Q. Did you take the same view concerning the independence of the Reich Supreme Court of political influence?
A. Yes, naturally; I always and successfully took yp the view that the law, that the decisions of the Reich Supreme Court must be supported by law alone.
Q. You were familiar with conditions in the Reich Supreme Court from 1932 until 1939 when many political excitements occurred in Germany. Please tell the Tribunal briefly what your political attitude was prior to 1933 and what your attitude was concerning the events of 1933.
A. Before 1933 I did not belong to a political party. Before 1933 I was never active for any political party. I did not join the Nazi party in 1933; but in November; 1933 I joined the Stahlhelm, the front soldier's league, because at that time we were hoping that the Stahlhelm, by its more conservative attitude, would exert a moderate influence on the Nazi Party.
Q. In 1934 you became a member of the SA; how did that happen?
A. As I told you judt now, in 1933 I joined the Stahlhelm. The Stahlhelm, at any rate in Leipzig where I was at the time, in the spring of 1933, in a body, joined the SA.
Q. When did you join the Nazi Party, and why did you join?
A. I joined the Nazi Party the 1st of Lay 1937 --- in the course of the civil servant's act, which has been discussed here a great many times.
Q. Concerning your joining the SS and your appointment to the honorable leader of the SS, and your work in the SS, I shall direct questions to you at a later time. Now, I am going over to another question. The witness Behl when he was examined here on the 18th of Larch, 1937, stated that according to the development of the administration of penal law in the years 1933 ta 1939, everybody who took a leading part, or any part at all, had to expect that the administration of penal law would degenerate, although he emphasized that this was only his opinion.
Now I ask you, did you play a leading or any part at all in the administration of penal law in the years from 1933 to 1939?
A. No. Apart from the brief period when I worked with the penal senate, the revision senates, I had nothing to do with penal law. At the time when I worked with the civil senates, any body expected a war at that time.
Q. The witness Behl took it for granted that the degeneration of administration of penal law would be expected by all those who had any idea whatsoever about the tendencies which prevailed with the leading men of the National Socialist movement. I am asking you if you were aware of that.
A. No. Statements by those leading personalities did come to my knowledge, but I thought they were merely propaganda, and therefore as I have to say today, unfortunately I did not take them seriously enough. On the whole I followed the development of the administration of justice with comparative calm and that because of the fact that Dr. Guertner, who was then the Minister of Justice, was a man whom I had know before, and whom I had known since 1933. I thought that he was a guarantor of the fact that the development would be constitutional.
Q. Witness, in summing up for the period until the outbreak of the war in 1939, I ask you did you have anything to do with the promulgation of any penal laws which have been introduced here or which have been discussed here at this trial?
A. No, nothing watsoever.
Q. Did you at that time have anything to do with any the reorganisation of the administration of justice which appears as evidence in an exhibit submitted by the prosecution?
A. No.
Q. In your affidavit, in Exhibit 5. NG-693, you have stated that from the end of August, 1939 until January 1943 you were with the armed forces:
is that right:
A. Yes it is. All that time I belonged to the 475th Infantry Regiment of the 255th Infantry Division, which was in Belgium, France and Russia at the front.
Q I shall revert later to your time in the army. Please tell me whether the Reich Ministry of Justice was instrumental for declaring you indispensable when you left the armed forces.
A Yes, during the second half of November, 1942, I was assigned to the legal reserve of the high command of the armed forces in Berlin. From there, in December, 1942, I was assigned to attend a course in Doeberitz for regimental commanders because the Wehrmacht did not agree with having me placed under the indispensable persons in accordance with the application by the Reich Ministry of Justice. Thierack, the Reich Minister of Justice, however, afterwards did get my name entered on the indispensable persons and on the 25th January, 1943, I was given the status of indispensable.
Q You say that it was due to Thierack that you were given the status of indispensable?
A Yes, quite.
Q According to Document, Exhibit 39. in Document Book I-3, and that is in accordance with No. 12 of the transcript, contained in that document dealing with the conversation between Thierack and Himmler on the 18th of September, 1942, it was Himmler who brought Thierack's attention to you. What do you know about that?
AAll I know about that conversation is this: Approximately at the beginning of October, I received a letter from Himmler while I was at the front, which said some thing like this. I assume that you have already followed the developments of the administration with interest in the press. I am able to tell you that the newly appointed Minister of Justice, Dr. Thierack, recently with his under-secretary, Dr. Rothenberger, come to see me at my field headquarters and that in the course of the conversation, which lasted for several hours, discussed questions which were of mutual interest to us. If you should receive a request to assume a position in the administration of justice, I ask you not to offer any resistance to having you placed on the list of indispensable personnel. That was the letter from Himmler which I received at that time.
I did not hear from the Reich Ministry of Justice, but I gathered from that letter all I know about the conversation between Thierack and Himmler in September, 1942, and even at the time of the collapse I had not received any further information.
Q What steps did you undertake?
A I wasn't particularly happy about that letter. I was surprised, and, as a soldier, I did not feel I wanted to leave my troops. On the other hand, I didn't know whether perhaps it was a duty for me to comply with such a request. I discussed the matter with my military superiors and I told them what view I took of the matter. My military superiors altogether shared my view end promised me that they at their initiative would take steps against my being given the status of indispensable. However, they advised me not to give an open refusal to Himmler. Thereupon I wrote to Himmler and told him that I would not like to leave my unit, but that while there was a war on, if it was absolutely necessary, I would not refuse and I would do my duty wherever I was placed.
Q What were the further developments?
A For a few weeks I did not hear anything, and I certainly did not hear that the Reich Ministry of Justice had asked for me until suddenly at the middle of November, as I told you earlier, my transfer to the leader reserve of the high command of the army came through. My superior tried to have that transfer canceled, but they didn't manage that. At the end of November, I went to Berlin and reported to the competent personnel chief with the high command of the army. He was Colonel Marx. He told me that the Reich Minister of Justice wanted me placed on the list of indispensable personnel, but the high command of the armed forces did not want to comply with Himmler's wish. He told me that I had better try to have a personnel talk with Reich Minister of Justice Dr. Thierack, and to get him to take back his application.
Q And what was Thierack's attitude toward your request?
A To start with, Thierack was angry that I did not want to come, but then he told me that my resistance would be of no avail to me. Hitler himself, and Heitel, therefore, had promised him that a number of members of the judiciary who were at the moment at the front and otherwise in the service of the armed forces, at his application, would be given the status of indispensable personnel. I was among the men whom he wanted to join the administration of justice. He had to attach importance to the fact that he needed officials in the Ministry who had stood their test at the front in the armed forces. During that first talk with Thierack, I immediately asked him expressly and pointed out to him that my decision was above all dependent upon his reply to my question whether, as I was bound to assume according to Himmler's letter, I was appointed by Himmler or whether Thierack wished me to be given the status of indispensable personnel. Thierack said in reply that it was he who had called me. After all he knew me since the days in the Reich Supreme Court in Leipzig, but he had expected me to resist. From his own point of view he could see it because he himself twice during the war had his name placed on the indispensable list and every time that had been against his own will. And so as to break my resistance, he asked Himmler, by personal letter to me, to prevent me from offering any opposition.
Q Did you tell Thierack that you agreed to be given the status of indispensable?
A No, I didn't. I merely told him that to begin with I would have to report to Colonel Marx about the outcome of our conversation. I did not know -
THE PRESIDENT: Ultimately you were declared indispensable and took a position; did you not?
A No, not immediately. First I was transferred and it was at a later time that I was given the indispensable status.
THE PRESIDENT: The time we are interested in is when you went to work after you left the armed forces, of course.
BY DR. ORTH:
Q When did you join the Reich Ministry of Justice?
A In January, 1943.
Q What was your position at the Reich Ministry of Justice?
A To be in with I worked in Department VI; that was a department for civil law. Approximately at the middle of January - I can't tell you the exact date - I was placed in charge provisionally of the department; and when, on the 1st of March, 1943, I was promoted Ministerial Director, I took charge of that department. I have already pointed out what tasks that department dealt with, particularly as can be seen from the distribution of work plans which the prosecution has introduced.
Q Witness, I am now handing you a document. Will you tell us something about it?
A It contains the organization of Department VI of the Reich Ministry of Justice as it was in 1944. Do you wish any details?
Q Yes, please.
A There are four sub-sections. A, for civil law, without family law; B, family law and racial law; C, civil administration of civil law; D, the office for reorganization of German judicature; and there is also another column which shows those sections which were immediately subordinate to the head of the department.
I see that not all sections and sub-sections have been entered in this chart. This is just an outline.
Q. Your Honor, this plan shows the organization of department 6, which I should like to introduce for the purpose of information, when I present my documents, and I am offering it now for the purpose of identification as Altstoetter Exhibit No. 1.
THE PRESIDENT: Let it be marked Exhibit I for identification.
MR. LAFOLLETTE: May I ask? I think it indicates - here it is numbered as document No. 85.
THE PRESIDENT: Document 85?
MR. LAFOLLETTE: Document 85.
THE PRESIDENT: Thank You.
BY DR. ORTH:
Q. Witness, when you joined the Ministry of Justice, did the minister lay down certain directives for your work?
A. I asked Minister Thierack whether he wished to lay down certain legal and political directives since he, the Minister, was in charge of the ministry, and I in charge of a department. Thierack said to me that he did not wish to lay down definite legal or political directives for the sphere with which I was going to be concerned. He then assigned to me three fields of work as being particularly urgent. No. I. was the preparation for the re-organization of the form of the administration of justice; two was the civilian courts investigation and civil permits; and three, the execution of measures for an early settlement of the many arrears that had accumulated with the Reich Patent office. Generally, Thierack referred me to under-secretary Rothenberger and told me that Rothenberger, in accordance with their agreement would be in charge of the various spheres that belonged to my department, whereas he, Thierack, to begin with would concern himself mainly with the penal department.
Q. Did under-secretary Rothenberger lay down any directives for your work?
A. No, he didn't. Under-secretary Rothenberger only discussed his own plans with me.
Q. A little while ago you said that Thierack told you he knew you from the days of the Reich Supreme Court. What was your personal relationship with Thierack?
A. I think it was in 1935, but I can't tell you for certain, that Thierack had been Vice President of the Reich Supreme Court. During that time I talked to him only once and then only for a short while. I had never met him before or afterwards, neither at the Supreme Court, nor until the time when I was assigned to the Reich Ministry of Justice did I have any official or private dealings with him. Thierack says he knew me from the days of the Reich Supreme Court, I think all he meant to say was he knew my name and reputation as a Judge of the Reich Supreme Court.
Q. From the fact that Thierack appointed you and the picture which had been established at the trial here one must draw the conclusion that he endorsed you and you seemed to him a suitable person to put into effect his plans?
A. As to what Thierack thought of me I can't tell you. He never discussed that point with me. If he considered me a man whom he could trust, and since you mentioned just now he must have noticed very soon that he had been wrong, for we had serious clashes, because I adhered to my point of view obstinately if the questions were of any significance. For the rest, even today, I lack all indication as to Thierack's plans, which in the course of this trial have come to light, in any way related to the work of department 6. On the contrary, Thierack at the very beginning of my taking over the office, I think it was during the second conversation he had with me, when I asked him whether he had any legal or political directives to give, I think he told me expressly that sphere of cases had no topical significance in war time.
Q. Did you ever hear of Thierack's plans in particular. Did you hear of his arrangement with Himmler or of his letter to Bormann written on the 13th of October 1942, which was discussed here repeatedly did you know of that before you started work for the Reich Ministry of Justice, or while you were working there?
A. No, not even by implication. I had nothing whatsoever to do with those matters in my sphere of work, and therefore such questions were never brought to my notice.
Q. As Exhibit No. 24 the Prosecution has introduced document No. 752. It contains the speech which Hitler made on the 26th of April 1942 before the Reichstag, and the resolution which the Reichstag passed subsequently. Do you remember this document?
A. Yes.
Q. Did you hear of that speech and that resolution which the Reichstag passed?
A. Yes.
Q. Did one regard those events as an anxious indication that the administration of justice was now to be handed over completely to the executive and would thereby be made a tool for the safeguarding of Hitler's regime?
A. I was at the front when I heard of that speech and naturally I was shocked. I couldn't quite imagine what had happened and what was the purpose of that speech, but naturally that speech and the resolution subsequently passed by the Reichstag caused me a great deal of worry as it did to all of the officials of the administration of justice. I did consider it a transgression of the executive against the guarantee of the constitutional state rights and I did realize that particularly in time of war it would not be easy to counter-act the transgression, if it was meant seriously, effectively. All the more so I considered it the duty of all exponents of the constitutional state to play a part in warding off that transgression. That inner obligation guided me when I joined the Reich Ministry of Justice and during the work I performed there.
THE PRESIDENT: It will be necessary for us to take our recess at this time.
(A fifteen minute recess was taken.)
THE MARSHAL: PERSONS in the court room will please find their scats. The Tribunal is again in session.
BY DR. ORTH:
Q. Witness, would you please tell the Tribunal quite briefly about your position as division chief?
A. As division chief I was responsible to the minister for having the material that was handed over to the division in accordance with the law and his general or special directives and to see that the business was carried on properly by the division. I was bound by the instructions issued by the minister in so doing. I could, however, voice misgivings regarding his directives, but I had to execute his instructions even if I disagreed with them. My responsibility was limited to the correct writing of the documents. The legal basis for that regulation regarding the responsibility was due to the order of the business of the administration in Article 52-A of the amendments, which the co-defendant Joel submitted as Exhibit No. 30. My authority to sign and my duty to sign was in accordance with those regulations and that order of business but later on in view of the evacuation of the division the instructions regarding concrete cases were extended very much. My signature had to be affixed on order of the minister.
Q. What can you say briefly regarding the relationship about your department to the other departments of the Ministry?
A. The Civil Department -- I may even say both Civil Departments, were strictly separate from the other departments. The reasons for this were technical. First of all, the fields of work were quite different by nature. The departments dealt with their affairs on principle independently and were very anxious to preserve that independence. Thus one department found out from the other department only what was absolutely necessary, and even that not always. Of course there were matters which affected the field of work of several departments. In that case the so-called main participating department was in charge, and it bore the total responsibility for dealing with that affair. The rest of the departments which were also participating and had to be consulted in dealing with this affair, had to deal only with that group of questions which concerned their special field, and these departments assumed responsibility only to that extent. Due to the evacuation of the departments away from Berlin the connection between the departments which now were far apart physically was made very difficult. The technical difficulties which arose due to this brought it with them that even in cases where formerly a participation had seemed indispensable, this participation about the departments did no longer take place. It was one of the main worries and main efforts of the division chiefs to maintain that contact. They were not fully successful in this.
Q. What form did the cooperation with Minister Thierack assume?
A. I may say in answer to this question that my relation to Mr. Thierack were of an official nature.
Personally I had nothing to do with him. The official relations were, on the whole, correct but I already indicated before that sometimes there were violent clashes, arguments. That was due to his temperament, but also due to my temperament, because I didn't give in. These arguments did not exactly increase my liking for the work. Therefore I frequently made the attempt to influence the Minister again to have me declared not essential, so I could join the armed forces. He refused that every time.
Q. The Prosecution has submitted Document NG 195, Exh. 45. It is a document regarding the division chief conferences of a January 1944 and 6 January 1945. Did such division chief conferences take place frequently?
A. Before 1944 such division chief conferences took place infrequently. For all of 1943 I can remember only one such a division chief conference, but I am not quite sure about this. Since 1944 these division chief conferences then took place perhaps every four to six weeks. Originally it was intended to hold two such conferences per month and maintain the definite dates. But it was impossible to carry this out in practice.
Q. What was the purpose of these conferences?
A. Mainly, these conferences served the purpose of announcing and preparing the decrees of the Ministry, which affected and regulated the official business of the ministry. Thus mainly organizational questions, questions of evacuation, questions of mail connection with evacuated departments, etc. Furthermore, the measures necessary for carrying out total war in the field of the Administration of Justice were discussed there.
Also the establishment, for example, of professional courses for judges, Prosecutors, and lawyers. Also the program of work for the conferences with the presidents of the district courts of appeal were usually laid down in the division chief conferences.
Q. During those discussions were the questions ond the work of the individual divisions discussed?
A. No, generally not. For this the reports to the Minister and the Undersecretary served that purpose, but the Ministry did from time to time express the desire that one or the other of the division chiefs should from his specialized field comment on a question which interested all or the majority of the division chiefs.
Q. In Document Exh. 45 it says on Page 3: Thereafter Ministerialdirigent Suchomel reported about the status of the work of Division 3. Was this Dr. Suchomel the some gentleman who was examined as a witness by the Prosecution?
A. Yes.
Q. Can you remember what Dr. Suchomel reported about at that time?
A. If I remember correctly, and I believe I do, he reported mainly about the questions of the reorganization of price penal law.
Q. According to the mentioned document, NG 195, Exh 45, you to reported about the work in the field of Division 6. What did you discuss at that time?
A. At that time I spoke about the status of the work of the office for re-organization of the German judicature and about the necessary consequences which resulted from this for the division. For example, in the field of personnel or in the field of the code of procedure.
Q. During these conferences wore secret matters of the division also discussed?
A. No, never.
Q. Do you remember whether questions wore ever discussed which were regarded as derogatory in this trial here, for example NN cases or the special law against Jews and Poles?
A. No, these matters wore certainly never discussed.
Q. I now start a new group of questions. The Prosecution has submitted Document Exh. 142, NG 410. This is the document by which at the instigation of the racial political office of the NSDAP a racial political section was established in the Ministry of Justice. Do you remember this document?
A. Yes. Perhaps I may say that with the establishment of this racial political Section I personally had nothing to do. The discussion with the racial and political office of the NSDAP, as this document shows, took place already in the fall of 1942, and I only took over the office in January 1943.
THE PRESIDENT: What was that exhibit number, please?
THE WITNESS: 142.
DR. ORTH: Exh. 142. The document is NG 410.
THE WITNESS: The occurrences regarding these discussions with the racial political office I became acquainted with only now daring this trial.
BY DR. ORTH:
Q. When was this Section established?
A. The order made by the Ministry was issued only much later, in July 1943.
Q. Who was put in charge of this section?
A. Oberlandesgerichtsrat Mainhoff was put in charge of this section.
Q. To what division did Mainhoff belong?
A. Insofar as he worked in this field, he belonged to my division.
Q. From that fact may one conclude that this racial political section was attached to your division?
A. No. Mainhoff, I believe in March, 1943, had come to the Reichministry of Justice. At that time he come as successor to the referent who had been drafted into the armed services for the so-called racial legislation and for the removal of hindrances to marriage. He took over these fields and went to work in them. To the extent that he worked in these fields he belonged to my division, that is, Division 6. The racial and political section, however, was conceived and practically handled as an independent section which was competent for the entire ministry, which was not under me, and Mainhoff said that it was subordinate to the Ministry. This can also be seen from the house rules issued by the Minister himself. It included appeals from all divisions. In order to clarify this may I add here one thing. Race has been discussed here a great deal, race, racial laws, etc. In order to prevent a misunderstanding may I say that the concept of race is to be understood here in its broadest meaning and not intended only for Jews. In the racial political section as far as I saw it, and I believe I would know if it were different, Jewish questions were practically of no importance.
Q. Witness, I am handing you a document, Altstoetter Document No. 8. Please look at this document.
A I have in front of me a certified copy of the house rule, decree, of 12 June 1943, which is signed by Dr. Thierack. It has a file number 1200E-Ip2340. This decree of the Ministry is the decree which established the racial political section.
DR. ORTH: Your Honor, I shall submit this Ministry regulation as a document, and for the purpose of identification I request you to call it Altstoetter Document Exhibit 2.
THE PRESIDENT: Your document number was 8?
DR. ORTH: Alstoetter Document No. 8.
THE PRESIDENT: It will be marked for identification Exhibit 2.
BY DR. ORTH:
Q Witness, from this decree is it apparent that Mainhoff acted on behalf of the entire ministry?
A Yes, I said that already.
Q Can this same effect be seen also from the mentioned document Exhibit 142, which the Prosecution has submitted here?
A Yes, for this document contains toward the end on the last page a report which I did not see at the time, issued by Mainhoff, about a racial political course which he held, if I am not mistaken, on the basis of this specific order by the Undersecretary. If Mainhoff would have been subordinate to me in the field of the racial political section I would have had to see the report before it was handed on, but it was not submitted to me.
Q Did the fact that Mainhoff was working on behalf of the entire Ministry on racial political questions, did this become apparent also outwardly?
A Yes. In the course of time, of course, it only became apparent where the focus of his activity was, and that was in the field of Division 2. Therefore Mainhoff was then assigned also as referent to Division 2. Furthermore, the Ministry expressly ordered orally that concerning all division which in any way had anything to do with this section, that is, whose field was touched by Mainhoff's work, Mainhoff had to interest himself in their work.
In my opinion this, too, shows Mainhoff's independence as far as the racial political section is concerned. That is, his independence from my division.
Q The Prosecution submitted as Exhibit 432 Document NG 798, the decision which shows that Mainhoff was assigned to Division 2. Did this measure repeal Mainhoff's special position for the entire Ministry?
A No. I have already stated this Ministry regulation which was issued, I believe, in November 1943, only referred to the position of Mainhoff as Referent. His other position was not changed.
Q What matters did Mainhoff deal with in Division 6?
AAs I have already stated, he was referent for personal status matters. In addition, he was in charge of racial legislation. Under this came the law for the protection of blood, the law for healthy marriages, and the law for the prevention of progeny afflicted with hereditary diseases. Moreover, he had to deal with the law removing hindrances from marriage.
Q In the field of racial legislation during your time was such a law over prepared or issued?
A No. Racial legislation was at the time when I took over the division, finished. Moreover, I have to add so that no misunderstanding should arise, that all of the laws which I have just mentioned belong under the sole competency of the Ministry of the Interior. They were promulgated by the Ministry of the Interior. Only at the Ministry of Justice, only in Division where one could feel the consequences of these laws in practice, sections were provided but in January 1943 these effects had also been dealt with already and solved from the point of view of legislation. This section continued in the division because it had once been created. May I remind you that the law to prevent progeny afflicted with hereditary diseases is from 1933, the law for the protection of blood is from 1935; that these laws on the field of civil law, in fact were felt by Division 6 only in one regulation. That was Article 4 of the marriage law; the law for healthy marriages was from 1937 or 1938.
1937. And its only consequence was Article 5 of the marriage law. That finished the legislation for that sector of civil law. Only the law to prevent progeny afflicted with hereditary disease remained. We shall discuss that later on in detail.
Q In Exhibit 39 Document PS 654-
A May I interrupt you? I have another point.
Q To supplement?
A Yes, only to supplement the previous question. I did not go into what Mainhoff did in the racial political office for my division, for division 6. I have to state that so that the picture will be complete. The questions of hereditary biology which were of interest for Division 6 also existed because about the progress of scientific discoveries in this field the courts had to be kept informed generally. Of course, also about the possibilities for evidence which resulted from this for the submission of evidence before a court.
Q In document Exhibit 39 PS 654 in No. 7 the asocial law has been mentioned which has repeatedly boon discussed in this trial. Do you know this law?
A Yes. But it is not a law. It is the draft of a law which never became a law. In the summer of 1943 I heard about this bill at a meeting of university professors in Munich. A referent from the Ministry of Justice from another division delivered a lecture about this. It was an accidental knowledge, and by pure accident, too, I found out that the regulations provided for in this draft interfered with the guardianship courts.
Q What was the purpose of this law?
A This draft intended to delimit the legal competence between the police on the one hand and the Administration of Justice on the other hand in the case of the so-called asocial, especially also in the case of juvenile asocials.
Q Was the draft issued by the Ministry of Justice?
A No, it was a bill by the Ministry of the Interior.
Q What was your attitude to this bill?
A I rejected this bill, and this for the purpose because it gave the police an almost unlimited authority to put the so-called asocials into camps or to sterilize them according to what the police considered appropriate, but the concept of an asocial person was not at all so clear that I believe I may say that there were doors, open to arbitrary action.
Q Did you take any stops to defeat that law?
A Yes. I told Thierack about the impossibility of such laws, and that very decisively. And the Minister was impressed by this and thereupon he ordered that the penal legislative division should again have conferences with the police regarding the contents of this bill, and some improvements were achieved during these conferences, but from the point of view of the Administration of Justice and from the constitutional point of view they were absolutely insufficient. Nevertheless, the Minister decided to approve of this draft, and one day he told me that he had done so. This put me in a very unpleasant position, because that was a question of principle which would either have forced me to leave the Ministry or at least forced me to try at first to defeat this law by other means, and I tried to do this first and I was successful. I turned to a man in the Reich Chancellery, Reich Cabinet Counsillor Sicker and also to the Chief of the Legal Division of the OKW and asked both of them that they should see to it that objections would be raised against this law.
Q Who was the chief of the Legal Division of OKW?
A That was Dr. Lehmann, who was examined here as a witness for the Prosecution.