Q. We shall now talk about this occurrence, which the witness Sontes apparently misunderstood and which can be traced back to an organizational chance in your area. By this I mean the reorganization of the Greek area and the establishment of seven sub-area administrative headquarters and one district administrative headquarters?
A. Yes, that is correct, that was also the reason for a reorganization in the judicial sphere and with regard to this, and I shall explain the witness' statement about the "shop without customers", partly to confirm this and partly to reject this. I would like to talk about the actual development of justice in this time and outline during the course of the last three months of 1944 the sub-administration headquarters which you have just mentioned that were set up and took over their tasks.
Every sub-area administrative headquarters had its own military court, which had as its task the sentencing of people for offenses against the Wehrmacht, up to then all judicial cases were dealt with centrally by the Military Commander in Athens. Now a decentralization of the local system had to take place. This decentralization progressed very slowly, in my personal opinion, much too slowly, but nevertheless I realized the counter results of my chief judges who first of all wanted to carry out the decentralization slowly for the following reasons. The courts of the sub-area administrative headquarters were completely new and strange in the area. They did not know the standards of our judicial system, they did not know the population and in order to get a standard legislation throughout the whole Greek area, all the judges had to have extensive instructions about their new tasks, partially by visits from my own judges and partially by bringing in these professional judges to my staff. The result of this transient condition was that my military court was increasingly overburdened with cases, which came in from the provinces and my judges had the tendency to take on more and more. Thereby the eagerness for work and the loyal feeling of duty of my judges must be particularly emphasized here.
I, myself, finally took severe measures against these conditions and before I went to the hospital in Germany in 1944, I ordered quite clearly and unmistakably and for the last time that until my return the decentralization had to be completely carried out back of the basis of the organization. I had given my Court the following task, firstly the chief judge was the chief advisor of the command, Secondly, he carried out the supervision duties and thirdly, the court of the Military Commander should only deal with those cases for whose competency the Courts of the sub-area headquarters outside were not sufficient and for which the judicial authorities were not competent, and finally, the Military Court had to make the pronouncing of the sentences and legislative uniform and was only to take over individual cases which were unnecessary to ease the burden on other military courts. To put it in a nutshell, my Military Court was not to be the office which did all the work, but merely had a supervisory and a standardizing job.
This request, described by me, was carried out completely as I ordered while I was away and that is what I meant before by my comment that the witness Sontes was completely right when he said during the months of January and February until the middle of March my Military Court was a "shop without customers", nevertheless the reasons were different from what he saw.
Q Well, then did the reorganization which you had just recently described bring you any easing of the situation as regards the previous one?
A Yes, without doubt; it was urgently necessary because just from the sake of strength I could no longer go on as I had before. I took this task very seriously. I did not get the chief judge to submit the individual cases to me and sign them as was usual but I went through everything personally from the very first to the last piece of paper and I formed my own judgment and my own sentence and then only discussed the legal questions with the chief judge and exchanged opinions. On this I made my decision. For my decision there were always 3 most important factors; first, absolutely justice; secondly, the priority of common sense over the very strict provisions; and, thirdly, taking into account the psychological motives and the social milieu.
DR. WEISSGERBER: Your Honors, in this connection I offered from Speidel Document Book No. IV Document No. 63. This becomes Speidel Exhibit 32. The document is on page 1 and following in Speidel Document Book No. IV and is composed of many parts, first of all an affidavit by a certain Robert Geiger testifying that he was in possession of copies of a sentence, of a military court which he sent me a short time ago.
Robert Geiger is not known to my client but it was obviously the case that this affiant had found that my client was a defendant here and he had found these documents in his possession and voluntarily placed them at my disposal.
The second part is the copy of the sentence in the case against a certain Theophile Tsaitis, a sentence which has a previous history and which in the form as it is set down here, was discussed on the 13th of June 1943 by General Speidel. Theophilo Tsaitis was acquitted. The 21st of April 1943 negotiations took place about this matter and the defendant Tsaitis was charged with manslaughter together with a charge of endangering the traffic through negligence and a charge of having caused bodily harm to other persons and sentenced to two years imprisonment.
The judicial authority -- that is General Speidol -- did not confirm this sentence and he ordered a new trial to take place whereupon the decision of the acquittal was reached.
Q General, would yon state very briefly what this matter was to the Tribunal?
A Quite briefly, it was a very serious traffic accident for which the Greek was charged. He was driver of this vehicle which on the railway between Salonika and Athens came into collision with another one and this caused the death of 5 high German officers, amongst them the Commanding General of Salonika-Aegean and injuries to two other officers. Therefore, it was a traffic accident with very serious results and the casualties included amongst others a commanding general.
Q And now I come back again to the subject of the SS. You said that your judicial authority was confined to crimes committed against the German Wehrmacht and that you bad nothing at all to do with the activity of the SS and you had no influence on the activities. Is that correct?
A Yes, that is correct.
Q But the witness Sontes maintained that from September 1943 the prosecution of crimes was taken over by the SS. Is this statement correct?
A This assertion in this general form is, of course, wrong as far as it concerns the prosecution of crimes against the German Wehrmacht because the prosecution of any kind of offense or crime against the German Wehrmacht was, of course, completely my responsibility.
Q Then what were the actual tasks of the SS? What were the tasks they took over? The witness indicated something of this kind.
A The activity of the SS, especially in this sphere, was completely unknown to me because there were measures within the sphere of police tasks which were exclusively ordered by the Reichfuehrer SS. Therefore, what incidents took place in this state within a state were completely unknown to me.
Q The witness also stated in his testimony that you as commander -that is, as the highest officer in Greece -- could also have had some success with the SS; you could have given orders to the SS. It is, of course, correct that the witness then rather limited this statement by saying that, whether the commander could actually order the SS or not, this is a question which I cannot answer but in any case he was, so to speak, the high use ruler in the occupied territory and as responsible highest officer he could also order the police.
Was the witness correct in this statement?
A. For an outsider this view is completely understandable up to a certain degree; that I can admit because how should he as a Creek have an insight into the German organization in Greece, and how could he understand something which even we didn't understand for him. Simply all Germans who wore uniforms were members of the Wehrmacht and I was the man in command. I was not the highest officer in Greece. I don't know whether I should say "unfortunately" or "thank goodness"; but I was only the head of one of the three rival powers: Army, administration and SS; and there is also a fourth factor which comes in here, the political and economic leadership which I have also characterized. All in all, there was not only the dualism but a complete mix up of channels of command which most of us didn't understand all the time.
Q. General, during the course of your testimony yesterday and today you mentioned the chain of command, and you also mentioned the fact that the SS was exempted from your power of command. Well, the Witness Sontes said that the SS had established a terror regiment and that with the SS, as the witness stated, tortures were on the daily agenda and that people were shot by the SS without previous court proceedings -- not in individual cases, but in bulk. Well, the witness did not bring any evidence for all this, and he stated that he was not an eyewitness in the actual sense of the word. Here I would just like to talk about the fact that if the conditions were such as the witness Sontes described -- even if only partly -- then, they could have remained hidden from you in Athens.
A. first of all, with regard to all the stories told by Greeks, one must take into account their flourishing imagination and their Oriental exaggerations. Even Homer was like this. At that time the spread of rumors of all kinds was especially great. Nevertheless, there is a speak of truth in all rumors and all news. With regard to your question I would like to state expressly that question I would like to state expressly that I myself never heard anything of such rumors because these rumors did not reach as far as me. Of course, if the circumstances and conditions really had been the same as the Witness Sontes described, then I certainly would somehow have learned about them, either through the Greek Prime Minister, through the German Envoy, through the German Special Plenipotentiary; however, through one of the numerous diplomats in Athens with him I had regular meetings. In this connection I would also like to mention that the Commanding General of the LXVIIIth Corps, who was also in Athens -- General Felmy, heard nothing about these rumors, as he himself confirmed to me and as he has also stated in his testimony. One of these people would certainly have drawn my attention to these facts if they had really been facts. You may perhaps say that there was another source of information available to me -- that is, the conversations in the mess; but that did not come into the question because I was only in the mess once a week, and then I talked about only scientific subjects.
Then, of course, another source could have been the Higher SS and Police Leader, but, of course, I heard only what he told me.
MR. FENSTERMACHER: Your Honor, I wonder if the Prosecution might have the last five or ten minutes today in order to make a statement regarding the future disposition of the case again Field Marshal von Weichs -- a matter which we discussed in chambers yesterday afternoon?
PRESIDING JUDGE CARTER: It is agreeable by the Tribunal.
MR. FULKERSEN: Your Honor -
JUDGE WENNERSBRUN: Pardon me just a minute. It seems to me that if there is going to be any discussions on matters concerning Field Marshal von Weichs that Dr. Laternser should be present.
MR. FULKERSON: Yes, I agree with you, Your Honor; and if he can be brought in now we shall be glad to have him present.
PRESIDING JUDGE CARTER: Well, it seems to me that if you are going to present this matter you should have made arrangements to have him here.
MR. FULKERSEN: We can do that Monday, but, if Your Honors please all I wanted to do now was to get the Prosecution's motion before the Court and then, if Dr. Laternser wants to reject he can do so. Anyway eventually he'll have to do that later; he'll have to present some sort of a response.
PRESIDING JUDGE CARTER: Does anyone know if Dr. Laternser is available now?
DR. RAUSCHENBACH: Your Honor, I'll try and fetch Dr. Laternser. I think that the earliest moment he could be here would be around halfpast four; but if the Tribunal desires I'll certainly try and find him.
MR. FULKERSEN: Perhaps it would be better to postpone this until Monday when he can be here.
If Your Honors please, it has just come to my attention that Dr. Laternser won't be here Monday; so we'll have to postpone it until such time as he is able to be present.
MR. FENSTERMACHER: He has, if Your honors please, informed me that he is going to Wiesbaden this afternoon and will be out of town for several days. I don't know if he intends to come back later next week or not at all next week.
PRESIDING JUDGE CARTER: Well, is his assistant here?
DR. RAUSCHENBACH: Your Honor, if the matter is to be brought up on Monday, of course his assistant will be here. I will tell him at once. I think I shall even see Dr. Laternser myself immediately after this session, and I will tell him that this question will be brought up on Monday.
PRESIDING JUDGE CARTER: It's the opinion of the Tribunal that it should be put off until Dr. Laternser can be present.
DIRECT EXAMINATION (Continued) BY DR. WEISSGERBER:
Q. General, you have just stated that you heard nothing at all about the rumors as described here by the Witness Sontes. Well, what would have been your attitude if you had found out about rumors of this kind?
AAn intervention in the military situation which I would have been able to make against troops subordinate to me would not have been necessary in this case because disciplinary and judicial measures were not possible for me as the Higher SS and Police Leader was not subordinate to me in this direction. He was also not subordinate to me with regard to his sphere of duties as far as police matters were concerned, as I have already stated. If, therefore, rumors or complaints of the kind just mentioned had come to my knowledge and I had thought it necessary to think that something has happened which should not have happened, then the only thing I could have done would have been to call him to me at once and to ask him to stop these things. At the same time I would have had the possibility through my official channels above -- that is, through the OKW -- to report what the Higher SS and Police Leader or his organization had "cooked up," let us say.
I would in this way attempt to achieve an intervention of the Reichsfuehrer SS against hie subordinate But what would have been achieved in that way seems to me to be extremely doubtful because if there had been some kind of wrestling match between the OKW and the Reichsfuehrer SS, then the Reichsfuehrer SS was always the stronger.
Q. And now, I come to a last point from the testimony of the Witness Sontes, which is also covered by the affidavit of the Greek Government. I mean here the so-called Concentration Camp Chaidari. What do you know about this Concentration Camp Chaidari?
A. The Concentration Camp Chaidari only became some kind of a conception to me since I heard about it here. Of course I knew that the Higher SS and Police Leader, for his police tasks, had a prison or a prisoners camp, but that did not concern me. It was a purely police establishment, and that its character was that of a concentration camp I had no indication to assume. The Higher SS and Police Leader himself never mentioned to me the establishment of such a camp.
Q. In this connection I would like to quote a passage from the affidavit of General Eisenbach. This is Speidel Document No. 37, from Speidel Document Book II. I have already offered this document as Speidel Exhibit No. 13. The affiant states on Page 74 of Document Book II, under Figure 6: "The existence of the Camp Chaidari was unknown to me for a long time. One day I heard about it, but not officially, only by way of conversation about the summer of 1944. Thereupon I visited the camp, but found at already completely evacuated."
I only mention that here because the affiant Eisenbach was in Athens for a long time, and the Concentration Camp Chaidari was also unknown to him for a long time.
PRESIDING JUDGE CARTER: The Tribunal will recess until 9:30 Monday morning.
(The Tribunal adjourned at 1630 to Resume session Monday 15 December 1947 at 0930)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany, on 15 December 1947, 9030, Justice Wennerstrum presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the Court.
THE PRESIDENT: Mr. Marshal, you will ascertain if all the defendants are present in the courtroom.
THE MARSHAL: May it please your Honors, all the defendants are present in the courtroom with the exception of defendant von Weichs who i in the hospital.
MR. FENSTERMACHER: Your Honors, I wonder if I might interrupt briefly and bring up the same matter that was raised on Friday and discontinued until Dr. Laternser could be present; that is the case concerning defendant Field Marshal von Weichs who has been hospitalized since 6 October.
The prosecution will file with the Secretary-General today a motion that the testimony of defendant von Weichs be submitted by deposition. The motion will be accompanied by an affidavit of Captain Roy Martin, the prison physician, to the effect that Field Marshal Weichs is in possession of all of his mental faculties and is physically able to answer all interrogatories proposed by counsel.
The prosecution feels that there can be no legal objection to the granting of unis motion. There is, of course, no limitation on the power of the Tribunal to adjudge and sentence the defendant merely because he does not testify in open court. In two instances it may be adjudged when he does not testify at all; that is, when he is tried in absentia or when he refuses to take the stand.
We believe that the only possible legal objection to the granting of this motion would be the question of confrontation, that the defendant has to be confronted by any witnesses testifying against him.
We submit that this problem is not raised here because the defendant von Weichs was present through the entire prosecution's case. His counsel was at all times able to cross examine any witnesses that were heard against the defendant von Weichs.
We believe that the only real objection that there can be against the granting of this motion would be the one the court would not have the opportunity to observe and evaluate what is called by the text writers "demeanor evidence." We submit, however, that this question cuts both ways -- that is, the element of surprise involved in cross examination which would be denied to the prosecution.
We also submit that the question of demeanor evidence is of less importance in this case than the ordinary case because here the court understands the witness only through an interpreter. The question of demeanor evidence is also for the most part important when it compares the demeanor of one defendant or witness with another but it is, of course, impossible to compare the demeanor of the defendant with the document. This case in behalf of the prosecution is 99% documentary.
I would like to cite this one quotation from Wigmore "On Evidence" regarding demeanor evidence. Wigmore says:
"No one has doubted that demeanor evidence is highly desirable if only it is available, but it is merely desirable; where it can not be obtained, the requirement ceases. There is no essential part of the notion of confrontation. It stands on no better footing than other evidence to which special value is attached and just as the original of a document in case of a prepared witness may be dispensed with in case of unavailability so the demeanor evidence may be dispensed with in case of necessity."
THE PRESIDENT: I take it, Dr. Laternser, Mr. Fenstermacher, that the statements that you had made now constitute any action on your part which you might wish to make.
MR. FENSTERMACHER: That is right? your Honor. We thought it could be done more briefly orally than in the case of a memorandum.
THE PRESIDENT: Dr. Laternser, we don't know how many books you have there or how long you intend to talk but will you mate it as brief as possible without restricting yourself on such questions as you think are of importance?
DR. LATERNSER (Counsel for defendants List and von Weichs): Your Honors, I will also be brief but I must be a little longer in order to object in the proper manner to this very surprising statement made by the prosecution.
My Colleague Gawlik wishes to say something. I shall therefore interrupt for a moment, Your Honor.
DR. DAWLIK: (Counsel for defendant Dehner): Your Honors, may I interrupt, I would like to ask permission for General Dehner to be absent from the session this morning and would ask that he can be sent down to Room 75 in order to prepare his case.
THE PRESIDENT: Your request will be granted.
DR. LATERNSER: Your Honors, as I already said, I am rather astonished at the motion of the prosecution. The prosecution wishes to introduce too many innovations in the legal sphere and seems to forget the basic principles of a criminal procedure.
The suggested procedure cannot be carried out, quite apart from the fact that the prosecution isn't at all justified to make such a motion. It is a matter for she defense to decide whether a defendant appears on the witness stand or not. How can the prosecution make a motion stating that the defendant von Weichs should be examined in writing. How does the prosecution know whether or not I am putting him on the witness stand? How can they have a justification for making this kind of a motion?
Your Honors, you will remember that Field Marshal von Weichs was taken to the hospital in order to keep him capable of being examined. His state of health, however, in the meantime, has become considerably worse.
At the beginning of November he suffered a heart attack with suffocation symptoms which have resulted in a tear in the lung and since then he has been in bed and I am told that he should, or he must, remain there for another two months.
I am told that I cannot and must not discuss matters concerning the trial with him because if he gets another attack death is a very likely consequence. Therefore, I have only been telling him about the trial in outline, and have not discussed any detailed questions with him.
The American doctor has also sent a note to the Tribunal dated the 25th of November and states therein: 1. the condition has greatly deteriated; 2. his lung condition has the effect of overburdening the heart; and 3. the condition of the heart has become much worse; and, finally, 4. Field Marshal von Weichs will never be in a position to appear in the courtroom.
Your Honors, from this expert opinion of the American doctor, it can be seen very clearly that the defendant Field Marshal von Weichs is incapable of being examined or -- I used the term "Verhandlungsunfaehig" -- that means incapable of taking part in the proceedings. That means, therefore, that he is not in a position to appear before the Tribunal.
What is the importance of this fact according to Ordinance No. 7? The answer is simple. In the case of a defendant incapable of taking part in court proceedings, these proceedings are not permitted to take place.
Article No. 4-D of this Ordinance No. 7 states -- I quote:
"Every defendant is justified to be present in the main proceedings with the exception that if a defendant is absent for a time proceedings may take place if, in the opinion of the Tribunal, the interests of the defendant are not being impaired by this and with the further exception contained in Article 6-C.
This provision, therefore, states the basic principle that the defendant is entitled in being present in the main trial. A trial in the absence of the defendant is, according to this provision, only possible if the defendant is only temporarily absent and through this, in the opinion of the Tribunal, his interests are not impaired.
Field Marshal von Weichs, however, is no longer only temporarily absent. The American doctor furthermore stated quite clearly that he will never again be in a position to appear in the courtroom. Therefore, the temporary absence has now ceased and it has become a permanent absence.
A trial against a defendant, however, who because of no fault of his own, is absent from the proceedings, is not proper. I could give with regard to this principle of law which can also be seen in Ordinance No 7 a survey of all foreign laws all of which contain this fundamental basic principle. Since this basic principle is also a fundamental principle in American law, I don't need to go into this; but I would like to add this: already in Roman laws there is a foundation for this and since that time it has remained unchanged. Proceedings against a defendant who is absent from no fault of his own cannot take place.
The trial against Field Marshal von Weichs who is incapable of appearing on trial would contravene the fundamental principles which are contained in all foundations governing legal proceedings. The correctness of this point of view can be seen from the observation of the rights which Ordinance No. 7 provides for the defendant.
According to Article 5, the defendant can be examined as a witness for his own case. According to Article No. 11, he for his part can make a statement before the Tribunal. A defendant who is incapable of standing trial, cannot avail himself of these rights.
I am very astonished that the prosecution as a substitute suggests that the defendant should be interrogated in writing. Such a procedure is completely inadmissable and does not comply with Ordinance No. 7. Nothing is stated about this in Ordinance No. 7; that proceedings can take place against a defendant who is incapable of being examined if the interrogation is made in writing. According to this law, which is valid also for the Tribunal, the only question to decide is whether the defendant is capable of taking part in a proceeding or not.
If he is not -- and that is what I maintain -- then proceedings cannot take place.
Apart from everything else, a deposition would not fulfill, the purpose. Therefore, the prosecution with its motion wants to continue proceedings against a defendant who cannot defend himself adequately; and, according to proper proceedings this decision would even transgress against a ruling of the International Military Tribunal. The INT, in the case against Goering, on the 14th of November 1945, discussed the question as to whether proceedings should be taken against the defendant Krupp, who was also incapable of taking part in the proceedings. At that time the IMT refused to take proceedings against Krupp in his absence although in the statute which existed at that time the proceedings in the absence of the defendant was provided for if the justification for such proceedings seemed necessary.
In the session dated the 14th of November 1945 the following was laid down and for this reason, Your Honors, I have got the books here.
Your Honors, I just noticed that the discussion on this point was rather longer than I thought. Therefore, I will not read all this discussion with regard to the defendant Krupp into the record but I would like to ask the Tribunal before it makes a decision on this matter to take judicial notice.
THE PRESIDENT: I might state, Dr. Laternser, that all three members of the Tribunal have read these proceedings, not in anticipation of the matter that is presented here but in connection with their study of the IMT case, so they have knowledge of this Krupp incident.
DR. LATERNSER: Your Honors, I would just like to point out to the Tribunal that on the 14th of November there was a special discussion about an identical case concerning the question of how an absence caused through no fault of the defendant affects the continuance of his own case.
These arguments are contained in Document Book II; page 1 and following. The IMT at that time ruled that it was contrary to justice, if proceedings are taken against the defendant who is absent through no fault of his own.
This decision, Your Honor, did not remain an isolated case in Nurnberg. In the case against the jurists, the proceedings against Dr. Engert, Engert, were discontinued because of his state of health, and the same was the case in the I. G. Farben trial concerning the defendant Brueggemann.
May it please the Tribunal, a just decision can therefore, only be made if the defendant has sufficient possibility to defend himself. How can one expect this if Field Marshal von Weichs is so ill that he is prevented from ever appearing in the courtroom?
If every state has laws which prevent proceedings being taken against such a defendant, then in Nurnberg, too, the prosecution must comply with such a basic principle. It is in contradiction to justice, to continue proceedings against a defendant who is not capable of defending himself adequately. Therefore, I request, first, that the motion without legitimate basis, made by the prosecution for a written interrogation of the defendant Weichs, should be rejected and, secondly that furthermore the proceedings against Field Marshal von Weichs should be discontinued because he is not capable of taking part in the trial.
That is all I wish to say with regard to this motion.
MR. FENSTERMACHER: Your Honors, may I just say one or two things in reply to Dr. Laternser's argument? First, I submit that the medical question as to whether or not Field Marshal von Weichs is physically and mentally capable of defending himself should rest in the hands of Captain Martin the prison physician, who is in constant attendance of Field Marshal von Weichs, or at any rate on a medical commission and not upon Dr. Laternser or any other layman.
Second, I submit that the citations regarding Krupp and defendants in the Justice and Farben cases are completely beside the point. In those cases the defendants were physically incapable of defending themselves. In the Krupp case, I believe it was based upon the fact that the elder Krupp was incapable mentally of defending himself or understanding the proceedings taken against him. The references that Dr. Laternser has made to Ordnance No. 7, I submit, are similarly beside the point. He has cited Article 4, sub-section D, as Military Government Ordnance No. 7. He has neglected to read the last sentence of that sub-section which states:
"The Tribunal may also proceed in the absence of any defendant who has applied for and has been granted permission to be absent."
Your Honors will recall that there was an application on the part of defendant Weichs to be absent and the application was granted by the Tribunal without prejudice. Regarding the precedent set by him, I should simply like to point out defendant Martin Bormann was sentenced to hang in absentia. There is no question here regarding the right and the duty of a defendant to appear before the Tribunal. We are not seeking to deny him that right.
We are, however, simply saying that there is no question here regarding the right or duty of a defendant to appear before a Tribunal. We do not seek to deny the right of the defendant Weichs to appear before the Tribunal in defense of himself. We are simply saying that when it is a question of his appearing orally or of his appearing by way of deposition that there is no legal foundation for saying that the latter may not be done.
DR. LATERNSER: Your Honor, to reply quite briefly to the last statement of the prosecution, as I have already stated, according to the export opinion of the court physician, the defendant von Weichs is physically not in a position to appear and must remain for many more months in bed. The fact that such a physical condition has of course some damaging effect on the mental capabilities and would therefore have the same effect on an oral testimony, is obvious and I do not have to add anything further.
A defendant in a trial has the right to appear; if he cannot exercise this right, then this results in disadvantages for him, and the prosecution cannot now refer me to Article 4-D of Ordnance No. 7 according to the last sentence of which the Tribunal can also then take proceedings in the absence of a defendant if his absence was granted to him on his own application. The situation has in the meantime changed considerably.
I made the application for the absence of the defendant in order to keep the defendant von Weichs capable of taking part in the proceedings and because I had misgivings with regard to this; but in the meantime this heart attack with a tear in the lungs has occurred and this has completely changed the situation. It is impossible for him to appear.
And then, if the prosecution refers to the case of Bormann in the first trial, the prosecution does not seem to know the correct facts of the case because otherwise such a comparison would not have been made. Proceedings were taken against the defendant Bormann because he himself kept away from the trial or, because what is probably more correct, at that time he was already dead, a completely unsuitable case to compare with the case on hand. One thing is certain that Fieldmarshal von Weichs is absent through no fault of his own and if the prosecution wants to introduce hero in Nurnberg that proceedings should be taken against defendants who are absent through no fault of their own, then I would ask the Tribunal to answer such ideas of the prosecution with a judicial ruling.
THE PRESIDENT: The ruling on the application made by the prosecution and on the motion made by counsel for the defendant von Weichs will be made at a later date. You may proceed with the examination of the defendant Speidel.
DR. WEISGERBER: Your Honor, before I continue with direct examination, I would like to make the following statement. My client last Saturday morning had an attack of fever and had to remain in bed for the last two days. He still feels very weak today but in spite of this he wants to remain in the witness stand as long as his physical strength allows him to.
THE PRESIDENT: I am sure it will be the attitude of the Tribunal to realize this condition which you have brought to our attention and to give consideration to it and if at any time the defendant feels that he wants to or should feel it necessary to retire from the witness stand, if you will indicate to your counsel so that he may present the matter to the Tribunal, we will then give it further consideration.
DR. WEISGERBER: Thank you, your Honor.
DIRECT EXAMINATION (Continued) Defendant Speidel BY DR. WEISGERBER:
Q General, you remember that last Friday, before the recess, we were discussing your knowledge about the Chaidari Camp. You said that you had heard about a police prison or a police camp of the Higher SS and Police Leader and that as a purely police affair this was the exclusive responsibility of the Higher SS and Police Leader. The Higher SS and Police Leader did not tell you anything about the installation and about the management of this camp or this prison. Did I understand you correctly and did I remember correctly this part of your testimony?
A Yes, that is correct.
Q The witness Sontes also mentions on the first of May 1944 200 persons were supposed to have been shot in Chardari. In the report of the Greek government, which was introduced by the prosecution as Exhibit No. 499, it is stated that on the first of May 1944, 200 hostages were shot for a partisan attack on German soldiers in Athens.