Tribunal that you have checked these things and that you have read sometimes some of the files.
Q What did you find in these spot checks? I found the interrogation and the statement and I was able to ascertain that all the requirements for possible execution were met. of these crimes could appear in this meeting where the sentence was passed?
A I don't think so. never heard the defendants is that right? were present.
Q Some of them?
Q How many people would that be in every case?
A I don't know, I wasn't present at such a meeting; therefore, I can't give any details of it. I wasn't supposed to deal with such matters and I did not want to do so. not?
A If you like to put it that way, yes, but I didn't give any orders as far as that is concerned. I did not use the authority which I held but I left it to Nehring, in fact. and what later Nehring after the end of October, 1942, did, did you? known to Thomas and with whose activities. Thomas was satisfied.
by these people, don't you? matters. prisonment. Will you tell the Tribunal whether these people were sent to a concentration camp, or whether they were kept in prison?
of these procedures?
A I don't think so. appeal?
A No, I don't know anything about appeals, about the rights of appeal, no. long such a procedure took? dividual concerned, or whether more people were involved. can't say anything about it from my knowledge.
Q How often did you make these spot checks about which you spoke? Daily? Weekly?
Q Once a month?
A It wasn't at regular intervals. so-called trials? event. He sometimes told me about the content matter on occasions when something special had happened.
Q Did you ever investigate one of the prisoners your self?
A No, never. I did not have any practice in interrogations. Also, it is not the task which I can deal with. I regard it as something awful not that I am thinking of myself now. number, how many executions were carried out by Einsatzkommando 6 in your time, and that the two estimates which you gave in your two affidavits may be correct and may be incorrect. You just can't say, is that correct?
Q Let's presume for a moment that the number which you gave in these two affidavits, 2 to 3,000 is correct. You have said here in your statement that only during the four months you were in Rostov executions were carried out by Einsatzkommando 6, is that correct? Only during four months when you were in Rostov there were executions carried out all of the time when you were there?
A You mean in Rostov? carried out only during the four months you were in Rostov?
Q All of the time?
A Yes, yes, but I don't know how many there could have taken place in Taganrog, because at that time we worked in collaboration with the divisions and the divisions acted on their own, independently, and I put this commando at the disposal of these divisions only for purposes of investigations and interrogations. I remember cases in which, for instance, the Wehrmacht put the commando into action. Whether the commando at that time independently carried out executions, I don't know. It is possible, but I don't know. In any way, they collaborated with the Wehrmacht. That was combat zone at that time. numbers of executions were still reported to the RSHA, that means from you to the Einsatzgruppe, not to the RSHA?
A You mean that reports went from the E. K. 6 to the Einsatzgruppe 6? It must have been assumed. been already detached.
Q Let's go back to our first question. Let's assume for a minute that the number of 2 to 3,000 is correct.
You have been in the east for 9 months, haven't you? during this time, if Einsatzkommando 6 carried out executions daily, including Sundays, including Christmas and including Easter, there would be a daily average of 8 to 10 executions, provided that the number in your affidavit is correct, is that correct?
A I haven't calculated it yet, but if you did then it must be correct. four investigating officers -- and they were the people who investigated the cases -- could have been able to investigate, pass sentence and order executions of 8 to 10 cases a day?
A You seem to overlook one fact, Mr. Prosecutor. The interrogations are not being carried out in the commando by the officers, but by the criminal officials. You use the word investigation officer, the secretary, the chief secretary -- all these are criminal officials who carry out investigations. The officer, the leader, is only responsible for the decisions but not for the interrogations and investigations.
A I can't give you an opinion, because I cannot think myself into the situation. Whether this is possible or whether it is impossible I cannot decide. manner, that 8 to 10 sentences --approximately correct, is that right? heide and the second time here. I think these statements I made were quite clear and I reserved the right, and I tried to express that, that I should be allowed to a statement concerning this figure here before this Tribunal.
Q When did you do that, in your first interrogation here?
Q Your first interrogation here? sent to Einsatzgruppe C, is that right?
Q How often did you read this report?
A I don't remember.
Q Regularly? during the winter there were no written reports issued.
Q But there were reports by radio, were there not?
A Yes, that is possible they went by radio, but I don't know how often. I don't remember any details.
Q I do think that you misunderstood my question. I asked you how often did you read them, not how often were they sent.
A That I also do not know. I cannot give any details. reports?
A What was the question?
Q When you were interrogated by Mr. Wartenberg?
A Whether I was interrogated concerning this question? Yes, I assume that I was, I can't say. sent by Heidelberger and later by Nehring, is that correct?
A Yes, and it is possible that I signed such a report. It is possible that I was shown a report and if I saw it I must have signed it, but I don't know in detail because it was not one of my assignments.
Q Don't you remember that you stated, when Mr. Wartenberg asked you about the number of executions carried out, that you had reported in these reports the number of 2 to 3,000 people?
Q No, I asked you something completely different. I asked you whether you did not say that you have reported 2 to 3,000 killings in these reports which went to Einsatzgruppe C, nothing to do with the Eselheide affidavit? mentioned it in Eselheide. question with yes or no -- did you say to Mr. Wartenberg, according to your recollection, that you personally, you, Mr. Biberstein, reported to Einsatzgruppe C 2 to 3,000 killings?
Q You never did?
THE PRESIDENT: Mr. Hochwald, could your refreshment take place during the recess?
MR. HOCHWALD: If your honor please, it takes one minute. I do think it would be ---
THE PRESIDENT: All right. You would prefer to do it now? Very well.
MR. HOCHWALD: I hand the original first. I offer at this time Document NO 4997 as Prosecution Exhibit 183. This, your Honor, is the interrogation of the defendant Biberstein, which was requested by Dr. Bergold. I then, in answer to the request of Dr. Bergold, I informed the Tribunal that the Prosecution will use this document at another time. I offer it now. Will your Honor turn to page 13 of the document?
DR. FICHT: Ficht, for Biberstein. Your Honor, I may make the following remark on the occasion of the presentation of this document.
As the prosecutor has already mentioned, we have requested this document at a period, when we would have been in a position to question Mr. Wartenberg about this document. I see that the document is not signed by the defendant Biberstein. Therefore, I am not in a position today to question Mr. Wartenberg today in cross examination as he has already left, but as Mr. Wartenberg has been examined in this case and could have been questioned by the Prosecution as well, I object to the submission of this document in evidence.
MR. HOCHWALD: If the Tribunal please, this is a transcript of an original record. Mr. Wartenberg has testified here as to the interrogation of the defendant Biberstein. Dr. Ficht was in a position to cross examine him, and did cross examine him. Dr. Ficht has at his disposal the defendant Biberstein. I do not see why this document should not be admissible in evidence. However, I only wanted to fulfill the wish of Dr. Bergold, which was certainly mentioned a long time after Mr. Wartenberg was on the stand here. Dr. Bergold made his application for this document last Friday, if your Honors remember. I do not see any reason why I should not be in a position to offer it.
DR. FICHT: Your Honor, I want to state that even before the examination of Mr. Wartenberg we asked for this document and that I am not in a position, and I was not in a position, at the time, to question Mr. Wartenberg in cross examination concerning these matters which are now to be submitted.
MR. HOCHWALD: The Tribunal will certainly recall that I yesterday I asked the witness very carefully and very specifically whether he was mistreated, whether something -
THE PRESIDENT: Just a minute... Dr. Ficht, please... didn't Dr. Bergold, as late as yesterday, ask for this very interrogation?
DR. FICHT: Yes.
THE PRESIDENT: Well, now, why do you object to its being presented?
DR. FICHT: That it is being submitted in evidence by the Prosecution, because I am not in a position now to cross examine Mr. Wartenberg.
THE PRESIDENT: Well, but you were not in a position to cross examine Mr. Wartenberg yesterday.
DR. FICHT: That is correct. But after I would have had the document I could have seen whether I would submit it as a document or not, and I would only nave introduced it if I had not deemed a cross examination of Dr. Wartenberg necessary.
THE PRESIDENT: But yesterday you asked for the document. Now the document is here. Now, why don't you want it since you have been asking for this?
Dr. Bergold has made several references to this very interrogation, indicating that he needed it, and he wanted it, to establish that the testimony of his client was being confirmed.
DR. FICHT: Your Honor, I believe that there is a difference as to who introduces a document -- whether it is the defense or the prosecution and the defense wanted this document in order to make up their minds.
MR. HOCHWALD: If the Tribunal please, if a copy of this interrogation would have been handed to the Defense it is absolutely clear that that would not have prevented us from putting in this very document for cross examination if we would have liked to.
DR. FICHT: I do not object to the questioning in the cross examination, but to the submission of the document as evidence.
THE PRESIDENT: Have you seen this interrogation before?
DR. FICHT: No, your Honor.
THE PRESIDENT: The Prosecution will hand a copy of the interrogation to the Defense counsel and he will have an opportunity to look it over during the recess and then the Prosecution may continue its cross examination immediately after the recess.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. FICHT: Dr. Ficht for Biberstein.
Your Honor, I only want to formulate my motion. I object to the submission of this document as evidence for the following reasons: First, because the 24-hour period has not been adhered to; secondly, because Mr. Wartenberg was here on the witness stand, and the Prosecution could have addressed appropriate questions to Mr. Wartenberg; and thirdly, because this is a transcript not signed by anyone, a transcript of an interrogation signed neither by Mr. Wartenberg nor by Herr Biberstein, and I am not able, through cross-examination of Mr. Wartenberg, to show inconsistencies in this long transcript. As for the question of the President, why I object to this after having asked for this document, may I mention that I am objecting now because the prosecution did not give us the document until now and therefore wanted to gain a tactical advantage by using it in cross-examination. That is why I object.
THE PRESIDENT: The 24-hour rule, if one side insists on it, must be adhered to, so, therefore, the document will not be introduced as evidence now. It may, however, be used in cross-examination of the witness.
MR. HORLICK-HOCHWALD: Do you have a copy, witness?
(The witness was handed a copy of the document)
MR. HORLICK-HOCHWALD: If your Honors will turn to Page No. 13, which is also Page N o. 13 in German -Q (By Mr. Horlick-Hochwald) You were asked, Herr Biberstein, by Mr. Wartenberg, "How many people have been executed during this time?" It was the time when you were in command. Your answer was, "I cannot say with any certainty. I had to submit the reports less in writing than by radio."
Next questions: "How many then?" Answer: "I mentioned there from two to three thousand." Is that correct?
A This "there" refers to the two to three thousand mentioned in the Eselheide affidavit.
Q Witness, will you look again at this thing? There are many questions before which were asked you. None of them refers to the Eselheide affidavit. You said something about an Eselheide affidavit but in a completely different connection, and there is a sentence, an answer just before you said, where you said, "I had to submit the reports." So it seems to me completely impossible that you, by the word "there" meant the Eselheide affidavit, which is not mentioned in this connection at all. Will you, witness, change your testimony to the effect that not you -- that not Nehring or Heidelberger made these reports to Einsatzgruppe C but you?
THE PRESIDENT: Well, Mr. Hochwald, why not find out first if this transcript is correct. Now, Witness, you read -- Witness, please, you have seen in the document which Mr. Hochwald has submitted to you a list of questions and answers, yes?
THE WITNESS: Yes.
THE PRESIDENT: Now, do they conform to what actually transpired in the interrogation? Did you actually give the answers which appear in this paper?
THE WITNESS: I don't know exactly any more. I said before that if I talked about two to three thousand, it always referred to this figure which I gave at Eselheide, and I also assume that I said here that an affidavit was made in Eselheide where I mentioned the figure two to three thousand, and that is why it is here.
THE PRESIDENT: But did you actually give the answer which appears on Page 13, "I mentioned in the reports from two to three thousand"?
THE WITNESS: This answer is not given here. It says here, I said so, "there".
MR. HORLICK-HOCHWALD: If your Honor please, the correct translation would be, "I mentioned there", instead of "I mentioned in the reports."
THE PRESIDENT: Very well, proceed. Proceed, Mr. Hochwald. BY MR. HORLICK-HOCHWALD:
Q Did you give these answers to these questions?
A I cannot say that any more in this connection. I repeat that if I talked about two to three thousand, I only thought of those two to three thousand, which I had mentioned in Eselheide. Not that I suddenly made a difference here and said here that I had reported two or three thousand to Kiev; it is the same figure which I gave in Eselheide. There I said two to three thousand. that you had to submit reports?
Q You, not the Kommando. You said here, "I had to submit the reports."
A I was the leader of that kommando, and "I" is equivalent to "Kommando". that you, and not Nehring or Heidelberger, submitted these reports to Einsatzgruppe C, is that correct?
A That I did that? No. I is the kommando. I was the kommando leader, and after all I am responsible for the kommando.
DR. FICHT: Dr. Ficht for Biberstein. whether the witness wishes to change his testimony. In my opinion it has not been established yet that he made any different statement.
MR. HORLICK-HOCHWALD: If your Honor please, Dr. Ficht is mistaken. I asked him whether he wanted to change his testimony in direct examination that not he but Nehring and Heidelberger made these reports. That was my question, and I do think that Dr. Ficht will agree with no on that, that the witness has repeatedly said here that reports to Einsatzgruppe C were made, first by Heidelberger, and later by Nehring. So my question is whether he wants to change his testimony and say that these reports were made by him.
DR. FICHT: Your Honor, my statement only referred to those questions which are contained in this document. That was the way I understood it.
THE PRESIDENT: Yes. Q (BY MR. HORLICK-HOCHWALD) So, do you want to change your testimony, that Nehring and Heidelberger made these reports?
A No, I do not want to change my opinion. I say this is a false interpretation of the word "I". Something is interpreted that I did not express, because "I" is the kommando. number of two to three thousand? Do you want to admit that a number of two to three thousand was given by you on the basis of your recollection of these reports which you made, and that the estimate of two to three thousand therefore is correct?
thousand to Kiev, neither I nor the kommando. The figure two to three thousand always refers only to the question, "How many did the kommando execute during that time?" this two to three thousand were executed by your command in the time when you were in command of Einsatzkommando 6? question of the President, I explained that I cannot give the figure of those executed by the kommando. own answers given to Mr. Wartenberg, you do not change your testimony here?
A I do not understand how I should change it. Please give me more detailed information.
THE PRESIDENT: He has said he does not change it, that he stands on it.
MR. HORLICK-HOCHWALD: No further questions, your Honor.
THE PRESIDENT: Do you have any question, Doctor?
DR. FICHT: Just a few, your Honor. BY DR. FICHT: about the discussion with Heydrich. You were asked to the effect as if you had said during the direct examination that you know very well what an Einsatz assignment meant. What did you imagine an Einsatz assignment to be, or what did you say during the direct examination to that effect?
that actually I did not know what an Einsatz assignment meant. I only know that it was abroad and probably involved State Police tasks.
Q Did you mean the Einsatzkommandos by this?
A No, I did not know any details about Einsatzkommandos; I know that it would be an Einsatz assignment abroad.
Q Wasn't it like this in Germany, that the word "Einsatzassignment" was used generally if a soldier was assigned to some soldierly task?
A Yes. Also one says that officials have assignments given to them. That is a general expression for a special task. the State Police office in Oppeln, did you not refuse at the beginning, as you said in the direct examination, to take over this post? knowledge to be in charge of a State Police office. I pointed out from what profession I came. I pointed out that I was not a lawyer, not a trained police official, and that I wasn't even an officer.
you this office? which you made concerning the exact interrogation and examination in Rostov. You said that investigations were carried out here about the defendants themselves. Did you not have witnesses then?
Q Were these only odd sheets, or were they whole files? weren't they? took in such cases. I want to ask you now, surely according to the documents you saw, it took at least several days, such an investigation?
MR. HORLICK-HOCHWALD: Just a minute, if the Tribunal please. The witness has said that he is unable to give an estimate. I do object against the question for the simple reason that Dr. Ficht gave a very strong lead by saying several days. I do think the question is not admissible.
DR. FICHT: Your Honor, I withdraw this question because that is sufficient for me. I have no further questions about the crossexamination. I only would like to reserve the right that if this document is to be submitted after all, to be able to address further questions to the witness in the witness stand.
MR. HORLICK-HOCHWALD: If the Tribunal please, I do think Dr. Ficht should be able to put the questions out of the interrogation now to the Defendant Biberstein. It is the general rule in cross-examination, always as long as the witness is on the stand, that questions are put to him. The prosecution declares that the prosecution intends to offer the document as Prosecution Exhibit 183 as soon as the 24 hours are expired.
DR. FICHT: Your Honor, for purely practical reasons I cannot do this because this transcript is so long that in the recess I was only able to read through it once.
THE PRESIDENT: Yes. Dr. Ficht, you may, if you desire, crossexamine, rather redirect your examination on any part of that document which was used by the prosecution in the cross-examination. Now, the rest of it we will decide later, but Mr. Hochwald did direct several questions to the witness on the document.
DR. FICHT: Your Honor, in that case may I address one further question?
Q (By Dr. Ficht) Witness, do you have the document in front of you?
Q Would you look at Page 5, please? I don't know whether it is the same here. There it says, "We shall make our own affidavit," as a question, yes. And before that there is a sentence which first starts with a different subject but in the end refers to this. May I read this?
THE PRESIDENT: Dr. Ficht, now you are going into something which I don't think Mr. Hochwald mentioned in the cross-examination. Now it would appear that you are having a redirect examination on the on the document generally. If you intend to do that, that is entirely proper.
DR. FICHT: Your Honor, I only know that one point, because I noticed this particularly and because it is also connected with the questions asked by the prosecution, namely the Eselheide affidavit.
THE PRESIDENT: Very well.
Q (By Dr. Ficht) It says here, the second part, if I may come to that now, "I have already given an affidavit about this, but you only read this to me, and I believe that there is a word too much written in it, one word or two too many in fact." Then there is a second question, "We shall make our own affidavit." That is what Mr. Wartenberg said.
I now ask you, Witness, what did you mean by saying, "There is a word or two too many in it"?
A This referred to the word, "No more Jews in Rostov."
Q No, I mean in general. Which testimony?
Q The Eselheide affidavit? Isn't that mentioned here?
DR. FICHT: I have no further Questions now, your Honor. I hope no further cross-examination will be necessary. I only make this reservation just in case.
THE PRESIDENT: Very well. BY THE PRESIDENT: means of the gas van, the execution which you witnessed, you didn't specify who the individuals were that you saw. Were there any women in the gas van?
Q Were there any children?
Q I see. When you first testified, that is during the first few hours of your testimony here, you asked - or rather you stated , that one of the reasons why you joined the National Socialist Party was that you were quite disturbed about the Versailles Treaty?
Q You are student of history, are you not?
Q But you have read history? of history.
Q And you said that the Versailles Treaty was one-sided?
other side?
Q Now, which Versailles Treaty did you refer to? in 1871?
Q Was that one-sided? conditions to the one he is victorious over, but it always depends how much chance they give the opponent to start over again. one-sided? simply is forced to accept the treaty of the victor.
THE PRESIDENT: That was purely on the matter of history and had nothing to do with the trial. Thank you very much. The defendant will now be -
Q (By the President) Witness, fudge Speight has asked that you tell us, if you will, just what you meant by a spot check of the reports which were sent in from your kommando. a few cases out of a great number and examines them. I went there and took a few fils out of a great number of files and took them along and read them through and then returned them. I call that spot checks.
Q About how often would you do that?
A I cannot say anything definite about that: occasionally. of reports to check on?