It was like this: The president of the court always gave a time limit for making an appeal. There were cases where he gave us a limit of ten days. There were cases where in 10 or 24 hours we had to make an appeal for mercy and to give our reasons for it. The execution, of course, there were cases where the verdict was executed in three days, two weeks, a month, and in some cases perhaps even more than a month.
Q. All right. Now, witness, did you at any time personally, in Athens, read or see public announcements which were issued in connection with the taking of hostages?
A. In the beginning such reports were published in Greek papers. In the case of a sabotage it stated so many Greeks will be shot for the killing or wounding of a German soldier. That was in the beginning. Later these announcements stopped.
Q. When you say "in the beginning", can you give the date more accurately?
A. I cannot do that; I don't recall that exactly.
Q. Are you talking of 1941, 1942?
A. Perhaps in 1942 such announcements were still made public, but I don't remember that exactly.
Q. Now, witness, in connection with your testimony you spoke, I believe, about so-called security custody (Sicherheitsverwahrung), is that correct?
A. Yes, that is correct.
Q. What was that?
A. Security custody was, so to speak, a police measure, on the strength of which an arrested person could not be released, but, in fact, the people who were shot without a legal verdict came from this category of people who were in security custody.
Q. Witness, do you mean to say that when these public announcements mention was made of hostages these people were actually people taken into security custody?
DR. LATERNSER: I object to this question. This is a leading question.
THE PRESIDENT: Sustained.
BY MR. RAPP:
Q. Witness, would you kindly explain to us whether there was a difference between hostages and people in security custody?
A. In fact there was no difference.
Q. What do you mean by "in fact"? Will you kindly explain this in more detail?
A. The fact that all these people who were shot without legal verdicts were taken from these people who were in security custody. There were also shootings without legal verdicts of people who were not in security custody.
Q. Was the word "hostage" as such ever used before the summary courts martial?
A. Yes, before these courts martial hostages could never be mentioned, because "hostage" was an administrative question. That was hot a legal question.
Q. Could you kindly explain this in more detail?
A. Well, how can I explain it? For a person to be designated as a hostage does not require a legal verdict. You don't need a verdict for that. That's merely an administrative measure.
Q. All right. Did you ever protest against the fact which you have mentioned to us here?
A. Yes.
Q. That hostages were taken from people who were in security custody? Or that hostages actually were people in security custody?
A. First of all, we could not dare to do that, and secondly as defense counsel we had the right to turn only to the court, and, of course, we would have received the answer that the summary court martial was not competent in this matter.
Q. You said at the beginning of your answer that you could not do that, that is to say, protest.
Why could you not do that?
A. We could not do that because--- Well, how can I tell you that? Well, of course, from fear of the GFP. Only once I remember when the SS came to Athens, and the cases were not all brought into court. Only once I, together with two colleagues, protested to the president of the summary court, Kriegsgerichtsrat der Luftwaffe, Dr. Kirchberger, and we discussed this state of lawlessness. And we told Dr. Kirchberger the opinion that at least those cases would have to be brought before the court martial which were in direct connection with the interests of the German Wehrmacht. Dr. Kirchberger, at that time, promised us that he would deal with this question, but we did not have any success. That is to say, he did not do anything.
Q. Witness, now to come to a finish. Concerning the shootings or murders carried out by the SS you said that the summary court martial was, so to speak, shelved. Did you try to have these cases brought back before the summary court martial? Can you tell us anything in this connection?
A. We always tried to bring these cases before the summary court martial because we thought if there were only a small -- even if it were only a chance of ten persons, it was always better to have a legal verdict rather than having the people shot without a legal verdict.
Q. Whom did you approach?
A. Dr. Kirchberger. We did not have the right to go to any other authority.
Q. Now, witness, do you know who, at that time, was the highest SS officer in Greece?
A. At that time it was universally known that General Strupp came to Greece first, and then,after about a month, his place was taken by Schimana.
Q. You knew, witness, that the SS carried out these shootings, is that correct?
A. Which shootings are you talking about?
Q. These shootings about which you told us that took place after October 1943.
A. No. There were also shootings - the execution of the court's sentences, death sentences - for those the SS was not competent - rather the regular army.
Q. I'm talking about the extra-legal shootings.
A. The SS.
Q. Now, why did you approach the summary court martial, which was, after all, a military authority?
A. Would you kindly repeat this question?
THE PRESIDENT: The Court will take its afternoon recess at this time.
(A recess was taken.)
DIRECT EXAMINATION (Continued)
THE MARSHAL: The persons in the Courtroom will be seated.
The Tribunal is again in session.
MR. DENNEY: Your Honor, at this time I would like to distribute to the defense counsels eleven copies in German of various documents which we propose to offer, which are reports of the Greek National war Crimes Office, and it will not be necessary to refer to them further at this time. We are just distributing them for the purposes of getting them to them sd that the 24 hours can correctly run.
THE PRESIDENT: Is there any further examination, Mr. Rapp?
MR. RAPP: Yes, your honor.
THE PRESIDENT: You may proceed.
BY MR. RAPP:
Q: Witness, shortly before the recess, you were telling us that you and quite possibly some colleagues of yours had tried to prevent the shootings carried out by the SS or at least to direct them into decent channels or to bring about further trials by the Field Court Martial in order to give an extra chance to your client in this manner and under certain circumstances obtain a milder sentence than the death sentence. Is that correct?
A: Yes, that is correct. That is corrects
Q: Now let me ask you whether these Field Court Martials had an institution -- were an institution of the military?
A: Yes, these Field Court Martials were an institution, a court which came under the military.
Q: But then, shy did you address a military department in order to, shall we say, stop these shootings, if the shootings were actually carried out by the SS?
A: Well, there was a reason for that but what we were trying to do was to ask the President of the court martial to put the whole affair before his superior, and that of course was the Military Commander in Greece. He was of course only a subordinate source, and it was in the police department and we thought that the Commander, that is to say the highest officer in Greece, would act, and might have success with the SS. He could, after all, give them orders.
Q: You say the supreme Commander, the highest commander in Greece, the Military Commander could give orders to the SS?
A: Whether in fact he could do so or not that is a question which I can't possibly answer, but at any rate he was the commander in the occupied territory. He was, shall we say, the highest ranking authority in the occupied territory and he had responsibility for the application of measures of the Hague, land warfare, conviction, etc. And as responsible highest officer, he could even give instructions and orders to the police department.
Q: Did your complaints -- or shall we say your representations actually have success?
A: No, they had no success.
Q: Do you know whether your representations were ever put before the Military Commander?
A: That I can't possibly know.
Q: Upon your representations, did you receive any type of answer at any time?
A: No, he promised that we would one day be able to see the General, that the matter would become a matter for the General to see to.
Q: But you never had an answer?
A: No we never did.
Q: Would this mean that the existence of Field Court Martials ceased de facto?
A: Neither de facto nor de jure. It merely limited the activities of the Field Court Martials.
Q: After that time?
A: Yes, after that time and gradually step by step not all in one gulp.
Q: What type of cases did the Field Court Martial deal with after that?
A: Usually with minor matters -- bagatelles.
Q: I thought you told us earlier that these bagatelles matters, these minor affairs, had been dealt with by the Court Martials of the Field Kommandantur?
A: Yes, that I did say but the less serious cases, for instance thefts of gasoline, were a matter came before the Field Court Martial of the Commander. Of course, there were some exceptions. There were cases where some serious matters went before the Military Court but they were merely exceptions.
MR. RAPP: I have no further questions.
THE PRESIDENT: Any cross-examination on behalf of defense?
CROSS EXAMINATION BY DR. LATERNSER: Witness, I have only very few questions to put to you. You said earlier at the beginning that you were a professor at the University at Athens. What lectures did you give?
A: Roman law and civil law.
Q: And you also said that you were a professor at the University of State Science?
A: Yes, and that is an independent school in Athens.
Q: What were you reading there?
A: Civil law.
Q: You have passably showed to us also that you are an experienced defense counsel and that during the time of the occupation you defended many of your fellow countrymen. Did you -- looking at your activities from a broad point of view, were you successful?
A: Yes. In some of them anyway.
Q: Could you, for instance, talk to your client before the trial?
A: Yes, I could but only after the procedure had been laid down. Before that, no. During the preliminary investigation it wasn't permitted at all.
Q: When you say the preliminary procedure, do you mean the indictment?
A: That is it. That is something different. It is the trial in order to impede punishment. I am talking about the indictment now.
Q: Now during the actual trial, did you have the possibility of stating such facts as you considered necessary as a defense counsel, generally speaking?
A: Yes, and no. If you are speaking generally, then I will tell you that I can't give you an exact answer. That is to say, as I told you earlier, in the case of Boros, there was, shall we say, an excellent system of defense because we could ask the question whether the defendants had been subjected to more severe pre-trial investigation and that we received in answer to that the statement that he had actually been beaten up during the pre-trial investigation, that they had been subjected to such methods. That of course made an impression on the court.
It was an excellent means for our defense but it was the last time when we had it at our disposal and could state it. After that, we had been prohibited to put such questions to the prosecutors who were, of course, Gestapo and police officials. This was the last time.
Q: But at that time you could?
A: That was on the 30th of November, 1942 , you know. You have got to think of two more years.
Q: Yes, I know, but I am merely asking you about this case which you have related to the Tribunal. Now did you after the trial had finished and when, no doubt, illegal threats were uttered to you or by the GFP, did you tell that to the President?
A: No, we didn't. We immediately hastened to see the Archbishop and he took the essential steps.
Q: Did you later on tell the President of the Tribunal about that, that you had been exposed to such treatment?
A: He knew it. He was the President.
Q: Did he tell you what he thought about it?
A: I cannot remember that he did. I cannot remember.
Q: Then let me put another -- well a general question to you regarding your defense counsel activities. In developing your defense counsel's work, did you find considerable restrictions being imposed upon you or could you contribute to it that facts were properly investigated?
A: Not in detail. First of all, because time was limited, which was necessary for the preparation of the defense. For instance, we received a telephone call saying tomorrow that such and such a case will he heard. We didn't know it at once. Secondly -
Q: But if such a call came through -
A: Let me answer your entire question. Maybe that will help you. First of all, that was the first point. Quite suddenly we found ourselves having to defend a case in the morning.
Secondly, in many cases time was very restricted in order to prepare the so-called opinion of ours. That was an important means at the disposal of the defense, in order to prepare for the case and that was often restricted sometimes very restricted, and then we couldn't ask the defendant really when police officials were about. For instance, this question which you as an attorney and defense counsel would put and know the importance of to the defense -- you couldn't tell the judges that such and such means were employed to obtain a testimony. That is an important means for the defense which we however could not employ at a later stage after this famous date of November, 1942. The Tribunal prohibited us from doing so and I am telling you that under my oath.
Q: Were you expressly prohibited from doing that?
A: What do you mean "prohibited?" You Germans often use the word "prohibit" and "forbid". Maybe it was a recommendation but we considered that recommendation to be a prohibition.
Q Well then, I had asked you or rather I would like to ask you whether in the trials which were pending, the facts, the evidence, was investigated?
A Yes. How can you arrive at a judgment without investigating the facts?
QQuite. I just wanted you to tell me that.
A They were investigated as far as was possible in this restricted period.
Q I have no further questions, Mr. President.
BY DR. WEISGERGER:
Q Dr. Weisgerber for Speidel. May I call you colleague and Mr. Witness? I just want to continue from the last question put by my colleague, Dr. Laternser. You told us that during 25 to 30 sabotage cases you acted as the defense counsel. Now were these -- or shall we say was that the total figure of cases where death sentences were imposed?
A Yes, those are the death sentence cases. And above those, there were other cases of life and 15 years' penal servitude and the least matter, say two loaves of bread -- there, even there a prison sentence was imposed.
Q Now before that when you described in detail the activities of the German courts and when you also described the attitude you had adopted with regard to the type of justice used, particularly in the sphere of sabotage, you said that you quite frequently missed it, that the Tribunal took into consideration the intention to damage Germany's armed force and didn't ascertain it for certain.
A I wasn't talking about damage done to Germany's armed strength. I was talking about sabotage, and sabotage is a general conception, as you know. These are cases of sabotage which appear in the nationalist period too. Let me mention Professor Muggler's name who, as you know, has written about the law of warfare. There he says sabotage never has a political character, never lost its political character.
Q Well, let's not go into this chapter too much. I am just going to ask you with regard to a case during which you, as far as I know, acted as defense attorney very successfully. Do you remember this following case? Immediately before the Action Crete, carried out by the German armed forces, had started, that is in May 1941, there was a Greek aged about sixty who was indicted because he had stolen a field cable from the airport at Athens which he had cut out. Do you remember that you defended him at that trial?
A Yes, I was the defense counsel.
Q Now can you recollect that on the part of the prosecution a motion for the death sentence was submitted?
A Yes, I remember that.
Q And may I ask whether you remember what punishment was actually given -- thanks to your defense?
A Four years I think.
Q Well, was it four or was it even less?
AAs far as I remember, it was penal servitude but that was before the Field Court Martial of the air force district Southeast. May 1941 - it was at the end of June that the trial started, Mr. Attorney, and it wasn't the Field Court Martial of the Commander South of Greece; it was the Field Court Martial of the General Voeln? I think after that time, and I will tell you exactly when the new jurisdiction began which was in November, 1942.
Up to that time, the Field Court Martial always demanded the existence of a subject momentum. The argument for the damage from the jeopardy of Germany's armed strength. In those days, jurisdiction was correct.
Q Well, you will probably be able to admit, won't you, that the judgment, the sentence of the Court was just considering the entire circumstances? I don't think we will have to go into this case in detail. I just thought I would refresh your memory.
A Let me answer your question with one word. In this case, it turned out during the trial that uneducated people were affected, an uneducated man who did not have the intent, could not have had the intent, who was not able to have such an intention.
Q I see. Now, Mr. Colleague, surely in the course of more than three years which you spent working with German Field Court Martials in Athens, you had contact with individual judges?
A Yes.
Q Could you -- or shall we say was the contact such that if you had any special request you could go to see the judges, that you could go and tell them "I have this and that suggestion to make"? Was that usually complied with?
A Before I answer that question, Mr. Attorney, I would like to ask you what you mean by contact. Do you mean personal -- do you mean that we have the possibility to visit the judge and discuss the case with him? Is that what you mean?
Q Yes, yes.
Q Well, we could but as far as requests were concerned, you have talked about -- that is something which I couldn't state. A German when he had orders to give and when he had orders he strictly adhered to them and I did not know that perhaps because I had beautiful eyes Dr. Rattke might in this case help me along. That certainly wasn't so.
Q Well, when I said request, I didn't mean that.
A Well, that is what I understood.
Q What I wanted to say, if you intended to call numbers of witnesses with regard to the case, could you previously go and talk it over with him?
A Do you mean the witnesses?
Q No, I mean the judge. So could you tell the judge "I have the intention of calling this and that witness" or so and so?
A A In practice, this is how it was, Mr. Defense Counsel. Before the trial, we put a piece of paper before the judges as was the custom before Greek courts containing the names of defense witnesses and usually I must admit the Field Court Martial would say "All right, I will let this witness testify and that has been the same everywhere.
During peacetime, if I have ten defense witnesses for a case or fifteen, then of course the Tribunal won't admit them all, but we could discuss these matters, yes, with the Field Court Martial judges but of course there were hard ones, severe ones, and milder ones; that depends upon the personality of the judge.
Q Were you in touch with Froheim, the Supreme Court Martial Counsellor?
A No. I once met him, personally. Incidentally, he was the supervising judge. He was not the president of the court. That was Dr. Kirchberg.
Q Now, esteemed Colleague, you know that for instance edicts appeared ordering the discontinuation of proceedings and that they were put before the Supreme Judge for signature?
A Yes.
Q And that his signature influenced the position whether the proceedings would continue or were quashed or whether proceedings would actually take place. Now who was -
A Excuse me, please, Mr. Defense Counsel. As far as I remember, though I can't tell you with exact certainty, I think the Field Court Martial Judges who would deal with the case -- they signed the indictment or would sign on behalf of the president to discontinue proceedings but I can't say that for certain. It is my impression.
Q You are quite right, witness. They signed on behalf of their superior judge, but at that stage, both in order to serve an indictment as well as to discontinue proceedings, the signature of the Supreme Judge was necessary.
A No, not of his. To discontinue proceedings, he did not have to sign, no.
Q Confirmation?
Q All right.
AAll right, we agree on that; that is something different. If, for instance, in the case Boros, the Tribunal had passed judgment up to that time, the Tribunal had an idea of what was going on but that judgment requires the confirmation by the Supreme Judge and that is the General. For that reason, we asked in our opinion to have it confirmed. That was the point not to have the judgment which had been passed confirmed.
Q And you knew that your opinion, your plea, your final plea would be put before the supreme authority?
A Yes, we did.
Q Well then, can you remember whether, on the strength of your plea, you had successes in mitigating the sentence?
A. Yes, yes I remember that General Speidel in some cases either changed the sentence or did not confirm it and at an unfortunate moment meant the case to be reheard or the punishment not carried out. But, I am not certain to whom we owed it. For instance, in certain cases which General Speidel will undoubtedly remember which concerned two Naval officers, Sazosch and Mithakis, there was for one of them, as far as I remember, clemency and I am sure General Speidel will remember , not thanks to me, but thanks to the Archbishop.
Q. You are speaking about the intervention oi the Archbishop. May I put this question to you?
A. May I interrupt , Mr. Defense Counsel. I admit to you it was due to argument on the part of defense counsel. That is something I can't deny.
Q. It was therefore, due to the argument of the defense counsel which the Supreme Judicial Officer acted upon?
A. May I ask you to repeat.
Q. The confirmation of a judgment was, therefore, partly due to your argument?
A. Yes.
Q. It was put before the Supreme Judicial Office and it was agreed upon?
A. Yes, and there were other interventions from higher sources.
Q. That intervention included those put forth by the Arch Bishop of Athens?
A. Yes, those are just the ones I mean.
Q. Do you know by any chance whether Archbishop Damatinos at the time turned to General Speidel repeatedly in order to ask him for clemency on some favor?
A. Yes.
Q. And did the Archbishop have success?
A. Such cases which I know where he was successful were due to the Archbishop's intervention.
Q. You also mentioned that certain defects had developed particularly late in 1943, as late as October 1943, shall we say. When the SS came to Athens?
A. Yes.
Q. Did you ever discuss with the Judge from Field Court Martial this development I am talking about?
A. Well, with regard to the steps we took in connection with Dr. Kirchberger we did discuss the matter because a responsible high ranking Judge like Dr. Kirchberger , you can't tell exactly what he thinks about the SS, and can't state an opinion about the SS. He announced we would be the subject of a report to the General.
Q. Did you think he meant he himself would report to the General?
A. He couldn't , he wasn't responsible.
Q. The way I understood your previous testimony was that you were saying Kirchberger promosed you that yourself would be able to report to the General about this.
A. No, you misunderstood me or probably it was due to the translation. We were going to be the subject of him to the General.
Q. Kirchberger promised you that on the strength of the information you furnished him and your fellow defense counsel.
A. There were two others. Probably three who took the stand. May be there w re more but I think it was three.
Q. You also mentioned it that quite often you attempted to deal with matters in the hands of the SS or SD by bringing them before the Field Court Martial.
A. Well, I wasn't saying I went to the SS.
Q. I understood you to say that you tried to persuade the Field Court Martial to use its influence to have these matters handled by them, is that what you meant?
A. You don't understand. You misunderstood me. It was our wish as defense counsel to put the matter before the Field Court Martial if we had q chance , whether small or big. I would rather be shot on the strength of a Field Court Martial than without any judgment at all. And it was because of this we went to Kirchberger at the time about this ugly boy I was telling you about.
Q. Then your point was that the supreme judicial officer up to a certain date in 1944 was General Speidel. Now you have told us in a number cases you obtained from him a reduction and changes of judgment and sentences. Now, upon a question put by the Prosecution to the effect whether General Speidel couldn't have given orders to the Police you announced, "I don't know what the jurisdiction in question was." You said your impression was he as the highest military officer in Greece, was also superior who could give orders to the Police.
A. If you will permit me I will give that more in detail. What I wanted to say was this. Greece was occupied territory, who is responsible for the observance of the Hague convention and the maintenance of order and justice no other than the superior.
Q. That was your personal opinion?
A. That is my personal opinion. I am now speaking about myself because I am questioned as a jurist and I am giving you legal argument. He was responsible for maintenance of order in the occupied territory as the highest authority.
Q. When taking this case wouldn't you say that this was a surprise on one side; General Speidel, as supreme judicial official give you a number of successes?
A. First of all ask me how many death sentences there were.
Q. Well let me ask you, can you tell us?
A. I admitted it. I had successes - 10 to 15. I am not going to argue with you about that.
Q. Now, witness colleague, let me call upon you to ask you this.
Earlier you said that in 25 to 30 sabotage cases in which you officiated there were death sentences. Can you tell us how many of those death sentences were confirmed and how many were not.
A. In sabotage cases confirmation nearly always came.
Q. But in a number of sabotage cases the sentences was changed?
A. Once, or twice -- hardly more. "Kaüm" , if I can use the German word.
Q. You can't actually remember.
A. The details, no, but I am telling you I can tell you the cases where I succeeded in getting clemency plea. In 8 cases of officers sentence was not confirmed or was there clemency.
Q I don't think we need to waste the time of the High Tribunal with details. You did score successes with the supreme judicial authority in a number of cases and this same man who held the highest judicial authority permitted the Police to become active in the form you described to us?
A In the Boros affair, and other affairs, certainly.
Q Do you believe that one and same man would act once like this, and once like that?
A No, Mr. Defense Counsel, the soldier as you know has to only according to his purpose, maybe in one case ho thinks it useful for his purpose have people shot as a warning to others this may not seem suitable to him under other conditions. He does not act on the basis of a legal principle, he acts from the practical point of view.
Q Witness after October 43, among your colleagues as is customary in lawyer circle, discuss the fact that these shootings were being carried out by the Pollice, SS and SD or did you just say General Speidel docs that?
A The rumors circulating among the population differed. We said of course, at that time already that the shootings were carried out by the SS, shootings without preceding judgment, we have to make this difference. Shootings without proceeding verdict were executed by the SS. But as lawyers we said to each other, who is after all responsible for this state of lawlessness in the occupied Greek territory.
Q Of course, you wore in Germany for a lengthy period. Just want to put that on the record. But in spite of that I do believe that the Police conditions in Germany as they were up to 1945 were unknown to you.
A I loft Germany in 1936.
Q You had told us earlier that persons who had been acquitted by a Tribunal or whose proceedings had been quashed had been handed over to the SS.