It must be attributed alone to tho tireless endeavors by KLIEM in the conference of the State Secretary that a judge was admitted at all as president and an official of tho Public Prosecution as representative of the prosecuting body to the Martial Court. KLEIM could consider it a guarantee after this personal success that the decree which was then composed by the legislative department and THIERACK would make possible a regular procedure and a just sentence. It is impossible to assume that the inssuing of the decree on Martial Courts, as such, should transgrees against the laws of war and the laws of humanity and that KLEIM became guilty of such crimes by his participation in issuing this decree.
"VII. The Prosecution believes that reproaches against my client can be based on the Minister's clevency procedure. Moreover, they apparently wish to maintain that his attitude encouraged THEIRACK in his severity. The Prosecution does not refer to any individual cases in which KLEMM himself pronounced a too harsh and unjust decision. It is also not shewn in detail which attitude KLEMM adopted with regard to any case in which THEIRACK may have pronounced too harsh' a decision. Obviously it is only being deduced from the large number of death sentences carried out that this clemency procedure was inhuman and in itself constituted a crime against humanity. It is not admissible to base legal deductions only on figures and statistics. As the Prosecution considers, however, that special importance should be attached to figures, I myself cannot refrain from once again going into the matter of the report lists, which has been so often discussed already, insofar as it may concern the responsibility of my client. According to Exh. 173 it has been established that in 1943, i.e. before my client took up his activities as Undersecretary of State, about 5300 death sentences were carried out. Basing their arguments on the statements of the witness SUCHOMEL, (Exh.
534) the Prosecution obviously wishes to prove that after KLEMM joined the Ministry of Justice the policy in clemency cases had become severe to an inhumane degree. The statements of SUCHOMEL, how ever are clearly refuted by the testimonies of witnesses. Thus the witnesses HARTMANN (Tr. English. page 9034, German, page 8653 FRANKE (Tr. English. page 9273, German, page 8889). ERHARD (Tr. English, page 6376. German, page 6184) and KLEMM himself (Tr. English, page 4979, German, page 4896 f) have been able to testify from their own personal experience that the figures which SUCHOMEL quoted cannot possibly be correct. Only those can be regarded as a basis here which are shown by the report lists themselves (Exh. 232). This well founded basis of evidence shows that in 1944 the figures of 3500 cannot have been exceeded. The afore-mentioned witnesses could moreover state that usually there was only one report on death sentences per week. Even if the lists do not record every report to the Minister, this can be explained according to the testimony of the witness HARTMANN by the fact that in that case KLEMM could have had nothing to do with such reports. Exh. 232, it must be remembered, is the personal copy of the defendant KLEMM with his own notes on it. The fact that this copy shows KLEHM's hand-written remarks proves, in connection with this testimony of HARTMANN's that it is a question of a complete collection of the lists which KLEMM received in his turn Thus, all reports on death sentences have been recorded in lists, with the exception of those few cases in which a so-called lightning-execution had been ordered, or which concerned the trial dealing with the assassination attempt on HITLER on 20 July 44 (testimony FRANKE, Tr. Engl. page 9278, German page 889). The document in question is therefore a reliable basis of evidence.
In order to establish the total number of death sentences carried out, one must only include the proportional figure for those weeks in which KLEMM did not participate in the report to the Minister. The lists record about 2700 death sentences. Counting about seven report days as missing and taking the special cases not recorded in the lists into consideration one cannot possibly arrive at a higher figure than 3500.
Thus also the statement of SUCHOMEL and his deduction to the effect that in 1944, 8000 death sentences were carried cut, is conclusively proved to be false. In comparison to the 5300 executions carried out in 1943, a considerable decrease can even be stated. According to KLEMM, Exh. 77, there should be records in the document center in Berlin where the files of the former Reich Ministry of Justice have been collected, which show that in 1943 and 1944 altogether 10,071 cases occurred. The Prosecution has not submitted these files which allegedly exist according to this newspaper notice. However, if one takes this figure for both years as a basis, the testimony of SUCHOMEL is refuted. If according to Exh. 173 there was a question of 5300 cases in 1943, the remainder of about 1500 cases in respect of both years can be explained by the fact that the Reichsstatthalter for Bohemia and Moravia, who was given the right to grant reprieves at the beginning of 1244, end the Reichsstatthalter in the incorporated Eastern territories, who had such a right even before that date, dealt with those 1500 cases by way of their independent clemency procedure.
KLEMM, in his capacity as State Secretary, only had to decide on a small fraction of all cases. The highly unreliable witness ALTMEYER, it is true, tried to maintain that reports were made to KLEMM every moth. This statement, however, has also been clearly refuted by the evidence. This was stated unanimously by the witnesses EHRHARDT (Tr. Engl. page 6371, German page 6178), FRAHKE (Tr. Engl. page 9368, German page 8878) and HARTMANN: (Tr. Engl. page 9033, German page 8653) while giving exact details concerning the technical procedure as to how the lists in Exh. 353 were drawn up. During the whole period of his activities as State Secretary KLEMM on his own part received only 4 or 5 oral reports concerning death sentences.
This fact, too, becomes evident from Exh. 253. According to the lists, only on five days, the exact dates of which are given, oral reports were made to KLEMM. On two of these 5 days no death sentences were dealt with, but cross in connection with several criminal proceedings which had not yet been brought to a close. (cf. testimony KLEMM, Tr. Engl. p. 4978, German P. 4896). Even the witness ALTMEYER had to admit the clear evidence of Exh. 253 when it was put to him in the cross-examination. He thinks he can explain the gaps in his memory by maintaining that KLEMM frequently deputized for the Minister, and that this fact had not been recorded in the lists. In contradiction to this, the witnesses EHRHART (Tr. Enql. p. 6369, German p. 6176), FRANKE (Tr. Engl. p. 9268, German p. 8878) and HARTMANN (Tr. Engl. p. 9032, German p. 8652) again unanimously pointed out that such a sudden necessity for deputizing was a very rare occurrence. These cases of deputizing can be of no practical importance whatsoever, for according to the statements of these witnesses the lists were always only drawn up in the offices on the day proceeding the report, and were even made out with a view to the person in question, be it the Minister of the State Secretary, This was also - in accordance with the rule laid down by the Minister himself, as is shown by Exh. 45, according to which THIERACK gave general instructions at the beginning of 1944 that all death sentences should be reported to him.
This quite fearless basis of evidence proves that KLEMM on his own part did not refuse to grant a reprieve in more than 85 cases. These 85 cases represent only about 3.5% of all executions ordered in 1944 (testimony Kl. Tr. Engl. p. 4976 ff, Germ, p 4894ff). Now it is rather remarkable that the Prosecution has not submitted one single document concerning the cases which were decided by KLEMM. The individual names of the cases concerned are clearly shown by Exh. 252. Therefore there is no documentary evidence available as to what KLEMM's decision was in these cases.
Thus it is impossible to examine one way or the other whether KLEMM's decision was just or in just and therefore perhaps Inhuman. No deduction can therefore be made from this which might be unfavorable to KLEMM. The following fact, however which is in my client's favour, should be taken into consideration. He could decide independently only on the so-called clearcut cases. The evidence has provided sufficient material to shear how this term was to be understood.
In accordance with the legal regulations, i.e. the clemency regulation and the official instructions, 7 different officials had to give their comments on the clemency question after a sentence had been pronounced, and before the final authority for clemency cases came to a cecision. Now if a case was designated as clear-cut it meant that all the seven official who had been heard had unanimously taken the view that the granting of any clemency was cut of the question. The fact that KLEMM was only allowed to pronounce a decision in clear-cut cases is proved by the statements of the witnesses HART-MANN, FRANKE, EHRHART and KLEMM which all correspond with each other. Even the witness ALTMEYER could not deny each other. Even the witness ALTMEYER could not deny this fact in spite of his tortuous explanations. The witness EHRHART (Tr. Engl. p. 6370, Germ. p. 6178) has also stated that if KLEHM had to deputize for THIERACK the so-called doubtful cases were immediately postponed.
That the refusal to grant a clemency in such a clearcut case should constitute an outright inhumane decision is out of the question for the reason alone that 7 different officials had unanimously voted for the carrying out of the sentence. KLEIM, however, when making his decisions was not content simply to base his decision on these seven notes, but he had the case reported to him, examined it on his own and only then pronounced the decision (testimony KLEMM, Tr. Engl. p....... German p. 5083) also affidavit BEMS (Doc. ROTHENBERGER IV b N 180 p. 20).
The reproach of the Prosecution that the clemency procedure in itself was inhumane or was not in accordance with the importance of the grave decisions which had to be made is therefore unjustified. Beyond that, however, it must be stated that KLEMM' as shown by Exh. 252. granted a clemency in spite of everything in several of these cases which were reported to him as clear-cut, or else gave the order for a re-examination of the case which might benefit the defendant. That in itself is a symptom for KLEMM's humane and just attitude. The witness for the prosecution FRANKE has pointed out that KLEMM's attitude was no more severe than that laid down by the general policy which had already evolved and been pursued by all officials of the Ministry of Justice before he joined it. This is also corroborated by the documents (Exh. 45) of the prosecution, according to which there can have been no change of policy following KLEMM's joining the Ministry. (Testimony KLEMM, Tr. Engl. p. 4970, German p. 4889, Engl. P. 4890, German p. 4898, Engl. p. 4985, German p. 4905, Engl. p. 4996, German p. 4912).
This becomes quite evident through the testimony of the witness WILKERLING (Klemm Exh. 59). MATTERN (Klemm Exh. 60). PREISER, (Klemm Exh. 74). The witness HARTMANN (Engl. transcript page 9023 and the following pages, German, page 8647) and BRUNS (Klemm Exh. 636) have told of various single cases which illustrated the fact that Klemm advocated in many cases a ore lenient interpretation and intervened also with THIERACK, in favor of a pardon or at least of a re-examination of verdict. He therefore differed from TIERACK's more severe conception. Only the witness ALTMEYER believes to have observed something different in this point. He told of 4 cases which KLEMM allegedly decided. These cases would really be the only factual basis for the finding of anything relating to the actual procedure in clemency cases in the sense of the indictment. It is, however, an incomplete basis, in particular in reference to the personality of exactly this witness who contradicted himself after and who appeared extremely insecure, and who obviously belongs to the witnesses who now try to accuse their former colleagues in order to excuse themselves for their former activities.
The 2 cases about which he was cross-examined more in detail are altogether not designed to support ALTMEYER's attempt to give a perogatory judgment about KLEMM. At this he must admit himself that the policy in elemancy cases had followed this direction already for many years and he mentioned a similar case which at SCHLEGELBERGER's time had also resulted in a rejection of a clemency plea. In the two other cases which he now wants to represent as doubtful, he attempts to make it seem especially severe, that at the plunderings which occurred, the taken object was insignificant. It is questionable, if this was actually the case, seeming that at that time many things were completely unobtainable. When during cross-examination the corresponding judge's letter, Exh. 861 was shown to ALTMEYER, unanimously is of the opinion that the stealing of objects of small value cannot be considered as looting, he evaded the issue and wanted to place major importance or the personality of the perpetrator which cannot be any more established at this time. The witness did not realize that, by doing soy he completely contradicted his former argument which had stated that the severity of the judgment resulted from the insignificance of the stolen object. This ought to be sufficient to make the unreliability of ALTMEYER's testimony evident. So it remains a fact that, according to the testimony of the other witnesses, KLEMM had had an amiliorating influence.
As far as KLEMM himself took part in THIERACK's decision as a minister, ho can also not be charged with having committed a crime against Humanity or against the Rules of War. I do not have to go into discussions on the problem whether the clemency pleas rejected by THIERACK could actually represent such a crime in the individual cases presented by the Prosecution. Because in none of the cases presented with documentary evidence by the Prosecution has it been establishes, whether KLEMM voted at all, and in favor of what he voted in each individual case.
According to the principle in dubio pro re (in doubt - for the accused), the Court cannot exclude the possibility that KLEMM gave reasons for the pardon at the time of his voting. In individual cases we know from the above quoted statements of witnesses that he has positively done so. The Court will, however, not be able to acknowledge KLEMM's responsibility because of a legal consideration: the participation in the discussions concerning the execution of death sentences does indeed not meet the legal facts of a causative form of participation, according to the Control Council Law No. 10 Hitler had, as head of the Government conferred the right to decide about the execution, after the beginning of the war in 1939, not perhaps to the Ministry as to a body, but only and exclusively to the Minister of Justice personally (Klemm Exh. 38a, 39, as well as SCHLEGELBERGER Document BI No 28 and 29). The opinion of the offices consulted had therefore no cusative influence on the decision of the minister. He could, and had to decide according to his own judgment, this was his duty and in correspondence with the law. In the case of Minister THIERACK an added factor is, that he was on principle not to be influenced, as all witnesses had confirmed. THIERACK was autocratic and very arbitrary. He was from the start rot inclined to lot any of his collaborators push him into a decision. Such an attempt would have produced the contrary effect on him. Corresponding to his legal position and his personality, THEIRACK did also at the voting not want to hear a proposal for a decision from his collaborators. The voting consisted only in the stating of reasons which could be of importance for his own decision. He gave no importance whatsoever to the result of the discussions of his collaborators, and when he was now and then informed about the personal opinion of one of his collaborators, it was obvious that it did not concern him.
In this circle of consultants and advises of the minister, KLEIM had no other position than the others, that is, the assistants, the sub-department Chiefs and the department-chief. THIERACK also asked KLEMM nothing else but to state means and reasons which could be of importance for his decision. We learned from the witnesses EHRHARD (Transer., English page 6372, German page 6179). FRANKE (Transer. Engl. page 9269, German page 8880), and METTGENBERG (Transer. English page 6313, German page 6124) and from the Affidavit METTERN (Exh. Klemm 60), that his vote had no greater weight than the note of the others. How small KLEMM's influence on THIERACK was in such reports, is illustrated by the contempt which, according to METTGENBERG's statement (Tr. Engl. p. - , German page 61241) he showed towards his collaborators at such a report. If a causative responsibility for THIERACK's decisions could be considered, then literally every member of the Reich Ministry of Justice, who ever took part in such a report, was indeed equally responsible. The report lists (Exh. 252) demonstrate, what a large number of persons would be concerned by this. KLEMM's position in the voting did not differ in the least from the position of these persons. His official position as under Secretary did not make any difference in this.
VIII. Finally the charge of the Prosecution, that KLEMM had participated in a distortion of existing laws, is unfounded. The Prosecution states that an increasing number of German laws were decreed not only in order to create confusion in legal conditions, but also in order to interpret arbitrarily already existing laws, so as to offer an opportunity to the National-Socialist leadership to destroy political adversaries. The Prosecution referred in particular to two documents in KLEMM's case which have still to be discussed. One is Exh. 437. It concerns a session, in which the various Ministries and the Party Chancellery discussed an order to be issued, concerning the simplification of the criminal procedure. If was only a meeting of the department at which KLEMM' as deputy of the Party Chancellery had no authority to give his definite consent.
It results from KLEMM's various statements, which arc quoted in the document, that he wanted to obtain a simplification of the complicated criminal procedure which was burdened with formalities, in order to economize time as well as employees in the then critical phase of the war. The document shows in detail KLEMM's real endeavor to find a synthesis between the necessity of finding simplified measures and the guarantee of a just procedure. The High Tribunal will at the examination of this document arrive at the opinion, that at this meeting KLEMM was led neither by problems of party politics nor by any desire for party influence, but only by considerations relating to the general principles and the policy of law. It results clearly already from the form in which KLEMM expressed bis suggestions that this was scientific discussion and not an attempt to carry through a party doctrine. The Prosecution believes to find in the discussion a particular offense by KLEMM's suggestion to abolish the decision by the judge on an order inflicting punishment issued by the police. In this case the Prosecution starts from an entirely mistaken supposition. It overestimates this police authority to punish which was carried over from the eighties of the 19th century. The fines of this police authority to punish amounted to 10 up to 20. -- RM. The order inflicting punishment was only applied in cases of minor traffic infractions. This institution does not even have the significance which corresponds in the United States with the decision of a magistrate, and which is incontestable. KlEMM only suggested to abolish the re-examination by a judge of such a police order, but not to cut off the possibility to appeal to the superior office. The procedure of re-examination by a judge was always much more expensive than the insignificant fine. It is impossible to find in these facts an important restriction of the right of the defense.
According to Inhibit 531, the Prosecution charges that KLEMM has committed a crime by collaborating in the order to assure the total war effort. This is also an impossible conception. This order was a blanket law and it contains penal regulations for offenders against numerous prohibitions which had to be issued by the highest Reich authorities for reasons of war requirements or occurring scarcities. It can hardly be contested that such regulations can and must be legally protected. The conditions prevailing in Germany at various times required a larger framework of the penal regulations, as the cases to be judged extended from an insignificant infriction of to the most severe crime.
The issuing of this cover law was considered afvisable by the legal authorities for a special reason. Those administrative offices which had issued orders or prohibitions on account of war conditions began to hand over persons who had not obeyed these instructions to the police, because there was no regular penal regulation for such cases. As however, in view of the instructions concerned, it was not a question of preventive police measures, but of the punishment of criminal offenses, the legal authorities had to create a, basis for court proceedings. This could only be done by issuing the necessary penal regulations, and in this way the police was to be prevented from acquiring a new and uncontrolled power. It was thus only a constitutional question which alone was decisive for decreeing this law. The Prosecution have not made any further accusation against Klemm in this respect. They cannot be made, either, in view of a comparison with the laws issued by Thierack and Klemm in Klemm Exh. 57 and 58. The Prosecution however, considers that my client ha.s further tampered with the law by interpreting regulations connected with practical penal procedure in an inhumane way. But Klemm has not been guilty of tampering with the law in that respect either. In particular Klemm is being accused of having participated in the application of the rule of analogy, of the measures influencing jurisdiction (Lenkungsmassnahmen) and in the issuing of the circulars to the judges, and thus of having advocated a distorted application of the law. Finally the Prosecution puts forward that Klemm was responsible for the infamous increase in severity in police interrogations. As far as the latter is concerned, the assumption of the prosecution is again based on misunderstood records. The police introduced more severe interrogations on their own initiative. The legal authorities had nothing to do with that and never approved of them. On the contrary, they instituted proceedings against such officials if they received- knowledge of such severer interrogations, basing them on the law concerning punishable assault while on official duty according to the provisions of the German penal code par.
340, 341 (Exh. Klemm 26). In order to provide the legal authorities with a possibility to take uniform and energetic steps against those police officials who had committed offenses in this respect, Klemm was given a special department during his activities in the Ministry prior to 1939. From an accumulation of different cases documentary material was to be procured in order to take stops with the higher authorities through the Reich Ministry of Justice for illegal practices of the police. This alone was the idea and purpose of the so-called Sonder-Referats (compare statement by Klemm, English Transcript page 4815, German page 4739, English page 5168 and the following pages, German page 5076 and the following pages).
Since the Government, ostensibly upon Himmler's influence - by a decree of 17 October 1939 - created a special jurisdiction for the Police- and SS-Forces (Klemm Exh. 29) judicial authorities, in the period following, were robbed of the possibility to have offenders of this kind punished by the courts, Judicial authorities however -- as has not been disproven before this Tribunal and as numerous witnesses have testified -- in so far as they were acting as judges -- did not use the confession of a defendant in criminal proceedings against him if indications were found that coercion or bodily ill--treatment had been instrumental in bringing about the confession. The Prosecution was not in a position to quote any case from which the contrary could have been deducted.
The Ministry of Justice, and thus also the defendant Klemm, had no particular influence whatsoever on the formulation of criminal proceedings. Whether individual judges gave the accused sufficient opportunity to defend themselves properly, could be charged only to the responsibility of the judge himself, in accordance with the regulations of procedure. The principles of procedure had been laid down for decades in the Code of Criminal Procedure and in the Judicature Act.
The simplifications necessitated by the war however, have always stressed an exhaustive defense of the accused. Furthermore it was the judge's duty to do everything in order to find out the material truth. This prerogative and duty of the judge had never been limited. Neither could the Ministry really find out whether, in some single case, these old established principles had been violated. The files submitted to it hardly ever contained anything concerning the method of procedure and the method of conducting the trial by the judge. Here the Ministry of Justice could only intervene if any faults were discovered by the supervising judges. It is therefore impossible to reproach the defendant Klemm if any judge did not heed the legal provisions in some single case.
THE PRESIDENT: The Tribunal will take five minutes' recess and then we will proceed, until 12:30 or thereabout, with your argument. I think that the interpreter is entitled to catch her breath.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. SCHILF: Besides, the legal institutions established in 1933, as for instance the application of analogy in penal law, the introduction of the Extraordinary flee, and the Petition for Nullification existed already a long time before Klemn became State Secretary. Even when viewed from the angle of legal degma and legal policy the principles justifying the introduced institutions cannot be contested. There is always a weak point in codified law which makes it difficult to either take the established facts of cases, occurring in every day life, into full consideration or to foresee them. Here Anglo-American law has an advantage in the judgment of cases. An evolution of law is gradually effected thereby, and new phenomena of crime can be dealt with without necessitating a tedious legislative procedure. In these proceedings the opportunity was often given to point out before the Tribunal that even in the dogmatics of German penal law efforts had already been made prior to 1933 to fit the constantly changing farts of life more effectually into penal law than was hitherto possible on account of the structure of German Law, by drawing up General Clauses to that effect.
If one disregards the observing phrases of a frank or Goebbels which were not adopted by the legal profession, and which every jurist could discern as being a mere profession, and which every jurist could discern as being a mere phrase, a same idea of legal policy in fixing the analogy of law cannot be denied (Compare Klemm Exh. 17, Mettgenberg Exh. 16, 17 and 23). The prosecution apparently was the victim of an error when, in quoting article 2 a of the Reich Criminal Code, they made it a, premise that only "Sound sentiment of the People" was to decide whether a penal law was to be applied analogically or not. A very grave error, found to this effect in the translation, has already been corrected. The law moreover demanded that an analogical application was possible only when the act proved to be punishable according to the underlying idea of a penal law and according to the Sound. Sentiment of the People. I am convinced that the root of all evil cannot be found in the concept "Sound Sentiment of the People either. No codified law can be applied without such a general clause, and the idea, inherent therein, complies with an old concept of German legal sentiment, my this nothing else was to be expressed than that a feeling for fairness had been passed dawn in Germany by those who thought fair and just. How the Reich ministry of Justice still wanted this to be interpreted in 1943 can clearly be seen from the Judge's letter of 1 October 1943 (Klemm Exh. 47). Not only science, but jurisprudence also has for a long time struggled with this problem, and the German Supreme Court for deciding legal matters, the "Reichsgericht" has repeatedly pointed out these limitations set up by the law (for details compare: Doc. Book Petersen No. 91 - 105, pages 64 - 94).
The defendant Klemm encountered this uniform method of administrartion of justice, existing already for years when he assumed the Office of State Secretary. No proof was brought against him that he increased the severity of this administration of justice in any form or that he endeavored to remove the limits set up by legislation or administration of justice. The same applies to the Extraordinary Flea and. to the Nullification Plea. These were filling a certain legal gap, caused by the fact that the judgments of the Special Courts, or the Appellate Courts and the People's Court -- insofar as they passed, judgment as Courts of First "Instance" -- could not be set aside by legal means. Justifying reasons may have existed - when these courts were instigated - for barring legal measures against judgments; the actual development proved however, that poor judgments were pronounced and legal errors were made by the officiating judges. Of course, in cases of wrong judgments, the but one-sided way of leniency was still open, whilst the unjust judgment still remained, and the one a against whom the judgment had been Passed, stayed branded after all. Finally, the grant of leniency was only possible when, although the judgment rendered was legally incontestible, the penal measures had been too harsh. For these reasons the Judicial Administration (Justizverwaltung), long before Klemm became State Secretary, had decided. (going by law outside of Germany and especially Austrian Law) to remedy this because the shortcomings of a court of first and last "Instance" outweighed the advantage formerly considered. (compare Mettgenberg, Exh. 31 and 32).
In regard to Klemm especially it was not claimed by the Prosecution that he sanctioned injustice and terror by means of these legal remedies. In the first place, the general claim by the Prosecution, that these legal measures had only or mostly been applied to the disadvantage of the condemmed, were refuted in the evidence. It clearly follows from many statements of witnesses and from documents that both legal institutions had been applied, to a large extent, in favor of the accused.
Court No. III, Case No. 3.
It is sufficient here out of the abundance of material to make reference to the Mettgenberg Exhibit 31, 32 and 44 as well as to the Rothenberg Document Book II, No. 170, page 142. Particularly from the Mettgenberg Exhibit 32 are obtained statistics that the plea for nullity in the period discussed in this article, in the greater number of cases has been put to the advantage of the sentenced man, and that the Senior Reich Public Prosecutor, as is seen especially clearly from the Mettgenberg Exhibit 44, only let himself be guided by legal stand-points. That this legal institute in itself cannot have been bad, as the witness for the Prosecution Behl believes it to be, is strikingly shown by the circumstance alone that the plea for nullity still exists now and is applied under the rule of the Control Council. (cf. Mettgenberg Exhibit 43).
Nothing has come to light to the effect that perhaps KLEMM tried, in using this legal assistance, to leave justice out of consideration in individual cases. It is to be particularly stressed with what foresight the use of this legal measure was observed in the Ministry. Cases where the Senior Reich Public Prosecutor at the People's Court or at the Reich Court of the Ministry of Justice was directly instructed without a hearing to take one of these legal measures, were extremely rare. Neither was the Ministry content with examining itself, but also obtained the opinions of other lawyers viz. that of the President of the Appellate Court of the district in which the sentence was passed and of the General Public Prosecutor. Only when there was a wide agreement of opinion was the Senior Reich Public Prosecutor now requested on his own initiative to enter upon the examination of the question as to whether the legal measure should be taken or not. The best evidence for this conscientious and thorough examination is the document introduced by this Prosecution itself (Exhibits 541 and 542.) In the predominant number of cases the Senior Reich Public Prosecutor expressed himself against any opposition of the sentence. The Ministry of Justice as a rule shared this attitude and Court No. III, Case No. 3.acquiesced to the sentences even when defects were revealed.
The Prosecution therefore remained absolutely indebted for the evidence which would show that the treatment pf these two legal measure served only to develop a justice of blood and terror.
Also the so-called guidance (Lenkung) proved, according to the evidence, not to be the fearful instrument with which the Ministry of Justice eliminated the independence of the judges and is supposed to have dictated the sentence from above. Also it is first of all to be mentioned here that the so-called guidance was no invention of KLEMM, There were indications from the Ministry of Justice which concern the co-operation of the judges and the Public Prosecutors and which found fault with the individual decisions of the judges, long before bis time (cf. Klemm Exhibit 56, Rothenburg Document Book III, No. 47 page 57). THIERACK introduced judges' letters in the year 1942 Only one single one, the judges' letter submitted by the Prosecution, falls in the time when KLEMM was Under secretary of State. His part in the guidance measures in question is therefore to be described from the very beginning as very moderate and is also to be justified from the point view of subject matter.
It is to be seen quite clearly from the affidavit of the witness SCHMIDT*LEICHNER (Klemm Exhibit 42) that the judges' letters aimed at neither an illegal pressure on the administration of justice nor a strong attack on the independence of the judges, and were not able to have this effect at all (cf. Exhibit Klemm 51 and the statements of the judges interrogated as witnesses). The one judges' letter which, before its publication, Klemm also submitted (Exh. 86), shows, in my opinion, a thorough and careful consideration of the legal question, the question as to the facts of the case and the question as to what punishment was suitable. It is significant that just the treatment of the subject of too harsh a policy on the part of the courts claims no small space in this exhibit 36. But according to the statement of the witness SCHMIDT-LEICHNER (Klemm Exhibit 42), THIERACK alone made out the Court No. III, Case No. 3.judges' letters in their final form and he allowed himself to discuss it with no one as to the subject matter nor even as to the phraseology.
The two directing letters to the Presidents of the Appellate Courts at Stuttgart and Hamburg (Exhibit 178 and 474) as the witnesses KUESTER (English Protocoll page 8198, German transcript page 7860), and STUBER (English Protokoll page 8393, German transcript page 8051) have testified, had numerous fore-runners. Moreover the sphere of undermining, with which the two letters were concerned, came under the jurisdiction of a Special Branch. From the statement of the witness FRANKE (English Protocoll page 9266, German transcript page 8877) and Exhibit 97 it is seen that a growing importance was attributed to the undermining in Reich territory as early as 1943. Exhibit 100 contains the experiences which were gained in the year 1943, that is before KLEMM's entry into the Ministry. It is impossible to maintain that KLEMM's work in this sphere contributed towards the support of National Socialist despotism, that it was necessary for this purpose. I beg the High Court in particular to consider the fact that in the case of these offenses, to bring it down to a brief formula, it was a question of mutiny at a time when the people were battling against their enemy on the outside. The form of the regime plays no part in that. No state can afford to tolerate inside enemies. Things cannot be looked at so one-sidedly as the Prosecution believes it must do.
The material for the two guidance letters, according to the evidence before us, was collected in the Branch administered by the witness FRANKE. The individual cases were then expounded by Franke, and the minister then decided in which case it must be pointed out that the offender has been given too mild a punishment. It has been clearly established that KLEMM signed the two letters on THIERACK's instructions, since the decision can only have been put on the latter. Therefore there can be no talk of KLEMM having possibly tried of his own free will to impose a harsher conception on the judges. The cases were only picked out because they did not agree with the jurisdiction which was Court No. III, Case No. 3.otherwise uniform in Reich territory.
The witnesses KUESTER (English Protocoll page 8198, German transcript page 7859) and STUBER (English Protocoll page 8394, German transcript page 8051) as well as the affidavit of BACMEISTER, Rothenburg Document II No, 23 page 16) have confirmed KLEMM's manifestations in the witness box, that the sentences of the Appellate Courts at Stuttgart and Hamburg in these matters of undermining lay below the average of the rest of the Appellate Courts in the Reich. From each letter itself it is seen further that an aggravation of the sentence is not desired purely without reason but it was actually a matter of uniformity and agreement in practice. The judges, concerned by the guidance letters, themselves, the witnesses KUESTER (English Protocoll page 7860, German transcript page 8199) and STUBER (English protocoll page 8394, German transcript page 8051), likewise declared that they did not feel that their independence as judges was attacked. The same is true of Cuhorst. They even went further and declared that they did not once feel moved to pronounce severer punishments in the future. None of the guidance letters during the time when KLEMM was State Secretary, led to any disciplinary measure being taken against these judges.
The so-called direction of the administration of justice concerned only the case and not the person of the judge It ought therefore to be made clear that the judge's independence was not to be destroyed, and according to the statements of the witnesses this result could not have been aimed at either.
In closing I still have to point out in this connection an error on the part of the Prosecution. In their opening speech they asserted that the directing letters had had the exaction of the death penalty as their aim.
And I now interpolate: In its final plea the Prosecution asserted that it was the aim of the guidance discussion to ask for the death sentence, They were introduced under the name of "Exterminating." The letters themselves, however, show that in all cases it was only Court No. III, Case No. 3.a matter of sentences of imprisonment and censure is passed because a more severe penalty would have been suitable.