.
Q Attorney Eichinger when he was interrogated by German authorities testified that in prison he was told that Count Montgelas only received the summons of the date of the trial and that at 2 o' clock in the afternoon for 3 o'clock in the afternoon, that is to say, an hour before the trial opened; Prosecution Exhibit 150. What do you have to say about that?
A It wasn't my task to deal with the sending out of the summons. That was done on orders from the prosecution through the office of the Court Police which was the only place which was competent to deal with the matter. At any rate, I immediately after we had set the trial passed on to the prosecution and as the mails were not working at the time the summons had to be sent out by messenger.
Q If I understood you correctly you had no influence on the sending out of the summons and particularly you did not order Count Montgelas summons only just before the opening of the trial.
A No, I had. no cause to do that whatsoever. Naturally I was concerned with all summons. That is to say, the summons for the defendant, the defense counsel, and the witnesses. I issued my orders simultaneously and in good time. To corroborate that I might point out that the Police Officer who had been asked to appear as a witness and whose summe 3733 summons was sent to him by a messenger did receive the summons in time.
If actually Count Montgelas received his summons one hour before the trial opened that is a fact I do not know anything about and that's what I did not intend. Furthermore Count Montgelas did not criticize that at the time and Eichinger can only say that from hearsay. But if that did really happen it can only be due to the fact that under the influence of the last days of the war, which were quite indescribable, the duties and the responsible work of the office staff might have been affected and. that had delayed the summons.
Q. The defense counsel of Count Montgelas, Attorney Eichinger, was not summoned. He testified to German authorities, Exhibit 150, that when his offices had been bombed out he had an emergency office in the Courthouse, and that around about 20 March 1945 he moved into that emergency accommodation and he says that he told the Court officials about that. Please comment on that point.
A Well, I can remember that in the course of 4 April the office notified us that it was possible to find Lawyer Eichinger's address; that his apartment as well as his office had. been destroyed in the recent air-raids and that nobody knew his new address. Schroeder said at the time that he would try himself and find out Eichinger's address. The next day he told me that he had called in the former office personally of Lawyer Eichinger but had been unable to obtain any information there as to his new address. I, myself, told the office to contact the Police Officers and see whether they knew Eichinger's new address. I assume that my orders were obeyed. At any rate, the office told me that the Police Station was not able either to discover Eichinger's address. If Eichinger, as he now says, at that time had already moved into his emergency office in the Courthouse and if he had told the Court authorities it would appear that that notification had reached neither the prosecution nor the office. One must bear in mind in this connection that the Courthouse shortly before, during an air-raid, had been badly damaged, and that in the beginning of April there was still complete chaos in the building.