A. Under the law of German citizenship, under certain conditions a citizen loses his or her citizenship; in that case he or she becomes stateless.
THE PRESIDENT: And what were those conditions by reason of which they became stateless?
A. Such cases existed in particular after the first World War, and there were a great many such cases; for example, all Russians who had emigrated into the Reich were stateless. A stateless person is a person who loses his own citizenship and fails to acquire German citizenship.
THE PRESIDENT: Were the Jews in Germany included in your term "stateless"?
A. No, no. The Jews who were in the German Reich and who possessed German nationality retained that nationality.
THE PRESIDENT: Will you speak more slowly and tell us that again.
A. The Jews who stayed in Germany end who possessed German nationality retained that nationality. An exceptional case existed only if those Jews emigrated abroad and they were deprived of their nationality.
BY DR. OATH:
Q. Witness, does the decree by the Minister of the Interior not mean that German legislation was extended to foreign or occupied territories?
A. No. It concerned only illegitimate children born to such foreign or stateless women workers who had come to Germany to work there. The purpose of the decree by the Ministry of interior was only to make sure that those children would be looked after in Germany.
THE PRESIDENT: One more question, please. Will you clarify your last answer, and tell us if the decree applied to illegitimate children born in the Altreich; or, in what was called one Greater Germany?
A The decree according to the view that was taken of it at the time related not only to the Altreich but also to the incorporated territories.
THE PRESIDENT: Thank you, Proceed.
BY DR. ORTH:
Q Witness, the Prosecution introduced into evidence the document and stated with reference to section VI of the decree of the Ministry of Interior, that the decree had been secret. Please comment on it.
A This decree was not secret, for if it had been intended to be kept secret, it would have been marked secret, but it was not marked so.
Q What is the significance of the letter dated 15th November, 1944, which you signed?
A The guardianship courts which, so to speak, were competent to exercise supervision over all quardianship matters naturally had to be informed of this decree by the Ministry of the Interior; they had to be told in what way they were to handle the care of those children. One had to expect that there would be applications that youth offices should be appointed official guardians for foreign illegitimate children, and finally the guardianship court also had to know of the fact that in the future they would no longer be informed by the youth office of the birth of stateless or foreign illegitimate children.
Court No. III, Case No. III.
I have already pointed out that the legal positions of the mothers and their illegitimate children had not been affected or curtailed in any way by this decree of the Minister of the Interior. That is true of the status of the mother and child as well as of the question whether and under what conditions a guardian would have to be appointed or other measures to be taken by the guardianship court would be legally admissible and advisable. What was decided was and remained the provision of the international German private law. In provisions 20, 25, 23 and 29 of the Preface to the German Civil Code and of importance were also the special agreements which had been made with certain states concerning guardianship matters. The latter applies only where it had not been cancelled by the war, but, however, the protecting powers resisted end it was, therefore, possible to take up contact with the homeland even if only to a limited extent. Therefore, the decrees by the Minister of the Interior could have been passed without any commentary on to the guardianship court. We did not do that. The order that the guardianship courts were to observe the ruling of international private law we considered necessary and logical so as to avoid any misunderstanding which might have arisen. The guardianship courts might possibly form the opinion that the children fathered by a German or a person of equal race were to be educated in the same manner as German children. From that regulations the Courts might have drawn the conclusion that they were also to be subject to German law. We wanted to counter-act such possible errors. As concerns the notification of the birth through the juvenile offices, that was only perscribed by law for the cases of the so-called official guardianship. I refer you to Articles 35 and 36 of the Reich Juvenile Welfare Law of 1922, but it had become a custom also in the ease of stateless children to pass on notification of birth to the guardianship courts.
In effect that amounted to redundancy. Apart from the fact that at least in some parts of the Reich, anyhow according to my experience as a guardiansnip judge, the official registers in any case made a copy of the notification and sent such copy to the guardianship courts, as well as to the Juvenile office and nothing was done in the first instance when these copies reached the guardianship courts, apart from the fact that regular data was entered into the register. That was in accordance with the law. The guardianship court in such cases waited. That was the way these matters were handled even before 1933, that is to say, the guardianship courts waited until the matter arose by the appointment of a guardian or for any other measures to be taken by the guardianship courts. The guardianship courts could do something but it did not have to do anything nor was that in accordance with the custom of the day. The order to stop handing on the notification of birth therefore on the one hand was entirely in accordance with the law; on the other hand it was in accordance with a war tine exigency which meant one had to avoid all unnecessary work.
Q. I believe that is sufficient, witness, and I am now going to pass on to another question. Under count 2 and 3, numerals 17 and 19, the indictment charges that by decrees signed by the Reich Minister of Justice and others, all Jews in Bohemia and Moravia lost their citizenship when transferring their residence on account of deportation end their property was confiscated by the Reich. Furthermore, changes in the family and hereditary law are supposed to have been made according to which Jewish property in the case of a death without any compensation to the Jewish heirs were confiscated by the Reich.
You are charged with partial responsibility in these crimes. Now I ask you, did you have anything to do with depriving Jews of their citizenship or supporting, in particular, the legislation concerning those matters and with the confiscation of their property?
A. No, legislation concerning those matters had long been finished when I joined the Reich Ministry of Justice.
BY THY PRESIDENT:
Q. The question is not only whether you had anything to do with the adoption of the law, the question, as I understand it, also includes whether you had anything to do with the administration or carrying out of the law?
DR ORTH: Your Honor, I am going to ask that question later.
THE PRESIDENT: Go ahead then. The answer was rather limited.
BY DR. ORTH:
Q. Did you cause discriminatives, changes in family or hereditary law by which Jewish property, in case of death, was forfeited to the Reich, or did you have anything to do with it?
A. No.
Q. As evidence for these crimes the Prosecution has submitted Exhibit 112, NG 715. That document is the 13th decree concerning the Reich Citizenship law. Did you or Department VI, of which you were in charge, have anything to do with that decree?
A. No, as far as I remember there was no indication why we should have taken part in it.
Q. Do you remember Exhibit 204, NJ 151? That decree is concerned with the events which lead to the 13th decree concerning the Reich citizenship law.
A. Yes.
Q. In Article II of the draft it was provided that when a Jew died his property was forfeited to the Reich and that for non-Jewish heirs and persons who were entitled to alimony, a hardship clause should be added - "haerteklausel" is that correct?
A. Yes.
Q. The treatment of hereditary provisions according to the plan for the distribution of work was to be dealt with by department VI of the Ministry of Justice. In connection with the intended contents of the provisions in Article II of the draft, could that not justify a conclusion that you and your department had something to do with that decree?
A. No, the order that Jewish property was to be forfeited to the Reich in case of death of a Jew was not a hereditary ruling. It was a matter of police confiscation and that concerned only the Ministry of the Interior and only that ministry was responsible. That is evident too from the document itself and that from the final draft, no, not the final draft, the draft before the final draft, which shows that the provision of Article II, Section I, originated with the Ministry of the Interior.
Q. I am now going to show you the text of the 13th decree of the Reich Citizenship Law. Please have a look at Article II of the decree. On the basis of this provision, do you have further indication that department VI did not have anything to do with the promulgation of this decree?
A. Yes, the wording of these provisions, already in Article I, because if Department VI, I mean the section that dealt with hereditary law, had had anything to do with this decree, they would have chosen the version which existed in the civil code for hereditary rights of the which is provided there for special cases.
I am referring to article 1936 in the civil code, which has always existed. Furthermore, the provisions under Article II snows that hereditary rights concerning Jews and non Jews, after a deceased Jew as such was not affected. Otherwise, one could no longer have spoken of persons entitled to inherit. According to that provision, or rather in spite of that provision, for example in the case of a mixed marriage, the Jewish partner of the marriage could be or become heir to the non-Jewish partner. In the case of hereditary settlements provisions would have had to be made concerning the rights of third persons, that is to say, non-Jewish subsequent heirs. Furthermore, we would have had regulations concerning the legal validity of transactions among living people, concerning the part of the estate not comprised by inheritance regulations. Seccion II also mentioned non-Jewish persons entitled to receive aliment from the deceased, although generally in the case of death any obligation to look after the maintenance of third persons came to an end.
Q. If Department VI had had anything to do with the 13th Decree, what referent of the department would have dealt with it?
A. Ministerialdirigent Dr. Hesse, Ministerial Counsellor Rexroth or Ministerial Dirigent Dr. Stagel would have dealt with it in that case.
Q. Did Department VI have anything to do with the handling or carrying out of the decree 13?
A. No.
Q. Did you or Department VI at a later time have anything to do with the handling of Jewish hereditary law?
A. Yes, in 1944 the Minister of the Interior approached the Reich Ministry of Justice with a request concerning an executory order of the 13th decree, to incorporate in it provisions, which were to change or amend Article II of the Reich Citizenship law.
The Ministry of the Interior had recognized that Article II had certain defects, and, therefore, asked us to find a solution concerning the hereditary law. I contradicted this request from the Reich Ministry of the Interior, although the Minister of Justice was of a different opinion.
Q. Do you know how that matter developed further?
A. As for tne details of the subsequent development I do not remember them, but one thing I remember for certain, Hesse with my consent, when Thierack, the Minister of Justice, had declared himself ready to collaborate in the preparation of this executory order, contacted the competent referent of the Ministry of the Interior, and convinced them that the provision, purely technically, for the Reich Ministry of Interior, amounted to a basic change of the previous decree, that is to say the 13th decree. He also told them that we didn't want to nave anything to do with this matter. The Ministry of the Interior then withdrew it's request and I was told by Hesse that the matter of a Jewish hereditary law would now be dropped. In effect an executory order in connection with the 13th decree concerning the Reich Citizenship Law was promulgated on the 1st of September 1944, and that by the Ministry of the Interior alone without any participation of the Reich Ministry of Justice and without incorporating the provisions concerning Article II of the 13th Decree, which had originally been requested.
Q. In summing up, witness, I should like to ask you, is it correct that Department VI, during your term of office, did not participate in the making and carrying out of laws concerning confiscation of Jewish property and that during that time legal provisions about the exclusion of Jewish hereditary rights were not issued?
A. Yes, that is true.
BY THE PRESIDENT:
A. May I ask you concerning that. I am wondering if I have the correct understanding pf lour testimony. Do you intend to say that this 13th decree did not change the previous law of inheritance, the rights of inheritance, but that the only effect was to provide for police confiscation, is that right?
A. Yes, yes, quite. That is my opinion.
Q. Well, was it your opinion that the provision for police confiscation was invalid?
A. Invalid? Invalid, no, not invalid.
Q. The Courts which had to do with matters of inheritance in general were courts with which your department had dealt, were they not?
A. Yes, Your Honor.
Q. Well, when a question of inheritance under the general law came up in the Courts in which they were confronted with this 13th decree concerning police confiscation, what did the Courts do?
A. I got to know of only one single case which may be connected with this problem and I am thinking of a case of recognition of the right of subsequent inheritance. The District Court of Appeals and the seventh Civil Senate of the Reich Supreme Court at the time decided that the right of subsequent inheritance remained legal and that regardless of the provisions which had been issued in connection with the Jewish problem, the estate, if a case of subsequent inheritance occurred would have to be passed on to the subsequent heir.
Other cases I do not remember.
Q. Was that the equivalent or did it amount to holding that the decree for police confiscation was invalid?
A. I am sorry. I did not understand.
Q. The Supreme Court apparently refused to apply the provisions of the decree for police confiscation, did it not?
A. I can't say for certain. If I remember rightly the Reich Supreme Court, concerning the question of the validity of that decree did not express it's opinion at all.
Q. Well, it didn't enforce the decree, did it?
A. No, the Reich Supreme Court said: The subsequent heir, who comes after the immediate heir, is not affected by that decree, and therefore his rights remain his rights.
Q. And who was the subsequent heir? Was he a Jew?
A. All I remember is his name. Whether he was a Jew I don't know, but I don't think he was. Probably he was non-Jewish.
Q. Well, what was your opinion as to what a Court could do when the law of inheritance provided that one person should receive the Jewish estate and that the decree for police confiscation provided that the property should be confiscated?
A. In practice it was like this: The law of inheritance remained as it was from the point of view of legal theory; but the property left by a Jew which was forfeited to the Reich when the Jew died, however no longer existed.
Q. It existed. You don't moan it vanished in the air? You mean it was --
A. No, that is to say, it had now gone to the police of to the finance office, they had now taken into their hands the property left by the Jew.
Q. Then I take it in practice the Courts did not enforce what you have stated would be the valid law of inheritance?
A. I assume that such cases did not coma before the Courts.
Q. Well didn't matters of inheritance in general as to Germans come before the Courts?
A. Yes, yes they did.
Q. I think that is all.
BY DR. ORTH:
Q Witness, the prosecution introduced the following documents into evidence against you: Exhibit 457, document NG-666; Exhibit 451, document NG-636; Exhibit 453, document NG-900. All these documents are concerned with questions which relate to the so-called disputes about descent in the case of Jews or people of mixed descent. Please make first some general comments about these documents.
A The prosecution introduced these documents in connection with Volumes V and VIII; therefore, I must conclude that the prosecution believes that by those documents I ought to be brought in connection with the persecution and sterilization of Pews. Neither is true. The documents contained in Exhibit 457 and Exhibit 453 have nothing to do with matters of hereditary health matters or hereditary health courts. Those documents are concerned with civil litigations, cases which pended before the courts, where the question of biological and legal descent, as such, was concerned. Those cases, therefore, dealt with the question as to whether or not somebody was the child of a certain person.
In regard to the cases which pended before the hereditary health courts, the question concerned was whether or not the particular person -- of whom one already knew that ho was the son or daughter of a certain person -- was biologically healthy from the hereditary point of view.
Both proceedings, therefore, had entirely different aims.
They were entirely different in every way and had nothing to do with each other.
Q Witness, I am now going to show you Exhibit 451. This document contains the program for the Chiefs' conference in Kochem on the 23rd and 24th of August 1944. What does this document show to prove that your statements are correct?
A This exhibit contains, among other things, the suggestions and measures which had come from the sphere of Department VI of the Reich Ministry of Justice and which had become necessary as a result of the development of the war in the sphere of the administration of Justice.
Under Roman one, Arabic one-a, and Arabic three -- I am referring to pages 13 and 15 of the German text -- measures are enumerated which refer to matters of descent. Under Roman seven, page 21 of the document in the German text, those measures are enumerated which relate to the Hereditary Health Law.
Q Please explain briefly to the Tribunal what one understands under German Law by "matters of descent."
A The fact that, from the biological point of view, a certain man has fathered a certain child, is under the German Civil Code, the decisive criterion for the status and the legal position of the child, and therefore also for the rights and claims of such a child. However, as we know, it is frequently difficult to establish the true biological descent of a child, and it was particularly difficult at the time of the promulgation of the Civil Code, pursuant to the achievements of biological science, the German Legislator had established certain legal suppositions concerning the legal descent.
On the basis of those provisions the biological descent and the legal descent not infrequently appeared to be different. As science progressed, in particular in the field of bio-chemistry, hereditary biology, and anthropology, after the Civil Code had come into force, more and more reliable methods of science were discovered in order to prove or at least exclude biological descent of a child from a certain father. As a result, litigations between father and child became more and more frequent concerning the true biological descent, that is to say, concerning the question as to whether the legal father was also, biologically speaking, the child's father.
Under German law, all those cases of litigation are described as matters of descent. A partial complex is formed by those cases where Jews and persons of mixed descent, in the majority already adults, wanted the matter clarified in a court for themselves or their progeny, that contrary to the legal supposition, biologically and consequently also legally, they were not -- or, at any rate, not to the extent that had been assumed -the children of a Jew or a person of mixed descent.
Those are the provisions of German law. Matters were more or loss the same under Austrian law, but I don't think details arc important.
To help you understand the matter better, I think I had better briefly refer to the procedural provisions. Contrary to ordinary civil litigation concerning property, etc., where the basis of a decision is, in fact the evidence produced by the two parties, under German law, in order to establish beyond all doubt the personal duties of the person concerned -- in so-called status cases, to which descent cases belong -- but not the socalled alimony cases (Zahlvaterschaftssachen) -the so-called official maxim has to be applied, that is to say, the court, at its own initiative, has to clarify the facts of the case. Furthermore, in such status cases, to a larger extent than in the ordinary civil cases, following the French model, the prosecutor has to play his part. In descent cases where we are concerned with legitimate children, the prosecutor, under conditions laid down in the law, is entitled to make an indictment if public interest, or the interest of the child, or the interest of the child's heirs warrant that. In this sphere, as elsewhere, the public prosecutor is bound by the instructions of his superiors.
Q Witness, I believe that is sufficient, all the more so since we are going to refer to this matter again by an affidavit.
Please comment now on Exhibit 453.
THE PRESIDENT: Just a moment. Could you toll us in a few words what, if anything, your Department VI had to do with matters pertaining to descent cases such as you have described them?
THE WITNESS: Those descent cases played a great part from the point of view of my department exercising supervision. I shall revert to that matter quite briefly.
THE PRESIDENT: Over whom or over what did you exercise supervision?
THE WITNESS: The Ministry of Justice, because of the treatment to be accorded to such descent cases constantly received complaints, in particular, complaints stating that these proceedings never made any progress. Furthermore, and I shall revert to this too, we received complaints -
THE PRESIDENT: (Interposing) That doesn't answer my question. I am sorry to interrupt you. Your Department exercised supervision in matters pertaining to descent. Over whom did you exercise supervision?
THE WITNESS: We had that supervision over the courts and over the public prosecutors.
THE PRESIDENT: That is all I want to know.
THE WITNESS: May I add -
THE PRESIDENT: (Interposing) You have answered the question. It is time for our recess. Fifteen minutes.
( A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. ORTH:
Q Witness, will you please comment again on Exhibit 453?
A Here I have to say first, briefly , that the descent cases which I have just mentioned, especially the right of the Prosecution to raise charges in descent cases, since the so-called laws concerning Jews were issued, were used as a means for Aryanization, as we called it. In cases, that is to say, where a man who, according to the law was considered to be a Jew was of the opinion that he was not to be considered a Jew, he himself filed a claim for the establishment of the fact that he was not a Jew, that is, that he was not a descendant of a Jew. Or if his right to file that claim or the right of his father to do so no longer existed because the tern to do so had expired, he went to the Public Prosecutor to make the Public Prosecutor file this claim. The latter was the case when a suit was filed in order to challenge the legality of a marriage. Now in cases where these claims were filed in the course of the war, particularly during the last years of the war, considerable difficulties arose. I only want to mention two, but there were more of those. One was the lack of experts in the field of genetics which was caused by the war. The other reason was the thing that had occurred with the courts in Vienna. In other courts it did not occur, as far as I know. There, in Vienna, a particular difficulty arose, owing to the fact that the police, as far as Jewish witnesses for these descent trials were concerned - - in most cases it was a question of so-called witnesses for the investigation or witnesses for the purpose of comparison -- that the police, as I said, for reasons of security had removed these witnesses and now refused to produce them or to release them. That can be seen from the letter of the police of 3 May 1944, which is in this exhibit. Objections against the attitude of the police which were raised by the subdepartment chief Ministerialrat Rexroth in the course of a conference with a referent, were only successful to the extent that the police consented in exceptional cases to produce witnesses if the Reich Minister of Justice expressly demanded that.
Moreover, the police referred to the lack of means of transportation and escort personnel caused by the war. With matters as they stood, the Reich Ministry of Justice could do nothing else but to bring them to the attention of the courts in Vienna through the President of the District Court of Appeals. For the people concerned who desired to carry out by that suit, as I have called it, an Aryanization, the fact that these witnesses were not produced as a rule did not amount to any disadvantage. The persons concerned on their part, either if they had instituted the proceedings themselves in their own interest or if they had requested of the Public Prosecutor to institute proceedings, had themselves presented to the Public Prosecutor evidence for their assertion that they were not descendants of a Jew or a person of mixed Jewish descent. And if the Court could not produce the expert opinions of geneticists which officially had to be produced and for which these witnesses for the purpose of comparison were needed, then the court could do nothing else but on the basis of the evidence which the Jews concerned had submitted, to decide, and that this evidence was in favor of the person filing the claim is obvious. And to that the remarks in Exhibit 453 refer, that one had to put up with it if in this manner the intentions to cover up for the true descent could not be prevented.
Q Witness -
THE PRESIDENT: Let me ask you this: concerning these claimants suspected of being Jews but claiming to be Aryans, how far back did they have to trace their ancestry to prove that they were Aryans?
THE WITNESS: They were not compelled to go far back. It sufficed to prove that either one of the parents was not Jewish, and if that could not be proved, they also could refer to the fact that other ancestors of their were not Jewish. The question as to whether a person was a Jew or was not a Jew was laid down in the meaning of the Nuremberg Laws, these laws and the decrees to carry out these laws.
But the suits themselves were not concerned with that, but subsequently the main thing was whether -
THE PRESIDENT: Did they have to prove that their grandparents were not Jewish?
THE WITNESS: Mr. President, we have to distinguish here
THE PRESIDENT: Just tell me yes or no first, and then you may distinguish. Here is a man who claims he is an Aryan. He wants to prove it. What of his ancestors must he prove were not Jews? Can you answer?
THE WITNESS: Framed in this way, as far as these suits were concerned, I cannot answer the question because as far as these suits were concerned that question was of no importance.
THE PRESIDENT: Was he an Aryan if his grandfather was a Jew?
THE WITNESS: He had two grandfathers and two grandmothers.
THE PRESIDENT: Yes.
THE WETNESS: And there the distinction was made, but according to the Nuremberg Laws, which were only of interest before the administrative authorities and not for these trials, the distinction was made whether he was one-eighth, , one -fourth, or one-half Jew, that is to say, a person of mixed descent of that degree, or whether he was a full Aryan. But I say that that is a question which for carrying out these descent cases was of no importance.
THE PRESIDENT: Will you tell me then, and do it briefly, because I know you can, what did the person have to prove in order to establish in a descent case that he was an Aryan?
THE WETNESS: It was established, Mr. President, that contrary to the legal assumptions, he was not the descendant of that and that father. Nothing else.
THE PRESIDENT: That is, that he was not the descent of his purported father.
THE WITNESS: Of the purported father according to the legal assumption.
THE PRESIDENT: That is if the father was a Jew.
THE WITNESS: If the father was a Jew.
THE PRESIDENT: Then he had to prove he was a bastard. Is that what you mean?
THE WITNESS: Yes. If it was at ell a question of legitimacy. There were such cases of descent also outside of marriage, illegitimate. These descent cases were not restricted to Jews. There were not at all any special regulations for Jews.
BY Dr.ORTH:
Q Witness, will you please refer now to Exhibit 451.
A I mentioned 451 before, briefly. First I would like to refer to Point I/3. - questions pertaining to the sphere of Department 6, and specifically the question of restricting the presentation of evidence by examinations of genetics in matters of descent were referred to.