C. Measures to Influence or Avoid the Judicial Process

1. DEVELOPMENTS PRINCIPALLY DURING THE PERIOD WHEN GUERTNER WAS REICH MINISTER OF JUSTICE (1933–JANUARY 1941)

a. Example of relations of officials of the Reich Ministry of Justice, judges, and public prosecutors with officials of the Nazi Party, the Gestapo, the SD, the SS, and the SA

LETTERS FROM GUERTNER, REICH MINISTER OF JUSTICE, TO HITLER’S DEPUTY RUDOLF HESS AND TO THE SA CHIEF OF STAFF, VIKTOR LUTZE, 5 JUNE 1935, CONCERNING INTERFERENCE IN THE TRIAL OF CAMP HOHENSTEIN PERSONNEL

1. Letter from Guertner to Hess

Copy

The Reich Minister of Justice

Berlin, 5 June 1935

Z.F.g10 1696.34

Letter to the Deputy of the Fuehrer Reich Minister Hess

Secret!

Personal!

Subject: Criminal proceedings against the merchant and SA Obersturmbannfuehrer Jaehnichen and 22 party members for causing bodily injury in the performance of their official duties (protective custody camp Hohenstein/Saxony)

Dear Colleague!

With reference to the indictment which I submitted on 20 March 1935 in the above-mentioned criminal case I wish to state the following:

On 3 May 1935, after a trial lasting approximately 6 weeks, the prosecutor, and public prosecutor, Dr. Walther, proposed the following sentences:

Against—

On 15 May 1935 the 12th Great Criminal Panel of the District Court [12. grosse Strafkammer des Landgerichts] in Dresden pronounced sentence according to which the following were sentenced for violation of Article 340[206] of the Criminal (Penal) Code:

The proceedings against Liebscher and Heger were quashed by virtue of the law concerning exemption from punishment [Straffreiheitsgesetz].

After the sentences had been proposed, but before they had been actually pronounced, the president of the 12th Great Criminal Panel received the following communication from the Reich Governor in Saxony:

Office seal

The Reich Governor in Saxony

II 84/35

To the President of the District Court, Dr. Roth

Dresden—A.

Pillnitzer Strasse 41

Dear President:

I have been informed that a sentence of 3½ years penitentiary has been proposed for the defendant Standartenfuehrer Jaehnichen. Without wishing to interfere in the proceedings nor wanting to influence you as judge in any way, I should like to point out to you again before the passing of the sentence that the circumstances created by the revolution in 1933, which—no doubt—were still affecting conditions at the beginning of 1934 should not be disregarded when passing sentence.

Another point which seems to me worthy of consideration is the fact that one cannot accuse Jaehnichen of a villainous disposition and, above all, that the scum of the earth were to be guarded in Hohenstein. In view of these facts I leave it to you to examine whether the offenses actually demand a punishment of such great severity or whether an acquittal might be considered.

As Gauleiter I consider it my duty to point once more to the exceptional circumstances.

Heil Hitler!

[Signed] Martin Mutschmann.

Furthermore news was received here that the two lay judges who acted as judges during the trial, Regierungsamtmann Helbig and the merchant Pesler, were expelled from the NSDAP after the sentence had been pronounced. I do not know who was responsible for this expulsion.

Finally, the prosecutor, Public Prosecutor Dr. Walther, an SA man, was approached by his Obersturmfuehrer after the sentence had been passed, suggesting that he withdraw from the SA.

The fact that these measures coincided with the passing of judgment suggests some internal connection. This, however, would mean that very dubious and most unwelcome consequences have resulted from the proceedings which were legally perfectly correct. If, from the communication of the Reich governor, which is reproduced above, the receiver was apt to gain the impression that here his decision as a judge was being influenced by high quarters, the same might be said, only to a larger degree of the measures taken against the two lay judges. Such action as was taken against lay judges after the verdict was returned, would naturally leave them under the impression that they are responsible before a certain authority for all their actions, carried out in their line of duty while acting as judges. This would destroy judicial independence, a factor which until now had been considered the basis of an orderly administration of justice. Apart from that the lay judge who when commencing his duties is made to take an oath that he will vote to the best of his knowledge and belief will in this way be subjected to great inner conflicts. The consequences resulting from such measures against the prosecutor would be no less serious. This official also would be faced by great conflicts in the performance of his duty. Thereby the orderly unbiased work of the legal authorities would be endangered to such an extent that I would feel it my duty to examine, whether under these circumstances it is at all possible for public prosecutors and judges to be party officials or members of the SA.

It therefore seems necessary—

1. That in the above case the perplexity caused by these measures should be removed by some suitable countermeasures, and

2. That provisions be made to avoid the renewal of such occurrences which are incompatible with the administration of justice and therefore with the security of legal right guaranteed by the State.

I beg to let me have your opinion concerning this matter and to inform me of the measures taken over there. In view of the importance of the case I should welcome a speedy settlement.

Heil Hitler!

[typed] signed: Dr. Guertner

2. Letter to the Chief of Staff of the SA of the NSDAP with the copy of the indictment attached

insert page 1
Enclosure: 1 separate document

Secret!
Personal!

Dear Chief of Staff:

In the above-mentioned criminal case, where severe ill-treatment of prisoners in protective custody at the Hohenstein/Saxony internment camp is the subject of the indictment, the trial took place before the 12th Great Criminal Panel of the District Court in Dresden between 20 March and the middle of May 1935. Regarding the details of the incidents on which proceedings were based, I beg to refer to the enclosed copy of the indictment, dated 25 October 1934, and particularly to page 21 of the result of the inquiry.

On 3 May 1935 the prosecutor, Public Prosecutor, Dr. Walther, proposed the following sentences:

insert page 1 and 2 up to

News was received here that the prosecutor, Public Prosecutor Dr. Walther, an SA man, had been approached by his Obersturmfuehrer after the sentence had been passed, suggesting that he withdraw from the SA. The fact that this measure coincided with the passing of judgment suggests that there might be some internal connection between the two. This, however, would represent a very dubious and most unwelcome result of the procedure, which was legally perfectly correct. As a result of such measures the officials would be faced by the greatest of conflicts in the performance of their official duty. This would endanger the orderly unbiased work of the legal authorities to such a degree that I consider it my duty to examine whether under these circumstances it is at all possible for public prosecutors and judges to be also party officials or members of the SA.

It appears therefore necessary—

1. That in the above case the perplexity caused by these measures should be ended by some suitable countermeasures, and

2. That provisions be made to avoid the renewal of such occurrences which are incompatible with the administration of justice and therefore with the security of legal rights guaranteed by the State.

May I ask you to let me have your opinion regarding this matter and to inform me of the measures taken over there. In view of the importance of the case I should welcome a speedy settlement.

Heil Hitler!

[typed] signed: Dr. Guertner

3. To the Minister, secret

4. 2 weeks

LETTER FROM THE REICH MINISTRY OF JUSTICE TO PUBLIC PROSECUTORS, 10 MARCH 1937, CONCERNING COLLABORATION BETWEEN PUBLIC PROSECUTORS AND THE GESTAPO AND ENCLOSING A CIRCULAR DECREE OF HIMMLER ON THE SAME SUBJECT

D.RM.d.J.

[The Reich Minister of Justice]

4606—IIa^3 146/248

To the

[Handwritten]* insert figures from distribution plan below.

[Stamp] received at office 11 March 1937

[illegible handwritten notes]

[Handwritten] according to distr. plan forwarded 17 March 1937

Concern: Collaboration between the office of the public prosecutor and the Gestapo.

[Handwritten] (Copy Circular letter Reich Leader SS of 18 March 1937)

1 Enclosure forwarded 17 March 1937

For your information I forward the enclosed copy of a circular decree of the Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior of 18 February 1937.[208]

In order to have this decree fulfill its purpose and in the interest of the closest possible collaboration between the office of the public prosecutor and the authorities of the Gestapo, I hereby issue this supplementary order that in future public prosecutors routinely address all requests for investigations to be conducted on the basis of reports of political nature received by them directly, to the local and district police authorities via the competent State police offices. When in cases based on such reports the necessary interrogations of the accused or the witnesses are procured by the court itself or by the expert of the prosecution, and the police authorities are not at all involved in the proceedings, I request that State police offices be informed of the proceedings as soon as possible. If, because of the urgency of a matter, the transfer of files is deemed inadvisable, the State police office is to be informed when the proceedings are instituted and if the occasion warrants, a copy of the indictment is to be submitted.

The enclosed circular decree was issued with my approval; but I also made it known that I expect this interpolation of the competent State police offices not to cause any great delay in the forwarding of the proceedings to the public prosecutor, and that the State police offices are merely transit agencies during this part of the proceedings. They will be exclusively concerned with information on the proceedings and not with the decision about the necessity of further inquiries or perhaps even the question as to whether proceedings are to be turned over to the public prosecutor at all.

With these aspects in mind, I request that the effects of this circular decree for the police be carefully noted, and that I be informed in the event of any considerable delays.

By order:

[Signature] Crohne

10 March

[Handwritten]

Distributed [Signed] Eck 19/3

1(a) copies of circular decrees distributed to all Dept. Chiefs and assistants.

1(b) copy with enclosure to Depts.

3262, 4026, 4007/1

taken care of [Initial] E. 19/3

2. resubmit

(notice to Reich Leader SS)

to 2: Submitted

Gsta [signed] Eck 19/3

[Initials] Kle [Klemm]

9 March

Draft

Dept. IIa^3 323/37

Copy of circular decree to Reich Leader SS, for information

2. Request for copy of circ. decree.

E 22/3

3. Illegible

[Initial] Kle [Klemm] 22/3

[Illegible initials] 20/3

Plan for distribution

Bamberg7Kassel3
Berlin8Kiehl3
Braunschweig1Koeln7
Breslau16Koenigsberg7
Celle11Marienwerder3
Darmstadt3Muenchen10
Dresden7Naumburg10
Duesseldorf6Nuernberg7
Frankfurt4Oldenburg1
Hamburg3Rostock4
Hamm9Stettin5
Jena11Stuttgart8
Karlsruhe9Zweibruecken4
9572

TOTAL 167

[Signed] Behrens, 11 March

Political dept. chiefs

Political assistants[209]

*******

[Handwritten:]

A few surplus copies are available. Distribution completed.

Gsta [Initial]   E. [Eck], 8 May

to 4606—IIIa3——248

Berlin, 18 February 1937

The Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior

S V 1 No. 341/36

To:

Concerning: The forwarding of Gestapo affairs to the office of the public prosecutor.

It is the Gestapo’s task, to investigate and to combat all seditious movements, and to collect and evaluate evidence of such investigation. These tasks can only be accomplished by the State police offices, if all political police-affairs dealt with by the local and district police authorities within their district are submitted to them promptly. As auxiliary organs of the Gestapo, it is the duty of the local and district police authorities to do so.

Thus, all matters in the affairs of the Gestapo are on principle to be submitted to the office of the public prosecutor via the competent State police office. In urgent matters of arrest, records may be submitted directly to the office of the public prosecutor after notifying the State police office previously by telephone. In such a case, a copy of the interrogation record is to be forwarded at once to the State police office.

The Reich Minister of Justice will instruct the office of the public prosecutor to direct the requests for investigations of reports of political nature, received directly by him, to local and district police authorities via the competent State police office.

It is the responsibility of the State police offices to speedily evaluate the proceedings channeled through their offices and to forward them without delay.

By order:

[typed] signed: Dr. Best

[Stamp] The Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior

Certified:

[Illegible signature]

Assistant

to IIIa3——248/37

PARTY CHANCELLERY INSTRUCTIONS TO PARTY OFFICIALS, 31 AUGUST 1937 AND 9 FEBRUARY 1938, CONCERNING THE EXCLUSIVE CONCERN OF JUDICIAL AUTHORITIES IN PROSECUTING PUNISHABLE OFFENSES AND PROCEDURES WHERE PARTY MEMBERS MAY HAVE COMMITTED THEM[210]

Administration of Penal Law

Imposing of Fines by Party Offices

A. 108/37

31 August 1937

For special reasons, I draw your attention to the fact that the prosecution of punishable offenses is exclusively the concern of the judicial authorities.[211] All cases, where persons have committed a punishable offense, must be turned over or reported to the appropriate authorities.

It is not admissible that sentences, especially fines, are imposed on punishable persons by offices of the NSDAP or its affiliated organizations. Party members disregarding this warning, who demand from the person who has committed an offense e.g., the payment of a fine, possibly with an additional hint that this would settle the affair, will run the risk of a criminal prosecution.

*******

A. 15/38

9 February 1938

The question of prosecuting or not prosecuting punishable offenses committed by Party members, is exclusively a matter of decision by the public prosecutor’s office or by the Reich Minister of Justice.

It has been noted, that Party offices have frequently approached the regional State police office or other State police offices with the request not to prosecute punishable offenses committed by Party members, or not to submit their investigations to the public prosecutor’s office. Since the officials of the Secret State Police are at the same time assistant officials of the public prosecutor’s office, and as such are obliged to prosecute all punishable offenses without respect to the person of the offender and without any special invitation from the public prosecutor’s office, unpleasant discrepancies would result if such wishes were satisfied. Nobody but the public prosecutor’s office or the Reich Minister of Justice can decide whether or not a punishable offense shall be prosecuted. The public prosecutor’s office therefore has always the opportunity to make investigations of its own, concerning incidents which, by the Party’s request are not prosecuted any longer by the Gestapo, or to have investigations made by the police authorities or by the constabulary, which would not exactly be in the interest of the Party. In the future, the lawful duty of the Secret State Police to prosecute all punishable offenses must be respected, and all cases of doubt with regard to such prosecution have to be reported directly to the appropriate Chief Public Prosecutor through the appropriate Gauleiter, or to the Reich Minister of Justice through the chief of the Party Chancellery, the aim being to accomplish an administration of criminal prosecution which will comply with the interests of the Party.

However, this procedure must be adopted sparingly since the same, and under certain circumstances more severe, principles will be applied to Party members as to non-Party members.

LETTER FROM THE CHIEF OF THE FUEHRER’S NAZI PARTY CHANCELLERY TO DEFENDANT SCHLEGELBERGER, 30 JANUARY 1938, STATING THAT HITLER HAS DIRECTED THAT SCHLEGELBERGER BE ACCORDED MEMBERSHIP IN THE NAZI PARTY

The Chief of the Chancellery of the Fuehrer of the NSDAP

To Under Secretary Dr. Schlegelberger

Berlin

Dear Mr. Under Secretary,

The Fuehrer has directed [verfuegt], on the occasion of the 5th anniversary of the National Socialist rise to power, that you be accorded membership in the NSDAP.

I take pleasure in bringing this to your attention while requesting that you submit to me your personal data such as your first name, last name, place and date of birth, and correct address.

Heil Hitler!

[Signed] Bouhler

TWO ORDERS SIGNED BY DEFENDANT SCHLEGELBERGER FOR THE INITIATION OF CRIMINAL PROCEEDINGS AGAINST NOTARIES BECAUSE OF THEIR ATTITUDE TOWARD THE NATIONAL SOCIALIST STATE, 19 MAY 1938 AND 6 DECEMBER 1938

Copy

Order for the Initiation of Criminal Proceedings

In accordance with article 38, paragraph 3 of the Reich Notary’s Code, and article 71, paragraph 2, German Civil Service Law, I initiate an inquiry against notary Karl Walbaum of Goettingen.

Notary Walbaum can no longer be relied upon to lend his active support to the National Socialist State at all times. This suspicion is proved by his general attitude, for instance—

(1) The notary joined the German National People’s Party [DNVP] towards the end of 1932 in order to help in preventing the National Socialist German Workers’ Party from taking over exclusive State leadership.

(2) In 1933 he was expelled from the Stahlhelm,[212] because he worked openly against the affiliation of the Stahlhelm to the National Socialist State.

(3) He did not adopt the German Salute in Court until fall 1937, and in the streets he fails to use it even today. On the occasion of his interrogation by the president of the district court on 13 April 1938, he referred to the German salute as the ancient salute given by German gladiators to the Roman emperor.

(4) He is opposed to the existence of the National Socialist Party and its union with the National Socialist State, and he expressed this attitude not only in a letter to the Kreisleiter of Goettingen, dated 11 April 1938, but also during his interrogation on 12 April at the branch office of the Secret State Police, and on 13 April 1938 by the president of the district court.

(5) In the plebiscite and general election on 10 April 1938 he voted “No.” I appoint District Court Judge Weissgerber of Goettingen head of the inquiry.

Berlin, 19 May 1938

The Reich Minister of Justice

As deputy

[typed] signed: Dr. Schlegelberger

Carbon copy

Order for the Initiation of Criminal Proceedings

By request of the deputy of the Fuehrer[213] I initiate an inquiry against notary Dr. Kurt Prelle of Naumburg (Saale) in accordance with article 38, paragraph 3 of the Notary’s Code; article 71 of the German Civil Service Law and with the Executive Decree to article 71 of the German Civil Service Law.

It has become doubtful whether notary Dr. Prelle can still be relied upon to lend his active support to the National Socialist State at all times. These doubts are based on the following occurrence:

Since 1 August 1932, Dr. Prelle had been a member of the National Socialist German Workers’ Party, Membership No. 1 255 200. In the course of a Party court proceedings he was accused of having made a purchase from the Jew Max Cohn in Naumburg (Saale) on 24 December 1935. On 18 February 1936, during the proceedings he submitted a questionable justification in which he explained that not he himself but his wife without his knowledge had bought picture postcards from the Jew Cohn for a total of 10 Reichspfennig. He continued, however, to explain that in view of the speech made on 18 August 1935 by the president of the Reich Bank, Dr. Schacht, and in view of the fact that the Reich government was using Jewish banks for raising Reich loans, every State citizen was entitled to buy as much as he wanted from Jews. As a result of this, Dr. Prelle was expelled from the Party by a decision of the Party’s Kreis Court at Naumburg (Saale) dated 30 June 1936, because he had not made the Party’s fight against Jewry his concern and did not even support it.

The right to commission someone with the establishment of these facts is being reserved.

Berlin, 6 December 1938

The Reich Minister of Justice

As deputy

[typed] Signed Dr. Schlegelberger

(Seal)

REPORT ON A CONFERENCE, 22 AUGUST 1939, BETWEEN DEFENDANT ROTHENBERGER AND SS MAJOR ECKHARDT, SD CHIEF IN HAMBURG, CONCERNING COOPERATION OF THE JUDICIARY WITH THE SD IN HAMBURG

Conversation between Senator Dr. Rothenberger, SS Sturmbannfuehrer Eckhardt, SD Subsection Hamburg and SS Oberschar [Oberscharfuehrer], Amtsgerichtsrat Moeller.

Subject: Cooperation of the Administration of Justice in Hamburg with the SD Subsection Hamburg

1. There prevails agreement that it would be purposeless to appoint special informants in the various branches of the administration of justice to inform the Liaison Officer, Amtsgerichtsrat Moeller. The already existing circle of informants, to which Moeller should from now on belong, is abundantly sufficient to inform the senior president [of the court of appeal] about wishes and difficulties, views on the reaction to new laws, moods of the judges, etc. If from this circle things are brought forward which cannot be settled directly by the senior president, Sturmbannfuehrer Eckhardt is prepared to put his SD apparatus at their disposal on instructions from Moeller.

2. Senator Dr. Rothenberger expressed the wish to be able to fall back on the information apparatus of the SD in necessary cases, e. g., to ascertain whether there is any truth in rumors which by repetition have become the subject of a criminal procedure. Sturmbannfuehrer Eckhardt consents to this.

3. Senator Dr. Rothenberger declares that he is prepared to put at the disposal of the SD subsection current copies of such sentences as are significant on account of their importance for the carrying-out of National Socialist ideas in the field of the administration of justice, and which are being collected in the appellate court. Sturmbannfuehrer Eckhardt considers a current transmission of important judicial sentences in this way to be particularly valuable for the work of the SD.

4. Sturmbannfuehrer Eckhardt requests that employees of the judicial authorities be reminded before they travel abroad to keep their eyes open in foreign countries and to record their experiences and impressions in a report on foreign opinion. Senator Dr. Rothenberger points out that he has been kept informed up to now as to essentials, of one employee’s impressions on journeys abroad. In future, each employee of the judicial authorities is to make a report on foreign opinion at the close of his journey, a carbon copy of which will be forwarded to the SD subsection for information.

5. Up to now, informants who are at the disposal of the SD have not been nominated for the local court districts Harburg and Wandsbeck. Senator Dr. Rothenberger wants to seek out suitable individuals and to nominate them to the SD subsection.

For the rest, the parties concerned are in agreement that cooperation, with the wide consideration for the importance of the sphere of work on both sides, is best guaranteed by any debatable questions being dealt with directly by the liaison officer Moeller, either in writing or orally.

Hamburg, 22 August 1939.

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS FRIEDRICH ELKAR[214]

Mr. King: Will you please state your name?

Witness Elkar: Elkar.

Q. Will you tell us briefly what your educational background and training has been?

A. I was born in July 1911 in Altenberg. Then, for 14 years I went to elementary school, and I went to the Oberrealschule, Fuerth, and there in the year 1931 I made my final examination. Then I studied for four terms each at the Universities of Erlangen and Munich. In the year 1935 I made the first state examination, the so-called Referendar Examination. Then for about 3 years I was at the Nuernberg-Fuerth court as a legal clerk in the administration for training. Then, in July 1939, I made the second state examination, that is, the assessor examination, at Munich. Thereafter, for a short time, I worked for a Nuernberg lawyer. Then, due to wartime conditions, I was unemployed for a while. In October I was taken into the Security Service at Nuernberg. That was on 16 October 1939. I was there at the SD during the entire war. In 1945 after the collapse I worked for some time as an agricultural worker.

Q. After you had passed your first state examination and prior to the time that you had taken your second examination were you at any time assigned, while you were in Nuernberg, to the defendant Rothaug?

A. Yes, first I had two cases when I was appointed defense counsel before the Special Court, and that is where I met Rothaug. And then for 2 months I was there for my legal training. That was at the end of my legal training period in February or March 1939.

Q. You said that in October of 1939 you became a member of the SD.

A. Yes, on 16 October 1939.

Q. Before I put several questions to you concerning your activities with the SD, will you explain briefly the relationship between the SD, (Security Service) of the Reich Security Main Office (RSHA) and the SS?

A. Relations between the Reich Security Main Office and the SS—well, the Security Service, SD, belonged to Office III of the Reich Security Main Office. That was the central office of the SD at Berlin. A large number of the employees of the SD, had been taken into the General SS. To that extent a rather loose connection existed between the SS and the SD. In particular, the Supreme Chief of the Reich Security Main Office was first Heydrich and after his death, Kaltenbrunner, whereas the chief of the SD who was under Heydrich and Kaltenbrunner was Ohlendorf.[215] Is that sufficient?

Q. Tell me how the SD was organized at Gau level?

A. At Gau level principally every Gau had an SD department. That, according to the Gau level, was the SD sector, and the extent of this SD sector was usually the same as that of the Gau.

Q. How were these SD organizations which were attached to each Gau organized? Were there departments in each SD organization within each Gau, and if so, what were these departments?

A. In the SD districts there were departments [Referate], as we called them. Essentially there were four—III was the designation of the SD office in general; III-A, law and administration; III-B, folkdom and public health; III-C, cultural fields, including education; and III-D, economy.

Q. When you were assigned to the Gau here in Nuernberg for the SD, to which one of these four departments were you assigned?

A. I was assigned to the department of law and administration.

Q. And what was your position in that department?

A. I was in charge of it. That is to say, for quite some time there was only one man in it, really. There was only one person.

Q. Can you tell me in general—I will later ask you some specific questions, but now tell me in general what your duties were as head of law and administration of the SD in the Franconia Gau.

A. The SD as home information service, in our case through the Reich Security Main Office had to inform about all developments in various fields of German life. I personally had to report about all developments in the field of law and administration, positive and negative developments which occurred in that field of law and administration, to investigate and to report about them.

Q. Being assigned to the law and administration section, did you confer with the defendant Rothaug in connection with your official duties?

A. Yes. On the basis of an instruction received from the inspector of the Security Police and SD at Munich who was our administrative superior, from an instruction through him we had to take up in connection with the prosecution of the Special Courts in order to inform the inspector, and in the last event, the Reich Security Main Office, about the pending criminal cases, that is to say, the activity of the Special Courts. In the course of this action, it came to a conference of my chief with the president of the court of appeal, and in the course of that conference Doebig, the president of the court of appeal, stated that he was not competent for any agreement that had to be passed here, because as the Public Prosecutor, the prosecution was under his control. For that reason on the same day, practically at the same hour, a conference was brought about with the General Prosecutor Dr. Bens. On that occasion, the presiding judge of the Special Court, Rothaug, was present. Bens justified that by saying that the first hand information about pending criminal cases before the Special Court could best be obtained from the presiding judge himself, because it was he who was in charge of scheduling the cases and therefore could give the best information, and for that reason Rothaug was drawn into that conference. The oral agreement came about to the effect that from time to time if my superior office was interested, I should get the appropriate information from Rothaug.

Q. In connection with this series of conferences, when did you first see Rothaug?

A. Well, the conference in question you mean?

Q. No. As I understood the answer to the previous question, after you had seen Doebig and Bens, you were finally told that you would confer in connection with your official duties with Rothaug. When then did you have your first conference with Rothaug concerning your official duties?

A. The first short conference took place immediately after that conference with Bens and Doebig on the same day in Rothaug’s office. On that occasion, Rothaug stated that he was quite ready to work together with the SD, as far as information was concerned.

Q. And thereafter, did you see him at regular intervals, and if so, how often did you see him?

A. At that time, an agreement was reached between Rothaug and myself that principally I should come into his office every Saturday, and there he would inform me about matters which in his opinion were interesting for me—criminal cases—and give me all the information. On that occasion, we were also able to discuss any other legal questions of interest that actually came up; and particularly during the first half year I met Rothaug pretty regularly on Saturdays.

Q. Now after these Saturday conferences with Rothaug, did you make a report to your superiors on what was said?

A. I sent reports to the Reich Security Main Office about everything in the way of information which I received from Rothaug.

Q. And these reports which you sent to the Reich Security Main Office went first to your superior located in Nuernberg, and then, as far as you know, to Berlin and possibly to the head of the SS? Is that right?

A. It really occurred that way, that whatever Rothaug considered important he reported himself. I took stenographic notes, and I had them transcribed at my office, and on the basis of this information, I wrote my report to Berlin—of course without any opinion on my part and without making essential changes which would not have been within my duties.

Q. In these conferences with Rothaug, which occurred fairly regularly every Saturday morning, can you tell the Court in general what was discussed? Later on, I want to ask you several specific questions, but now, if you will, please tell us in general what Rothaug discussed on these occasions with you?

A. Mostly the information which he gave me was in a form of instructions about developments of criminality which he explained with examples of individual cases. He informed me, for instance, that mail robberies or black-out crimes were increasing and that they constituted most of the criminal cases at that time. Then he explained to me in what manner criminal procedure had to be developed in order to present effective measures against that undesirable development of criminality and to manifest that in the way of jurisdiction. On that occasion, of course, individual cases were also discussed. In addition to that, he also mentioned matters of legal and political development; also in the field of substantive law, matters which came to his attention in the course of these proceedings, sometimes in the form of short dictation or of handwritten slips which he prepared. It was not only that the current cases were explained to show the development in criminality but also anything that occurred in the field of law and had to be corrected by higher offices, be it that it needed a negative or positive decision that he wanted to have written down and reported to higher offices.

Q. Rothaug knew, I take it, that these notes and reports which he handed to you were passed on by you in line with your official duty—passed on to higher authorities in the Reich Security Main Office and in the SS?

A. That he knew for certain, and in my opinion that was what he wanted. It could be seen from remarks to the effect that such matters had to be reported to higher offices so that from these higher offices appropriate countermeasures could be taken.

Q. Did Rothaug discuss in these conferences with you the sentences he expected to give in cases that were to be heard in his court in the near future?

A. Yes, the proceedings in the next period of time which were to be tried sooner or later, as far as they were important, were discussed partly on the basis of the files, partly on the basis of his knowledge of the files; he gave me a short explanation of the facts and also his opinion about the legal procedure, the legal dealing with the cases as far as the application of the facts was concerned in consideration of the sentence to be expected.

Q. What in general was Rothaug’s attitude, so far as he reported it to you, on the interpretation of criminal law?

A. Rothaug, in principle, was of the opinion that particularly in times of war on account of a certain laxity of security measures, be it due to shortage of personnel or other things, criminality would increase; that not only an increase of serious criminal cases would occur, but also of so-called political criminality; and that the activity of the Special Courts should be conducted in such a manner that an increase of serious criminality of that kind should be forestalled; that any attempt against the State in a political, criminal, or other manner would have to be wiped out by severe penalties.

Q. Can you tell us what Rothaug’s apparent attitude was toward foreigners, especially Poles, so far as the application of criminal law to them was concerned?

A. In my opinion, Rothaug’s position was that particularly toward foreigners—Poles and others—that no clemency should be applied; that especially these elements had to be met with severe measures in order to assure that attempts which would be made to counteract the successes of the armed forces should be choked off at the outset. It may be that he would have used more clemency towards German criminals than to foreigners.

Q. Can you tell us whether you are familiar with the decree against Poles and Jews promulgated in 1941?[216]

A. Yes, that is a concept for me.

Q. You are in general familiar with the provisions of this decree, are you not?

A. Well, in detail—of course today I couldn’t say—but in general, yes.

Q. What was Rothaug’s attitude toward Poles and Jews prior to the time that this decree was promulgated so far as you know from the conversations that you had with him and from the reports that you passed on from him?

A. I believe that it was clear to Rothaug that here, if I may say so, there was a gap in the law; that that gap should be bridged; but that a judge with the right political attitude should be in a position, in spite of this gap, to sentence accordingly. He found the juridical way to pronounce the sentences which he considered appropriate.

Q. In other words, would you say that Rothaug achieved, without a decree, and prior to the time that it was promulgated, the same legal effect that later could be achieved under it?

A. That is correct, beyond doubt. As a Special Court judge in Nuernberg, he achieved the same success. I should only think that perhaps measured by conditions all throughout the Reich, he thought that a formulation of these principles was needed.

Q. Is it your feeling that Rothaug’s outspoken comments on the need for such a decree, as was later formulated, was influential in the final promulgation of that decree?

A. Well, as far as the various things are concerned that finally led to the decree, I am not well informed about that; but that Rothaug’s information may have contributed, that I believe.

Q. In any event, prior to the time that that decree was formulated in 1941, you had sent up in line with your official duty many of Rothaug’s comments on what the law, or what the situation lacked at that time?

A. That was certainly the case.

Q. In discussing the cases with Rothaug in these Saturday morning conferences, do you recall any particular case to which Rothaug referred?

A. You mean in a particular category of a criminal act?

Q. No, I do not refer to that. Perhaps my question was not clear. I meant in spectacular cases which were to be tried by Rothaug, or other judges in his court. In other words, did you discuss, or did he discuss with you the more spectacular cases at any time?

A. Yes, he did. I remember, for instance, the case of the Dachau criminal, I think it was Poelmann.

Q. One moment. I did not get that name.

A. Poelmann. That man Poelmann, if I remember correctly, had taken a large quantity of lard from a barn in Fuerth, I believe at night. There may have been several hundred pounds and also other things. If I remember correctly, Poelmann was sentenced to death by Rothaug. The verdict I believe was not executed, but through a pardon was commuted into a long prison term, I think 8 years of hard labor. Rothaug talked to me at that time about that pardon, which technically reduced the death sentence, which in Rothaug’s opinion was a correct sentence, to a prison term.

Q. Do you remember any other cases that you discussed with Rothaug?

A. Yes, one typical case, the case of Katzenberger. That case Rothaug and I discussed also once, and I expressed my opinion that on the basis of information I had received, and also on the basis of opinion on what was known of the criminal, that the sexual relationship was not an accomplished fact, because the law, insofar as I knew, required the act of sexual relation between a German and a party of non-Aryan descent.

Dr. Koessl: May it please the Tribunal, I object against the examination. I object to the examination in this manner, because the opinion which is stated by the witness, the legal opinion which is stated by the witness shows that he is not an expert, and furthermore, he has not been called as an expert witness.

Presiding Judge Marshall: We see nothing in the answer in the nature of which shows anything other than he was just stating a conversation, the way we get it.

Witness Elkar: I do not in any way wish to give an expert opinion here. I only wanted to explain why I came to speak about the case of Katzenberger, because I was asked whether he spoke of any other case, and particularly this case is one which was mentioned as the case of Katzenberger. Therefore, may I continue with my statement? At the time the facts were not complete, because it was not proved so far as I know that the German woman was doing anything more, according to the proof, other than that she was sitting on his lap, and Rothaug—I remember that quite clearly here—said that one had to take the human facts into consideration and could hardly expect that a man of that kind, he meant the man Katzenberger, would act otherwise once the girl had been sitting on his lap, and that consequently, he considered the proof as given.

Mr. King: Now may I for a brief moment digress to another subject. In your position with the SD you undoubtedly had an opportunity to observe the political influence that various people with whom you came in contact exercised?

A. Yes.

Q. What do you know about Rothaug’s influence with the Party men who ran the Gau Franconia. What are your impressions?

A. Rothaug had some close connections to the Gau Inspector Haberkern. Haberkern as Gau Inspector could gain an insight in all matters going on in the Gau, and in my opinion for a discussion of such matters, particularly in the legal field, he took the advice of Rothaug, so that, since the Gauleiter depended on Haberkern, Rothaug certainly could have his opinion go to the Gauleiter on legal matters.

Q. What men besides Haberkern were influential in directing the affairs of the Gau Franconia?

A. Well, first, Streicher was Gauleiter. After he left, there were several staff office chiefs who were acting, and then Holz became acting Gauleiter. Then Holz went to the army, and at that time the Kreisleiter Zimmermann was in charge of the official business of the Gauleiter and as far as I know, the relationship between Zimmermann, Haberkern, and Rothaug was very close.

Q. May I at this point ask you to clarify one matter. You say that Streicher, Haberkern, Holz, and Zimmermann, as leaders of the Gau, were, of necessity, members of the Party Leadership Corps?

A. Yes.

Q. Now in your opinion from what you were able to observe, did Haberkern’s reliance on Rothaug, and Rothaug’s influence over him result in Rothaug having a very great influence on the Party Leadership Corps here in the Franconia Gau?

A. Insofar as Haberkern could indulge in the influence as to the Leadership Corps, Rothaug through Haberkern had the same influence, and I should like to assume that in the question of law Rothaug certainly was the man who was the higher authority so far as the Gau was concerned.

Q. Do you know whether Rothaug had ever taken an oath of secrecy as a collaborator with the SD?

A. Yes, he did.

Q. Do you know when that happened?

A. That must have been in 1940, because in May 1940, approximately in the spring of 1940, that is before the French campaign, the conference of prosecutors which I had mentioned took place, and I believe a short time afterward Rothaug was drafted for the SD and was put on oath by the SD.

Q. What was the higher, more responsible position in the SD, the position of informer [Nachrichtenmann], or the position of collaborator [Mitarbeiter]?

A. May I correct that? There were no official informers. You mean the confidential agent [Vertrauensmann]? Then there was also the term of honorary collaborator [ehrenamtlicher Mitarbeiter]. The confidential agent was the man who in a certain field of law, penal law or the administration of justice, occasionally was used for information that had to be kept secret. On account of the shortage of men, which existed during the war, it had become necessary to bring in also honorary staff members [ehrenamtliche Maenner] who had certain functions, and who in a definite special field, also had the function of rendering information; the informative material which had come from other places was digested by them and put together in reports. All such people in the special field, that is the field of penal law, were a source of information. The honorary collaborator I would like to put on a higher level than the confidential agent.

Q. I think I did use the wrong term in referring to the confidential agent as informer, but in any event, you understood my question, and I think I understand your answer.

Did you ever attend a trial which was presided over by Rothaug?

A. Yes.

Q. From your observation, can you tell us briefly how Rothaug conducted his trials?

A. Once it was the case Heller and Muendel, well known highway trap-setters [Autofallensteller]. Then the case Feldstengel. There were several others. These were cases of burglary during the black-outs, black-out crimes.

May I pick out here the principal matters such as they presented themselves to me after my experiences as an SD man. I think I am not mistaken in assuming that Rothaug considered the trial before the Special Court as a means of direction and education and that accordingly he conducted the main trial on a broad basis and facts which constituted transgressions against the program of the Party, the directives of the political leadership, such facts were developed to such an extent that the illegal elements which were contained in the opposition against the political leadership were brought to the foreground. I would like to say that he rather disregarded other circumstances concerning the defendant, his office, his position. He wanted to remove those circumstances, to leave them aside, in order to develop clearly the criminality of the act of the defendant, and just because he considered the trial as a means for the direction and education of the people, he used every means to make it possible for as many people as possible to attend and underline matters which offered possibilities for the political education in order to exert influence on the listeners in that manner.

Q. In your conferences with Rothaug did he express the view that trials were to be used as a means of political education?

A. Yes, of course.

Q. From your observation of Rothaug’s conduct of trials where he was the presiding judge, your answer is that in practice they actually were conducted that way, as a means of political education; that was the purport of the answer to the next to the last question, I believe.

A. Yes, that was my personal impression, which I gathered from the comparatively few trials which I attended myself and also from information on the basis of the material about the trials. From those reports, it could be seen that Rothaug had the intention to use the many trials as a means for political education.[217]

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CROSS-EXAMINATION

Dr. Koessl (counsel for defendant Rothaug): Witness, your position was that of chief of a department?

Witness Elkar: No, in an Abschnitt. May I point out that there was no such expression as Abteilung; there were special departments, Referate.

Q. So it was Referat III-A?

A. Referat III-A.

Q. Referat III-A was part of the home forces?

A. Yes.

Q. Your work with Rothaug was based on general directives, on the basis of which the SD groups had to get in contact with the Special Courts; is that correct?

A. The real cause for the contact with Rothaug as presiding judge of the Special Court was, as I explained yesterday, the desire of the inspector of the Security Police and the SD in Munich to be informed about the decisions of the Special Courts, or to remain currently informed about their decisions, because the inspector of the Security Police and the SD in Munich was, at the same time, supposed to send reports to the Reich defense commissar who, at that time, was in Munich, but whose field was all of Bavaria. A measure of that kind was of a local nature, at first only for Bavaria, an internal instruction, let us say, from the RSHA, because a contact of that kind did not exist at that time.

Q. But it was a contact which was taken up all over Bavaria?

A. Yes.

*******

Q. Do you still know what the purpose of the visit of the SD leaders with Doebig and Bens was and what considerations, what principal considerations were discussed on that occasion?

A. As I have already explained, subject at first on the occasion of that official contact, taking up of contact, was that from an authoritative source the reports should be received about pending criminal cases, and of course also about legal problems in connection therewith. The SD through all its reports from the outside, received information about the consequences of court decisions on morale. It is clear to us today that the layman’s point of view frequently deviates quite essentially from the facts established in court. And in order to provide a correction, a possibility of checking our reports, it was necessary that we establish the official connection to the court authorities.

Q. Therefore, it was intended that this contact should correct mistakes in the reports received from other sources, which mistakes were based on reports from laymen and frequently caused misunderstandings of the facts?

A. That is essentially true.

Q. Now, you discussed at first the conferences. You came to Rothaug first on Saturday mornings in order to get information?

A. Yes.

Q. Did you stick to that in the course of the following period, or were there larger intervals between these meetings?

A. If I should indicate a period first—

Q. I asked only, was that regularly on Saturdays?

A. In the beginning yes, the first half year.

Q. And later?

A. Later, either if an inquiry had been sent to us from some other source or when, on the basis of reports which we had received from other sources we had questions to put before him, or when Rothaug on his part had to report anything on the basis of his activity, and I emphasized yesterday that he was very productive for us, that in the field of political law, not only in the field of general law, but beyond that and also in the field of civil law, he brought to us experiences and inspirations.

Q. If I understand you correctly, Rothaug dealt with matters of principle of a general nature not, for instance, the treatment of individual cases, the manner in which individual cases were handled.

A. You have to distinguish here between the—you have to start here from the assignment which the SD had as information sources for the whole country. As I emphasized yesterday, the purpose was to eliminate wrong developments first, to point them out. In case of these developments in the wrong direction it could only be matters of principle in the beginning. According to the instructions we had received, it did not suffice to point out a principal wrong, that is to say a gap in the law, but it was necessary that on the basis of concrete examples of definite individual examples that gap be proved, and if possible at the same time in this case, of course, by the expert, recommendations had to be made for modifications. And on the basis of this activity individual cases were the subject of discussions and conferences. Frequently, as far as I remember, it occurred that at times the individual case itself was discussed as, for instance, the case of Katzenberger and another case which I still remember.

Q. So it was a matter of justifying opinions if individual cases were mentioned?

A. Yes.

Q. It was not a matter of interfering into an individual case on the part of superior offices, an interference into a pending, into an actual proceeding?

A. Well, of course it was possible that the individual case itself, through the leadership office, became known to the Ministry and caused individual measures. I can give you an example. In the directives concerning files there is a provision according to which wills are to be attached to the files of the court. Furthermore, there is some directive of some sort according to which last letters of soldiers who have been killed could be considered, under certain circumstances, as having the force of a “last will.” That was particularly customary in the air force, that, in case a flier died, these letters were considered, and if there were any provisions in these letters concerning the heritage, and there was no other proof of any will existing, they were considered to represent the will. That happened, for instance, in one case. There was a soldier by name of Schneiderbanger. The woman who had lost her husband in the First World War, and I believe already one son in this war, lost her last son. It was in air combat over London, I believe. She presented to the court the letter in which some provisions were included about his luggage, I believe. The court considered that letter to represent his will, and asked for the original from the woman—asked that the original be put in the files. Since for sentimental reasons she objected to that, she was threatened with a fine or a prison term. That affair raised a lot of discussion. Various offices of the Party intervened, and it came before us. I reported that case. In the opinion of the RSHA it was not a rare case, but a development which would have to be taken into account either by law or by directive from the Ministry. It was strange that in this case the reaction of the Ministry of Justice was not the issuance of a general instruction, but an order through channels that the woman in this particular case be permitted to keep the letter.

Presiding Judge Marshall: One moment, please. The witness answered, some little time ago, that these reports to the RSHA and the answers from them were for the purposes of justifying the opinions of the lower court. At that point, Dr. Koessl asked the question whether it was intended as an interference of those opinions. I couldn’t observe that the witness answered that question, and I should like to know whether it was an interference and not merely an attempt to justify.

Witness Elkar: In as much as we discussed these cases at our level, one could not speak of interference in the individual cases. How far the RSHA, through conferences with the various ministries—in this case, the Ministry of Justice—could interfere, I am not in a position to estimate.

Q. I am not so much concerned as to how much they could do, but I am very much interested in knowing what they did do, if anything, in the matter of interference.

A. Well, of course we reported with the intention that a wrong development in individual cases should find correction occasionally, but I am not so familiar with that in the legal field. We received instructions from superior offices that in this one or the other case a measure from the Ministry or the respective superior office was caused by the report.

Dr. Koessl: Wasn’t it so that at that time the fact had become apparent and noticed that offices which were outside the administration of justice were frequently concerned with matters of justice; for instance, offices of the NSDAP, Kreisleiters, and so on?

Witness Elkar: Yes.

Q. Were the conferences also concerned with the attempt of preventing such interference?

A. I can hardly remember that when speaking to Rothaug that problem was ever discussed to any extent. Occasionally, when mention was made from the outside, that question was touched too; but if I remember correctly, Rothaug was of the position that the Party, for instance, was definitely justified to make its intentions known to the court; he said in the same manner which, for instance, the administration of mail service—in case of a fraud on the part of one of the officials—gives its expert opinion about the case, then in the same manner that right should be conceded to the Party. For that reason, he offered at all times information to the Party and gave also advance information about pending cases and an opportunity to state its—the Party’s—point of view.

Q. That was originated by law, if I remember correctly, Witness. Wasn’t it provided that in penal cases against members of the Party, on the basis of a legal decision, the Party had to be informed?

A. Yes, that of course.

Q. That is what I mean. Was there more involved?

A. For instance, in cases of insidious attacks[218], a directive by the Ministry of Justice was required. That directive, as far as I know, came about in cooperation with the Party Chancellery.[219] It is true that the Party Chancellery, certainly before it rendered its decision, received information from the Gauleitung concerned with that case. But I believe that I am not mistaken to assume that Rothaug, even beyond that in local cases of political significance, tried to get the opinion of the Gauleitung concerned.

Q. You told us yesterday that you discussed pending cases on the points of view of the general development of criminality. Was that the basis of your conferences on Saturdays and later on at more frequent occasions?

A. Perhaps I can make the answer a little clearer by emphasizing the circumstances under which this more intense cooperation with the Special Court under Rothaug, in particular, came about. The conference between Doebig and the others was concerned with the official agreement, as I have said. The position and the tasks of the SD are known to you. I assume that the SD was in a position to obtain these official informations and opinions from the official sources, but we had to try to find out about the matters which were, for instance, in the more detailed files—matters about which information cannot be obtained through regular channels—or to find out about matters which went beyond the pattern of an official opinion about a penal case; that is to say, as we have explained before, a particular experience or an opinion about another court. The obtaining of that information could only be the case if as an SD man I had a closer connection to Rothaug beyond the official character of my mission. And Rothaug, after that first official conference with Doebig—in a conference between himself and myself—stated that he was prepared to do so.

Q. Did you take up contact with other officials of the administration of justice in your position at that time?

A. Here again I have to deal with the administrative organization. As you have heard yesterday, the Abschnitt, after the SD Main Office, was the next lower echelon. It was not our task as such in all fields, let’s say of law and of administration, to obtain and to collect material of information. That task remained to the so-called field offices. I believe we had five in Nuernberg. These field offices as far as I am informed had their confidential agents again; and that there were legal men—members of the court—among those, is quite known. As far as my mission was concerned, that is to say, in order to appraise and evaluate the material which came from the field offices, I needed of course a qualified person, an expert, who had a wider field of experience; and for that purpose I needed Rothaug. He agreed, and he also had the right attitude.

Q. Yesterday you spoke about the slackening of the security machinery during the war. Could you remember that preventive measures against danger arising through conditions of war was part of the discussions and conferences with Rothaug?

A. You mean measures to be taken by leadership offices?

Q. In order to prevent possibilities of dangers arising from special conditions, arising from emergencies of war.

A. Of course.

*******

Q. Witness, I want to go over to another point. What concrete reasons do you have for judging what influence Rothaug had on Haberkern in regard to the leadership of the Gau; what influence was exerted through Haberkern on the Gau leadership?

A. I know that Rothaug was at the Hotel Haberkern, at the so-called Stammtisch [club table], that he was seen there frequently; I know, furthermore, partly from having been present there myself, in the “Blaue Traube” restaurant [Hotel Haberkern] that other leading men of the Gau were also present there. For example, the Kreisleiter Zimmermann occasionally; also the Higher SS Police Leader Dr. Martin and several other people; and I know furthermore that, at this Stammtisch, matters concerning the Gau were discussed. I can further say with quite a good deal of certainty that Haberkern, especially in legal questions, based himself on the advice and actions of Rothaug, since Haberkern, as I believe I emphasized already yesterday, as Gau Inspector, at any time could have insight into any matters which were of interest to the Gau and what was going on inside the Gau; he could, of course, on the basis of this insight inform the competent Gauleiter.

Q. Did the Gau not have a definite office for handling legal questions?

A. Yes, the Gau had a legal office, the Gaurechtsamt.

Q. Was Rothaug in charge of this office?

A. No. Rothaug was in the National Socialist Legal Workers Association [NSRB] the head of which in Gau Franconia, at times was also the head of Gaurechtsamt, namely Oeschey. In the NSRB, Rothaug had the position of a Gau group leader of the [group] judges and prosecutors; you know that the NSRB was composed of [several] groups.

As Gau group leader of [group] judges and prosecutors, Rothaug was in the Gau Franconia, the judge, the leading jurist, politically; who also from the political point of view, especially the personnel policies of the Party had the primary influence on it—the most important influence, that is, on the Gau leadership. The Gau leader depended a great deal on its own initiative or due to the questions by the Party Chancellery, who had to advise and give opinions on certain personnel policies, questions of personnel policy. The Gau leader and the Gaurechtsamtleiter had to find out Rothaug’s attitude.

Q. But, Witness, is it not evident already from the fact that the Gau leadership had to turn to Rothaug via the Gaurechtsamtleiter that the Gaurechtsamtleiter was the decisive man, the advisor of the Gau leadership?

A. One should suppose that from the outside, just from looking at the organization, but actually I should suppose—I think I can say that with certainty, that the Spiritus Rector, shall we say the guiding and thinking spirit even under the leadership of Oeschey, was Rothaug.

Q. Now, did you have an insight into the attitude of Rothaug with his associates from the political point of view?

A. Do you mean the association on the Special Courts?

Q. Yes.

A. In order to do so it is necessary—

Q. Please, did you have an insight or not?

A. Yes.

Mr. King: May I ask if the witness wants to expand his answer or not. I think the witness should be permitted to if he so wishes. What is the ruling of the Court on that?

Presiding Judge Marshall: Yes, he may answer it further if his answer requires an explanation. Sometimes a question calls for a direct answer; sometimes that answer is not fair to the witness unless he explains why. In this instance he may answer.

Witness Elkar: Rothaug was operating on the principles from the National Socialistic point of view, that was correct; that a judge in a Special Court had to fulfill a certain minimum requirement from a political point of view; that it was not enough for Rothaug that Special Court judges were appointed who, from the technical point of view, met the requirements, but they must also have, politically, a certain maturity—shall we say, a certain political maturity.

Dr. Koessl: Are you finished?

A. Yes.

Q. Insofar as the political maturity of the associate judges goes, did Gross and Ferber fulfill that and Hoffmann—were all of those taken from the Special Court by Rothaug removed from the Special Court, or am I correct?

A. It was so, the basic attitude of Rothaug toward the requirements of judges in the Special Courts was that he emphasized occasionally, again and again, that these requirements were, of course, not fulfilled in all the points of the requirements, because in his opinion the political orientation did not exist to the extent he desired it. He said, however, that under his leadership, weaker judges would, shall we say, fall in line.

Q. Did the associate judges of Rothaug suffer politically in any way, such as through the SD, because they had different legal opinions and different conceptions of law, because they had voted differently in the discussions?

A. By the SD? Do you mean to say by that that steps were taken from the higher authorities?

Q. Did Rothaug report about the unfavorable comments about his associate judges in order to have them reprimanded?

A. That was not the case, for Rothaug stated again and again that under his leadership the judges followed the corresponding course.

*******

Q. Can you remember whether it was Rothaug who made efforts to have the severity of wartime legislation explained to the people—whether these efforts of his were successful?

A. You mean to say that the hints upon the enlightening form of these sessions brought it about also that the population would understand it better now?

Q. Understanding on the part of the population, of the severity as well as a warning.

A. As far as I remember, the material that was reported was not sufficient in order to judge this—in order to draw such summary conclusions.

Q. Did you, yourself, make observations that the people, the population, felt that they had been warned?

A. That there was a fear of the Special Court is a matter of general knowledge. That this was in connection with the efforts of Rothaug, I cannot judge whether this was so.

*******

Q. You, yourself, were SS Hauptsturmfuehrer or SD Hauptsturmfuehrer, how was that called?

A. During the course of the war I came to the rank of SD Hauptsturmfuehrer, in 1942.

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[220]

DIRECT EXAMINATION

Dr. Schilf (counsel for defendant Klemm): I shall now ask you to describe to the Tribunal the work you performed at the Reich Ministry of Justice. First of all, how was it that you got into the Reich Ministry of Justice?

Defendant Klemm: That happened in the course of the centralization [of the administration of justice in Berlin]. The Minister of Justice, Dr. Guertner, appeared to have the desire that the Reich Ministry of Justice, which comprised the administration of justice of 16 states [Laender], have the Laender represented at the agencies of the Ministry approximately according to their size and their importance. That is how it happened that on 1 April 1935, officials from every former Ministry of Justice in the states were at that time, I believe, transferred to Berlin. From the Ministry of Justice for Saxony, four officials were transferred to Berlin. I never expressed the wish to be transferred to Berlin. The fact that I too was transferred to Berlin is probably due to the fact that negotiations had been held between Thierack and Guertner. I don’t know though. About my being transferred to Berlin, I heard at the middle of March 1935. A fortnight later, I was due to start work in Berlin.

Q. What was this sphere of work which was transferred to you at the Ministry in Berlin?

A. Because from 1929 I had worked for the prosecution, and also because at the Ministry of Justice for Saxony, I had dealt with special measures concerning penal law, I was given at the Ministry of Justice a position in Division III at that time, which later became Division IV. I was appointed auxiliary advisor on high treason cases, and as district Referent [Bezirksreferent] for several districts of district courts of appeal, both in political and nonpolitical cases.[221]

*******

Q. As an expert on political penal cases in those days, that is in 1935 and 1936, did you have close connections with the Gestapo?

A. The Referent for political penal cases for district courts of appeal entertained no relations with the Gestapo. When general questions, questions of particular importance arose, they were dealt with by the Special Referat, or if there was just one question, it was handled by the one Referent charged as the SS liaison officer to the police.

Q. The prosecution submitted a document, which is Exhibit 31, NG-266. Unfortunately, I can only quote the pages of the German text. In the German document book, page 44, following. Mr. Klemm, I suppose you have Exhibit 31 before you?

A. Yes, I have.

Q. You know the contents?

A. Yes, I know the contents.

Q. This is a letter of 13 June 1936 from the Reich Minister of Justice to the chiefs of the various agencies, particularly the Oberlandesgerichtspresidenten, and general public prosecutors, informing them that in September or October of the same year, that is 1936, a discussion with experts of the Gestapo was to be held, I ask you now whether that document is suitable to confirm your personal statement that you never had anything to do with the Gestapo?

A. That conference was a conference of prosecutor generals and of the Presidenten of Oberlandesgerichte. They were to be informed about stopping crimes, particularly concerning high treason and treason. For that reason police experts discussed the subjects. I did not attend this conference, but the speeches made there dealt purely with technical matters. They were speeches by experts from the central organization of the police, which had the most comprehensive view of these matters. I know that it has been tried to find out a little more about this exhibit.

Q. Mr. Klemm, in this connection the prosecution has submitted another exhibit, that is, Document NG-323, Exhibit 32.[222] The first part of the document is a letter from the Reich Leader SS, Himmler, of 18 February 1937 to the Gestapo office in Berlin; and on that subject the Reich Ministry of Justice stated his opinion on 10 March 1937 giving instructions to the general public prosecutors concerning the collaboration between the office of the public prosecutor and the Gestapo.

I ask you whether what you have said before is to be changed by this Exhibit 32?

A. No, I do not have to change it. That circular instruction by the Ministry of Justice, as one can see from the file note, was drafted in Department II, not in Department III to which I belonged. Besides, this regulation is a purely technical one as to how the files are to be handled during the investigation made by the police.

Dr. Schilf: May it please the Tribunal to refer to the fact that the file note which the witness mentioned is to be found on the letter of 10 March 1937, left upper corner. It is IIA and then there are some Arabic numbers. In this connection, the prosecution has not submitted any further documents against you.

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[223]

DIRECT EXAMINATION

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Dr. Wandschneider (counsel for defendant Rothenberger): Now [beginning in 1933], a great change occurred in your career. Could you tell the Court when and on the basis of what considerations you decided to give up this quiet and secure life?

Defendant Rothenberger[224]: The year 1933 came. On 5 March 1933, there were parliamentary elections in Hamburg, as everywhere throughout the Reich. In these elections the National Socialist Party obtained about 40 percent of the votes. Therefore, it was ordered to form a new government, because it was the strongest Party in the Parliament.

Until that time Hamburg had the government majority which consisted of Social Democrats and Democrats. The NSDAP, which was ordered to form a new government, formed a coalition government with the Democratic Party, the German People’s Party, and the German National People’s Party.

The day after the election, that is on 6 March, the Reich Governor and Gauleiter of Hamburg Kaufmann, called me up. Until that time I had not known him personally. He asked me whether I would be willing to assume the position of the acting mayor in this new government of Hamburg. He told me that he had heard about me, and therefore he was making this offer to me. I requested him to give me one day to think the matter over, and then I refused his offer. I gave as a reason that I considered that my task lay in the administration of justice, that I wasn’t inclined for representative nor for political tasks, and these were connected with the position of mayor of a city like Hamburg. Thereupon, he asked me whether in that case I would be willing to take over the administration of justice of Hamburg as its chief, and I answered that I would.

Q. In the subsequent time did you again refuse leading positions in the Reich? Perhaps you can mention that in this connection here now.

A. In March 1933 I thus became Justizsenator, as he was called, in Hamburg, chief of the administration of justice. And the Tribunal already knows that these Ministries of Justice of the individual states, of which there were, I believe, 18 at the time, in 1935, were dissolved by the so-called centralization of the administration of justice. Therefore, toward the end of 1934, the Reich Minister of Justice, Dr. Guertner, approached me in Kiel where we met on the occasion of a university festival, and asked me whether I would be willing to become presiding judge of the People’s Court, which at that time was being created. I rejected that offer, even though this was the second position of a judge in Germany next to the president of the Reich Supreme Court. But for administration of criminal law I had neither the experience nor the inclination. The political development of the People’s Court, of course, one could not predict in any way at that time. But I remained in Hamburg and when in 1935 the administration of justice was incorporated into the Reich and my office as chief of the administration of justice, Justizsenator, was eliminated. I became president of the Hanseatic District Court of Appeals. That is a position of judge which, however, at the same time also includes administrative jurisdiction. I believe that the Tribunal is already familiar with the fact that, from 1935 on, Germany was divided into, I believe, 35 or 37 areas of district courts of appeal, and at their top there was each time a president of the district court of appeal. In 1936 to 1937 the Reichjustizfuehrer [chief of NSRB] Frank[225] approached me through a representative and asked me if I would like to be his representative in Berlin in his capacity as Reichjustizfuehrer. It was not difficult for me to reject that offer, because during the course of those 2 years I got to know Frank. The personal characteristics of Frank have repeatedly been emphasized in this trial, but I want to add one more attribute, that he was extraordinarily vain and that he never forgave me that I could refuse to become his assistant.

Q. In conclusion, in regard to this question, would you please state something about your additional positions in Hamburg which you had in addition to your position as president of the district court of appeals?

A. In Hamburg I had several extra duties during the years when I was still in Hamburg, that is, from 1935 on. That is in addition to my main duty. I was Honorary Professor at the Hamburg University for civil law, and there I, in a certain sense, continued my activity as repetitor, that is, tutor, so to say. That is, I held lectures for students. From 1938 on I was president of the Reich Maritime Office. That was the final authority in decisions about collisions at sea and about the litigations regarding the withdrawing of a license which resulted from this for captains who were found guilty in case of a collision. From the beginning of the war I was president of the Prize Court [Prisenhof] in Hamburg. The Tribunal probably knows the functions of such a Prize Court. Until August 1942 I remained at Hamburg, and from August 1942 until December 1943 I was in Berlin as Under Secretary. In December 1943 I again left there, returned to Hamburg, and was a notary in Hamburg.

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Q. We now come to the question as to why you became a Party member and a Gau Leader [Gaufuehrer] of the NSRB. Those are phases of your political life during which you participated actually and formally in the NSDAP. Can you explain why you first became a Party member?

A. For reasons of full conviction I became a Party member in 1933, because at that time this party appeared to me to be more united and less split up than the other, earlier parties; and in 1934 or 1935 when Gauleiter Kaufmann approached me and asked me to take over the Gau leadership of the NSRB, I had already gained my first impressions and experiences in the struggle between the administration of justice and the Party. It has been emphasized here time and again how, during the first period, after the revolution of 1933, every Kreisleiter attempted to interfere in court proceedings; the Gestapo tried to revise sentences, and it is known how the NSRB tried to gain influence with the Gauleiter and Reichsstatthalter in order to act against the administration of justice. In this respect I gained very bad impressions in Hamburg with the Gaufuehrer at this time of the NSRB, Dr. Haecke. The Reichsstatthalter removed him from office and asked me to take his place, and I do not regret having taken that step because only owing to the fact that I myself held that office, I was in a position to eliminate attacks on the part of the Party against the administration of justice from the outset. And that may only have been possible because I had a Reichsstatthalter in Hamburg who was smart enough and objective enough to realize pretty soon that any fight against the administration of justice can only lead to the destruction of the state itself. I gained influence on the man particularly by two events. First, because at the first opportunity when the attempt was made to put an incapable man in charge of a penal institution, I refused to do so. I asked to be sent on leave and asked him to assure me that that man would be removed. The case was mentioned here again—a man by the name of Laatz.

Q. I shall submit an affidavit about that case.

A. To describe the attitude of the Reichsstatthalter in Hamburg, it is important also to stress that the mayor of Hamburg today, who, after the surrender in 1945 was appointed officially and publicly expressed his gratitude for the calm and objective attitude displayed by Reichsstatthalter Kaufmann during all these years in Hamburg. It belongs to the same field that 2 years later I took over the Gau legal office and thereby excluded any competition; and it belongs to the same complex of questions that during the same year my membership in the Party was put down as 850,000, which gave me a possibility to stand up more strongly against the so-called “old fighters” [Alte Kaempfer—earliest Nazi Party members]. On account of the identity, of course, between president of the district court of appeals and Gaufuehrer, I was envied by all other district court of appeals because they continually had to struggle against the Party while I was saved this struggle.

Q. How long did you hold these offices?

A. I held these offices until August 1942 when I was transferred to Berlin; then the Gau legal office was dissolved; and the office of the Gaufuehrer of the NSRB, I gave up.

Q. Then, you became deputy [Under Secretary in the Reich Ministry of Justice] in Berlin.

A. Yes, I became deputy in Berlin until December 1943.

Q. What was your attitude toward the SD in Hamburg; could you tell us something about that? I am referring to Document NG-825, Prosecution Exhibit 433,[226] in that connection.

A. The SD in Hamburg during the first few years had a bad selection of personnel. There was the usual system of informers; I was spied upon; the Reichsstatthalter was spied upon and that led to their removal. The Reichsstatthalter, when he found out about that, removed the entire personnel from office from Hamburg. The new men whom he appointed, as far as they were concerned with matters of administration of justice, came to me in 1939. In the meantime, the directive had been sent down from the Reich Ministry of Justice to the effect that the SD should be considered and used as a source of information of the state by agencies of the administration of justice; and here also I was independent to nominate individuals who would not submit reports intended to go against the interests of the administration of justice, but who themselves were in favor and sympathy with the principles of the administration of justice, and that is the basis for the conference with the SD Fuehrer in Hamburg which is contained in NG-825, the fact that I made suggestions to nominate men who were judges and whom I knew would never submit reports which were against the administration of justice. Since that time, also in Hamburg, no SD informer appeared in court proceedings, and, as far as I know, no reports were submitted which were against the administration of justice.

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG[227]

DIRECT EXAMINATION

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Dr. Koessl (counsel for defendant Rothaug): In what places and what official positions were you employed before you became presiding judge of the Special Court of Nuernberg?

Defendant Rothaug: I have already mentioned that after the result of the state examination had become known, I was soon called into the Bavarian administration of justice. My appointment was first with the public prosecutor’s office in Ansbach for the so-called post-practice [Nachpraxis]. This post-practice was supposed to last for about 3 months. In my case, however, it was interrupted after only 3 weeks. Perhaps I had proved myself a good student, and after that I was first transferred to the local court in Weissenburg. I want to mention that I was called to the prosecution in Ansbach on 1 May 1926. Until approximately August 1926, I was working at the local court at Weissenburg. Subsequently I came to the local court at Pfaffenhofen on the Ilm.

Q. You just mentioned Pfaffenhofen on the Ilm. Where were you living at that time?

A. I would consider it more to the point if I would first describe my official positions now, up to the Special Court in Nuernberg. That’s what you asked me, isn’t it?

I believe I have already mentioned that I came to the local court at Pfaffenhofen on the Ilm. There I was employed until the turn of the year 1926–1927. Subsequently I came to the local court at Ingolstadt on the Danube. I was court assessor during all this time up till 1 June 1927. At that time I became public prosecutor in Hof. In the late fall of 1929 I became Amtsgerichtsrat at the local court of Nuernberg. In the middle of 1933, I became first public prosecutor at the public prosecutor’s office of Nuernberg-Fuerth; in the late fall of 1934, district court judge at the Schweinfurt District Court; and on 1 April 1937, district court director at the District Court Nuernberg-Fuerth, and there I was, among other positions, employed as presiding judge of the Special Court of Nuernberg.

Q. You mentioned Pfaffenhofen on the Ilm. With whom were you living at the time?

A. In Pfaffenhofen on the Ilm I was looking for a room. I was advised to take a room with a family who were from Franconia because I myself was from Franconia. This family had a small meat factory outside of Pfaffenhofen on the Ilm. The family’s name was Haberkern. That was in 1926.

Q. Is that the later Gau Inspector Haberkern who was the owner of the “Blaue Traube” where the club table [Stammtisch] was that was supposed to have been the basis for your political position of power?

A. That is correct. That is the same Haberkern who later on became Gau Inspector of Nuernberg or more correctly was working with Gauleitung of Nuernberg.

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Q. On 1 May 1947 [30 April 1947], the witness Elkar[228] called you, and I quote, “the highest authority on legal questions in the Gau of Franconia.” (Tr. p. 2896.) A little later he calls you “the Spiritus Rector in the NSRB.”

Doebig says you had been the leading spirit in the NSRB. (Tr. p. 1775.)

What influence did you exert on the NSRB as a whole?

A. First of all, may I say in general, particularly to the introductory question, that I consider that those opinions expressed about me are considerable exaggerations. As for having been an authority on legal questions, that is out of the question. I have always found that other people found it a great deal easier; they always dealt with problems far more quickly, particularly those who passed these opinions. In effect, the way with us was that questions which concerned my Gau group, that is to say, the judges and prosecutors’ groups, were passed on to me. I then gave my opinion on those questions. My opinion was passed on to the Gauwalter and he then passed the matters on in the routine way which is the custom in every state; it was just passed on then to the next authority.

I really don’t think that at any time or at any place I had to cope with a problem of world importance.

Q. Did you receive immediate instructions from the NSDAP and the Gauleitung concerning your work in the NSRB?

A. I never received such direct instructions from the Gauleitung.

Q. What were your duties as Gaugruppenwalter in the NSRB for the judges’ and prosecutors’ groups?

A. In part, that question has already been answered. All problems which fell within the scope of that professional organization, the Jurists’ League, all problems which reached that organization could come to us from any quarter, as they could come from the population itself. All those problems were passed on to the Gaugruppenwalter to deal with, and they were forwarded to that group, the members of which were in some way affected by the event under discussion.

On the other hand, naturally, we also had to cope with the particular difficulties and problems of our members and we had to take care of their affairs because, after all, they had joined a professional organization like ours for that purpose.

I should like to give a practical example to explain this matter, and I will give an example of an event which actually occurred, an event with which we had to deal.

When the administration of justice was centralized, certain offices of judges were downgraded. Here at the district court of Nuernberg, for example, the department chiefs who had had the rank of local court directors [Amtsgerichtsdirector], overnight, and only because the administration of justice was being centralized, were downgraded by one grade. That was done without it being their fault in any way. Naturally that caused a tension, and naturally the people whom it affected were very much annoyed. They came to see me and told me about the matter. As far as I remember they were not Party members, they were of the older generation, and they said that they had been treated in a way in which people should be treated only if they had violated service regulations. I then gave a precise account of the occurrence, made a report, and drew attention to the fact that such treatment of officials was untenable. To begin with, Berlin was against taking any interest and they used the well known slogan, “The interests of the people have to take precedence over the interests of the individual.” However, by again and again digging away at the matter, we succeeded in solving the problem in a way which was satisfactory to everybody concerned.

That was, for example, one of the duties with which we had to deal.

Q. As Gaugruppenwalter for the judges’ and prosecutors’ groups, did you have an office of your own?

A. I neither had an office of my own nor a staff of my own. I merely had my chair and my two hands. The work that I had to do there I did as an individual, and as a rule I wrote it out with my own hand. I then submitted the matters to the Gauwalter.

Q. Did you wear a uniform in that capacity?

A. Except when I was in the army, all my life I have never worn a uniform.

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Q. What offices were asked about the political attitude of a judge and a prosecutor, and who made out the final qualifications?

A. Political qualifications were exclusively made under the responsibility of the competent bearer of the sovereignty, that is, the Kreisleiter or the Gauleiter. For these questions they had a so-called Kreis personnel office, or Gau personnel office. When a so-called political qualification of a civil servant was to be made, these offices addressed inquiries to offices where the civil servant or official concerned was known; that is to say, if he was a member of the NSRB, they addressed an inquiry to the Gauwalter of the NSRB, or in another instance to the competent office of the Civil Service League, or to the Ortsgruppe, local group of the Party, or to the SA, or SS. The answers to these inquiries were then gathered at these offices and from there, if necessary, by reviewing or examining the facts that were reported the so-called political qualifications report of an official was made out. This political qualification report was made out because the supervisory offices of this civil servant by provisions of the law were obligated to form a judgment on this question with the intervention of the Party.

Q. How did this develop in your case, and according to what principles did that proceed?

A. That was an affair which caused the least difficulty. The Gauwalter gave the slip that had been sent in by the competent Party office to the Gau group administrator who was competent for that official. That was I, myself, in the case of inquiries regarding judges and prosecutors, as long as I was entrusted with that function. I then returned the slip after it was filled out to the Gau administrator again, who on his part then reported to the Party office.

It is important to know here that according to an express order a man who was a Party member was not permitted to be judged as politically unreliable as long as a Party disciplinary proceeding had not been carried out against him because of some established facts.

During the time of my activity in regard to that function, it is of significance that at that time almost all judges and prosecutors were members of the Party on account of the well known action on 1 May 1937.

Q. Did you hear of a case in which a judge or a prosecutor was described as politically unreliable? And if so, what happened to that man?

A. In my time I did not hear of such a case. The declaration which we made in every case had the following stereotyped contents: “Circumstances which could raise doubts as to the political reliability of the person concerned did not occur.”

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Q. The witness Elkar said literally, and I quote, “As far as I know, the relations between Zimmermann, Haberkern, and Rothaug were very close.” (Tr. p. 2896.) [Page 374, herein.]

How did you come to know Zimmermann, and what were your relations with him?

A. I have already pointed out that it was only in the course of 1940 that I met Zimmermann by accident when he was at the Blaue Traube.

Q. How often did he attend sessions of the Special Court when you were presiding judge, and do you know why he attended those sessions?

A. I cannot remember one single case when Zimmermann attended one of my sessions. However, it is possible that he attended at the case of Schmidt-Fasel, which has been discussed here several times.

Q. As to Haberkern, you have already testified that quite by accident, as a young assessor, you met him in 1926 and that for many years you had no contact with him. How and when did you hear that Haberkern was in Nuernberg?

A. That was in connection with the National Socialist change-over in 1933. In those days his name often appeared in the newspapers, and that was how I discovered that he was in Nuernberg and that he played a political role.

Q. You have already said that you did not resume contact, not even when against your will you were transferred to Schweinfurt. You have also given us your reasons. When and how was it that you renewed your relations with Haberkern?

A. It was in 1938 as far as I recollect. One day Haberkern rang me up and asked whether I was that Rothaug who in 1926 had stayed in his home. I told him that I was that man, and he was very pleased and asked me to come to see him and his wife. They were the owners of the Hotel Blaue Traube, Nuernberg. I told him that I would go to see him some day, and one day I did go to see him. That was how I came to the Blaue Traube.

Q. What were Haberkern’s offices in Nuernberg and the Gau Franconia?

A. He was Gau inspector, the leader of the Hotel and Restaurant Association, and he was also an Ortsgruppenleiter. I believe he was the Ortsgruppenleiter of the old city.

Q. Through this function did he have any contacts with your official position as judge?

A. No. The Gau inspector, according to his official duties, has to take care of internal matters of the Party. As a leader of the Hotel and Restaurant Association all he could have done was to find me some rooms for my summer holidays. I had nothing to do with his local group [Ortsgruppe] because I belonged to a different group.

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Q. Witness, did the Party offices in Party affairs have their own legal consultants?

A. In this connection, one must point out that every Party office, even the Ortsgruppenleiter, the leaders of the local groups, had their own legal offices. I had nothing to do with that matter.

Q. When were matters concerning legal questions brought to you?

A. Only if simultaneously they affected the interests of the NSRB, and even then only if they affected the interests of the Gau Group for judges and public prosecutors.

Q. Did the Gauleitung take any interest in the general administration of justice?

A. I never noticed that the Gauleitung of Franconia ever took any interest in the development of the legal situation.

Q. Did the legal situation play a decisive part in the Gauleitung?

A. I never noticed anything of that sort.

Q. At the table at the Blaue Traube that has been mentioned here so often, were there ever any discussions which have been laid down previously?

A. May I summarize my statement and perhaps say for the last time that I went to the Blaue Traube with the same intentions that other people had when they went there, and with which other people are in the habit of going to other pubs. As for conferences with agendas, they weren’t held there for the simple reason that that would have been parliamentary. I met other people there, too, but I didn’t meet anybody who went there with any political aims.

Q. Were official matters discussed there?

A. Not official, though Party matters were discussed there; but there, as I think happened in those days at every table in every pub, political things were discussed, and the war was discussed. If somebody were to ask me today what we talked about, I would not be able to give an account of even one trend of ideas that we discussed there.

Q. Did you ever go to Haberkern with your own affairs, that is to say, to get any of your own wishes of a personal nature fulfilled?

A. I never bothered Haberkern on any matter of that kind.

Q. Do you know whether other people from your entourage asked Haberkern for his help on their own behalf?

A. I heard that they did.

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Q. When the witness Ferber[229] mentioned the doubts which the Reich leadership harbored for your political reliability, he said that the SD took an interest in your remaining at Nuernberg. From the account of the witness Elkar, English transcript, page 2888, [page 369, herein,] we know that approximately in May 1940, you were called to a conference which was attended by Doebig, Bens, and the SS section leader, Friedrich, and that in that way you got into contact with the SD. What was the topic of those discussions when you joined in?

A. That matter was rather different. To begin with, Elkar came to me at my office. Then Obersturmbannfuehrer Friedrich called and also a Standartenfuehrer whose name I no longer remember. All those three men belonged to the SS. Those three men told me that they had come to call on me because they wanted to introduce themselves to me, and they wanted to try and establish good relations between their office and the administration of justice authorities.

Conditions in general were then discussed, in particular the fact that the administration of justice in certain press organs, above all the Schwarze Korps, was being subjected to continuous attacks. They considered that state of affairs undesirable, all the more so as they also knew that those articles were generally written on the basis of one-sided information. They also asked for my opinion as to what I would think of all questions which arose here in Nuernberg concerning the administration of justice, if they were to be dealt with to start with on a lower level before a report was made on a higher level. I thought that was a good idea. They asked me whether I would care to be the mediator. I suggested district court of appeals and the general public prosecutor since as it was, they had told me that they intended to call on those officials, too.

I would like to point out that the three of them had only called on me because Elkar had brought them along. As you know Elkar had been with me for training as a Referendar. At that time I had no idea what the SD was about, and what its functions were. The conference with Doebig and Bens was along the same lines and both men saw the point and agreed that it was quite a reasonable plan which had been submitted to them. They suggested that it might be a good thing to let these matters be dealt with through me because the cases which occurred with me were cases which were to be treated later.

I would subsequently be asked to attend that conference. I, myself—and I think it would have been the same with every human being—couldn’t imagine, or anyway, couldn’t imagine very well what was going to happen at that conference. That was the basis on which developments went along.

Q. What was Doebig’s attitude to Friedrich’s wishes?

A. I believe I have already answered that question. As usual, he was in favor of cooperation.

Presiding Judge Brand: May I ask you a question. It wasn’t entirely clear what you meant in your testimony. You suggested that investigations on a lower level should take place before the higher level. Investigations of what—what kind of matters?

Defendant Rothaug: Investigations is not the word I meant to say. I wanted to say that by negotiations, matters which concerned the administration of justice were to be settled on a lower level.

Q. What kind of matters—which concerned the administration of justice?

A. What we had in mind was attacks which within the sphere of the Party were made against the administration of justice. I can illustrate that by an example.

Q. It is not necessary now. No, I understood you to act under this suggestion as an intermediary. Was that your word?

A. That I was to become the intermediary?

Q. Yes, between what parties or what groups?

A. Between the SD and the administration of justice.

Q. Yes, and then you said since these matters are all matters to be dealt with by me afterwards, it was reasonable that you should be the intermediary. Did you refer to legal matters?

A. That concerned matters—cases which might be brought before me or which were already pending before me. Matters in which those agencies were interested for reasons of criminological developments, but they were not interested in the individual case as such, in its treatment, or in the decision.

Q. And what was the lower level where the matters were to be first discussed?

A. The main difficulties which arose and which gave cause to discuss this matter at all were made from up above—from a higher level. A report was made on some occurrence or other to the SD; the SD passed the matter on to Berlin; from there it was passed on as a rule without having been settled or even examined to the press where it caused a great deal of sensation.

Q. Was this lower level, to which you refer, the local representatives of the SD?

A. Yes, naturally.

Presiding Judge Brand: Go ahead.

Dr. Koessl: Now, Witness, tell us please, what was to be prevented by the discussions, the report to the higher level; what was it—was it that things were to be clarified after the higher level had dealt with it?

Defendant Rothaug: One cannot state all that in one reply in such a general way. With these questions it always depended on what the individual case was like; what the attending circumstances of the individual case was like; and it depended upon what the aims and object of the participants were. Without going into the matter of the individual case, it is impossible to give an objective answer.

Q. The witness Doebig said, “It was only a great deal later after I had left Nuernberg that I heard for certain that Rothaug worked in the SD.”[230] Later, Doebig stated that he remembered that the SD Leaders Friedrich and Elkar paid him a visit, but that he could not remember the subject which was discussed. Anyhow, he had never given an inference that the administration of justice would cooperate with the SD. (Tr. pp. 1865–1866.) What position did Doebig take?

A. I have already answered that question when I said that Doebig was altogether in favor of settling matters in that way.

Q. How often would Elkar call on you in the subsequent periods?

A. He said on Saturdays, and that makes it sound as if he had come every Saturday, but that is quite out of the question. He came on some Saturdays, but sometimes weeks passed or months until he came to see me again about some matter or other. As was the case with many other things that were organized within the sphere of the Party, they dragged on and finally nothing much was done.

Q. What did Elkar tell you during these discussions about the functions of the SD, regarding the state of the Party?

A. He told me, and I think that was probably right, that the SD as we saw it was an institution of the nature of an official agency; that is to say, it was an organization of the police type; its activities and functions can best be described as an agency that gathered the opinions of the people; one intended to find out what the people really thought on official measures taken by the government, that is to say what they thought about laws, about judgments, about other administrative measures, etc. Those reports were then to be evaluated and passed on the competent Supreme Reich Authorities to enable them in their governmental transactions and measures, to remain aware of the thoughts of the people. In all these reports therefore, what mattered was not to find out who the people were who were critical and undesirable, but on the contrary, the intention was to find out what people were really thinking; and therefore, it was undesirable and prohibited to prosecute in any way an individual who stated his opinion in this connection. That was roughly the scope of the functions of the SD.

Q. In the English transcript at page 2912, the witness Elkar mentioned the official character of the SD. I am showing you a book, and would ask you to tell the Tribunal what the title is.

A. The book is entitled Ministerial Gazette [Ministerialblatt]; it was issued by the Reich Minister of the Interior; it was published in 1938.

Q. Please turn to page 1906. At the right hand corner you will find a circular decree by the Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior, dated 11 November 1938. Please read out section 1 of that circular decree.

A. Under the heading police administration, it says, “Collaboration of the authorities of the administration with the SD was the subject of the Reichsfuehrer SS (SD) circular decree by the Reich Ministry of Interior, dated 11 November 1938.” Then, there is a file note. Then—“one: The SD of the Reichsfuehrer SS (SD), as information organization, intelligence organization for Party and State, has to work in particular in support of the security police and has to fulfill important duties. The SD thereby acts on the instructions of the State. That necessitates close understanding and cooperation between the SD and the authorities of the general and internal administration. In reply to inquiries by the SD, information has to be imparted therefore to the same extent as if inquiries had come from a government authority. The official agencies of the SD, in the same way, are under obligation to reply to inquiries of the general and internal administration.”

Q. Witness, what were the motives for which you met with Elkar and discussed matters with him?

A. The main cause was that he knew me from his former training period.

Q. You may continue.

A. I said Elkar knew me since the time when he was in training, because he was assigned to me. He was by nature a very faithful person, and at the time when he was not yet with the SD, I was connected with him by purely human relationships. That is how it came about that at that time, after he had taken up service with the SD and a connection with the administration of justice and the SD was sought, he came to me first for I was known to him; and that is how in the subsequent period the entire relationship was purely a matter of comradeship. This is shown best perhaps by the fact that one day Elkar informed me that he would probably be transferred to the RSHA in Berlin for further training. Thereupon, I told him that in that case I would also discontinue my activity because I would not start all over again with a new man.

Q. What descriptions did Elkar give you about the further handling of the SD reports in Berlin?

A. He said that the information which I gave him—which was usually an opinion on problems which were connected with the collection of comments from the people—he would incorporate into his reports. These reports in Berlin would then be divided according to whichever participating Reich agency was interested and put at the disposal of those offices.

Q. Did you have an insight into questions and tasks which were outside of the administration of justice?

A. I did not gain any insight into those questions.

Q. Did Elkar tell you anything about the activity of the SD Einsatzgruppen in the east?

A. No. I only found out about that now.

Q. Did Elkar speak to you about the so-called final solution of the Jewish problem by extermination, execution, or gassing?

A. No word was ever spoken about this. I do not believe that Elkar was informed about matters of that kind either.

Q. Did Elkar tell you about individual SD Fuehrers being entrusted with special tasks, as for instance, the feigned attack on the Gleiwitz radio station, or similar undertakings which were the subject of the IMT Trial?

A. Matters of that kind were not discussed among us. The examples you have cited became known to me only here in Nuernberg in the course of this trial.

Q. What was the basic line of your conversations with Elkar, or the basic topic?

A. As I have already stated, the conversations were mainly on problems which were raised by opinions which were gathered from the population. That then led to problems of a general nature, for example, the general development of wartime criminality in one field or another.

In general, that was the direction in which our conversations developed and that was also the aim of such conversations.

Q. Could everything be said in such conversations without restrictions?

A. I believe that that was the only possibility at that time in Germany where a person could say exactly what he was thinking; and the reason for that is because, in this connection in particular, only the truth was at stake for they were interested in finding out what the population was actually thinking in regard to certain events, measures, laws, speeches, judgments, etc.

Q. Do you know in what form these reports were forwarded?

A. That is not known to me; I never read such a report.

Q. According to Elkar’s testimony you directed your attention to the development of criminal and penal proceedings. (Tr. p. 2890.) What ideas did you represent?

A. I believe I have already stated my position on that question. I do not remember a great deal in detail regarding what was discussed at that time. One question, for example, which interested us and which demonstrates how we came to speak about these matters and what opinion we represented is the question which was frequently discussed in this trial, and that is the contact of the prosecution during the trial with the court because of the application for penalty. Opinions from circles of lawyers and judges and from the prosecution were gathered for this purpose at that time. I myself represented the opinion that this problem grew into a problem only because it was treated in a wrong manner on the part of the administration of justice. The entire question could be solved by a small remark in the “Deutsche Justiz,” namely, by pointing out that the law does not provide that a formal application has to be made, and therefore it would have been sufficient to instruct the prosecutors to refrain from a formal application for penalty and to be satisfied with adducing the evidence and then stating the reasons which spoke for and against the defendant. With that, the entire excitement and fuss which was caused by the formal application for penalty could have been avoided.

Q. What reason did you give for this suggestion?

A. The reason which I have just explained.

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Q. Elkar alleges that you had also talked about pending trials and had discussed also the facts as well as the legal situation and future judgment. (Tr. p. 2891.) Was the name of a defendant ever mentioned as long as trial was still pending?

A. The names of defendants never played any importance in these conversations. The manner of expression was general. The individual cases, as such, were of no importance at all and their outcome even less so. It is possible that in the most infrequent cases—as an example of a definite criminal deed, in order to demonstrate, for example, the method of the consequences of this crime and to use it in the discussions of general questions, that an individual case was mentioned, but not in a single case was it like this that Elkar ever was interested in a certain pending trial or even wanted to get information about the final outcome in advance; such an evaluation was not possible in practice at all for the decision could be given only on the basis of the trial after it was concluded. Thus, Elkar’s activity was not aimed at such a goal.

Q. By mentioning an individual case, did you ask for the opinion of the RSHA in order to find a basis for the political evaluation of the offense?

A. Never. I had no connections whatsoever to the RSHA. Moreover, such a method even in the Third Reich would have been an absolute impossibility, and it was never alleged that this occurred.

Q. Did you, in any individual case, receive an instruction from the RSHA or a recommendation to direct the trial in a certain direction under a certain point of view, or to pronounce a certain definite penalty?

A. This, too, was never alleged so far. Such a procedure, too, would have been an absolute impossibility. No office would have dared to suggest anything of that nature even.

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Q. We started with your relationships to the SD. On what formal basis were your relationships with the SD? Were you a member of the SD?

A. I was never a member of the SD; I don’t know either whether there was such a thing as a membership in the SD; or, whether the people were assigned to the SD from the SS. Only during this trial did I hear that there was such a thing as an actual membership in the SD. At that time I assumed that it was an institution of the nature of an official agency, the personnel for which was appointed by the SS. I never made any application for any membership in this institution; I never signed anything.

Q. Elkar says that in 1940 you had taken an oath as collaborator of the SD; that is in the English transcript at page 2896. Did you take an oath?

A. I can say this with absolute certainty, that I never took an oath in that connection. The possibility exists that it was called to my attention that matters which I found out in connection with such conversations were supposed to be kept secret. However, I do not have the slightest recollection of this either, so I cannot imagine that I was approached on this matter in a solemn ceremony. It is a fact, in any case—and this is why the people who worked for me also knew about these occurrences—that the matters which were discussed there, without exception, I believe, I had also discussed with them and among them. Thus, I had no thought of violating any secrets or any pledges of secrecy.

Q. What was the status called that you had with the SD?

A. In former times I never worried about that because for me it was not a question of practical importance as to what I would be designated as, since I had agreed to hold conversations of the type that I used to carry on with Elkar. Thus, in former times, there was no need to have some kind of a rank for that, or whatever you want to call it.

Q. Did you ever become a member of the SS?

A. I was never a member of the SS.

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b. New devices to change final court decisions—The “Extraordinary Objection” and the “Nullity Plea”

EXTRACT FROM LAW, 16 SEPTEMBER 1939, AMENDING REGULATIONS OF GENERAL CRIMINAL PROCEDURE, MILITARY CRIMINAL PROCEDURE, AND THE PENAL CODE

1939 REICHSGESETZBLATT, PART 1, PAGE 1841

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Part 2

Extraordinary Objection [Ausserordentlicher Einspruch]

Article 3

Extraordinary Objection to final judgments [rechtskraeftige Urteile][231]

(1) Against final penal sentences the Chief Reich Prosecutor at the Reich Supreme Court can file an objection within 1 year after the sentence has become final, if, because of serious misgivings as to the justness of the sentence, he deems a new trial and decision in the case necessary.

(2) On the basis of the objection, the special penal senate of the Reich Supreme Court will try the case a second time.

(3) If the first sentence was passed by the People’s Court, the objection is to be filed by the Chief Reich Prosecutor at the People’s Court, and the second trial is to be held by the special senate of the People’s Court. The same applies to sentences of courts of appeal in cases which the Chief Reich Prosecutor at the People’s Court has transferred to the public prosecutor at the court of appeal, or which the People’s Court has transferred for trial and sentence to the court of appeal.

(4) If there is a connection with a case which is under the jurisdiction of the military courts, the proceedings can be transferred to the jurisdiction of the armed forces by agreement between the Reich Minister of Justice and the Chief of the High Command of the Armed Forces. On the basis of the objection the case will then be decided by the special senate of the Reich Supreme Military Court (art. 410b of the Military Code of Criminal Procedure).

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Fuehrer Headquarters, 16 September 1939

The Fuehrer and Reich Chancellor

Adolf Hitler

The Reich Minister of Justice

Dr. Guertner

The Chief of the High Command of the Armed Forces

Keitel

EXTRACTS FROM THE TESTIMONY OF DEFENDANT LAUTZ CONCERNING THE EXTRAORDINARY OBJECTION[232]

DIRECT EXAMINATION

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Dr. Grube (counsel for defendant Lautz): When, in effect, did you assume your office as Chief Reich Prosecutor at the People’s Court?

Defendant Lautz: Due to illness, I only assumed office on 20 December 1939, in Berlin.

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Q. * * * Witness, first of all what general remarks do you have to make on the subject of the extraordinary objection?

A. The extraordinary objection, which was introduced in 1939, was based on a bill which had already been drafted. The purpose was to be able to correct obvious mistakes in judicial decisions, and thereby to effect uniformity in the practice of the courts.[233]

Q. In article 2, section 3 of the law of 16 September 1939, it says: “Against final criminal sentences, the Chief Reich Prosecutor at the Reich Supreme Court can file an objection within 1 year after the sentence becomes final, if, on account of serious misgivings against the justness of the sentence, he deems a new trial and decision in the case necessary.” In paragraph 3 of the same section, it says, “If the first sentence was passed by the People’s Court, the objection is to be filed by the Chief Reich Prosecutor at the People’s Court, and the second trial is to be held by the special senate of the People’s Court.” According to this, one should assume that the two Chief Reich Prosecutors were those who had to decide whether an extraordinary objection was to be made or not. Please comment on this.

A. This assumption would be incorrect. According to all the regulations and the constitutional basis of this law, it was without doubt that such a far-reaching statement could be made only by the head of the State for the government, because the extraordinary objection repealed the sentence which had been pronounced, and returned the case to the stage at which it was before the trial. Thus, if an extraordinary objection was raised, a new trial had to take place as if nothing had happened before. Therefore, through internal instructions, it was assured that the two Chief Reich Prosecutors, the one at the People’s Court and the other at the Reich Supreme Court, could raise an extraordinary objection only by virtue of an order of the Minister of Justice as the representative of the leadership of the State. And this is not expressed in the law because according to the German conception of a trial, the Minister of Justice cannot make any direct statements in a trial. The two Chief Reich Prosecutors, therefore, made these statements, as I said, only from case to case on orders of the Minister, which as a rule, were even issued so unequivocably that the statement which had to be made, with the reasons for it, was in each case prescribed to the Chief Reich Prosecutors. Thus, the Chief Reich Prosecutor just as the other authorities, for instance, the attorneys general or the presidents of the courts were not prevented, if they thought that there was a cause for it, from suggesting on their own to the Minister of Justice that he should issue such an order.

Q. Witness, the material decision as to whether an extraordinary objection should be raised or not was thus made in the Ministry?

A. The material decision was made exclusively by the Minister of Justice. That is, only he personally made it on the basis of a report made to him by his Referent personally. In particular it was like that; in case of every decree issued by the Ministry it had been assured that either by the signature of the Under Secretary or the Minister, or the division chief, it was made clear that the decision had actually been made by the Minister in this case.

Q. Did you ever raise an extraordinary objection without having an order from the Minister?

A. That never happened.

Q. You just said that the two chief Reich prosecutors as the officials, as supervising authorities of the administration of justice, for example, attorneys general, presidents of the courts of appeal, etc., had the right to suggest to the Minister of Justice that he should issue an order to raise an extraordinary objection. Did you make use of that possibility?

A. I only did so very infrequently on my own initiative. I still remember a few cases in which sentences pronounced by the senate presided over by Freisler were concerned. We were per se not very much inclined to attack sentences pronounced by our own court by such a legal recourse. However, Minister Thierack, though not much inclined to admit objections, occasionally could be made to do so in cases presided over by Freisler. The cases which are pertinent here, I may perhaps describe briefly. The first Senate of the People’s Court in one case had condemned a person to death because of treason. The facts were as follows: The defendant had transferred a model 38 machine gun into the hands of the enemy; he had obtained the machine gun and given it to an enemy agent. The enemy had known about this machine gun for a long time because they had captured many of these machine guns on the battlefield. Thus, only attempted treason could be the case, and the indictment was filed in that manner. Nevertheless, the Senate passed the death sentence. Here the extraordinary objection was permitted. A second case was a death sentence against a member of the Protectorate, the opinion of which consisted of three-quarters of a page by Freisler. In this case I suggested that this was not an opinion at all, since from the facts one could not find out at all what the defendant had done; and because of this legal mistake the extraordinary objection should be allowed. This extraordinary objection, therefore, was permitted.

Q. Witness, could the defense suggest an extraordinary objection?

A. Yes, the defense counsel could do it, too. The contents of such petitions frequently showed that pure clemency reasons were used by them as arguments in favor of an extraordinary objection, and not basic legal questions. In such cases it was suggested to them that they make a clemency plea. But, if the extraordinary objection was based on such grounds that there was a hope that it might succeed, I submitted it to the Minister of Justice and supported it. However, and I have stressed that here before, it was very difficult to get Thierack to allow extraordinary objection to be made in favor of a defendant.

Q. May I interpolate a question? Were you, as chief prosecutor, the competent official who had to deal with such extraordinary objections?

A. No, no, that was the Chief Reich Prosecutor of the Reich Supreme Court at Leipzig.

Q. Can you tell us something as to whether extraordinary objection was made frequently?

A. During the early part of the war, when the extraordinary objection was introduced, that is, until approximately 1942, it was a very infrequent occurrence. It was altogether the exception that it was made. From that time onward, however, their number increased slowly, but I cannot even give a rough estimate as to the number of extraordinary objections that were ordered. Originally, the Ministry of Justice, if a report was made by me as to whether an extraordinary objection was to be made—for example, in the case of a sentence passed by the court of appeals—originally the ministry was agreeable to my using again and again the phrase that the sentence gave rise to misgivings on some points, but these points were by no means of such a serious nature that the unusual recourse of the extraordinary objection should be used. That became different only when the new chief of Department IV of the Ministry of Justice, Ministerialdirektor Vollmer, assumed office. I asked him about this one day, and inquired from him how it was that these days the Minister more frequently ordered an extraordinary objection to be made. In reply he said, since the Fuehrer decree of August 1942, Thierack had all authority in the field of the administration of justice and, therefore, in the sphere of the extraordinary objection, too, he had more scope than hitherto.

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DECREE OF 21 FEBRUARY 1940 CONCERNING THE NULLITY PLEA

1940 REICHSGESETZBLATT, PART 1, PAGE 405

Decree concerning the jurisdiction of the criminal courts, the Special Courts, and additional provisions of criminal procedure of 21 February 1940.

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Part V

Nullity Plea [Nichtigkeitsbeschwerde] of the Chief Reich Prosecutor

Article 34

Prerequisites of the Nullity Plea

The Chief Public Prosecutor may lodge a nullity plea with the Reich Supreme Court against a final judgment of the local court, the penal chamber of the district court, or the Special Court, within 1 year from the date of its becoming final, if the judgment is unjust because of an erroneous application of law on the established facts.

Article 35

Decision on the Nullity Plea

(1) The nullity plea is to be filed in writing with the Reich Supreme Court. This court will decide thereon by judgment based on a trial; with the consent of the Chief Reich Prosecutor it can also reach a decision without a trial.

(2) The Reich Supreme Court can order a postponement or an interruption of the execution. It can order a warrant of arrest already before the decision on the nullity plea. Outside of the trial, the penal senate, composed of three members including the president, decide thereon. Article 124, paragraph 3, of the Code of Criminal Procedure remains unaffected.

(3) If the Reich Supreme Court reaches a decision based on a trial, articles 350 and 351 of the Code of Criminal Procedure apply accordingly. The president can order the personal appearance of the defendant.

(4) If the Reich Supreme Court quashes the contested sentence, it can make its own decision on the case if the facts found by the contested judgment are sufficient for this; otherwise it will refer the case to be retried and newly decided upon to the court whose sentence is quashed or to another court.

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Part VI

Final Regulations

Article 40

Validity in the Protectorate

This decree is also valid for the German courts in the Protectorate of Bohemia and Moravia.

Berlin, 21 February 1940

The Plenipotentiary for the Administration of the Reich

Frick

EXTRACTS FROM AFFIDAVIT OF DR. ESCHER, GERMAN ATTORNEY,[234] CONCERNING THE USE OF THE NULLITY PLEA

Dr. Ernst Escher, Attorney

Sworn Affidavit

As a result of questioning by the American prosecutors in the Nuernberg courthouse, I have the following declaration to make in connection with the questions set before me concerning the procedure of the so-called nullity plea by the Chief Reich Prosecutor:

1. Previous legal situation—It is true that the legal principle that a man cannot be tried twice for the same offense [ne bis in idem] is not clearly stated in the German Criminal Code, dated 22 March 1924, and since subjected to frequent editorial changes; this maxim, however, was repeatedly acknowledged in the so-called “motives” of that law. In all of the German legal terminology and literature, no doubt had ever occurred that an individual, once legally tried, could not be resummoned before a court for the same criminal act, without the introduction of additional evidence of proof. New proceedings against an accused who had been legally acquitted, could only be initiated in accordance with the rules concerning such a reconsideration of a once legally concluded trial (arts. 359 ff., in particular, art. 362 of the Criminal (Penal) Code).

The accused was therefore assured that, once he had been legally acquitted, he would not be summoned a second time before the court on the same charge.

These principles were never repealed in the Code of Criminal Procedure itself; they remained unaltered until the present, and the Criminal Code of 1946, issued by the [Allied] Control Council also incorporated them.

2. During the war, Hitler’s government, in a decree pertaining to the competence of the criminal and Special Courts and covering other regulations of criminal procedure, dated 21 February 1940 (Reichsgesetzblatt 1940, I, p. 405, in art. 5, pars. 34 to 37), created the procedure of the so-called nullity plea[235] by the Chief Reich Prosecutor and thereby annulled and destroyed this fundamental legal maxim. Within a year after a verdict became valid, according to this decree, the Chief Public Prosecutor at the Reich Supreme Court was empowered to use the nullity plea against the final sentences of the local courts of the criminal divisional courts and of the Special Courts if, due to an error in the application of the law to clearly established facts, the sentence could be regarded as unjust.

In a later decree, dated 13 August 1942, allowance was made for a further extension in the use of the nullity plea. Published in the Reichsgesetzblatt in 1942 (p. 508 ff.), this decree in article 7, paragraph 2, established the right of the Chief Public Prosecutor at the Reich Supreme Court to employ the nullity plea, if the decision due to an error in the application of the law was unjust, or if there were serious objections to the validity of the evidence on which the decision was based, or to the sentence itself.

By this decree, it became practically possible to employ the nullity plea against every final judgment and of summoning an accused man the second time before a criminal court despite the fact that his case had already been legally decided.

As is evident in the literature, and especially in the published decisions of the Reich Supreme Court, the nullity plea was not infrequently employed. I refer to the official collection of Reich Supreme Court decisions, volumes 74, 75, and 76 of the published decisions involving the nullity plea.

*******

I have been asked how the nullity plea of the Chief Public Prosecutor at the Reich Supreme Court was obtained legally. In this connection, I am only able to state that, according to regular procedure, the chief of the local prosecution—thus in Nuernberg, the Chief Public Prosecutor at the district court of Nuernberg-Fuerth—Chief Public Prosecutor Schroeder in the cases with which I was concerned—would send the documents with an appended suggestion to use the nullity plea first to the attorney general at the court of appeal (during the last years, Bens) and from there to the Chief Public Prosecutor at the Reich Supreme Court in Leipzig.

According to the text of the law, the nullity plea could also be employed to the advantage of the condemned. In one case, I myself filed a nullity plea with the Chief Public Prosecutor at the Reich Supreme Court. I was, however, informed that there was no justification for the instigation of the nullity plea.

[Signed] Dr. Ernst Escher

Attorney

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS ERNST ESCHER[236]

CROSS-EXAMINATION

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Dr. Schilf (counsel for defendants Klemm and Mettgenberg): Now I am going to refer to the factual contents of your affidavit. (NG-677, Pros. Ex. 188.[237]) This statement concerns itself exclusively with the problem of the nullity plea. Therefore, Witness, I will ask you whether you consider yourself a particular specialist on this problem and held yourself to be such an expert when, on 7 December 1946, you made that statement.

May I point out that the first part—I should like to say one half, the first half, is concerned with theoretical matters, that is to say, with the interpretation of the law. The remainder is concerned with facts. Furthermore, you refer to literature and also to decisions made by the Reich Supreme Court. May I ask you to give me your point of view?

Witness Escher: On no account can I say that I am an expert or that I have special knowledge of the problem of the nullity plea. We defense counsels, generally speaking, do not have much time to devote ourselves to scientific problems. As a rule we deal with problems only when they have been brought to us by our practical work. Concerning the theoretical aspect of the nullity plea, I have never in my practice studied it, in detail, but when the nullity plea, became topical, I examined the questions which a defense counsel has to investigate. When in December 1946 I was asked what I knew about the nullity plea, what I had to say about my knowledge of this matter, I mentioned the two cases which occurred in my practice. It seemed necessary to me, however, to give a brief introduction concerning the situation such as it was before the introduction of the nullity plea and such as I saw it after the introduction of the nullity plea. I read several decisions, but I would consider it conceit if I were to say that I possessed thorough knowledge of the problem of the nullity plea.

Q. Witness, in your practice you only came across two cases, isn’t that correct?

A. Yes.

Q. In spite of your statement, Dr. Escher, I have to discuss one theoretical question with you. In your introduction such as you characterized it just now, on page 2 under 2 of your affidavit, you have drawn a conclusion, that is a conclusion as to what the introduction of the nullity plea led to. You said, and I am going to quote literally: “The so-called nullity plea of the Oberreichsanwalt was created and thereby the basic legal principle, ne bis in idem, double jeopardy, was revoked and destroyed.” As you made such a far-reaching statement on that point, I would like to hear in brief as to what, at the time you deposited your affidavit, you understood by the legal principle ne bis in idem, double jeopardy. I noted you mentioned that principle twice. May I ask you to give a brief account to the Tribunal of your opinion as you held it at that time?

A. The principle of double jeopardy meant that a person on whom a legal verdict had been passed could not without new facts having emerged or without the condition of articles 359 and following of the Code of Penal Procedure applying, be retried by a court. Neither the prosecution nor the defendant after legal sentence had been passed could demand a new trial unless the conditions such as they are laid down in the law were fulfilled. That is, for example, perjury on the part of a witness, the finding of new documents or similar fundamental new aspects. By that principle the possibility of the nullity plea was eliminated. And that and not more is what I believe to have stated in my affidavit.

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Q. Witness, concerning your opinion on the principle of double jeopardy, your view that that principle was eliminated by the nullity plea, will you maintain your opinion in the face of what I am going to read to you now? It is a paper by Oberreichsanwalt Retzer, Leipzig, published in Deutsche Justiz, volume 1941, No. 20, page 562, I quote:

“It is doubtful whether the nullity plea is possible if the violation of the law which occurred refers to a condition of the trial. It is undisputed in the case of a violation of the principle of double jeopardy. The Supreme Reich Court in a great number of cases revoked sentences where the principle of double jeopardy had been violated.”

That is the end of the quotation. To make it clearer, the Supreme Reich Court revoked these decisions by way of the nullity plea, and four cases are quoted and the file numbers are given. My question—now that I have read this to you—do you maintain your opinion?

A. May I say briefly the nullity plea could only be made by the Oberreichsanwalt, but not only against the defendant but also in favor of the defendant. It was, therefore, altogether possible that the Oberreichsanwalt, if he considered a verdict unjust, should use the nullity plea in favor of the defendant. Such a case does exist, even if through certain circumstances or errors a man is sentenced twice for the same crime by different courts, which happened occasionally because, for example, it wasn’t known in the case of a Nuernberg case that this man had already been sentenced in Berlin. When that was revealed, the Oberreichsanwalt naturally could make use of the nullity plea in favor of the defendant. Such cases evidently are discussed in the decisions which my colleague has just put to me. In those cases, the nullity plea was a blessing and worked in favor of the defendant, but in most cases, or at least in very many cases, the nullity plea was used without any new facts or conditions, according to article 359 by the Oberreichsanwalt against the defendant.

Q. Witness, the essence of what I put to you is this: You said, by the nullity plea, the principle of double jeopardy has been destroyed, and the other author says that the nullity plea was in fact to protect that principle. I wanted to ask you whether you maintain your opinion, and you have not answered that question as yet.

A. I am of the opinion that the question, the way it is put, contains a little misunderstanding insofar as Retzer deals only with one special case of the nullity plea where it was made in order to revoke decisions which had been made in violation of the principle of double jeopardy. Naturally, the principle of double jeopardy was not expressly eliminated by so many words, but the effect of the introduction of the nullity plea was that a man, on whom a legal sentence had been passed without new facts or circumstances having come to light, could be retried by a court. Sometimes it could operate in his favor, but in the majority of cases it went against his interest, in my experience, that is.

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EXTRACT FROM THE TESTIMONY OF DEFENDANT ROTHAUG CONCERNING A CASE WHERE, AFTER A NULLITY PLEA, THE REICH SUPREME COURT CHANGED A PRISON SENTENCE TO THE DEATH SENTENCE WITHOUT REFERRING THE CASE BACK TO THE SPECIAL COURT OF FIRST INSTANCE[238]

DIRECT EXAMINATION

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Defendant Rothaug: * * * In order to elucidate how severe, for example, the Reich Supreme Court, in particular, generally judged the situation in those cases [sabotage cases during wartime] is demonstrated by the case in the list of the death sentences of the Special Court Nuernberg in which the notation is made—Sentence of the Reich Supreme Court. I believe it was in 1941. The following were the facts:

A Pole had given a civilian pair of pants to a Serbian PW in order to enable him to flee into his home country. In fact, the Serbian prisoner did escape. The Pole confessed; however, he denied decisively that he had intended that the Serb should join the Tito forces; that he only did it out of compassion. Therefore, we sentenced him to a penal camp, 3 years in a penal camp. Thereupon, a nullity plea was filed, the Reich Supreme Court changed the sentence, did not even refer it back to us, but quickly sentenced the Pole to death by stating that, in their opinion the facts which we had already determined ourselves, as I have just told you in a few brief sentences now, were absolutely sufficient to pronounce the death sentence.

And I still recall that the important point of view was—and I remember it, because I was interested—that it could not matter in wartime what concrete intentions he had but that it was absolutely sufficient that the Pole could have counted upon the possibility that the Serb would join Tito’s forces.

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