B. Measures Outside the Judicial Process—Protective Custody, Transfer of Persons to Concentration Camps and the Police

ORDER OF PRUSSIAN MINISTRY OF JUSTICE, 15 MARCH 1934, INFORMING AUTHORITIES OF GOERING’S DECREE OF 11 MARCH 1934, AUTHORIZING THE GESTAPO AND CERTAIN PRUSSIAN AUTHORITIES TO ORDER PROTECTIVE CUSTODY FOR POLITICAL REASONS[185]

No. 76 Order concerning measures of protective custody, Executive Order of the Prussian Ministry of Justice of 15 March 1934 (I 3540), German Justice, page 341.

On account of its importance also with regard to the official sphere of activities of judicial authorities, I hereby inform these authorities of the following decree, by the Prussian Ministerpraesident (Secret State Police), dated 11 March 1934.

Berlin, 11 March 1934

The Prussian Ministerpraesident [Goering]

Secret State Police

Insp. 1946/11 March 34

Subject: Order concerning protective custody

Effective immediately I order the following:

1. The regulations which so far dealt with competence with regard to the application of protective custody for political reasons are cancelled. In future restrictions of personal freedom in accordance with article 1 of the Decree for the Protection of the People and State, dated 28 February 1933, may be ordered with effect on the entire state territory [of Prussia] by the Secret State Police Office only, and within their local fields of jurisdiction by the Oberpraesidenten, Regierungspraesidenten, the police president in Berlin and the local state police offices.

The district police authorities, especially the Landraete, are no longer competent for such measures. The measures hitherto ordered by them will be rescinded as per 31 March unless they have been extended by order of the competent police authorities of the constituent states.

[Page 342]

Offices of the Party and the affiliated organizations may not carry out arrests on their own initiative. In case of disobedience to this order the competent authority will interfere, and report to me, at once.

To the Ober- and Regierungspraesidenten

Secret State Police Office in Berlin

Police President in Berlin

State Police Offices

LETTER OF REICH MINISTER OF JUSTICE GUERTNER TO REICH MINISTER OF THE INTERIOR FRICK,[187] 14 MAY 1935, PROTESTING AGAINST THE “MISTREATMENT OF COMMUNIST PRISONERS BY POLICEMEN”

Copy

3751 PS of the IMT

The Reich Minister of Justice

Z.F.g 10—1717.34

Personal

Berlin, 14 May 1935

To the Reich and Prussian Minister of the Interior,

Berlin

Subject: Mistreatment of Communist prisoners by policemen

Enclosure: 1 loose sheet

My Dear Reich Minister!

Enclosed you will find copy of a report of the inspector of the Secret State Police, dated 28 March 1935.[188]

This report gives me an occasion to state my fundamental attitude toward the question of the beating of internees. The numerous instances of ill-treatment which have come to the knowledge of the administration of justice can be divided into three different causes for such ill-treatment of prisoners.

1. Beating as a disciplinary punishment [Hausstrafe] in concentration camps.

2. Ill-treatment, mostly of political internees, in order to make them talk.

3. Ill-treatment of internees arising out of sheer fun, or for sadistic motives.

I should like to make the following detailed comments on those three categories:

About No. 1. In the remand prisons and penal establishments under the Ministry of Justice, there was no need to introduce corporal punishment as a disciplinary measure. The experience of the administration of justice has taught that a well trained, reliable, and conscientious personnel of wardens is in a position to set up and to maintain model order under a strict discipline, even without corporal punishment. The more training and discipline the prison guards have, the less need exists to introduce corporal punishment as a disciplinary measure.

But if, contrary to this view, one is to suppose that there might be a need to introduce corporal punishment in concentration camps, it appears indispensable that this disciplinary measure and the manner of its application should be determined, uniformly and unambiguously, for the whole territory of the Reich. It has happened recently that camp orders of individual concentration camps concerning this matter and the use of weapons, contained unusually severe instructions which were brought to the knowledge of the internees as a stern warning, while the warden personnel was administratively informed that these regulations which dated mostly from 1933 were no longer applicable. Such a situation is equally dangerous for the warden personnel and for the internees. It would therefore appear, after the question of imposing protective custody was generally settled by the competent minister, that in the interests of all concerned, one should urgently and clearly define responsibility and legal aspect, furthermore that the same responsible authority would have to settle, by means of camp regulations generally applicable, the question of corporal punishment as a disciplinary measure, which is still unclarified, as well as the question of the use of arms by the warden personnel.

About No. 2. I cannot concur with the opinions expressed in the enclosed letter. The present penal law, which I have to enforce, renders liable to particularly severe penalties those officials guilty of inflicting ill-treatment in the performance of their duties, especially when such ill-treatment is used to extort admissions or statements. That these legal provisions also reflect the will of the Fuehrer and Reich Chancellor is shown by the fact that, during the suppression of the Roehm revolt, the Fuehrer ordered the shooting of three members of the SS who had ill-treated prisoners in Stettin. That being the legal situation, it is out of order to grant silently one part of the police forces permission to extort statements by means of ill-treating prisoners. Such a measure would destroy the respect for the existing laws and would thereby lead necessarily to the confusion and demoralization of the officials concerned.

Furthermore, such statements extorted by force are practically without value if they are supposed to serve as evidence in trials for high treason. The courts which have jurisdiction in cases of high treason consider to an ever increasing degree statements of the defendants made before the police as worthless and without any evidenciary value for court decisions. This was the result of their getting convinced in the course of numerous proceedings that confessions and statements made before the police were extorted by ill-treatment.

Moreover, I cannot follow the statements contained in the attached report in as much as the beating of Communists held in custody is regarded as an indispensable police measure for a more effective suppression of Communist activities. These explanations of the Gestapo office show precisely that the methods used up to now have not been successful in combatting the illegal Communist machine or to hinder its development.

Experience shows that such police measures may perhaps partially be successful but that they never can attain a total suppression and destruction of an illegal revolutionary organization which alone is of importance in the long run. Behind such revolutionary organizations there are professional revolutionaries of great experience and frequently exceptional intelligence. These succeed very soon by means of cleverly camouflaging all more important functionaries in excluding for all practical purposes the possibility of betrayal as a result of mistreatment.

About No. 3. The experience of the first revolutionary years has shown that the persons who are charged to administer the beatings generally lose pretty soon the feeling for the purpose and meaning of their actions and permit themselves to be governed by personal feelings of revenge or by sadistic tendencies. As an example, members of the guard detail of the former concentration camp at Bredow near Stettin completely stripped a prostitute who had an argument with one of them and beat her with whips and cowhides in such a fashion that 2 months later the woman still showed two open and infected wounds on the right side of her buttocks, one 17.7 by 21.5 centimeters and the other 12.5 by 16.5 centimeters, as well as a similar wound on the left side of the buttocks 7.5 by 17 centimeters. In the concentration camp at Kemna near Wuppertal, prisoners were locked up in a narrow clothing locker and were then tortured by blowing in cigarette smoke, upsetting the locker, etc. In some cases the prisoners were given salt herring to eat, so as to produce an especially strong and torturing thirst. In the Hohenstein concentration camp in Saxony, prisoners had to stand under a dripping apparatus especially constructed for this purpose until the drops of water which fell down in even intervals caused seriously infected wounds in their scalps. In a concentration camp in Hamburg four prisoners were lashed for days—once without interruption for 3 days and nights, once 5 days and nights—to a grating in the form of a cross, being fed so meagerly with dried bread that they almost died of hunger.

These few examples show such a degree of cruelty which is an insult to every German sensibility, that it is impossible to consider any extenuating circumstances.

In conclusion, I should like to present my opinion about these three points to you, my dear Reich Minister, in your capacity as cabinet member in charge of the establishment of protective custody and the camps for protective custody.

1. It seems now absolutely necessary that the competent minister should decree unified camp regulations for all camps for protective custody, which shall regulate completely and unmistakably the question of corporal punishment as disciplinary measure, and the question of use of weapons by the guards.

2. It appears necessary that the competent cabinet minister order valid for all police authorities an absolute prohibition against mistreatment of prisoners for the purpose of forcing statements.

3. All mistreatments which are entirely or partly due to personal reasons must be prosecuted vigorously and punished under close cooperation of all governmental offices concerned.

Heil Hitler!

[Signed] Dr. Guertner

DIRECTIVE OF 12 JUNE 1937 FROM HEYDRICH, CHIEF OF THE SECURITY POLICE, TO POLICE OFFICES, CONCERNING PROTECTIVE CUSTODY FOR JEWISH RACE DEFILERS

Copy

The Chief of the Security Police

Berlin, 12 June 1937

S-P (II B) No. 4021/37

[Handwritten] Annulled 28 August 1937

[Handwritten] Ku

Subject: Protective custody for Jewish race defilers.

From what I can see from a statistical survey, cases of race defilement have increased considerably recently. In order to take preventive measures against this danger, it is to be examined in every single case of race defilement whether protective custody is necessary after the sentence inflicted by law has been served.

For this purpose I request that a short report be made 1 month prior to the discharge of the condemned from prison with the valid judgment concerning the case of race defilement attached.

Apart from this I request that immediately after termination of legal proceedings in a case of race defilement in which a male person of German blood has been sentenced, the Jewess involved be taken into protective custody and reported to this office.

No publicity whatever is to be made of this order.

[Signed] Heydrich

S. Certified: [Signed] Kaskath

Clerk

To all—

EXTRACTS FROM THE REGULATIONS OF THE REICH MINISTRY OF THE INTERIOR, 25 JANUARY 1938,[189] CONCERNING PROTECTIVE CUSTODY

*******

Circular Decree[190] of the Reich Minister of the Interior

25 January 1938—Pol. S-V I No. 70/37—179 g

Secret

Article 1

Admissibility

1. For the protection against potential enemies of the people and the State, the Secret State Police [Gestapo] is hereby authorized to impose protective custody as a compulsory measure on all persons who through their behavior endanger the welfare and the security of the people and the State.

2. Protective custody shall not be decreed for punitive purposes or to take the place of legal imprisonment. Punishable acts are to be judged by the courts.

Article 2

Competence

1. Competence to order a person into protective custody rests exclusively with the office of the Secret State Police.

2. Motions for an order of protective custody are to be addressed through the local and regional State Police agencies to the office of the Secret State Police. With every motion detailed reasons are to be given which must include defensive statements [Einlassungen] made by the arrested person. As soon as the person under provisional arrest has been interrogated, a copy of this interrogation will be forwarded immediately.

3. An order for protective custody can only be issued after the accused has been heard on the charges raised against him.

Article 3

Temporary Arrest

1. The office of the Secret State Police, and the regional and local state police agencies are authorized to order the temporary arrest of any person to whom the provisions of article 1 apply, provided—

a. That such person is likely to engage in subversive activities unless detained.

b. That there is danger that evidence may be destroyed [Verdunklungsgefahr].

c. That the person is suspected of preparing for his escape.

2. The record must show that the accused has been advised of his provisional arrest within 24 hours after he has been seized. Likewise the record must show that he has been advised of the reasons for his being placed under temporary arrest.

3. A person under temporary arrest must be released not later than 10 days from the day of his arrest, unless an order for protective custody has been issued within that period by the office of the Secret State Police.

Article 4

Right to Issue Directives

The right of the Reich governors, the Land government, the Oberpraesidenten, and the Regierungspraesidenten, to issue directives to the superior State Police and Police offices, is not affected by articles 2 and 3.

Article 5

Order for Protective Custody

1. To place a person under protective custody an order for protective custody must be issued in writing by the office of the Secret State Police. At the time of his arrest or not later than the day after the order for protective custody has been transmitted, the accused will be handed a copy of the order for which he has to sign a receipt.

2. Any order for protective custody must include a brief statement of the reasons for which protective custody was ordered.

3. The next of kin (wife, parents, children, brothers, or sisters) of a person under protective custody are to be informed that he has been placed under protective custody and where he is located, unless special reasons render such action inadvisable.

4. If a civil servant is taken under protective custody the Secret State Police must immediately notify his superior agency and state the reasons for his protective custody.

5. If a member of the NSDAP or of any of its formations is taken under protective custody, the Secret State Police must notify the Party agency concerned and state the reasons for his protective custody.

Article 6

Execution

As a matter of principle, persons under protective custody are to be placed in State concentration camps.

Article 7

Duration

1. Protective custody is to last no longer than necessary to achieve its purpose.

2. Release from protective custody is ordered by the office of the Secret State Police. It is the responsibility of the Secret State Police to examine at regular intervals of not more than 3 months whether the protective custody is to be lifted. The arrested person must be released not later than 3 days after the protective custody has been lifted.

Article 8

Foreigners

Foreigners, who have been taken into protective custody, are to be deported unless special reasons render such action inadvisable.

Article 9

Executory Regulations

Executory regulations to implement the preceding provisions shall be issued by the chief of the Security Police.

To the Office of the Secret State Police, the regional, and local State Police Agencies.

For information only:

(Not published)

CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO PRESIDENTS OF DISTRICT COURTS OF APPEAL, 31 JANUARY 1938, REQUESTING LISTS OF ATTORNEYS ALLOWED TO DEFEND PRISONERS HELD IN PROTECTIVE CUSTODY

Berlin, 31 January 1938

Copy

The Reich Minister of Justice

4611—1a^7 194/38

The Presidents of the District Courts of Appeal

Subject: Defense of prisoners in protective custody by attorneys

To prepare a decision of the Reich Leader SS and Chief of the German Police on whether certain attorneys can generally be allowed to defend prisoners held in protective custody, you are requested to examine immediately whether attorneys in your district, and which ones, could be considered in this respect. To defend prisoners held in protective custody, qualification and reliability are necessary to a particularly high extent. Therefore, in making the selection, a very strict standard will have to be applied. Mere membership in the NSDAP—as far as it was acquired only after 30 January 1933—will generally not warrant the necessary extent of reliability; on the other hand, this qualification will not have to be denied merely because the attorney is no Party member. Only such attorneys can be considered whose attitudes prove beyond doubt that they fully approve of the political plans of the State and of the ideological aims of the movement. For the rest, it will have to be assumed that attorneys not acting as counsel for the defense in criminal cases—will generally not defend prisoners held in protective custody either.

I request that attorneys qualified according to these rules to defend prisoners held in protective custody and who, if possible, ought to reside at various places of your district be in sufficient number entered into a list arranged according to State Police Offices. As to their qualification I request that the president of the bar then be consulted, the necessity of a strictly confidential treatment will have to be pointed out to him. Agencies, other than the judicial administration, will not be consulted. I then request that two copies of the list be submitted and that the opinion of the president of the bar be attached. Concerning the attorneys mentioned in the list, personal data and qualification for each of them have to be attached in addition to the character and political attitude of the attorney, particularly the manner of his professional training as counsel for the defense in criminal cases has to be explained in this statement; furthermore, if possible, whether it can be assumed that the attorney enjoys the confidence of the State Police Office.

Negative reports, if such is the case, are requested.

As Deputy

[Signed] Schlegelberger

Note

I have discussed the question with the attorney Dr. Dormann today. He received from me 3 copies of the decree to deal with them; it was especially pointed out to him that the affair was strictly confidential. After contacting Dr. Droege he will try to compile for Hamburg and Bremen a list of such attorneys who are qualified to defend prisoners in protective custody.

Note

After 2 weeks

11 February 1938

[Signed] Letz

Note.—I have reminded Dr. Dormann by telephone. The list is under deliberation at present.

Note

1. To be submitted to the Senator.

2. Two weeks.

5 May 1938

[Signed] Letz

When opinion arrives, report has to be made.

[Signed] Rothenberger

Certified true copy.

Hamburg, 9 August 1947

[Signed] von Thaden

Justizoberinspektor

[Stamp]

Hanseatic District Court of Appeal

Hamburg

MINUTES OF DEFENDANT KLEMM ON CONFERENCES OF REICH MINISTER OF JUSTICE WITH ATTORNEYS GENERAL AND PRESIDENTS OF COURTS OF APPEAL, 23 AND 24 JANUARY 1939, CONCERNING PROTECTIVE CUSTODY

Conference with the Attorneys General [Generalstaatsanwaelte][191] on 23 January 1939

Protective custody after serving punishment, after acquittal, after release from arrest pending trial.

From the individual districts:

Munich (Leimer)—In Memmingen 4 cases of arrest for protective custody occurred and 2 of those after penal detention, 2 after arrest pending trial (not advisable, because executed in the same prison, probably even in the same cell), 8 in Augsburg, 1 in Kempten, 7 in Munich, altogether 359 after penal detention. The cases are decreasing.

Hamm (Semler)—No detrimental cases. 1 case in Arnsberg with the explanation that there is no intention to criticize the sentence. There have been frequent requests for calling back in cases where no warrant of arrest is issued.

Berlin (Jung)—The State Police [Stapo] takes functionaries of the KPD [Communist Party] into protective custody after penal detention. In cases where a warrant of arrest in high treason affairs is rejected, protective custody is to be ordered at once. Furthermore, in 1937 and 1938 a few priests and Jews in protective custody in cases of refusal of warrants of arrest. Protective custody justified on an acquitted sexual criminal (later conviction). No further annoying clashes.

Jena (Wurmstich)—Penitentiary inmates as a rule always in protective custody after penal detention likewise traitors and defaulters [violating restrictions acknowledged by signature upon release]. As regards the detrimental cases, improvement since 1936. Jehovah’s Witnesses are arrested on principle after penal detention, but are mostly released after 3–4 days.

Duesseldorf (Hagemann)—3–4 percent of the released are taken into protective custody. Jehovah’s Witnesses are released, if they countersign. There are frequent requests for calling back in cases, where no warrants of arrest are issued.

Stettin (Staecker)—Only in very few cases protective custody after penal detention. In 2 cases (abortion by female defendant Dr. Buchholz and 1 other case in accordance with section 175a of the penal code [Sodomy]) protective custody was entirely justified as the result of the appeal has shown. (Case Buchholz 4 years of hard labor.) As a rule, Jehovah’s Witnesses and high treason criminals are arrested pending trial.

Celle (Schoenering)—On principle, traitors, Jehovah’s Witnesses, homosexuals, and persons guilty of abortion are taken into protective custody after penal detention. 4 detrimental cases of protective custody: priest, RM 10,000 bail; race defiler, RM 15,000 bail; acquitted because of proved innocence; Jew (after being acquitted of acting maliciously against the State); insulter of the SS (after penal detention).

Hamburg (Drescher)—Protective custody as preventative measure after penal detention, etc., has to be acknowledged as justified, but not as a correction of a judicial decision. No special details.

Karlsruhe (Lautz)—Jehovah’s Witnesses as a rule are taken into protective custody after penal detention. Protective custody after repeal of the warrant of arrest was justified in 2 cases.

Graz (Meissner)—The Chief Public Prosecutor asked the State police in 2 cases for actions of protective custody, because a 13-year-old gangster could not be prosecuted and because the use of violence could not be clearly proved to a priest in a case of sexual crime.

Brunswick (Mueller)—There is one case, where protective custody as a correction of a judicial decision is embarrassing, because protective custody is justified (priest, sexual criminal). In another case, (priest, sexual criminal) the protective custody is not justified. In general the State Police is trying to act in agreement with the public prosecutor.

Oldenburg (Christians)—On principle, functionaries of the Communist Party are taken into protective custody after penal detention, furthermore, Jehovah’s Witnesses in almost all cases. Only a few unsatisfactory cases.

Naumburg (Hahn)—Frequent request for calling back if no warrant of arrest is issued. The impression has been given that judges are deciding for a warrant of arrest, because protective custody seems to them harder than arrest pending trial. Often the criticism of justice because of actions of protective custody is not absolutely unjustified.

Special example: A former SS Sturmfuehrer (disloyalty) after 1 year of penal detention was given another year in protective custody.

Nuernberg (Bems)—Cases of protective custody after penal detention, etc., have decreased, although frequently protective custody is exercised, if no warrant of arrest is issued. Protective custody as criticism of justice has not occurred any more. On principle, high treason criminals, Jehovah’s Witnesses and race defilers are taken into protective custody after penal detention.

The minister ends the conversation by stating that in the interest of justice those cases are to be regretted where protective custody is to be regarded as justified criticism of justice, besides no objections can be raised against preventative measures.

[Signed] Klemm

25 January 1939

Conference with the Presidents of the Courts of Appeal on 24 January 1939

Protective custody after serving term of imprisonment, after acquittal, after release from arrest pending trial.

Hamm (Schneider)—Conditions have improved during the year 1938. The most important cases are the ones after arrest pending trial. The taking into protective custody is performed more carefully today because of the reputation of justice. The complaint has been made that the length of protective custody is assuming the character of punishment. In one case (public notary) protective custody after release from arrest pending trial was justified. Some lawyers refrain from submitting a complaint of arrest because protective custody is pending. There are judges who in case of doubt issue a warrant of arrest in order to avoid protective custody. In one case of criminal proceedings homosexuals were released from arrest pending trial and later on legally acquitted; during the trial, however, they were brought to court from protective custody every day. Monks from Dorsten were taken into protective custody after their acquittal.

Darmstadt (Scriba)—In one case defendant taken into protective custody while still being in court after acquittal. In some cases protective custody was inflicted after repealing arrest pending trial, release, however, was obtained after objecting by the administration of justice. General picture: Decline of measures of protective custody in face of contradictory legal decisions.

Berlin (Hoelscher)—In 1938 only 3 cases of protective custody. A decline of arrests has been observed.

Duesseldorf (Schwister)—Frequent requests for calling back if warrant of arrest has been refused. It has even been noticed that corresponding agreements were made between the investigating or examining judges and the State Police (Duesseldorf). In one case protective custody was justified and in another case one additional year of protective custody. Those cases are very rare now; good understanding exists between the court and the State police. Therefore the impression that justice is being criticized does not exist.

Naumburg (Sattelmacher)—A mitigation has been noticed, however, there are frequent requests for calling back if warrant had been refused.

Hamburg (Rothenberger)—Cases of protective custody have been increased, because the warrants of protective custody are decided on in Berlin. In 6 cases, Jewish women have been taken into protective custody because of sexual intercourse with Aryans. In the case of Laeiss vs. half-Jewess, she has already been under protective custody for 1½ years. State police file notes from police records state:

(1) Protective custody, “to make the punishment finally effective.”

(2) Protective custody, “to make the served sentence still more effective.”

(3) Protective custody, “because of the big number of previous convictions.”

(4) Protective custody, “to prevent prejudicing the course of justice through the interference of lawyers as defense counsel.”

Rostock (Goetsch)—Good cooperation with the State Police, only preventive measures have been noticed.

Graz (Meldt)—No difficulties, not the slightest disharmony, or criticism of the law.

The minister concludes the discussion by indicating that it is to be the task of the presidents of the courts of appeal to see that arrests in the courtroom by the State Police are avoided and recommends for the rest to remain in contact with the State Police.

[Signed] Klemm

25 January 1939

EXTRACTS FROM A REPORT ON A 1 FEBRUARY 1939 CONFERENCE AT THE MINISTRY OF JUSTICE BETWEEN DEFENDANT ROTHENBERGER AND VARIOUS COURT PRESIDENTS[193]

Report on the conference of [court] presidents on 1 February 1939

Present: Senator Dr. Rothenberger, Attorney General Dr. Drescher, Vice President Letz, District Court Presidents Korn and Dr. Ruther, Bremen, Local Court President Dr. Blunk, Local Court Directors Schwarz, Boehmer, Hansen, and von Lehe, Senior Judges of Local Court Gersdorf and Stender, Chief Public Prosecutor Lohse, Bremen, Oberlandesgerichtsrat Dr. Segelken and the undersigned.[194]

Senator Dr. Rothenberger and the attorney general reported on the discussions at the meetings of the presidents of the courts of appeal and attorneys general with the Reich Minister of Justice.

Senator Dr. Rothenberger first asked for a report on the attitude of the judges with reference to the articles in the “Schwarze Korps” [Black Corps, official newspaper of the SS] before his speech on 28 January 1939, and wanted to know whether his address had put their minds at ease. With the exception of Wandsbek where the articles of the “Schwarze Korps” evidently were not noticed, it was the general opinion, expressed particularly by the district court president of Hamburg and Director Hansen, Altona, that the judges were actually extraordinarily disturbed by the attacks of the Schwarze Korps. The statements made by Senator Dr. Rothenberger have had a rather soothing effect since there was now some hope for improvement. However, there were doubts as to whether the Reich Minister of Justice would succeed in carrying his point against the Schwarze Korps i.e., the SS. These doubts were based especially upon the former passive attitude of the ministry.

I. The attorney general then reported on the penal development of the events of 9 to 11 November.[195] The former regulation according to which the State Police is the final authority in deciding whether or not such a case should be followed up, has been abolished following a decision by the Reich Ministry of Justice. The Reich Minister of Justice and Chief Public Prosecutor Joel have stated that it would, of course, be impossible to handle these things the normal legal way; if, at first, the law as such has been changed by order from higher authorities, then it would not be possible to prosecute those people involved in the perpetration. Therefore, by way of example the conception of violation of the public peace would have to be abandoned. This can be legally justified because the perpetrators lacked the knowledge of illegality since they acted on order. As far as the criminal offenses committed during the encounter are concerned, negligible acts should be disregarded. Otherwise, cases will be withdrawn, but only by order of the Fuehrer, while serious criminal offenses, as for instance rape and race defilement have to be prosecuted. The order for prosecuting will be issued in every case by the minister after, to begin with, the perpetrators in case they are Party members or members of a Party organization have been expelled by a special department of the Supreme Court of the Party which has been established in Berlin.

Goering had strongly disapproved of the events. In his opinion, it was the hardest blow the Party had ever received.

Comments concerning these events should not be prosecuted under the Heimtueckegesetz if they were occasioned by well founded protest.

Senator Dr. Rothenberger pointed out that nothing had happened in Hamburg, thanks to Gauleiter Kaufmann’s attitude which Ministerpresident Goering had expressly recommended. He asked for understanding in the attitude of the Reich Minister of Justice and to pass that understanding on to the judges.

As far as prosecution under the Heimtueckegesetz is concerned, because of comments about the events between 9 and 11 November, he stated that the court might find itself in the position where it would have to investigate the facts. Such cases would have to be reported.[196]

*******

IV. The discussion on the question of protective custody by the police was then reported upon. The standpoint of the ministry is, which also finds approval here, that protective custody measures, insofar as they are purely of a preventative nature, cannot be objected to; that, however, corrective measures such as have become known in various cases should not be permitted.

Senator Dr. Rothenberger requested immediate presentation of all cases in which the judge is under the impression that the police are attempting to correct the verdict through their arrest measures. In addition to this, all cases should immediately be reported in which the police effect an arrest in the courtroom.

*******

LETTER FROM BOUHLER, CHIEF OF THE FUEHRER’S NAZI PARTY CHANCELLERY, TO LAMMERS, 26 JULY 1939, CONCERNING HITLER’S DECISION TO PLACE PERSONS IN SECURITY DETENTION UNDER HIMMLER FOR WORK IN CONCENTRATION CAMPS

The Chief of the Chancellery of the Fuehrer in the NSDAP

To the

Chief of the Reich Chancellery, Dr. Lammers

Subject: People in security detention

Dear Party Member Dr. Lammers,

Some time ago the Reich Leader SS made a request to the Reich Minister of Justice to the effect that some of the people in security detention be put at his disposal for important work in the concentration camps. The urgency for this increased, when on the 50th birthday of the Fuehrer a great number of persons in protective custody were dismissed. The request of the Reich Leader SS was refused in the letter of 14 July 1938 because these persons apart from carrying out work to fulfill the requirements of the penal institutes also did such work as appeared urgent under the Four Year Plan. When, however, the penitentiary Brandenburg-Goehrden was inspected by the chief of the office for matters concerning pardoning, the Chancellery of the Fuehrer, it was established that a large number of the people in security detention were busy painting cardboard soldiers for private firms. Considering the far more important work (which can actually be regarded as urgent in connection with the Four Year Plan) which is being carried out by prisoners, for example, in the concentration camp Sachsenhausen and in the adjoining brick yard, the Fuehrer has ordered that all dispensable persons in security detention are to be put at the disposal of the Reich Leader SS immediately.

At the request of the Reich Leader SS, after inspecting the concentration camp Sachsenhausen in the spring, I supported the request he made to the Fuehrer. I was then given the order to ascertain the way in which the persons in security detention were occupied at the present time. During the process of my investigation I established what was required, and I also received the following report from the Reich Ministry of Justice concerning this matter:

“According to the most recent information, there were 4,303 persons in security detention. Of these 4,096 are working; i. e., 721 of them (16.8 percent) are carrying out work for the requirement of the penal institutes and other authorities; and 3,375 persons in security detention (78.4 percent) are engaged in work in connection with the Four Year Plan (including work for export and for military use). The remaining 207 persons in security detention (4.8 percent) were not working on the day of my investigation, in consequence of illness or because they had to undergo a term of imprisonment.”

There can be no doubt that the persons in security detention who are working on the toys mentioned, and who, per person, enable the institute to earn daily RM 1.20-1.80 are inserted under the heading of “urgent work for the Four Year Plan.”

In consequence of my report in Obersalzberg, the Fuehrer, who already had leanings toward this interpretation after my first report, decided that the persons in security detention were to be incorporated into the concentration camps under jurisdiction of the Reich Leader SS.

I have on purpose refrained from informing the Reich Minister of Justice directly. I request you to inform the Reich Minister of Justice of the decision of the Fuehrer.

I have informed the Reich Leader SS of the decision of the Fuehrer and of my letter to you.

Heil Hitler!

Yours faithfully

[Signed] Bouhler

VARIOUS MEMORANDUMS AND LISTS OF REICH MINISTRY OF JUSTICE, 28 SEPTEMBER 1939 TO 7 MARCH 1941, CONCERNING EXECUTIONS WITHOUT TRIAL OR EXECUTIONS AFTER TRIAL UNDER VARIOUS CIRCUMSTANCES

1. Note by Reich Minister of Justice Guertner to Lammers, 28 September 1939, Concerning Executions of Three Persons Without Trial and Urging Clarification of Problems Created by Punishment “Without Criminal Proceedings and Without a Sentence.”

Note

1. Publications in the press

a. The Reich Leader SS and chief of the German police reports that Johann Heinen, Dessau, was shot on 7 September 1939, because of his refusal to cooperate in tasks for the protection of the security of the national defense. In addition, Heinen was a criminal who had been convicted previously for theft.

b. The Reich Leader SS and chief of the German police reports the following have been shot:

(1) On 11 September 1939 Paul Mueller from Halle because of arson and sabotage. Mueller had been convicted previously 8 times to imprisonment and penitentiaries because of crimes violating property rights.

(2) On 15 September 1939 August Dickmann from Dinslaken, born 7 January 1910, because of his refusal to fulfill his duty as a soldier. D. stated as a reason for his refusal that he was a Jehovah’s Witness. He was a fanatical follower of the international sect of the serious explorers of the Bible [ernste Bibelforscher, Jehovah’s Witnesses].

2. Statement of facts—Details are not known here since the judicial authorities had nothing to do with the matter. Whether the military judicial authorities have knowledge of it (case Dickmann) is not known here either.

3. Legal basis for the executions without trial—The Fuehrer is said to have ordered these executions, or to have approved them. Furthermore, he is said to have ordered that the Reich Leader SS should maintain by all means the security within the territory of the Reich, and this order includes also immediate execution in cases of actions in violation of war laws (report of SS Brigadefuehrer Dr. Best).

Upon the request for information about this order of the Fuehrer, Gruppenfuehrer Heydrich replied that the Minister of Justice should contact the Fuehrer directly in regard to the executions.

4. Legal situation—Should the information made available to the Ministry of Justice be correct, then a concurrent jurisdiction would now exist in the nonoccupied territory of the Reich, that is outside of the area of combat and operation. There would exist in this area a concurrent jurisdiction for the punishment of war crimes between the People’s Court, the military courts, and the Special Court on one hand, and the police on the other hand. According to which criteria should the question of the competency be decided in the individual case?

Within the nonoccupied territory the state of public order and security does not permit that any authority should be hampered or disturbed in its activities.

The criminal procedure according to the war laws is practically the same as the procedure before the courts martial. The Special Courts have just not been called courts martial. I refer to the case of the farmer Glein from Obersleben near Weimar, who during the night of 18 September 1939 put fire to his grain-rick and thus destroyed 100 hundred-weights of grain. He was sentenced to death by the Special Court on 18 September 1939.

5. In a further case (Ernst Georgi of Freiberg), a warrant of arrest had been issued against the defendant on charges of fraud. The State Police, Office Plauen, suggested to place Georgi at the disposal of the Secret State Police, and to cancel the trial fixed for the 18th of this month, since this file should be treated in a special way according to an order of the chief of the Security Police and, therefore, a transfer to the trial in Freiberg would not be feasible.

In this case the crime was committed before the war decree [Kriegsverordnung] took effect. After a short period the defendant was returned to the public prosecutor. The trial took place, and the sentence (10 years penitentiary, and protective custody) was passed on 26 September 1939. The Security Police did not refer to a general order in this case. What the legal basis was for the interference with the court proceedings, is not known to me.

6. I think it to be urgent that the problem, whether crimes committed in the nonoccupied territories should be punished according to the war laws, or by the police without criminal proceedings and without a sentence, be clarified in general.

Berlin, 28 September 1939

[Signed] Dr. Guertner

The above note, I handed over to colleague Lammers on 28 September 1939.

Berlin, 30 September 1939

[Signed] Dr. Guertner

2. Handwritten File Note by Guertner, 14 October 1939, on a Conference with Lammers Concerning Executions Without Trial upon Order of Hitler

Note: 14 October 1939, 12:00 V. [Noon]

Lammers saw me by order of the Fuehrer.

He said that yesterday he had informed the Fuehrer about the contents of my manuscript. The Fuehrer said he had not issued general directions. He said he had ordered the 3 executions [Erschiessungen]. He also could not give up this right in individual cases, since the courts (military and civilian) did not prove capable of coping with the peculiar conditions of war.

Thus, he had ordered now the execution of the Teltow bank robbers. Himmler would contact me in this matter before the day is over.

14 October 1939

[Signed] Guertner

3. Draft of a Proposed Letter from Guertner to Himmler, 30 November 1939, Concerning the “Carrying-out of Death Sentences”

Berlin, 30 November 1939

The Reich Minister of Justice

To the

Subject: Carrying-out of death sentences

Enclosures: 2 documents (one copy of sheets 110–115 of the file IIIg 19 5039/39 and one of the attached list II, sheets 67–72 of the file IIIg 10a 5010/39)

[Handwritten marginal note] To be submitted again on 30 November 1939

[Initialed] Gtr [Guertner]

Dear Herr Himmler!

For your information I submit in the enclosure[197] two copies of list reports to the Fuehrer about the death sentences passed since 3 September 1939, the day I have been put in charge of decisions about appeals for mercy in regard to death sentences—and about the decisions I made, or intend to make.

In regard to the shootings, mentioned at the end of list II it has been published in the press that the perpetrators, as for instance in the cases of Latacz, Jacobs, and Gluth, had made themselves guilty of resistance by force or, as for instance in the case of Potzleschak, had tried to escape. Let me point out that these publications—always using the same phraseology—were apt to attract the same attention of at least those persons who participated in the criminal proceedings. On the day before the shooting of Latacz the press had reported about the trial which took place in the hospital for prisoners on remand. Latacz who prior to his transfer was lying in the prison hospital, had a bandage with metal braces. Thus, also the broad public was informed about his physical condition, and knew that a resistance was hardly possible in such a condition.

Heil Hitler!

Yours very much devoted

To be signed by the Minister

[initialed] Dr. C.[198] [Crohne]

28 November

4. List compiled by the Reich Ministry of Justice tabulating information concerning 18 persons executed without sentence or after sentences for a term of years[199]

Current numberNameFacts in the caseProceedings and executionStage of in proceedings in which execution was carried outMethod of transmission of orders to us
1Johann Heinen, Dessau,
-g 10b 1634/39 g-		He was ordered to help in the construction of an air raid shelter and refused to do so arguing that he was a stateless person.No sentence.
Reich Ministry of Justice was informed by a newspaper notice. Shot on 7 September 1939.
 2Paul Mueller, Halle,
-g 10b 1634/39 g-		Arson and sabotage.
Details unknown.		No sentence.
Reich Ministry of Justice was informed by a newspaper notice. Shot on 15 September 1939.
 3August Dickmann, Dislaken,
-g 10b 1634/39 g-		As a Jehovah’s Witness he refused to serve in the Army.No sentence.
Reich Ministry of Justice was informed by a newspaper notice. Shot on 15 September 1939.
 4Horst Schmidt, Kassel,
-g 10b 1634/39 g-		Wearing the uniform of a navy officer he pretended to be a member of the crew of a victorious submarine and committed numerous frauds.No sentence.
Reich Ministry was informed by a newspaper notice. Shot on 6 November 1939.
 5Israel Mondschein, Kassel,
-g 10b 1634/39 g-		He committed rape using violence on a German girl.No sentence.
Reich Ministry was informed by a newspaper notice. Shot on 6 November 1939.
 6
 7		 a. Franz Broenne,
b. Anton Kropf,
prisoners in protective custody, Mauthausen
-g 10b 140/39 g-		They assaulted an SS guard and knocked him down.No sentence.
Reich Ministry was informed by a special delivery letter of the Reich leader SS of 9 December 1939. Were hanged on 8 December 1939.
 8Spressert,
-III g 10b 1859/39 g-		Attempted indecent assault on a half-Jewish girl, whose father was a Jew.No sentence.
Reich Ministry of Justice was informed by a newspaper notice.
 9Witte,
-g 10b 1859/39 g-		Refusal to work in a plant important to the war effort.No sentence.
Reich Ministry of Justice was informed by a newspaper notice.
10
11		 a. Paul Latacz,
b. Erwin Jakobs, Berlin,
-g 10b 1846/39 g-		They attempted, on 30 September 1939, to rob the Teltow county savings bank.By sentence of the Berlin Special Court of 13 October 1939 sentenced to 10 years penitentiary.Shot on 14 October 1939 by order of the Fuehrer.No order was transmitted to the Reich Ministry Justice.
12Franz Potleschak, Langwied,
-g 10b 1743/39 g-		He snatched away a girl’s handbag from her, on 21 September 1939, taking advantage of the black-out.By sentence of the Munich Special Court of 6 October 1939 sentenced to 10 years penitentiary in accordance with paragraph 2 of the decree concerning public enemies.Shot on 16 October 1939.No transmission of orders to theReich Ministry of Justice, subsequent information by report of the senior prosecutor, Munich, and by letter of the Reich Leader SS of 29 November 1939 stating that the information had been omitted by mistake.
13Joachim Israel Joseph, Berlin-Spandau,
-g 10b 1895/39 g-		He committed 6 cases indecent assaults on girls under age, in the ages of 4–10 years.Sentence of the Berlin Special Court of 23 October 1939; for indecent assaults coinciding with race defilement, sentenced to 6 years penitentiary.Shot on 25 October 1939.Letter from Bormann of 25 October 1939 to the Reich Ministry of Justice stating that by order of the Fuehrer the Jew was to be handed over to the Secret State Police in order to be shot.
14Gustav Wolf, Naumburg,
-g 10b 1931/39 g-		He attacked a girl in broad daylight and after having repeatedly stabbed her with a knife, he robbed her wrist watch and attempted to commit an indecent assault.By sentence of the Criminal Court Naumburg of 25 October 1939 he was sentenced to 10 years penitentiary for highway robbery; and attempted rape.Shot on 1 or 2 December 1939 after sentencing.The order of the Fuehrer (through the Reich Leader SS) to the Reich Ministry of Justice was transmitted through Oberreg.rat Werner of the criminal police office, by telephone and letter on 1 December 1939, to the effect that the sentenced person was to be handed over to the Gestapo.
15Fritz Bremer, Breslau,
-g 10a 5631/39 g-		He called on family members of soldiers fallen in the Polish campaign and stated he had been informed by his nephew serving on the eastern front about the heroic death of the relative concerned. He presented letters written by himself allegedly written by his nephew and finally had “travel expenses and other costs” refunded to him.By sentence of the Special Court at Breslau of 14 December 1939 he was sentenced to 15 years in the penitentiary in accordance with paragraph 4 of the decree concerning public enemies.Shot on 21 December 1939.The order of the Fuehrer was transmitted by phone and letter on 21 December 1939 by Oberfuehrer [Gruppenfuehrer] Schaub to senior public prosecutor, Joel.
16Max Gross, Munich,
-g 14.177/40 g-		On 13 November 1939 he took a 3-year-old boy with him and when the latter was reluctant, coerced him by slapping and tried to commit, as admitted by himself, an indecent assault on him. The crime was prevented by the arrival of the mother.By sentence of the Munich criminal of 5 January 1940 he was sentenced to 6 months in prison for duress in coincidence with bodily injury.Shot on 20 January 1940 after the extraordinary objection had been submitted to the special division of the Supreme Court (Reichsgericht). (In this connection, see remark 87).The order of the Fuehrer was transmitted by telephone by the Gruppenfuehrer Schaub to the senior public prosecutor, Joel. Later on confirmed by a letter of Schaub to Joel.
17Viktor Meyer, Berlin,
-g 14.225/40 g-		He stole things belonging to his brother and to a businesswoman (repeated offense) and knocked down and robbed a prostitute.By sentence of the Berlin Special Court of 19 January 1940 he was sentenced to 12 years in the penitentiary for repeated theft and for serious robbery in coincidence with bodily injury.Shot on 30 January 1940.Transmission by telephone of the Fuehrer’s order by Schaub to senior prosecutor Joel. Later confirmed by letter.
18Alfred Gluth, Marburg,
-g 5.4688/39 g-		7 cases of arson, from February to September 1939; buildings, shacks, storehouses, and supplies of agricultural products.By sentence of the Berlin Special Court of 17 November 1939 he was sentenced to 10 years in the penitentiary [handwritten: prison?] for arson in coincidence with paragraph 1 of the decree concerning crimes committed by means of violence.Shot on 18 November 1939.No order received by the Reich Ministry of Justice. The case became known from newspaper reports.

5. File Note of 6 March 1941 Submitted by Dr. Crohne to the defendant Schlegelberger, concerning “Executions Planned and Carried Out on the Basis of Dubious Information”

1. Gluth case—In the summer of 1939 the almost 18-year-old locksmith apprentice Gluth set 4 fires in Marquardt near Potsdam in order to disturb the population, and to show off afterwards as an especially efficient member of the fire brigade. The medical expert stated that Gluth was still in the age of puberty and that the state of his development was equal to that of a 16½-year-old boy. In the opinion of the experts his acts were caused by the physical and mental changes connected with the age of puberty, and further by the awakening of the desire to do important things, which is typical for this age. Sentence: 10 years’ imprisonment.

The Fuehrer ordered his execution. According to the statement of SS Brigadefuehrer Mueller, the expert opinion was known to the Fuehrer, but the latter stated that it would be foolish to save such persons, who are a danger for society for further infamous actions. On 19 November 1939 Gluth was shot for offering resistance.

2. Trampe case—Trampe stole jewels and clothes from the apartment of a friend, who was the wife of a soldier, and pawned these articles for RM 200. He had access to the apartment in his capacity of repair man. Afterward the soldier’s wife and her husband agreed with Trampe on the damage. Trampe defended himself by stating that he was by want compelled to steal, that he intended to redeem the stolen objects later and that he was sure from the beginning that the couple would forgive him afterward because of their friendship and because of his distressed condition. The court accepted his statement as true and sentenced him to 6 years of penitentiary. The press reported that his defense was untruthful, and that it was not accepted as true by the court.

Trampe was shot on 27 September 1940 by order of the Fuehrer. It is not known here whether the shooting took place merely on account of the incorrect reports of the press.

3. Jackubetzki case—The milker Jackubetzki had a savings account in the Landeshaus in Breslau. These were the savings from his wages. One day he came to Breslau without money and wanted to withdraw his savings. Since the Landeshaus was already closed, he got the idea of taking away the handbag from a woman walking in front of him in order to get money for his trip home. He did that, and was sentenced to 10 years penitentiary.

Referring to a press report in the “Nachtausgabe” [Evening Edition] (not in the file) the Fuehrer expressed, on 9 December 1940, by phone through the SS Gruppenfuehrer Schaub his astonishment about the fact that J. was not sentenced to death. In the “Nachtausgabe” the case was misrepresented; it could not be seen from the article that the deed concerned was prompted by the occasion.

On 26 February, Under Secretary Dr. Freisler conferred with SS Gruppenfuehrer Schaub and related to him the details of the perpetration, whereupon Schaub considers the case as settled.

4. Kuhlmey case—Kuhlmey in his capacity as an auditor knew a number of manufacturers who were drafted into the army. He asked their wives to authorize him to adjust their allowance cases. He cheated the wives of 4 soldiers by giving them altogether about RM 375 less than he had received at the public welfare office. He cheated the public welfare office of about RM 3,000 by obtaining allowances on false pretenses and without the knowledge of the woman concerned, and by keeping the money for himself. Sentence: 5 years penitentiary. There still are some minor cases to be sentenced.

On 14 October 1940, Schaub notified us by phone that the Fuehrer had learned about the case through an article in the V.B. [Voelkischer Beobachter] of 9 October 1940. If, in the still open cases the death sentence should not be imposed, a transfer to the State Police will be ordered. It cannot be seen from the report of the “Voelkischer Beobachter,” under the headline, “Soldiers’ wives thoroughly cheated” that K. caused detriment first of all to the welfare office and in addition also to a few women. It contains some hints though that K. also received subsidies which were not due to the women, but creates the impression that the total amount of about RM 3,500 was withheld to the detriment of soldiers’ wives.

[Handwritten note] Submitted to Under Secretary Dr. Schlegelberger according to order. Case 1 does not belong here.

[Illegible initial] 6 March 1941

[Illegible initial] 6 March

7 March

[Signed] Dr. Crohne

LETTER FROM PEOPLE’S COURT PRESIDENT, THIERACK, TO GUERTNER, 14 AUGUST 1940, RECOMMENDING TRANSFER TO CONCENTRATION CAMPS WITHOUT TRIAL OF PERSONS FALLING WITHIN A “MINOR GUILT” CATEGORY OF HIGH TREASON

The President of the People’s Court

1400-I, Confidential!

To the Reich Minister of Justice

Berlin W 8

Wilhelmstr. 65

[Stamp]

Immediately after I was recalled from the war, I realized that things were not as I had expected when plans for the People’s Court were worked out. It was overloaded with trials and this because it had to handle cases which it had certainly not been intended to judge. This happened especially in cases which arose in the Protectorate of Bohemia and Moravia because as yet there was no possibility of transferring the cases to the courts of appeal. But even among cases which are ready for such a transfer there are some which should not be dealt with by the courts of appeal for various reasons.

However right it is to exterminate harshly and uproot all the seeds of insurrection, as for example we see them in Bohemia and Moravia, it is wrong for every follower [Mitlaeufer], even the smallest, to be given the honor of appearing for trial and being judged for high treason before a People’s Court or, failing that, before a court of appeal. In order to deal with these small cases and even with the smallest, the culprits should surely be shown that German sovereignty will not put up with their behavior and that it will take action accordingly. But that can also be done in a different manner, and I think in a more advantageous one, than through the tedious and also very expensive and ponderous channels of court procedure.

I have therefore no objection whatsoever if all the small and smallest followers who are somehow connected with the high treason plans which have been woven and plotted by others are brought to their senses by being transferred to a concentration camp for some time. This would have the further advantage that dispositions would be taken quickly and that they would be doubly effective because of that, and that these dispositions could be rapidly modified if by the measures taken the culprit were brought to a better attitude.

One can think, in addition to this, of the many cases of article 90c of the Criminal (Penal) Code, in which, by inconsiderately exploiting the strong position of the foreign state, persons who had to cross the border for some reason or other (work, or visiting relatives) were used to find out something about the neighboring state. This occurred particularly frequently in the border areas which were at that time Polish or Czech.

In any case, I consider it to be an absolutely essential prerequisite that all these cases should be submitted first of all to the Chief Reich Public Prosecutor of the People’s Court for penal prosecution. If he considers that article 153, Code of Penal Procedure can be made to apply, then the People’s Court will be able to give its consent to this in nearly all cases. Then the accused would be put at the disposal of the Security Police with the injunction that he be placed in a concentration camp for a certain period of time.

I start from the principle that the conception of minor guilt in the sense of article 153, Code of Penal Procedure is naturally not the same in cases which are suitable for the People’s Court, as in those cases in which the official judge has to decide. Even if this conception is relative and depends on the nature of the offense, a legal extension of article 153, Code of Penal Procedure should surely be made in order to presume insignificance of guilt for an act which can be characterized as a crime, as, e.g., crimes in the nature of high treason in the territory of Bohemia and Moravia.

[Signed] Thierack

LETTER FROM MEISSNER[200] TO DEFENDANT SCHLEGELBERGER, 22 APRIL 1941, CONCERNING TRANSFER OF CONVICTED PRISONERS TO THE GESTAPO

The Minister of State

and Chief of the Presidential

Chancellery of the Fuehrer

and Reich Chancellor

RP 83/41 Secret

02/312

Personal

Confidential

Dear Herr Schlegelberger!

In the matter of the transfer of convicted prisoners to the Secret State Police, Reich Leader Martin Bormann has meanwhile informed me by order of the Fuehrer that the Fuehrer does not consider it necessary to procure opinions from the Reich Ministry of Justice on sentences which are submitted to him for reviewing. The question remained unsettled of whether the Fuehrer wants to request the transmittal of sentences himself or to hear your opinion in cases in which no sentence is submitted. At present, however, I do not consider it expedient to pursue the matter by sending another letter to Reich Leader Bormann. I would, however, leave it to your discretion to inform me briefly and with the utmost speed prior to the transfer of the prisoners to the Secret State Police about the factual and legal situation of all those cases in which you think that essential details for the evaluation of the perpetrator’s character or of the crime have not been brought to the Fuehrer’s attention. I shall then inform the Fuehrer of the details I learn from you as far as the case requires this. The transfer of the convicted prisoners to the Secret State Police may be postponed in these cases for a short period until you hear from me again.

Heil Hitler!

Yours very truly

[Signed] Dr. Meissner

To State Secretary Dr. Schlegelberger

Reich Ministry of Justice

Berlin W 8

Wilhelmstrasse 65

DIRECTIVE ON BEHALF OF THE REICH MINISTER OF JUSTICE TO PUBLIC PROSECUTORS, 22 OCTOBER 1942, CONCERNING THE “TRANSFER OF ASOCIAL PRISONERS TO THE POLICE”

Reich Minister of Justice

IV a 1665/42 g.

To the Attorneys General

For information

[Stamp] Secret

A. Chief Reich Prosecutor at the People’s Court

B. Presidents of the District Courts of Appeal,

Subject: Transfer of asocial prisoners to the police

I. In agreement with the Reich Leader SS, the following group of lawfully sentenced prisoners confined to penal institutions will be transferred to the custody of the Reich Leader SS.[201]

1. Jews—men and women—detained under arrest, protective custody, or in the workhouse.

2. Gypsies—men and women—detained under arrest, protective custody, or in the workhouse.

3. Russians and Ukrainians residing in the Reich as non-refugees (excluding Latvians, Esthonians, and Lithuanians) detained under arrest, protective custody, or in the workhouse.

4. Poles residing in the former Polish state territory on 1 September 1939, men and women, sentenced to penal camps or subsequently turned over for penal execution, if sentence is over 3 years, or includes subsequent protective custody, (including Kriegstaeter [perpetrators of crimes during war time] and persons in protective custody).

5. Men only, in protective custody (except those sentenced by Austrian Law to workhouse according to sec. 1, par. 2, Reichsgesetzblatt, No. 165, dated 10 June 1932).

6. Convicts sentenced to subsequent protective custody—men only (including Kriegstaeter). Excepted from this transfer are—

a. Those sentenced by an armed forces court and by an SS and police court.

b. Prisoners of war.

c. Those sentenced by Dutch courts.

d. Those sentenced by former Yugoslav courts.

e. Foreigners, not coming under groups 1–4. People from the Protectorate and stateless persons are considered natives.

Until further notice, the transfer is to be postponed for—

a. Those sentenced by former Polish courts or by the present courts of the Government General. Poles, sentenced by former Polish courts in the Occupied Eastern Territories can however be transferred.

b. Germans sentenced by German courts in the Occupied Eastern Territories, in the Government General, in Holland, in Norway, Alsace, Lorraine or Luxembourg.

c. Those sentenced by the courts of Alsace, Lorraine, and Luxembourg.

d. Nationals of the Protectorate.

Those in protective custody and in the penitentiary with subsequent protective custody are to be selected for special screening by the [department] concerned, Department XV of the Reich Ministry of Justice, and, therefore, are also not to be transferred immediately if the institution is convinced that release from protective custody would enter into the question within a predictable time. On account of their favorable development during the execution of punishment (not merely because of old age or similar reasons). Those who are sentenced to additional protective custody upon completion of punishment for high treason and sedition are generally to be selected for this special screening. Department XV of the Reich Ministry of Justice will decide which of the prisoners who are not to be transferred according to this shall be excepted permanently from the transfer.

The director of the institution is personally responsible for the selection of prisoners to be transferred.

If doubt arises in individual cases whether the transfer shall be made, the decision of the Reich Ministry of Justice has to be requested. The same applies if a prisoner who is considered for transfer is still needed as a witness, etc., in other proceedings or in cases of additional sentence by a court.

II. The decisive day fixed for lawful sentence is 1 November 1942. Only prisoners lawfully sentenced before 1 November are liable for transfer. Further directives concerning arrest, confinement in special institutions, and so forth, of those legally convicted later, are reserved.

III. Sick prisoners are not exempted from transfer, they are to be transferred as soon as they are transportable. Final decision on insane prisoners is reserved, transfer at the present is postponed.

IV. In preparation for transfer of prisoners belonging to groups I, 1–6, excluding cases of postponement, lists bearing name and current number of each prisoner, separate for each group, and 1–4 for men and women, are to be executed by the institutions. Four copies have to be sent directly from the institution to the Reich Ministry of Justice for the attention of President of the Senate Hecker. The first lists are to be executed according to the status existing on 1 November of this year. Supplementary lists, compare II, also, on the status at 1 December of this year and 1 January 1943, and are to be submitted up to the 8th day of the month in question. Institutions having over 100 prisoners for transfer, submit partial lists for 100–200 prisoners, whenever completed.

The lists must be divided as follows:

V. Prisoners not yet consigned to the proper institution, or temporarily consigned to other institutions, will be specified by the competent institution, to which they are to be delivered as soon as possible.

VI. Slowdown of production in vital armament factories, is to be avoided during transfer of prisoners. Therefore, the transfer has to be effected gradually with distribution over several months, as deemed necessary by the individual institutions, in consideration of the factories. At the same time, the institutions most affected are already filled up because of changes in the execution plans. The number of prisoners and the time of transfer for the different districts, will be announced here from time to time.

VII. With completion of the transfer to the police, the penal term is considered interrupted. Transfer to the police is to be reported to the penal authority, and in cases of custody to the superior executive authority, with the information that the interruption of the penal term has been ordered by the Reich Ministry of Justice.

VIII. Preparatory to examinations of all male penitentiary prisoners, sentenced to terms over 8 years, the directors of institutions concerned received verbal instructions at the Reich Ministry of Justice. These instructions are valid correspondingly for persons in protective custody and penitentiary prisoners with additional protective custody, whose transfer has been postponed until examination of case by department XV of the Reich Ministry of Justice (compare I, par. (4)).

IX. The information of this statute is to be given exclusively to such directors of institutions, for whom its knowledge is an absolute necessity in consideration of the incarcerated prisoners. The number of these directors is to be kept as small as possible, by concentration of the prisoners concerned, in some cases in agreement with the adjacent districts. Concerning convicts with a sentence of more than 8 years, such concentration has already been ordered from here.

X. I request that special care be taken for the apprehension of all prisoners, including those not delivered to the competent institution, or those transferred to other institutions for industrial reasons.

By order:

[Typed signature] Dr. Crohne

Certified: [Signed] Kirsten

As Administrative Assistant

[Ministerialkanzleiobersekretaer]

[Seal]

Reich Ministry of Justice

Office of the Ministry

DIRECTIVE OF 1 APRIL 1943, ON BEHALF OF THE REICH MINISTER OF JUSTICE ANNOUNCING THAT POLES AND JEWS RELEASED FROM PRISONS PURSUANT TO A DECISION OF THE REICH SECURITY MAIN OFFICE, ARE TO BE TRANSFERRED TO CONCENTRATION CAMPS

The Reich Minister of Justice

4410 b Vs 1 379/43g

To the Public Prosecutors of the Courts of Appeal,

To the Commissioner of the Reich Minister of Justice for the penal camps in Emsland Papenburg, Emsland

Subject: Poles and Jews who are released from the penal institutions of the department of Justice[202]

Additional copies for the independent penal institutions.

I. With reference to the new guiding principles for the application of article 1, section 2 of the decree of 11 June 1940 (Reichsgesetzblatt I, p. 877), enclosure I of the decree of 27 January 1943-9133/2, enclosure I-III a2 2629, the Reich Security Main Office has directed by the decree of 11 March 1943, II A 2 number 100/43—176—

a. Jews who, in accordance with number VI of the instructions are released from a penal institution, are to be committed by the State Police (Regional) Office competent for the district in which the penal institution is located, for the rest of their lives to the concentration camps Auschwitz or Lublin, in accordance with the regulations for protective custody that have been issued.

The same applies for Jews who in the future are released from a penal institution after serving a sentence of confinement.

b. Poles, who in accordance with number VI of the instructions are released from a penal institution, are to be taken by the State Police (Regional) Office competent for the district in which the penal institution is located, for the duration of the war to a concentration camp in accordance with the regulations on protective custody that have been issued.

The same applies in the future to Poles, who after serving a term of imprisonment of more than 6 months, are to be discharged by a penal institution.

Conforming to the request of the Reich Security Main Office, I ask that in the future, (a) all Jews to be discharged, (b) all Poles to be discharged, who have served a sentence of more than 6 months be designated for further confinement to the State Police (Regional) Office competent for the district and are to be placed promptly at its disposal, before the end of sentence for conveyance.

II. This ruling replaces the hitherto ordered return of all Polish prisoners undergoing imprisonment in the Old Reich condemned in Incorporated Eastern Territories. The decree of 28 July 1942-4410 b Vs 1 1731, has lost its validity. Imprisonment up to 6 months imposed within the Incorporated Eastern Territories, excluding exceptions, is to be carried out in these territories, and not in the Old Reich.

By order:

[Typed] Dr. Eichler

Certified: [Signed] Freyer

Clerk

[Seal]

Reich Ministry of Justice

Office of the Ministry

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER CONCERNING TRANSFERS OF PERSONS TO THE POLICE[203]

DIRECT EXAMINATION

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Dr. Kubuschok (counsel for defendant Schlegelberger): I should like to refer to another complex of questions. Witness, in the course of this trial you have often heard that persons against whom prosecution was pending or who had already been sentenced were turned over to the police. How did these transfers to the police come about?

Defendant Schlegelberger: These transfers are a very sad chapter for anybody who has a sense of justice. They came shortly after the beginning of the war in 1939. From publications in the press Guertner found out that the police had killed people. Guertner made notations about these notices in the press, had them filed and gave a compilation of these notices through Lammers to Hitler together with his compiled notes, and he explained the situation in detail. The purpose was clear. Hitler should be made to discontinue these things. Lammers actually submitted these compilations to Hitler, but told Guertner later that Hitler had said that he had not given a general directive to carry out these shootings but in individual cases he could not do without these measures, because the courts, that is, military courts as well as the civil courts, were not able to take care of the special conditions created by the war. At the same time Lammers announced that Hitler in a further case had already ordered the execution by shooting.

Q. I refer to Document NG-190, Prosecution Exhibit 284.[204]

A. I am certainly not making a mistake in saying that that decision on the part of Hitler was probably the most serious thing which ever happened to this man Guertner, whose main intention was to serve justice. It was an order which Hitler had given through administrative channels to the police, and the execution of it was assured on the basis of the means of power then prevailing. The attempt on the part of Guertner to reinstate the respect for court decisions therefore had failed; but he was not satisfied with that. He wanted to insure that the administration of justice should be given the authority to intervene in time and to attempt at least to thwart the execution of the order given to the police. That, of course, was only possible if the administration of justice was informed in time about the order that had been given to the police, and that request by Guertner was actually granted. Subsequently the administration of justice as a rule was informed by Hitler’s adjutant, Schaub, wherever an order of that kind was given to the police.

The question, therefore, as to how after one has been informed, one can make an attempt to prevent the execution of Hitler’s order involved great difficulties particularly because the police had a time limit of 24 hours after which it had to report to its superiors that the order had been executed. Guertner then was of the opinion that for these matters he had to assign the one official in his ministry whom he could use as a capable man with the police—who shared Guertner’s opinion in these matters—and from whom one could expect, on the basis of previous experience, that he would show sufficient cleverness. Guertner therefore charged my codefendant Joel with that mission.

When the information about such an order was received, feverish work started. First one had to try to extend the police time limit; that is, to persuade the police to delay the report. That alone brought great difficulties, because the police official incurred considerable risk. But in some individual cases it succeeded. At the same time, the files of the case were called to Berlin and all other bits of information which probably had caused Hitler to order the transfer of the person concerned to the police. Then a detailed report was made of the act and the culprit which justified the sentence, and telephone calls took place with various agencies whenever that seemed to have chances for success. Some individual cases were successful. But if it could not be achieved that the order turning over the individual to the police was rescinded, although everything had been tried, then there was no other alternative than to issue a directive to the authority which was about to carry it out, telling them that they should no longer resist but should turn over the man to the police.

If the Reich Ministry of Justice had failed to give the man up, the police would have broken the resistance by force; the condemned person could not be saved. During the war, civilian and military command offices in numerous cases were seriously charged with the fact that through a defense which they had to consider as useless, they had sacrificed many lives. Such a useless sacrifice it would have been if the Reich Ministry of Justice had instructed the prison authorities, via the executive office, to resist the police. The subject of this sacrifice would have been not only threats to officials or civil servants, but to the entire administration of justice, which would have been eliminated and its opponents would have triumphed. The acting official in the ministry would have been eliminated as a saboteur; and already at that time he would have been replaced by a person who would willingly and without exception have put the administration of justice in the service of the Party. The individual cases of transfer which the prosecution has described have to be evaluated from these points of view. I myself, after taking charge of the Ministry of Justice, immediately established contact with Minister Meissner in order to determine basically that no order for transfer made by the police was to be executed as long as the administration of justice did not have a report. This intention of mine was again foiled by Bormann. A letter from Meissner to me makes this apparent. Hitler had me informed by Bormann that the obtaining of the opinion of the Ministry of Justice was not necessary. Meissner, who shared my opinion, asked me in spite of that, in those cases where the ministry believed that Hitler was not properly informed, that a report should be sent to Meissner. I did that in all cases.

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Q. What do you have to say about the Markus Luftglas case, a case of transfer to the Gestapo, Document NG-287, Prosecution Exhibit 88?[205]

A. This case, too, I no longer remember even though the name recalls certain memories. In my statements I have to refer to the documents that have been submitted, and by referring to them I would like to determine the following: the Fuehrer order to the police was given to the Reich Ministry of Justice on 24 October 1941, through the usual channels by the Presidential Chancellery. That nothing happened in this case is absolutely impossible. It would have been inexplicable why my letter to Lammers in which I informed him of the release was written only 4 days later, on the 29th, for letters of that kind were answered immediately in our office as a matter of course. The fact that our letter is dated only the 29th shows me rather that in the meantime unsuccessful interventions had taken place.

Now I notice that in this letter to Lammers I informed him that Luftglas had been transferred to the police for the purpose of execution. That is noticeable because the information about the orders given by the police never said anything about executions, but merely stated “transfer” as the subject of the order. If in this letter to Lammers, I therefore informed him that Luftglas was transferred for the purpose of execution, this can only be based on the information we received from the police, and I am quite sure that I formulated the letter in that way in order to inform Lammers how the direct Fuehrer order—that is, the order to the police—was actually worded and in order to point out to him the effects of such transfer orders.

In conclusion, in regard to this question of transfer I would like to say that the Hitler order went to the police through administrative channels. The police had legally and by authority the possibility to execute the order. The Ministry, on the other hand, had only one weapon, and that was the word. If this weapon remained without success, the Ministry was defenseless and had to submit to force.

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