MR. WALTON: May it please the Tribunal, I would like to ask, for a point of information, if Your Honor's order, nunc pro tunc, for making these changes it stops the Prosecution, in their rebuttal, from putting in evidence as to the original form of the affidavit.
THE PRESIDENT: No. What eve are doing here is allowing the witness to tell the story as it occurred. There is no order being made at all, Your exhibit which you have presented is an exhibit, and naturally it remains as you presented it.
MR. WALTON: Yes.
THE PRESIDENT: But now, for the information of the Tribunal, we are having the witness indicate wherein he declares that an error was made.
MR. WALTON: That is all I wanted to know, sir.
THE PRESIDENT: That is right. BY THE PRESIDENT: the number of executions.
A No, not about the figure as such. I did not discuss this with the prosecutor at the time here in Nuernberg, but I had intended to do that later on, which he said I could. However, I would like to have added that these executions were done according to a proper procedure, owing to a certain activity of the person concerned, That is, the person was not shot arbitrarily, but after a carefully detailed examination That is not expressed here. the affidavit regarding the executions that in each instance, before the man was shot, there was an investigation to determine his guilt?
Q Are there any other corrections you desire to make? that the Einsatzkommando had a surplus of 100,000 marks derived from people to be executed. It states, and I quote: "This amount originated from the people who were to be executed, who had to hand over their money and valuables."
This sum of 100,000 marks came about like this. In August or September. 1943, when I was in Germany, my bookkeeper at that time, who kept books in Berlin, visited me because certain papers had to be signed by me, which I had not yet signed. On that occasion he told me that the money affairs and his settlement were in order, and that there was surprise in Berlin that he had a surplus because this, did not occur in other Commandos, On that occasion he named a figure to me, which I remember was 100,000 marks. I only happened to hear about this, but did not see it. necessary to ascertain this. Nor did I ever say that in this 100,000 marks certain amounts were included which, as I explained this morning, were used for the benefit of the Reich and were confiscated by the Reich from the people who were condemned to death and executed. further information insofar as I ordered, for example, that the black cash register which existed in the Commando be dissolved. That was done by me because it was not permissible for legal funds. This money was then put into the cash register of the entire Commando. I do not know where these funds originated; I found them there.
A Please? to you by the bookkeeper.
Q Yes. Now, was there actually that much money available? Did that much money exist?
A I don't know in detail, but I presume so.
Q All right. Now, where did this money come from?
A I just explained that. It could only have come because, on the one hand, we were very economical, and, on the other hand, because of that illegal fund which was kept in the Commando. This was a fund which was unofficial, which was kept separately. executed?
A I do not know about the origin of this illegal fund; I don't know where it came from. the money was derived from people to be executed? Did you say that to him?
Q Oh, I see. Some of the 100,000 marks represented money taken from people to be executed?
Q You don't know how much of that?
A No, that I can't say.
A Very well; we will make that correction ourselves. All right, any other correction?
A Yes. The decisive point of the whole matter is what I explained in detail today concerning my entire attitude and position within the Commando:
Brigadefuehrer Thomas obliged me by the fact that he sent Sturmbannfuehrer Nehring to help me, to deal with all these questions which had to do with the security of the army territory. For me, this seems to be very important, and this is missing completely.
Q Any other observations on the affidavit?
A Well, at the moment I can't see anything.
Q Well now, we have two affidavits. You are, of course, referring to the one of July 2, 1947.
Q Then there is the one dated 25 June. Do you want to offer any comments on that?
A In Esclheide? from my document book, yes.
Q That is correct. You are not making any observations on this? affidavit: When I was in Esclheide and was interrogated there for the first time, a member of the American Army approached me, and I had full confidence in him at that time. May I point out that before signing this affidavit I did not read it because I had left my glasses in the cell. However, he pointed out to me that that might cause difficulties, but I said that I trusted him blindly because I had a member of the American Army in front of me, and therefore I was not afraid. Up until that time I had not seen the affidavit again. I only have some vague memories about it, but I know that something is contained in this affidavit about the Jews, as I stated, today.
These matters are not contained in the Nuernberg affidavit. therefore I cannot pass judgment on this from memory.
THE PRESIDENT: Dr. Bergold, suppose he looks at it during the recess, and then looks at both affidavits. And then, when we reconvene in 15 minutes, let him give us a complete up-to-date account of what the affidavit should have said.
( A recess was taken.)
THE MARSHAL: Please take your seats. The Tribunal is again in session.
THE PRESIDENT: You may continue, Dr. Bergold
DR. BERGOLD: Yes. BY DR BERGOLD: davit?
A First of all the affidavit of Nurnberg. Here I would like to say that on page -- I think page one of the originals. it says, "The people destined for execution after their money, valuables, and sometimes even clothing was taken away from them," End of quote. In my interrogation I have already said that money and valuables customarily were taken away as soon as the persons ware brought into prison, and not only when the execution took place. Furthermore, it said, sometimes clothing, too. The word "sometimes" may give an erroneous impression insofar as the talking "way of clothing happened in individual cases, if a piece of clothing was needed for other prisoners, where was no definite system for this and there was no definite order to take away the clothing from these people, Concerning the fact given, here, that during execution by gas-van, it says, a few lines farther, "There was no physician present when the bodies were unloaded to certify that the people were really dead." One would have to add that this typo of gas execution guaranteed certain death, and, therefore, a special examination was not necessary. Furthermore, on point five at the end of the paragraph, it says: "In this type of execution no physician was present either." Sofar as I recall I said that in the individual case it was determined whether the person concerned was dead.
THE PRESIDENT: Without any reference to a physician, you didn't mention it, do I understand that what you told the interrogator there, in the individual cases it was determined that the victim was dead but you said nothing about a physician.
Is that what I understand. I just want to find out what you said?
THE PRESIDENT: I understand that. Now you are commenting on paragraph 5, and it is not clear to me--
THE PRESIDENT: Just what change you desire to make in the statement in the affidavit about the physician, that is not clear? cution no physician, was present either. The sentence would have to continue, but in every case it was determined whether the persons concerned were dead, not through a physician, to be sure, but at most by the medical non-commissioned officer. About the affidavit made out at Eselheide, I only have one thing to say. That near the end it says, "I didn't find Jews in Rostov any more." It looks as if I knew something about their presence. I might have said, "I didn't find any Jews in Rostov." By this I mean as I have already said today, I saw no Jewish settlement. The word "more" gives a wrong impression. BY DR. BERGOLD:
Q Is this all that you have to say about this?
DR. BERGOLD: Your Honor, may I now ask the following. As for the ruling which the Tribunal made before, about presenting all exonerating material, I understood that the Prosecution was asked to submit the interrogation transcript.
MR. HOCHWALD: If the Tribunal please, if I am not mistaken, I don't think Dr. Bergold will agree with me on that, Dr. Bergold me de application.
DR. BERGOLD: Yes.
MR. HOCHWALD: For this interrogation record, the Prosecution has answered the application of Dr. Bergold.
DR. BERGOLD: Yes.
MR. HOCHWALD: And he is in possession of an order of the court saying that interrogation transcript must not be submitted by the Prosecution. Moreover, the Prosecution intends to use this transcript at a later time.
DR. BERGOLD: I thank the Prosecution. BY DR BERGOLD:
Q Witness, now I come to your testimony itself. In this affidavit, it says that you made your testimony voluntarily. Would you also like to maintain this statement, or would you like to change it?
A I didn't make this testimony voluntarily.
Q Why. What reasons could you give for this?
Q What were you told after you took the oath?
A I was told; you know that it is considered just as serious an offense to omit something from your testimony than if you give some false statement under oath.
Q What conclusions did you draw from this statement? I was asked about. would incriminate you personally? served to you?
A No, I was not told that. The manner of the interrogation gave me the impression that I was to be examined as a witness.
DR. BERGOLD: Thank you. Mr. Hochwald, yesterday, we had a disagreement about the fact that you reproached me on the fact I had made slanderous remarks about the Prosecution, and that I had no proof for it.
May I now point out to you. Mr Hochwald, that in my opening speech I listed three points in which I criticised your procedure. These were briefly the following three points: First, that something had been omitted which was exonerating; secondly, one had told the defendant that he could correct his affidavit later on; and thirdly, that he was not told that he could refuse testimony. In reference to the last mentioned point, Mr Wartenberg admitted during his interrogation that he didn't explain this to the defendant. I would like to say one thing now. I have great esteem for the Prosecution, but I believe that it would be democratic to be allowed to exercise criticism for this thing which is not supposed to be a slander. Criticism is the duty of a lawyer, and I would like to interpret the democratic right, as a son of autocratic Germany, different to the Prosecution, or, perhaps I have too high an opinion of Democracy, but I did only want to criticise, and I didn't want to make any slanderous remark, and, I hope that Mr Hochwald is now convinced I don't want to slander the Prosecution, but merely want to criticize it.
MR HOCHWALD: If Your Honors please, criticism on the part of Dr Bergold is, of course, invited also from the part of the Prosecution, wherever he is in a position to criticize our way of procedure, he certainly is at liberty to do so, and, nobody will object, nor say at least that the Prosecution will try to stop him of that. The only objection is against the form and not against the facts, so I think then that Dr Bergold should not hesitate to say that the form was a little bit too sharp.
THE PRESIDENT: Very well.
DR. BERGOLD: Mr Hochwald, if one fights one has to use strong weapons, that is the battle order, this is not a cozy conversation or a bridge game, but it concerns life and death, and it is a very serious matter, and, therefore, I have to be harsh because I want to save the life of my client, and, in view of this serious background one must be a little more harsh, but we agree and I am glad that this misunderstanding has been clarified.
THE PRESIDENT: Very well, the Tribunal shares your happiness in it. BY DR. BERGOLD: carried out the investigations, and the general penal procedure. Do you have any proof for the fact that the Russians considered this procedure as inhuman?
A No, on the contrary. First of all Russians usually first denounced the perpetrators; secondly, it was the Russian who did preliminary work on the case before submitting it to the commando; and, thirdly, the Russian civilian population was accustomed to something completely different in this respect, Through an interpreter I heard that the Russians, in view of the activity of the commando, had the following to say: "Germany will never win the war since the Germans are not harsh enough." These words male a deep impression on me at the time and disquited me. I often found out with deep concern how little value human life had for a Soviet Russian Citizen, and how easily he dealt with human life, but it is completely so that it is of no matter at all in this case whether he takes some one's life, or whether he is to give his own life.
Q Witness, let's now leave Russia at last. When did you make your application for transfer from your commando? made this application on 9 November 1942. I made this in duplicate, one going to Brigadier General Thomas personally, and the other to the RSHA. Attention Gruppenfuehrer Streckenbach.
Q Did you know that no such application was allowed to be made?
A No, I didn't know this. My case was different anyway, since I could refer to the agreement with Heydrich, and which I had already presented as documentary evidence for Berlin.
Furthermore, I had spoken to the Obersturmbannfuehrer Trautmann in Berlin, and also with the Einsatzgruppen Chief, Dr. Thomas.
Q When did you get an answer to your application? returned to Russia after a leave.
Q How did this answer say?
A It contained only three sentences. It read approximately as follows: As concerns your application of 9 November 1942, I release you from the Security Police, and I have got in touch with the Reich Ministry of Interior about your employment in the Interior Administration. After your return will you please report immediately to the Reich Ministry of Interior.
Q Who signed this? Office-I.
Q What date did it bear?
Q Then it was a long time until this reached you. How do you explain that? communications, such letters unfortunately were often delayed in Russia.
Q Until when were you in Rostov? Army, I had to evacuate the city. Rostov? had actually been completed. On order of the Army, the supply column of the commando was moved back into the rear area, that is, into an area where the civil administration was functioning. Only the staff with a few officials remained in Taganrog, in order to put itself at the disposal of the Division stationed in Tagenrog.
The men of the commandos were at rest, and were recalled by Dr Thomas gradually for the purposes of partisan warfare around Kiev.
Q Were you ever absent from EK 6 and when? 1943 there was a conference in Kiev. Afterwards I went on furlough for four weeks to Germany, and I extended this by having Thomas give me his approval from Kiev by teletype and permitting me to attend a conference in Berlin. Thus it came about that from the beginning of April 1943 until about the 20th or 22nd of May 1943 I was absent from Russia. May 1943 which is contained in Document Book III C, the third to the last, Document Number 2901, Exhibit 145, on page 70 of the English text. Do you recall this teletype message?
Q How do you understand this teletype message? to two other teletype messages which I had received from Kiev, These two messages referred to the recall of the commando from Taganrog into the partisan area. The first teletype message is a general announcement, and the second message is a direct order. It says in there that I was to subordinate myself to the commander at Rowno. I sent this teletype message to Kiev because at the time I already know that my recall was being kept in Berlin. I wanted to point out to the group that it, the group, could not subordinate me to the commander at Rowno since it, the group, could not take the commando away from me. I wanted to prevent my getting a new mission for it is a well-known fact that, if one comes into a new situation, it is sometimes difficult to get out of it again. Upon my teletype message 1 expected some information from Kiev that my order to lead EinsatzKommando 6 would be rescinded and that I could return to Germany.
When I did not got any answer to this teletype message, I personally went to Kiev.
A In Kiev I was not received by Thomas. His adjutant told me that I should immediately put the commando into the partisan area as had been ordered, and now came the decisive thing for me, namely, for me to go to Germany via Kiev.
Q Did you carry out this order in this manner? not ready to proceed, therefore, I had to transport it by rail
Q You don't have to give us all the details. was very difficult under the conditions and could only be approved by the army transportation corps.
Q When did you leave the EK 6?
A On the 16th of June 1943. The train with the commando left for the partisan area where, while 1 went to Kiev by motorcar.
Q What happened in Kiev? with the group told me that Thomas had ordered him to start an investigation against me because of passive military disobedience. This message distressed me greatly, since I knew what kind of an attitude the SS and police court had about military disobedience. I was reproached that I did not move quickly enough. In the meantime, however, I heard that Thomas had reported, to the SS and police leader, that my commando was ready for action too early; since the commando then did not show up for that occasion, he was reprimanded.
Q What punishment were you given then?
A I was glad that I got off easy. I was punished 12 days of house arrest because of passive military disobedience. I was told about this when I bid farewell to Thomas. He said that he attached importance to the fact that we should separate in a friendly manner. Therefore, he would permit me to leave immediately.
Q When did you return to Germany?
Q What did you do in Germany? the RSHA and to the Reich Minister of the Interior, as I had been instructed to do. Interior? the ministerial director. Kramer, who was mentioned to me in the RSHA as the expert about my transfer into the interior administration. From him I learned that it was intended to use me in the Civil Administration in Italy,
THE PRESIDENT: Dr. Bergold, the date came through as June 1942 when he returned to Germany. I presume it is 1943.
THE WITNESS: '43. BY DR. BERGOLD:
Q When did you get your order to report there? assignment end of February 1944. It told me to report to the Reich Commissioner in Klagenfurt to be employed in the German Civil Administration in the operational area of the Adriatic Coast down to Trieste.
Q Then you were an official in the Civil Administration?
in Trieste.
Q In what department were you active?
Q What was the mission of this department? subdepartment for black market affairs. This subdepartment for blank market affairs was the central organ of the Supreme Commissioner, which cooperated with all agencies dealing in black market affairs. That is, it had to make directives for all German and Italian agencies.
Q Until when were you in Trieste?
A Until the 29th of April 1945. On that day I left the city of Trieste with the last officials following orders and returned to Germany via Klagenfurt.
Q Now, I just have a few more questions. What position did you have in the SS? SS as an Untersturmfuehrer, and I was assigned to the SD main office in an honorary position. I never was an active SS man, that is, one who does his job in full capacity or in honorary capacity, but like many ministry officials, as an honorary, officer. I was a passive member of the SS, that is to say, I had the honor to be allowed to wear the SS uniform but I was no leader of a formation. I had no competence, and I had no other duties other than to behave myself decently as an SS man. On the 30th of January 1939 I was promoted for the last time to Sturmbannfuehrer. Thus I reached the rank which I could customarily reach as an honorary officer and a government councillor, namely, one rank below the rank of officials. Since I remained a government councillor, I was not promoted in the SS. As an honorary officer in the SS with the rank of a Sturmbannfuehrer, I was not an officer, that is, major in the sense of the army or the police because in 1940, even though I was SS Sturmbannfuehrer, I was drafted as a private in the army, and I was discharged as a noncommissioned officer, as an honorary officer.
Does that mean that you were an SD member?
A No. I did not belong to the SD because I had made no application for membership in the SD. Furthermore, in the spring of 1937 through the intervention of a government councillor Flesch, I had given an affidavit for Heydrich that I was not in the SD and had not been given any orders by Heydrich. And, finally, 1 did not do any work for the SD.
Q Were you a member of the Gestapo?
A I was not a member of the Gestapo. As a soldier in 1940, by an order of the army, without knowledge and without my will, I was drafted for war service and I was ordered to go to the chief of the security police and SD, and I was used by him provisionally for one year as a state police officer where in pointing out always my spiritual profession this type of work. Only after this provisional year if I had wanted to do so, the final acceptance of me in the Gestapo could have come about. This did not happen, rather on my application I left without any difficulties. Because of this war order -- because of this provisional war order, I was not given an equivalent rank as official to that in the SS, as this was customary in the police, that is, I was not promoted to Obersturmbannfuehrer as this would correspond to my rank as Senior Government Councillor.
Therefore, I was transferred there as an auxiliary provisional war member and I was not a member of the Gestapo.
Q. And now, the last. You have told me that you wanted to make a correction about the testimony when the President asked you whether you saw a report which mentioned executions. You informed me that you would like to make a statement about this. Please do so now.
A. This morning, Your Honor asked me for the number of people executed by the commando. I said in this connection when the reports were shown to me, as far as I remember, that these reports were made out by Nehring and not by me, that I therefore, saw no reports. It is absolutely possible that during this time I happened to sec a report in which a number was given for a certain period of time. I do not recall such a thing, but to be quite exact, I must point out to this possibility.
DR. BERGOLD: This concludes my direct examination. I would like to thank the Tribunal for their patience and their fairness with which they listened to this difficult case, and I also thank the prosecution that they were so patient.
THE PRESIDENT: Very well. Do any of the defense counsel desire to cross examine the witness?
DR. BELZER: Belzer for Graf. BY DR. BELZER:
Q. Witness, if you look straight ahead you see this diagram and you see under EK 6 your own name, Biberstein, and below it the name of Graf. I would like to ask you since when do you know the defendant, Matthias Graf?
A. I know the defendant, Matthias Graf, since my stay here in Nuernberg after the indictment was served.
Q. Thus you did not meet the defendant Matthias Graf, at Einsatzkommando 6 either in an official manner nor did you ever hear that name at the trial?
A. During my time with the kommando I had no official contact with Graf. I had no contact whatever with him, but in the Kommando I heard the name of Graf somewhere in some connection.
Q. Did you hear anything of the name, Matthias Graf before you came to Nuernberg and outside of your service in Kommando 6?
A. No, but I add that I never heard the first name. At the time I heard something about a man named Graf but I heard the name, Matthias, I heard the first name for the first time when I was interrogated in Eselheide. I was asked by the interrogator whether I knew a certain Matthias Graf, which I denied because it was the truth.
Q. I understand your answer to me that you do not know anything about a special mission which the defendant, Matthias Graf, had in October 1942 in Rostov and which he is alleged to have carried out there?
A. No, the interrogator asked me about such a special mission. I was not able to give him any information about it.
Q. Since you only got to know Graf here and did not know anything about him before in an official manner, I must submit to you two statements before I can ask my next question. According to his own statement, the highest rank of the defendant, Graf, during his membership in EK 6 was Oberscharfuehrer. According to his further statement, Herr Graf only was concerned with making out SD reports about Department III. I now ask you according to your official knowledge-
MR. HOCHWALD: If the Tribunal please, the defense counsel for the defendant, Graf, has questioned the witness now for several minutes and the witness has answered several times COURT II CASE IX that he did not know Graf, he had no knowledge about his position, and so on.