D. The Making and Application of Special Measures Concerning Nationals of Occupied Territories, Minority Groups and Races, and Alleged “Asocials”

1. INTRODUCTION

Under National Socialist ideology and practice a large number of German nationals were considered inferior or objectionable on racial and political grounds. After Hitler came to power in January 1933, German nationals were subjected to various discriminatory laws and practices, including protective custody in the hands of the police (usually the Gestapo or Secret State Police) or confinement in concentration camps. After Germany occupied the territory of neighboring countries, these practices were extended to non-German nationals. As the war progressed, the intensity of discrimination and persecution increased.

In the Justice case, one of the most important issues was the manner in which German criminal law was extended to the occupied countries. German penal legislation and special legislation applicable to Poles, Jews, and others was introduced in that part of western Poland usually referred to as the “Incorporated Eastern Territories.” Evidence concerning this aspect of the case appears below in section D2. (A similar type of question arose in cases where persons who were not Germans were compelled to work in Germany and accused of treason, of undermining Germany’s defensive strength, or of being public enemies. See section E, below.) In the occupied western areas the application of the Night and Fog decree was the principal measure involving the judicial process which affected the life and liberty of non-German nationals. Evidence concerning this matter appears below in section D3.

2. JEWS, POLES, GYPSIES, AND OTHERS

EXTRACTS FROM A REPORT[312] ON A CONFERENCE OF DEFENDANT ROTHENBERGER AND VARIOUS COURT PRESIDENTS, 1 FEBRUARY 1939, CONCERNING “RACE POLLUTION,” EXCLUSIONS OF JEWS FROM EMPLOYMENT, AND “THE LEGAL TREATMENT OF JEWS”

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

Present:

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

*******

II a. The Chief Public Prosecutor then spoke again on the treatment of women in cases of race defilement. The Fuehrer refuses an extension of culpability according to the blood protection law [Blutschutzgesetz].

Concerning complicity he pointed out the contradictory opinions of police and justice. The public prosecutors are to work according to the following directives:

If a woman merely denies the intercourse she will not be prosecuted. On the other hand, if the woman was an active accomplice—if she concealed the race defiler for instance—she will be prosecuted. If, at the same time, there are other offenses (perjury) complicity is to be omitted from the indictment. In such cases, however, a report is to be made to the Reich Minister of Justice.

Senator Dr. Rothenberger pointed out once more that it is the Fuehrer’s desire that the woman should not be punished. If, by mistake however, any person should be indicted or if according to the results of the main proceedings punishment because of complicity may be expected, the proceedings are to be quashed in all circumstances. He urged that the judges be instructed accordingly.

II b. The Chief Public Prosecutor then discussed the problem of prosecuting women for failing to register illegitimate births. In this case the Fuehrer is against punishment according to article 169 for mere concealment of the identity of the father; because he considers that in most cases the woman’s motive should be respected. The woman will be prosecuted, however, if she gives false information concerning the father’s identity.

Senator Dr. Rothenberger completed this statement by saying that it was the Fuehrer’s express wish that the woman be exempted from punishment; the Fuehrer had not yet made a final decision in the matter of false statements. It should therefore be arranged that in such cases the indictment be temporarily postponed according to article 169. If necessary, a legal regulation may be expected in the near future.

III. Concerning the extent of the cases tried in accordance with the gangster decree, the Chief Public Prosecutor reports that up to now 15 cases have been tried by special court in the Reich territory, most of them in Hamburg. Care must be taken that accomplices do not escape punishment through the carrying out of the trial before a Special Court. The complete verdict must, on principle, be submitted before the death sentence is carried out.

Senator Dr. Rothenberger declared that it would be advisable to make the fullest possible use of the possibilities of the gangster decree. The Hamburg cases were considered suitable in Berlin. The Ministry had now realized that summary courts of the Hamburg type offer the only proper solution; they will therefore be maintained.

Insofar as Berlin exerts pressure concerning the speed with which the verdicts are delivered, this pressure must not go beyond the field of the administration of justice and affect the judges. The verdict must be submitted before the death sentence is carried out. In his opinion a typewritten report on the oral verdict, as prescribed for Hamburg, is sufficient.

He considers that the publication of sensational reports in the press on such trials is extremely undesirable; there was general agreement on this. Senator Dr. Rothenberger promised that he would personally contact the competent authorities in order to stop such reports in the future.

*******

V. The Chief Public Prosecutor then reported briefly that civil servants with Jewish blood are on principle excluded from employment and that it is necessary to make a report on exceptions.

No pressure is to be put on civil servants to induce them to subscribe to the Party newspapers.

VI. Senator Dr. Rothenberger then stated the ministry’s opinion on various special questions concerning the legal treatment of Jews.

(1) In cases where a Jew asks a bailiff to execute a sentence against an Aryan, the bailiff is not authorized to refuse to do so.

(2) Aryan tenants of a Jewish landlord are obliged to pay rent.

(3) Jews enjoy protection against eviction and tenant’s protection to the same extent as Aryans.

(4) The order suspending execution also applies to Jews in accordance with the laws in effect. There may be exceptions in individual cases, when it is purely a matter of opinion, for example when a radio is seized.[314]

(6) The fact that a debtor is a Jew should as a rule be a reason for arresting him. However, it depends upon the individual case.

(7) Security for the costs of litigation must not be demanded from a Jew to a larger extent than from anybody else.

(8) Naturally, a Jew may be heard as a witness, but extreme caution is to be exercised in weighing this testimony. Senator Dr. Rothenberger requested that no verdict should be passed in Hamburg, when a sentence would exclusively be based on the testimony of a Jew.

Senator Dr. Rothenberger then requested the presiding and supervising judges to accordingly and urgently call the attention of the judges concerned to the questions dealt with.

LETTER FROM THE REICH MINISTRY OF JUSTICE, SIGNED BY DEFENDANT METTGENBERG, TO THE PRESIDENT OF THE DISTRICT COURT AND THE CHIEF PUBLIC PROSECUTOR IN HAMBURG, 1 APRIL 1939, CONCERNING THE REDESIGNATION OF JEWISH NAMES IN CRIMINAL PROCEEDINGS

Carbon Copy

The Reich Minister of Justice

III g^9 93/39

Berlin, 1 April 1939

[Stamp]

Through the President of the Court of Appeal and the

Attorney General, to 1412 Bls 1938—

To the

President of the District Court and the

Chief Public Prosecutor

Hamburg

Document reference made for: 400 1a

Subject: Criminal Case against the former physician Albert Israel Leopold for race defilement
11 K Ls 108/38

In the indictment of 17 October 1938 as well as in the verdict of 14 December 1938, Leopold’s profession is given as a physician, although his permit expired on 30 September 1938 pursuant to article 1 of the fourth ordinance of the Reich Citizenship Law of 25 July 1938 (Reichsgesetzblatt I, p. 969). This applies also to the report of the Chief Public Prosecutor to the Reich Minister of the Interior of 6 February 1939. In this connection also the given name Israel should have been added to the first name Albert pursuant to article 2, section 1 of the second ordinance of 17 August 1938 for the implementation of the law concerning changes of family names and first names.[315]

I ask you to take the necessary steps and especially to take care that in criminal cases against Jews which were filed prior to 1 January 1939 the names given will be rectified as far as this has not already been done.

By order

[typed] Signed: Dr. Mettgenberg

1. 1 copy to the president of the district court with the request to make further use of it.

2. 2 copies to the attorney general

3. Wegl

19 April 1939

LETTER FROM MINISTRY OF JUSTICE, SIGNED BY DEFENDANT SCHLEGELBERGER, TO MINISTER OF INTERIOR AND THE FUEHRER’S DEPUTY, 3 FEBRUARY 1940, TRANSMITTING DRAFTS OF DECREES FOR INTRODUCING GERMAN LAW INTO INCORPORATED EASTERN TERRITORIES, AND A MEMORANDUM OF THE REICH CHANCELLERY INITIALED BY LAMMERS AND DEFENDANT KLEMM

The Reich Minister of Justice

3200/4 1a-9-312

Urgent

To:

a. The Minister of the Interior

b. The Fuehrer’s Deputy[316]

Berlin W 8

Wilhelmstrasse 64

Subject: Introduction of the German Court Constitutional Law, and German Criminal Law in the Incorporated Eastern Territories

To a. In reply to communication dated 19 January 1940.

I East 40/40

4024

Enclosures: 3 drafts

I request agreement as soon as possible to the drafts enclosed—

(a) An order concerning the abolition of the district court of appeal at Marienwerder, and the modification of the court district.

(b) An order concerning the court organization and court constitution in the Incorporated Eastern Territories.

(c) An order concerning the taking effect of legal regulations in the sphere of the administration of criminal law in the Incorporated Eastern Territories.[317]

An additional draft concerning the introduction of legal regulations in the sphere of the administration of civil law will be dispatched at the same time.

I have likewise asked the Reich Minister of Economics and the Reich Minister for Public Enlightenment and Propaganda for their agreement with regard to article 1, I, Nos. 8, 10, and 11 of draft (c). Furthermore, I have asked for the agreement of the Reich Protector for Bohemia and Moravia concerning article 1, II, No. 2 of draft (c). The organization of the courts in the Incorporated Eastern Territories was completed several months ago, and German courts are working everywhere there and applying German law, without this application of law having found its legal basis. The Reich governor of the Reich Gau Wartheland in a letter dated 11 December 1939 told me that it is now desirable for the application of German law by German courts to receive a legal basis. Likewise the Reich governor of the Reich Gau Danzig/West Prussia had me informed that it would conform to his wishes if the German law were henceforth introduced legally in the Incorporated Eastern Territories. The introduction of German law is also necessary, because the regulation for the prevention of acts of violence in the Incorporated Eastern Territories, prepared by the Ministry of the Interior, tacitly implies the application of German criminal law and court constitutional law.

I note the following concerning the individual drafts:

1. Draft (a)—In this draft I have summarized those regulations from the draft of an order concerning court organization in the Incorporated Eastern Territories which I had dispatched together with a letter dated 26 October 1939—Ia-9-1961, according to which the district court of appeal at Marienwerder is to be abolished. At the same time the draft contains the measures necessary in this connection, and those for the relevant delineation of the court districts in the territory of the former Free City of Danzig.

2. Draft (b)—This draft regulates the court organization in the Incorporated Eastern Territories, with the exception of the territory of the former Free City of Danzig; at the same time it introduces court constitutional regulations, valid in the old Reich, into these parts of the territory.

3. Draft (c)—Reference to article 1—The temporary modifications of the law concerning criminal procedure contained in article 1, II, Nos. 1 and 2, are expressly desired by both Reich governors, and are essential with regard to the special circumstances in the Incorporated Eastern Territories.

The modification of the regulation of the Special Court dated 21 March 1933[318] provided for in article 1, IV, entitles the Special Courts in the Incorporated Eastern Territories temporarily to assume the character of a civilian court martial to a still greater extent.

Reference to articles 5 and 7—As, according to article 5, the execution of punishment is provided for to a certain extent on the basis of Polish verdicts, a reopening of the trial must be rendered possible for which German law is applicable. In addition there is a necessity to carry out anew legally closed Polish criminal proceedings in cases which have to be given special consideration. However, this should only occur in accordance with my order as set forth in article 5, section 2.

Reference to article 6—The regulation shall make it possible that dangerous habitual criminals and dangerous sexual criminals be rendered harmless by the subsequent order for protective custody or castration.

Reference to article 10—Thus, the actual German criminal law is also declared applicable to those crimes which were committed before the decree became effective in the Incorporated Eastern Territories. But in accordance with article 1, II, number 1, prosecution need not be enforced; also the public prosecutor only prosecutes if public interest requires subsequent punishment.

In consideration of the fact that the introduction of German law in the Incorporated Eastern Territories is imperative for reasons of legal security, may I request that the affair be expedited?

As deputy

[Signed] Dr. Schlegelberger

Enclosure c

Order regarding the Coming into Force of Legal Regulations in the Field of Administration of Justice in Penal Law within the Annexed Eastern Territories February 1940

By virtue of article 8 of the decree of the Fuehrer and Chancellor regarding the formation and administration of the Incorporated Eastern Territories of 8 October 1939 (Reich Law Gazette I, p. 2042) in the version of the decree of 2 November 1939 (Reich Law Gazette I, p. 2135) the following is decreed regarding the administration of justice in penal law within the annexed Incorporated Eastern Territories excepting the territory of the former Free City of Danzig:

Article 1

Coming into force of regulations of criminal law

It is ordered that within the sphere of administration of justice in criminal law the following laws and orders as well as the regulations decreed for the purpose of changing and supplementing them and the introductory, regulatory, and temporary regulations, in as much as it is not ruled otherwise:

I

1. The Criminal (Penal) Code for the German Reich.

2. The law against the criminal use of explosives which are dangerous to the public of 9 June 1884 (Reich Law Gazette, p. 61).

3. The law regarding the punishment of deprivation of electrical work of 9 April 1900 (Reich Law Gazette, p. 228).

4. The ordinance of the Reich President against unauthorized use of vehicles and bicycles of 20 October 1932 (Reich Law Gazette I, p. 496).

5. The law to ward off political illegal actions of 4 April 1933 (Reich Law Gazette I, p. 162).

6. The law to guarantee law and order of 13 October 1933 (Reich Law Gazette I, p. 723).

3200/4 Ia 2 312

I.P.O. 845

7. The law concerning insidious attacks against the State and the Party and for the protection of the Party uniform and insignia of 20 December 1934 (Reich Law Gazette I, p. 1269)[319].

8. The law against economic sabotage of 1 December 1936 (Reich Law Gazette I, p. 999)[320].

9. The law against highway robbery by means of car traps of 22 June 1938 (Reich Law Gazette I, p. 651).

10. The order on extraordinary measures concerning radio of 1 September 1939 (Reich Law Gazette I, p. 1683)[321].

11. Article 1 of the war economy decree of 4 September 1939 (Reich Law Gazette I, p. 1009)[322].

12. The order against public enemies of 5 September 1939 (Reich Law Gazette I, p. 1679)[323].

13. The Articles 1 and 4 of the ordinance for the protection against juvenile major criminals of 4 October 1939 (Reich Law Gazette I, p. 2000).

14. The order supplementing penal provisions for the protection of the Military Efficiency of the German people of 25 November 1939 (Reich Law Gazette I, p. 2319)[324].

15. The order against violent criminals of 5 December 1939 (Reich Law Gazette I, p. 2378)[325].

II

The Reich Code of Criminal Procedure, but for the present with the following provisos:

1. Article 152, paragraph 2 of the Reich Code of Criminal Procedure (compulsory prosecution) and the regulations of articles 172 to 177 of the Reich Code of Criminal Procedure (proceedings to enforce legal action) do not apply. The public prosecutor prosecutes acts which he deems necessary to be punished in the public interest.

2. The regulations of articles 374 to 394 and 395 to 406 of the Reich Code of Criminal Procedure (private prosecution, concurring action) only apply, if the injured person is a German national, racial German, national of the Protectorate Bohemia and Moravia or of a state which is not at war with Germany. The regulations of Reich law according to which an office of the state is authorized to join in the bringing of a civil action as coplaintiff remain unaffected.

3. Reopening [of proceedings] to the previous status [Wiedereinsetzung in den vorigen Stand] in case of failure of appearance at set term [Versaeumung einer Frist] (articles 44 to 47 of the Reich Code of Criminal Procedure) has to be granted even if the person failing to appear was prevented from appearing through no fault of his own.

III

1. The law concerning the indemnification of persons acquitted in the retrial of 20 May 1898 (Reich Law Gazette, p. 345).

2. The law concerning the compensation for innocently suffered pretrial detention of 14 July 1904 (Reich Law Gazette, p. 321).

3. The law concerning restricted information from the penal record and the canceling of penal entries of 9 April 1920 (Reich Law Gazette, p. 507).

4. The juvenile court law of 16 February 1923 (Reich Law Gazette I, p. 135).

5. The penal register order in the version of 17 February 1934 (Reich Law Gazette I, p. 140).

6. The law concerning interrogation of members of the National Socialist German Labor Party and its formations of 1 December 1936 (Reich Law Gazette I, p. 994).

7. The regulation concerning fees for witnesses and experts in the version of 21 December 1925 (Reich Law Gazette I, p. 471).

8. The law concerning court costs in the version of 5 July 1927 (Reich Law Gazette I, p. 152), insofar as it refers to penal matters.

9. The regulation concerning fees for attorneys at law in the version of 5 July 1927 (Reich Law Gazette I, p. 162), insofar as it refers to penal matters.

IV

1. The order of the Reich government concerning the formation of Special Courts of 21 March 1933 (Reich Law Gazette I, p. 136).[326]

2. Parts I, III, and IV of the order concerning the extension of the competency of Special Courts of 20 November 1938 (Reich Law Gazette I, p. 1632), but for the present with the following measures:

Article 16, paragraph 2 of the order of the Reich government concerning the formation of Special Courts of 21 March 1933 (Reich Law Gazette I, p. 136) does not apply. The Special Court will decide upon a reopening of the proceedings.

Article 2

Temporary annulment of the existing law

The penal law which at present has been valid in the annexed Incorporated Eastern Territories, except the area of the hitherto Free City of Danzig and which opposes the new law or which regulates the same subject, is canceled with the coming into force of the new law.

Article 3

Application of the new law

Insofar as a regulation coming into force cannot be applied directly, it has to be applied according to the meaning.

If a regulation coming into force refers to a regulation not yet valid in the annexed Incorporated Eastern Territories, this reference has to be interpreted according to the law valid there.

Article 4

Application of the law hitherto valid

The general regulations of the Criminal (Penal) Code for the German Reich have to be applied directly or according to meaning to criminal offenses which have to be judged according to the law valid up to now.

Insofar as a regulation of the law hitherto valid remains in force for the time being refers to a regulation which is going to be abolished, the corresponding regulation of the new law has to take its place.

Article 5

Reopening of the procedure

The reopening of the procedure against valid judgments of foreign courts is determined by the law coming into force.

The Reich Minister of Justice can order that procedures which have been finished by a valid judgment of foreign courts are to be reopened.

Article 6

Supplemental order of security and improvement measures

Part 5, Nos. 2 and 3 of the law against dangerous habitual criminals and concerning security and improvement measures of 24 November 1933 (Reich Law Gazette I, p. 995) is valid, with the proviso that * * * takes the place of 1 January 1934 as key date.

Article 7

Execution of sentence [Strafvollstreckung]

Punishments or other measures which have been passed as valid by a foreign court are only being executed if in each case the public prosecutor orders the execution. It is he who orders the way and the amount of the punishment or any other measure to be executed.

Article 8

Execution of sentence [Strafvollzug]

The execution of imprisonment sentences and the security and improvement measures concerning deprivation of liberty is determined by the principles of execution of sentence under the Reich law (part I of the order concerning the execution of terms of detention and security and improvement measures, which are connected with confinement of 14 May 1934, Reich Law Gazette I, p. 383).

Article 9

Fines

Legally passed fines are payed over to the Reich Treasury.

Article 10

Validity

The penal laws defined in article 1 under I and the articles 1 to 15 of the Juvenile court law of 16 February 1923 (Reich Law Gazette I, p. 135) apply also to criminal offenses that have been committed in the annexed Incorporated Eastern Territories before the coming into force of the order with the exception of the area of the hitherto Free City of Danzig.

Article 11

Authorization

The Reich Minister of Justice is authorized to issue the regulations and temporary regulations necessary for the carrying-out and completion of this order. He may administratively adjudicate upon cases of doubt which arise from the introduction of the new law.

Article 12

Effective date of the order

This order comes into force on...................., 1940.

Berlin,...................., February 1940

Berlin, 14 February 1940

Reference: Reich Chancellery 2573 B

Subject: Introduction of the German civil and commercial law in the Incorporated Eastern Territories

1. Comment—The Minister of Justice transmits a letter addressed to the Supreme Reich Agencies containing two drafts of the orders concerning the introduction of the German civil and commercial law in the Incorporated Eastern Territories. He asks for the submission of wishes for possible alterations. The drafts provide for the introduction of the entire civil and commercial law in the Incorporated Eastern Territories, excluding only the tenant protection law, the hereditary farm law, and the law for the clearance of debts and reduction of interest. Fundamentally, the German law as applicable in the Reich proper must be introduced; it will, however, be adapted by special supplementary regulations for the districts formerly under the jurisdiction of Austrian law.

The Minister of Justice justifies this by stating that the judges de facto already apply the German law, since they are in practice unable to interpret the Polish law. Although it was suggested during a conference of the under secretaries in the autumn of this year that more discretion should be used when introducing the German law for the present, the competent Reich governors now deem the introduction necessary; Reich Governor Greiser expressed this also in writing, as may be seen from the letter from the Minister of Justice, dated 3 February 1940, a copy of which is enclosed. The Minister of Justice asks that the introduction be effected at an early date.

No comments are necessary.

2. Duly submitted to the Reich Minister.

[Initial] L [Lammers] 16 February

3. To be filed.

[Initial] Kl [Klemm] 14 February

[Initial] F [Ficker]

February 13

DECREE OF 13 JUNE 1940 CONCERNING ORGANIZATION OF COURTS IN THE INCORPORATED EASTERN TERRITORIES

1940 REICHSGESETZBLATT, PART I, PAGE 907

By virtue of the decree of the Fuehrer and Reich Chancellor concerning organization and administration of the eastern territories of 8 October 1939 (Reichsgesetzblatt I, p. 2042), the following is hereby ordered:

Article 1

The courts in the Incorporated Eastern Territories shall render judgments in the name of the German people.

Article 2

The following statutes shall take effect in the incorporated territories:

1. The German law on the organization of courts.

2. The law on the jurisdiction of courts, with respect to changes in the division of courts, of 6 December 1933 (Reichsgesetzblatt I, p. 1037).

3. The decree concerning a uniform organization of courts, of 20 March 1935 (Reichsgesetzblatt I, p. 403).

4. The law concerning the distribution of functions in the courts of 24 November 1937 (Reichsgesetzblatt I, p. 1286).

5. The decree concerning qualifications for the offices of judge, public prosecutor, notary public, and attorney, of 4 January 1939 (Reichsgesetzblatt I, p. 5).

6. Decree concerning preparation for the offices of judge and public prosecutor, of 16 May 1939 (Reichsgesetzblatt I, p. 917).

7. Decree concerning measures in the organization of courts and the administration of justice, of 1 September 1939 (Reichsgesetzblatt I, p. 1658), and the implementing orders issued hitherto on 8 September and 4 October 1939 (Reichsgesetzblatt I, pp. 1703, 1944).

8. Decree concerning simplification of the legal examinations of 2 September 1939 (Reichsgesetzblatt I, p. 1606).

Article 3

This decree shall take effect as of 15 June 1940.

Berlin, 13 June 1940

Dr. Guertner

Reich Minister of Justice

Frick

Reich Minister of the Interior

DECREE OF 6 JUNE 1940 ON THE INTRODUCTION OF GERMAN PENAL LAW IN THE INCORPORATED EASTERN TERRITORIES[327]

1940 REICHSGESETZBLATT, PART I, PAGE 844

On the basis of articles 8 and 12 of the decree of the Fuehrer and Reich Chancellor on the organization and administration of the Incorporated Eastern Territories of 8 October 1939 (Reichsgesetzblatt I, p. 2042), the following is decreed on the administration of criminal law in the Incorporated Eastern Territories:[328]

*******

Article II

Special regulations with regard to criminal law for the Incorporated Eastern Territories

Section 8

(1) Anyone committing an act of violence against a member of the German armed forces or their auxiliaries, the German police including their auxiliary forces, the Reich labor service, or a German authority, or office, or organization of the NSDAP will be punished with the death penalty.

(2) In less serious cases, particularly when the perpetrator has allowed himself to be carried away by excusable violent excitement, a sentence of hard labor for life or for a certain period of time, or imprisonment is to be imposed.

Section 9

Anyone who willfully damages the equipment of German authorities, or things which further the work of the German authorities or serve the public welfare will be punished with the death penalty, and in less serious cases with hard labor for life or for a certain period of time, or with imprisonment.

Section 10

Anyone who instigates or incites disobedience of a decree or order issued by German authorities will be punished with the death penalty, and in less serious cases with hard labor for life or for a certain period of time or imprisonment.

Section 11

Anyone who commits an act of violence against a German on account of his being a member of the German ethnic community will be punished with the death penalty.

Section 12

Whoever willfully commits arson (arts. 306 to 308 of the Reich Penal Code) will be punished with the death penalty. [Page 846]

Section 13

Whoever conspires to commit a crime punishable in accordance with sections 8 to 12 [herein] or enters into serious negotiation thereon, and offers to commit such a crime or accepts such an offer will be punished with the death penalty, and/or in less serious cases with hard labor for life or for a certain period of time or imprisonment.

Section 14

(1) Anyone who receives authentic information of the project or carrying out of a crime punishable in accordance with sections 8 to 12 at a time when the carrying out or the success can still be averted and omits to give the authorities or person threatened due warning will be punished with the death penalty, and/or in less serious cases with hard labor for life or for a certain period of time or imprisonment.

(2) If the person upon whom it is incumbent to give warning, and who omits to do so is a relative of the perpetrator punishment can be waived if he has earnestly tried to restrain his relative from committing the act or to prevent its success.

Section 15

(1) Anyone who has failed to comply with the surrender obligation as stipulated in the decree of the Commander in Chief of the Army of 12 September 1939 (Ordinance Gazette for the Occupied Territories in Poland, p. 8) or is otherwise caught in unauthorized possession of a firearm, a hand grenade, or explosives will be punished with the death penalty; the same applies for the unauthorized possession of ammunition or other implement of war if by their nature or quantity public security is endangered.

(2) A sentence of hard labor or imprisonment will be passed if the perpetrator subsequently makes the delivery voluntarily, before the case has been brought before the court or an inquiry against him has been instituted. In this case punishment may even be waived.

(3) The person who has authentic cognizance of illegal possession of weapons, ammunition, explosives, or implements of war and fails to inform the official authorities accordingly without delay will receive capital punishment, in less severe cases hard labor for life or for a certain period or a term of imprisonment.

Section 16

(1) The provisions of sections 8 to 15 are not applicable to—

1. German nationals, ethnic Germans and nationals of the Protectorate of Bohemia and Moravia.

2. Nationals of states which are not participating in the present war against Germany.

(2) The Reich governors and provincial presidents are authorized to exempt from the regulations of sections 8 to 15 other ethnic groups too.

*******

Berlin, 6 June 1940

Reich Minister of the Interior

Frick

Reich Minister of Justice

Dr. Guertner

LETTER FROM DEFENDANT SCHLEGELBERGER TO LAMMERS, 17 APRIL 1941, CONCERNING “PENAL LAWS FOR POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES”

[Handwritten] submitted (last time)

Reich Chancellery

4.79 blb BBT 740 to 419/140

[Stamp] Reich Chancellery 5850 B 17 Apr. 1941

One Enclosure

The Reich Minister of Justice

9170 Eastern Territories 2-II a 2 996/41

To: The Reich Minister and Chief of the Reich Chancellery

Subject: Penal laws against Poles and Jews in the Incorporated Eastern Territories

[Handwritten] see statement of 22 April

Reply to letter of 28 November 1940

Reich Chancellery 17 428 B

1 Enclosure

I worked on the premise that special conditions in the Incorporated Eastern Territories also require special measures for the administration of the penal laws against Poles and Jews. As soon as the decree issued on 5 September 1939 by the Commander in Chief of the Army had introduced the Special Courts in the Incorporated Eastern Territories, I tried to make these courts, with their particularly prompt and energetic procedure, centers for combating all Polish and Jewish criminals. That I succeeded is shown by the very impressive numbers of cases dealt with by the Special Courts during the first 10 months of their activity in the Incorporated Eastern Territories. The Special Court in Bromberg, for instance, has sentenced 201 defendants to death, 11 to penal servitude for life, and 93 to terms of penal servitude amounting to 912 years in all, thus an average 10 years’ penal servitude for each individual. Only crimes of lesser significance were indicted at the local courts. On the other hand, the criminal courts were eliminated as far as possible as an appeal to the Reich Supreme Court against their judgment is permitted, and I wanted to prevent courts which were not entirely familiar with the special conditions in the eastern territories—even though it be the highest court in Germany—from giving a decision in these matters.

The aim of creating a special system of law [Sonderrecht] for Poles and Jews of the eastern territories was systematically pursued by the decree of 6 June 1940,[329] which formally introduced the German penal law applied in the eastern territories from the very beginning. In the sphere of the code of criminal procedure, compulsory prosecution no longer exists; the public prosecutor prosecutes only such acts which he thinks it necessary to punish in the public interest. The procedure of compulsory prosecution (arts. 172, et seq., of the Code of Criminal Procedure) was rescinded as it seems intolerable that Poles and Jews should in this way compel the German prosecutor to issue an indictment. Poles and Jews were also prohibited from raising private actions and accessory actions.

In article II of the introductory decree [of 6 June 1940], special cases for action [Sondertatbestaende] were annexed to the special system of law in the sphere of legal proceedings—cases which had been agreed upon with the Reich Minister of the Interior because they had become necessary. It was intended from the beginning that such special cases for action should be increased as soon as necessity arose. The decree for the execution and completion of the introductory decree mentioned in the letter from the Fuehrer’s deputy was meant to meet the requirements which had become known in the meantime; whereas the decrees mentioned also in said letter concerning the introduction of the right of extradition, and of the law concerning the use of weapons by persons entitled to the protection of forestry and game laws, are only remotely connected with the criminality of Poles and Jews, and are intended exclusively to develop the general coordination of law in the eastern territories. I shall try to bring about an agreement with the Fuehrer’s deputy in regard to both the last mentioned decrees, as well as the decree for the execution of the law for the cancellation of sentences, and the decree concerning criminal records.

On being informed of the Fuehrer’s intention to discriminate basically in the sphere of penal law between the Poles (and probably the Jews as well) and the Germans, I prepared—after preliminary discussions with the presidents of the district courts of appeal and the attorneys general of the Incorporated Eastern Territories—the attached draft[330] concerning the administration of the penal laws against Poles and Jews in the Incorporated Eastern Territories and in the territory of the former Free City of Danzig.

This draft amounts to a special system of law both in the sphere of actual penal law and that of criminal procedure. In this connection, the suggestions made by the Fuehrer’s deputy were taken into consideration to a great extent. Paragraph (3) of No. 1 contains a statement of facts in general terms, through which penal proceedings can be taken in future against any Pole or Jew belonging to the eastern territories who is guilty of punishable activities directed against the German race, and every kind of punishment is provided. This ordinance is supplemented by No. 1, paragraph (2), which is already contained in the preliminary ordinance, and which threatens the death sentence in cases of violence committed against a German by reason of his belonging to the German ethnic group. Furthermore, the cases in No. 1, paragraph (4) which are also contained in the preliminary ordinance, are only complements, which would perhaps no longer have been necessary in view of the new general statement of facts, but which I have included in order not to arouse a false impression that the scope of the acts liable to punishment according to this draft is more restricted than in the existing legislation. Finally, No. 2 makes it clear that a Pole will in any case also be punished for such acts as are punishable if committed by a German. Furthermore, the ordinance admits a wider application of the law in a manner appropriate to the requirements of the eastern territories. (Art. 2, Penal Code.)

I have already been in agreement with the opinion held by the Fuehrer’s deputy, that a Pole is less sensitive to the imposition of an ordinary prison sentence. Therefore, I had taken administrative measures to insure that Poles and Jews be separated from other prisoners and that their imprisonment be rendered more severe. No. 3 goes still further and substitutes for the terms of imprisonment and hard labor prescribed by Reich law other prison sentences of a new kind, viz, the prison camp and the more rigorous prison camp. For these new kinds of punishment, the prisoners are to be lodged in camps outside of prisons and are to be employed there on hard and very hard labor. There are also administrative measures which provide for special disciplinary punishment (imprisonment in an unlighted cell, transfer from a prison camp to a more rigorous prison camp, etc.).

The new kinds of punishment in No. 3 apply to all offenses committed by Poles and Jews, thus also to cases when the criminal commits a crime specified by the Penal Code. On the other hand, No. 3, paragraph (3), insures that the minimum penalty prescribed by German penal law and a mandatory penalty may be lessened if the crime was directed entirely against the criminal’s own nation.

The part concerned with procedure contains first the special regulations of the preliminary decree existing up to now. In addition, Poles and Jews sentenced by a German court are not to be allowed in the future any legal remedy against the judgment; neither will he have a right of appeal, or be allowed to ask for the case to be reopened. All sentences will take effect immediately. In future, Poles and Jews will also no longer be allowed to object to German judges on the grounds of prejudice; nor will they be able to take an oath. Coercive measures against them are permissible under easier conditions. Furthermore, an important point is that according to No. 10, paragraph (2), the locally competent court of appeal decides concerning a nullity plea, which insures that no court outside the eastern territories has anything to do with proceedings against Poles and Jews. Further, No. 12 gives the court and the prosecution an independent position, meeting all requirements, with regard to the law concerning the constitution of the courts and the Reich law of criminal procedure.

No. 13 makes the factual special legislation against Poles and Jews and the elimination of compulsory prosecution apply also in cases where the Polish or Jewish criminal does, in fact, reside in the eastern territories, but the crime has been committed in another part of greater Germany.

In my opinion, a special penal law against Poles and Jews in such a form would neither restrict the liberty of action of German offices and officials, nor allow Poles and Jews to profit from its introduction insofar as they would be able then to lodge unwarranted actions and complaints against German officials. Factual penal law provides for such an increase in severity in the penalties threatened that these will act as the strongest possible deterrent. Any hole in the law through which a Polish or Jewish criminal might slip is also closed. In the sphere of criminal procedure, the draft shows clearly the difference in the political status of Germans on one side and Poles and Jews on the other.

The introduction of corporal punishment, as discussed by the Fuehrer’s deputy, has not been included in the draft, either as a criminal sentence or a disciplinary measure. I cannot agree to this form of punishment as in my judgment it would not correspond to the level of civilization of the German people.

Criminal proceedings based on this draft will accordingly be characterized by the greatest possible speed, together with immediate execution of the sentence, and will therefore in no way be inferior to civilian court martial proceedings. The possibility of applying the most severe penalties in every appropriate case will enable the penal law administration to cooperate energetically in the realization of the Fuehrer’s political aims in the eastern territories.

I intend to have the draft submitted to the Ministerial Council for the Defense of the Reich for approval. I should like, however, to discuss the matter verbally with you prior to that, and to request you if possible to get the Fuehrer’s decision as to whether he agrees with the essentials of the intended regulations.

Acting Minister of Justice

[Signed] Schlegelberger[331]

DRAFT OF A PROPOSED ORDINANCE CONCERNING PENAL LAW FOR POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES, PREPARED BY DEFENDANT SCHLEGELBERGER AND SUBMITTED TO THE CHIEF OF THE REICH CHANCELLERY ON 17 APRIL 1941[332]

Ordinance concerning the administration of justice regarding Poles and Jews in the Incorporated Eastern Territories
Of....................1941

The Ministerial Council for Reich Defense decrees the following law:

1. Substantive Penal Law

I

(1) Poles and Jews living in the Incorporated Eastern Territories have to conduct themselves according to the German laws and to the instructions issued for them by the German authorities. They have to refrain from every act detrimental to the sovereignty of the German Reich or to the prestige of the German people.

(2) They will be punished by death if they commit an act of violence against a German on account of his membership in the German ethnic community.

(3) They will be punished by death, in less severe cases with an imprisonment, if they manifest an attitude hostile to Germany by hateful or inflammatory activity. Especially, if they talk in a way which is inimical to Germany or if they tear down or damage public announcements posted by German authorities or offices. Also, if they lower or damage the prestige or the welfare of the German Reich or the German people by their conduct in general.

(4) They will be punished by death, in less severe cases with imprisonment—

1. If they commit an act of violence against any member of the German armed forces or its auxiliaries, the German police including its auxiliaries, the Reich labor service, a German authority or office or an organization of the NSDAP;

2. If they deliberately cause damage to installations of the German authorities, or offices, or to things which are used in the course of their work or are established for the public interest;

3. If they encourage or stimulate disobedience against a decree or ordinance issued by the German authorities;

4. If they enter a conspiracy for committing any action punishable according to paragraphs 2, 3, and 4 No. 1–3. Also if they enter into earnest conferences about such actions or declare themselves willing to commit such or if they accept any such offer. Or, if they get reliable information about such an action or plan at a time when danger still can be averted and fail to report it in time to the authorities or to the threatened person;

5. If they are found in illegal possession of a firearm, of a hand grenade, of a weapon for stabbing or hitting, of explosives, munitions, or other war equipment. Also, if they receive reliable information about a Pole or Jew being in illegal possession of such things and fail to report this fact without delay to the authorities.

II

Poles and Jews will also be punished if they violate the German penal laws or if they commit an action which deserves punishment according to the basic principles of German penal law, in accordance with the requirements of national existence in the Incorporated Eastern Territories.

III

(1) Punishment will be meted out to Poles and Jews in the form of prison terms, fines, or confiscation of property. Prison terms will be meted out in the form of prison camp terms ranging from 3 months up to 10 years. In serious cases prison terms will consist of aggravated prison camp terms ranging from 2 to 15 years.

(2) The death penalty will be imposed whenever the law threatens such punishment. Also in cases where the law does not provide for the death sentence, this penalty will be imposed, if the committed action testifies to an exceptionally vicious character or if for other reasons the crime is a very serious one. In such cases the death penalty will be permissible also in the case of juvenile criminals.

(3) A lesser punishment than the minimum term of a penalty as prescribed by the German penal code and any degree of punishment mandatorily prescribed are not to be imposed except in cases where the crime is directed exclusively against the ethnic group of the perpetrator himself.

(4) Any fine which cannot be collected will be replaced by a prison camp term ranging from 1 week to 1 year.

2. Penal Procedure

IV

The public prosecutor will prosecute crimes committed by Poles and Jews, the punishment of which he thinks necessary in the public interest.

V

(1) Poles and Jews are to be judged by the Special Court or by the district judge.

(2) The public prosecutor is authorized to bring about indictment in all matters before the Special Court. He may file a suit before the district judge if no severer punishment than 5 years prison camp or 3 years aggravated prison camp is to be expected.

(3) The competency of the People’s Court remains untouched.

VI

(1) Each sentence has to be executed immediately. The public prosecutor, however, may appeal to the Oberlandesgericht from sentences passed by the district judge. The period set for motions in arrest of judgment is 2 weeks.

(2) Also, the public prosecutor alone is entitled to the right of complaining. Complaints are decided upon by the Oberlandesgericht.

VII

Poles and Jews cannot refuse German judges as being prejudiced.

VIII

(1) Arrest and preliminary custody are always permissible if there is a strong suspicion of the accused having committed the crime.

(2) In the course of the preliminary proceedings the public prosecutor also may order arrest and the use of other permissible means of coercion.

IX

Poles and Jews serving as witnesses do not take the oath during proceedings. To all untrue, unsworn evidence presented in court regulations regarding perjury and unwittingly false oath are to be applied, according to their sense, to false depositions in court not made under oath.

X

(1) The reopening of the proceedings can only be ordered by the public prosecutor. Request for reopening of the proceedings contrary to a sentence passed by the Special Court are decided upon by the latter.

(2) The nullity plea is up to the public prosecutor, it is decided upon by the Oberlandesgericht.

XI

Poles and Jews neither can file private suits nor bring about action as coplaintiffs.

XII

The proceedings are conducted by court and public prosecutor on the basis of the German law for penal procedure in full accordance with their sense of duty. They may deviate from the regulations given in the law about the constitution of courts and in the legal principles for Reich penal proceedings, in all cases where it seems practical for the carrying through of the proceedings rapidly and energetically.

3. Civilian Court Martial Proceedings

XIII

As far as the Incorporated Eastern Territories are concerned, the Reichsstatthalter (Oberpraesident), with the consent of the Reich Minister of the Interior and the Reich Minister of Justice, for the area under his jurisdiction or single parts of it, may order that Poles and Jews be sentenced, until further notice, by a civilian court martial. This will take place in cases of serious violence committed against Germans as well as on account of other crimes which seriously endanger the German construction work.

As sentence, sentence of death will be imposed by the civilian court martial. The civilian court martial may also refrain from punishment and may instead pronounce transfer to the Secret State Police.

All details regarding the members of the civilian courts martial and their procedure will be settled by the Reichsstatthalter (Oberpraesident), with the consent of the Reich Minister of the Interior.

4. Extent of the Area of Jurisdiction

XIV

(1) The regulations I to IV of this ordinance will equally affect Poles and Jews, who had their place of residence, or permanent abode, within the territory of the former Polish state on 1 September 1939, and who have committed the crime within any other territory of the German Reich outside the Incorporated Eastern Territories.

(2) In addition, the court of the place of residence or abode at the respective time, is locally competent. For that court the regulations, given under V-XII, also apply.

(3) Paragraphs 1 and 2 are not applicable to crimes which are sentenced by courts of the Government General.

5. Concluding Regulations

XV

Poles in the sense of the ordinance are all proteges and stateless persons who belong to the Polish racial community.

XVI

Article II of the ordinance of 6 June 1940,[333] concerning the introduction of German penal law into the Incorporated Eastern Territories, (Reich Law Gazette I, p. 844) does not apply any more to Poles and Jews.

XVII

The Reich Minister of Justice, in full accord with the Reich Minister of the Interior, is authorized to issue the legal and administrative instructions necessary for the carrying through and supplementation of this ordinance. Dubious questions, regarding the administrative procedure, are to be decided by him.

XVIII

This decree comes into force on the fourteenth day after its publication.

Berlin, the....................1941

The Chairman of the Ministerial Council for the Defense of the Reich

The Plenipotentiary General for the Administration of the Reich

The Reich Minister and Chief of the Reich Chancellery

FILE NOTE OF THE REICH CHANCELLERY, 22 APRIL 1941, CONCERNING SCHLEGELBERGER’S DRAFT OF A PROPOSED DECREE ON PENAL LAW FOR POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES

Berlin, 22 April 1941

Reich Chancellery 5850 B

Subject: Penal Law for Poles and Jews in the Incorporated Eastern Territories

1. Note—The Minister of Justice transmits a draft of a decree of the ministerial council on criminal law applicable to Poles and Jews in the Incorporated Eastern Territories and in the city of Danzig.[334] Through the decree of 6 June 1940 the German criminal law has been introduced in the eastern territories to its fullest extent. On 20 November 1940 the Fuehrer’s deputy, in a detailed statement, took the position that this was a mistake, in as much as the Poles would thereby be placed under the German criminal law. The Fuehrer’s deputy demanded that a special criminal law and a special criminal procedure be provided for Poland. The particulars are contained in the note of 26 November 1940.

The proposals, contained in the draft of the decree of the Minister of Justice and explained in the letter accompanying it, are far-reaching in compliance with the wishes of the Fuehrer’s deputy.[335] The draft establishes a draconic special criminal law for Poles and Jews, giving a wide range for the interpretations of the facts of the case, with the death penalty applicable throughout. The conditions of imprisonment are also much more severe than provided for in the German criminal law. (Instead of imprisonment in jail or in penitentiary—prison camps and special prison camps.) Beside this special criminal law, in a subsidiary way, the German criminal law is applicable. (II.) Provisions of criminal law which might be used to obstruct the procedure have been eliminated (the opportunity of the defendant for an appeal, compulsory indictment, the challenge of a judge, compare also art. XII, S. 2). The Minister of Justice differs only in two points from the suggestions of the Fuehrer’s deputy—

a. The Fuehrer’s deputy considered it more appropriate to authorize the Reich governors [Reichsstatthalter] (and therefore also the two provincial presidents) to introduce the special criminal law, whereas the Minister of Justice provides for its introduction by a Reich decree.

b. The Fuehrer’s deputy considers the introduction of corporal punishment—the Minister of Justice declines to do so. The Minister of Justice intends to introduce this draft and have it passed by the ministerial council. Under Secretary Schlegelberger desires to discuss this matter first with the Reich Minister and would be pleased if the Reich Minister would secure the Fuehrer’s decision concerning the principal features of the intended regulation.

[Illegible handwriting]

[Initial] F [Ficker]

[Stamps] resubmitted office 3/5

2. Submitted to the Reich Minister.

[Initial] L [Lammers]

25 April

This matter should be first discussed with Under Secretary Schlegelberger, [Handwritten] who would be ready to come to [Hitler’s] headquarters. On information of Ministerial Counsellor Schaefer, (Reich Ministry of Justice), Under Secretary Schlegelberger will at this meeting also have some information on the Governor General’s attitude.[336]

[Initial] L [Lammers] 3 May

[Stamp] Resubmitted

Office 5/5

[Initial] L [Lammers] 12 May

[Stamp] Resubmitted

Office 12/5

1. A report to the Fuehrer is not to be considered. First of all a discussion with Under Secretary Schlegelberger is necessary.

[Initial] L [Lammers] 13 May

[Stamp] Resubmitted

Office 20/5/41

[Initial] L. [Lammers] 22 May

In the meantime an opinion of the Reich Leader H [Himmler] has been received.

MEMORANDUMS OF THE REICH CHANCELLERY, 27 MAY 1941, CONCERNING CRIMINAL LAW TO BE INSTITUTED IN THE INCORPORATED EASTERN TERRITORIES, INCLUDING COPIES OF LETTERS TO DEFENDANT SCHLEGELBERGER, BORMANN, AND HIMMLER

[Handwritten] see Rk. 8621 B.

To Rk. 7592 B, 7760 B

Fuehrer Headquarters, 27 May 1941

After the report to the Reich Minister

Subject: Civilian court martial and right of pardon in the Warthegau. Administration of criminal law in the Incorporated Eastern Territories

1. Remarks:

[Handwritten marginal note.] To Rk 7592 B:

It may be pointed out in completion that a ruling in regard to the Warthegau will bring about not only a corresponding ruling for the Gau Danzig-West Prussian but also for the new territories of East Prussia and Silesia. Thus, for example, in the last named territories the right of pardon for capital crimes also must be transferred to the Provincial president.

[Handwritten marginal notes.]

Rk 7760 B1b

blue[337]

In the meantime a letter from the Reich Leader SS (signed Heydrich) on this subject has been received here. The Reich Leader SS agrees to the special penal code for Poles in material matters—as provided for in the draft of the decrees submitted by the Minister of Justice—but in addition he asks for civilian court martial under police jurisdiction and requests that this be presented to the Fuehrer when the Reich Minister makes his intended report.

[Handwritten marginal notes.]

pink

yellow

The introduction of civilian courts martial in the Incorporated Eastern Territories is an old desire of the Reich Leader SS and was proposed in the draft of a decree of the ministerial council of the General Plenipotentiary for the Reich administration, dated 21 February 1940—compare Rk 3215 B-40—; see note of 27 February 1940. The introduction was rejected at the time on the basis of objections made by the Reich Marshal to civilian courts martial—compare Rk. 5026 B of 21 March 1940.

[Handwritten marginal note.]

Justice 3

(Copy number 2) (copy number 2)

(to Rk 7411 h40 letter 13) (Justice 12)

pale violet

The Fuehrer’s decision corresponds to the desire of the Reich Leader SS as far as the Warthegau is concerned in the meantime. It is not considered advisable to report this to the Reich Leader SS unless the minister in charge has been notified of the Fuehrer’s decision. The Reich Leader SS further requests a copy of the comments of the Minister of Justice dated 17 April 1941—Rk. 5850 B.[338] He should be referred to the Minister of Justice concerning this request.

[Handwritten marginal note.] pale violet

[Initial] F [Ficker]

The Reich Minister and Chief of the Reich Chancellery

Fuehrer Headquarters, 27 May 1941

Rk. 7760B

Urgent!

2. To the Reich Minister of Justice.

(Copy for 2.)

Subject: Administration of criminal law in the Incorporated Eastern Territories

In reference to your letter of 17 April 1941
—9170 Eastern Territory 2-II a-2-996/41

[Handwritten marginal note.] pale violet

The Gauleiter and Reichsstatthalter Greiser reported to the Fuehrer that an increasing number of acts of sabotage were committed in his Gau by Poles. In the Landkreis Lódz it even happened a few days ago that while the Reichsstatthalter was speaking in an old Swabian settlement, a German policeman was stoned to death in a neighboring village. In this case the Reichsstatthalter, according to his report to the Fuehrer, gave orders that not only the culprits but 12 hostages as well should be executed on the spot and under the eyes of the entire village population, who were assembled at the spot. In view of these sabotage acts the Reichsstatthalter asked the Fuehrer for authority to reestablish civilian courts martial. He proposed to appoint the local representative of authority as president, with police officer and a security police leader as members of the court. No sentences other than death or concentration camp are to be given by these civilian courts martial. There must be no possibility of appeal. The Fuehrer decided that Gauleiter and Reichsstatthalter Greiser be given authority as requested to set up the civilian courts martial which he had proposed.

The Reichsstatthalter further reported to the Fuehrer that he had asked you to delegate to him the right of pardon in regard to Poles punished by the courts. The Fuehrer has decided that this desire of the Reichsstatthalter is also to be complied with.

I beg to inform you of these decisions taken by the Fuehrer and to ask you to take the necessary implementing steps without delay. I leave it to you to consider whether it is advisable to include this ruling on the basis of the above-mentioned decisions of the Fuehrer, in whole or in part, in the draft of the decree which you have prepared concerning the administration of criminal law against the Poles and Jews in the Incorporated Eastern Territories and in the territory of the former Free City of Danzig. I ask you to report to the Fuehrer, for my attention, on the measure you have taken. [Handwritten] as soon as possible

A photo copy of a letter received here from the Reich Leader SS and Chief of the German Police in the Ministry of the Interior is enclosed for your information.[339] May I leave it to your discretion to send to the Reich Leader SS and Chief of the German Police a copy of your comments, as requested in the last sentence of the letter.

[In margin] Bzf. Photo copy

of Rk. 7760 B

(Name of the Reich Minister)

3. To Reichsleiter Martin Bormann, at present Obersalzberg.

Subject: Administration of criminal law in the Incorporated Eastern Territories

In answer to the letter of 24 May 1941—Bo/Si—.

Esteemed Mr. Bormann!

For your information I beg to submit herewith a copy of my letter of today’s date to the Reich Minister of Justice, concerning the establishment of civilian courts martial and the transference of the right of appeal in the Reichsgau Wartheland.

Heil Hitler!

Respectfully

(Name of the Reich Minister)

4. To the Reich Leader SS and Chief of the German Police,

Reich Ministry of the Interior,

Berlin SW 11

Prinz-Albrecht-Strasse 8

Subject: Administration of criminal law in the Incorporated Eastern Territories

Reference: Letter of 16 May 1941-S-II A 2 (new) No. 127/41-173-1

I have forwarded a photo copy of your letter of 16 May 1941 to the Reich Minister of Justice for his information. I have asked him to forward to you a copy of his comments as requested in the last sentence of your letter.

(name of the Reich Minister)

5. After sending it off

Min. Dir. Kritzinger for information.

6. Follow up after 1 month.

[Initial] L [Lammers]

(name of the Reich Minister)

[Initial] F [Ficker]

27 May

DECREE OF 31 MAY 1941 CONCERNING THE INTRODUCTION OF THE NUERNBERG RACIAL LAWS IN THE INCORPORATED EASTERN TERRITORIES

1941 REICHSGESETZBLATT, PART I, PAGE 297

By virtue of article 8 of the Decree of the Fuehrer and Reich Chancellor, of 8 October 1939 (Reichsgesetzblatt I, p. 2042), it is hereby ordered:

Article 1

In the Incorporated Eastern Territories the following are applicable:

(1) The Reich Citizenship Law of 15 September 1935[340] (Reichsgesetzblatt I, p. 1146).

(2) Article 2, paragraph 2; article 4, paragraphs 1 and 3; article 5; article 6, paragraph 1; and article 7 of the first amendment of the Reich Citizenship Law of 14 November 1935 (Reichsgesetzblatt I, p. 1333).

*******

Article 3

In the Incorporated Eastern Territories the Law for the Protection of German Blood and German Honor of 15 September 1935[341] (Reichsgesetzblatt I, p. 1146), and the first decree concerning the execution of this law of 14 November 1935 (Reichsgesetzblatt I, p. 1334), as well as the decree supplementing the first executive decree for the Law for the Protection of German Blood, of 16 February 1940 (Reichsgesetzblatt I, p. 394) shall be applicable.

Article 4

(1) This decree shall take effect 1 week after promulgation.

(2) Part I, article 7 of the Decree concerning the introduction of the German Criminal Law in the Incorporated Eastern Territories, of 6 June 1940[342] (Reichsgesetzblatt I, p. 844), shall be applied to violations of the provisions for the Protection of German Blood and German Honor.

Berlin, 31 May 1941

The Reich Minister of the Interior

As deputy: Dr. Stuckart[343]

The Chief of the Party Chancellery

M. Bormann

The Acting Reich Minister of Justice

Dr. Schlegelberger[344]

SECOND EXECUTIVE DECREE, 31 MAY 1941, FOR THE EXECUTION OF THE LAW FOR THE PROTECTION OF GERMAN BLOOD AND HONOR

1941 REICHSGESETZBLATT, PART I, PAGE 297

By virtue of article 6 of the Law for the Protection of German Blood and German Honor of 15 September 1935 (Reichsgesetzblatt I, 1935, p. 1146), the following is hereby decreed:

Article 1

The protection afforded to German blood or to blood racially related to German blood by the Law for the Protection of German Blood and German Honor of 15 September 1935 (Reichsgesetzblatt I, p. 1146), and its first executive decree of 14 November 1935 (Reichsgesetzblatt I, p. 1334), as amended by the supplementing decree of 16 February 1940 (Reichsgesetzblatt I, p. 394), shall not extend to former Polish nationals, unless they have acquired German nationality or have been entered in the list of German nationals [deutsche Volksliste] by virtue of the decree of the Fuehrer and Reich Chancellor concerning the organization and administration of the eastern territories of 8 October 1939 (Reichsgesetzblatt I, p. 2042).

Article 2

(1) This decree shall be applicable in the Incorporated Eastern Territories, too.

(2) It shall take effect one day after promulgation.

Berlin, 31 May 1941.

The Acting Reich Minister of the Interior

As deputy: Dr. Stuckart

The Chief of the Party Chancellery

M. Bormann

The Acting Reich Minister of Justice

Dr. Schlegelberger

CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO THE PRESIDENTS OF THE COURTS OF APPEAL AND ATTORNEYS GENERAL, 24 JULY 1941, ENTITLED “MILD SENTENCES AGAINST POLES”

The Reich Minister of Justice

9170 Eastern territories 2-III

4 1137.41

1. To the Presidents of the Courts of Appeals and the Attorneys General (with the exception of Prague).

2. Through the Reich Protector of Bohemia and Moravia to—

The Presidents of the Courts of Appeals and the Attorney General in Prague.

Subject: Mild sentences against Poles

Attached: 1 compilation
8 additional copies for the Chief Public Prosecutors

Despite my constant allusions to this matter during conferences and in individual instructions, I am time and again notified of sentences by which Poles in the Reich proper are given entirely insufficient prison sentences for sexual and other serious crimes. Such sentences reveal an incomprehensibly lenient attitude toward the Polish nation which confronts us with implacable enmity. They constitute a danger to the security of the German people and justify the reproach that the administration of criminal law has not proved adequate to the necessities of war.

To make this point clear, the attachment lists a few of such sentences against Polish criminals which have been changed by special instructions or which I had to have altered by way of the nullity plea.

I want to express my firm expectation that the officials of the justice administration will not fail to recognize the serious danger this constitutes for our people; and, last but not least, for the stability of the administration of criminal law. I, therefore, expect that from now on measures will be taken against Polish criminals in the Reich proper with all the necessary firmness and with the heaviest sentences in accordance with article 4 of the decree against public enemies.[345] Elements clearly criminal and sexual criminals of Polish nationality must, as a rule, be punished by death. That the application of article 4 of the decree against public enemies is principally justified in the case of crimes committed by Poles in the Reich proper has been recognized by the Reich Supreme Court in its decision C 258. 41 of 19 June 1941 with the following explanations:

“If * * * it is noted that entire groups of culprits * * * possess fewer inhibitions with regard to certain crimes than the German people in general, the protection of law and order demands greater watchfulness as to the resulting dangers. The demand for retribution and the deterrent effect would be seriously impaired if the administration of justice would grant such culprits any right of obtaining mild penalties.

The established fact that the defendant, a Pole, sexually assaulted a German girl should have caused * * * the court to examine the question of whether or not the characteristics of a crime, as defined in article 4 of the decree against public enemies, were present. There is reason to assume that the defendant in his assault on a juvenile female fellow worker made use of the absence, caused by war conditions, of male workers who might otherwise have been able to come to her aid, and that the circumstances of his crime, in addition, are of such reprehensible kind that they reveal a criminal possessing the essential characteristics of a public enemy * * *.”

In addition to this, it must be considered that Poles are now entering Germany only as a result of the wartime shortage of German labor and that as a result of the decrease of police forces, likewise due to the war, the necessary police supervision over Poles which would have been possible under normal peacetime conditions is no longer guaranteed.

The Acting Minister

[Typed signature] Dr. Schlegelberger[346]

Certified: [Signed] Bierwith

Administrative Assistant

[Ministerialskanzleiobersekretaer]

[Stamp]

Ministry of Justice

Office of the Minister

Tribunal handing down the sentencePerpetratorCrimePenaltySentence handed down onRemarks
Jury at the district court of Bielefeld.MaziarzAttempt to rape two German women.1 year, 3 months, of hard labor, lunatic asylum.23 September 1940Shot because of resistance on 16 November 1940.
Penal chamber of the district court of Lueneburg.WojcieckSexual crime committed by violence.1 year of imprisonment.21 October 1940Nullity plea, sentence was repealed and referred back by Reich Supreme Court because section 4 of the decree against public enemies has not been applied.
Penal chamber of the district court of Guestrow.WojtasAttempt to rape wife of employer.1 year of imprisonment.5 November 1940Shot because of resistance on 1 March 1941.
Penal chamber of the district court of Prenzlau.CzaikaSexual crime against a child.2 years of hard labor.20 December 1940Shot because of resistance on 10 March 1941.
Penal chamber of the district court of Rostock.WojitarowiczSexual offense against a child.2 years of hard labor.17 January 1941Shot because of resistance on 17 February 1941.
Penal chamber of the district court of Cottbus.ChlabiczNumerous burglaries committed during the black-out after having escaped from the penitentiary.10 years of hard labor, security detention.5 February 1941Transfer to Gestapo has been ordered.
Jury at the district court of Munich.DziubczykRape.6 years of hard labor.28 February 1941Shot because of resistance on 8 March 1941.
Jury at the district court of Bielefeld.Franz GolembiowskiSexual offense against a child.8 years of hard labor.4 April 1941Transfer to Gestapo has been ordered.
Penal chamber of the district court of Stargard (Pomerania).AplasAttempt to rape.1 year and 6 months of hard labor.16 July 1940Transfer to Gestapo has been ordered.

DECREE OF 4 DECEMBER 1941 CONCERNING THE ADMINISTRATION OF PENAL JUSTICE AGAINST POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES[347]

1941 REICHSGESETZBLATT, PART I, PAGE 759

The Ministerial Council for the Defense of the Reich herewith decrees:

1. Substantive Criminal Law

I

(1) Poles and Jews in the Incorporated Eastern Territories are to conduct themselves in conformity with the German laws and with the regulations introduced for them by the German authorities. They are to abstain from any conduct liable to prejudice the sovereignty of the German Reich or the prestige of the German people.

(2) The death penalty shall be imposed on any Pole or Jew if he commits an act of violence against a German on account of his membership in the German ethnic community.

(3) A Pole or Jew shall be sentenced to death, or in less serious cases to imprisonment, if he manifests anti-German sentiments by malicious or inciting activities particularly by making anti-German utterances, or by removing or defacing official notices of German authorities or agencies, or if he, by his conduct, lowers or prejudices the prestige or the well-being of the German Reich or the German people.

(4) The death penalty or, in less serious cases, imprisonment, shall be imposed on any Pole or Jew—

1. If he commits any act of violence against a member of the German armed forces or its auxiliaries, of the German police force or its auxiliaries, of the Reich labor service, of any German authority or agency or of an organization of the NSDAP;

2. If he purposely damages installations of the German authorities or agencies, objects used by them in performance of their duties, or objects of public utility;

3. If he solicits or incites another person to disobey any decree or regulation issued by the German authorities;

4. If he conspires to commit an act punishable under paragraphs (2), (3), and (4), subparagraphs 1 through 3, or if he enters into serious negotiations about committing such an act, or if he offers to commit such an act, or accepts such an offer, or if he obtains credible information of such act, or of the intention of committing it, and fails to notify the authorities or any person threatened thereby at a time when danger can still be averted; and

5. If he is found to be in unlawful possession of a firearm, a hand grenade, or any weapon for stabbing or hitting, of explosives, ammunition or other implements of war, or if he has credible information that a Pole or a Jew is in unlawful possession of such an object, and fails to notify the authorities forthwith.

II

Punishment shall also be imposed on Poles or Jews if they act contrary to German criminal law or commit any act for which they deserve punishment in accordance with the fundamental principles of German criminal law and in view of the interests of the State in the Incorporated Eastern Territories.

III

(1) Penalties provided for Poles and Jews are—imprisonment, fine, or confiscation of property. The term of imprisonment is to be not less than 3 months and not more than 10 years in a penal camp; for more serious offenses, imprisonment consists of 2 to 15 years in a penal camp in which a more severe regimen is enforced.

(2) The death sentence shall be imposed in all cases where it is prescribed by the law. Moreover, in those cases where the law does not provide for the death sentence, it shall be imposed if the act shows a particularly base attitude or is particularly serious for other reasons; in these cases the death sentence may also be passed upon juvenile offenders.

(3) The minimum penalty or a fixed penalty prescribed by German criminal law cannot be reduced unless the criminal act is directed against the offender’s own people exclusively.

(4) If a fine cannot be recovered, it shall be substituted by imprisonment in a penal camp from 1 week to 1 year.

2. Criminal Procedure

IV

The public prosecutor shall prosecute a Pole or a Jew if he considers that punishment is in the public interest.

V

(1) Poles and Jews shall be tried by a Special Court or by the local court.

(2) The public prosecutor can file the indictment with a Special Court in all cases. He can file the indictment with the local court if the punishment to be imposed is not likely to be heavier than 5 years in a penal camp, or 3 years in a more rigorous penal camp.

(3) The jurisdiction of the People’s Court remains unaffected.

VI

(1) Every sentence will be carried out without delay. The public prosecutor may, however, appeal from the sentence of the local court to the court of appeal. The appeal has to be lodged within 2 weeks.

(2) The right to lodge complaints is also reserved exclusively to the public prosecutor. Complaints will be decided upon by the court of appeal.

VII

Poles and Jews cannot challenge a German judge on account of alleged partiality.

VIII

(1) Arrest and temporary detention are allowed whenever there are good grounds to suspect that a punishable act has been committed.

(2) During the preliminary investigations, the public prosecutor may also order arrest and any other coercive measures permissible.

IX

Poles and Jews are not sworn in as witnesses in criminal proceedings. If the unsworn deposition made by them before the court is false, the provisions as prescribed for perjury and false sworn statements shall be applied accordingly.

X

(1) Only the public prosecutor may apply for the reopening of proceedings. In a case tried before a Special Court, the decision on an application for the reopening of the proceedings rests with this court.

(2) The right to lodge a nullity plea rests with the attorney general. The decision on the plea rests with the court of appeal.

XI

Poles and Jews neither can file private suits nor bring about action as coplaintiffs.

XII

The court and the public prosecutor shall conduct proceedings within their discretion according to the principles of the German Law of Criminal Procedure. They may, however, dispense with the provisions of the Judicature Act and the Law of Criminal Procedure, whenever this may be expedient for the rapid and more efficient conduct of proceedings.

3. Civilian Court Martial Proceedings

XIII

(1) Subject to the consent of the Reich Minister of the Interior and the Reich Minister of Justice, the Reich governor (or provincial governor) may, until further notice, enforce martial law in the Incorporated Eastern Territories, either in the whole area under his jurisdiction or in parts thereof, upon Poles and Jews guilty of grave excesses against Germans or of other punishable acts which seriously endanger the German work of reconstruction.

(2) The courts established under martial law impose the death sentence. They may, however, dispense with punishment and refer the case to the Secret State Police (Gestapo).

(3) Subject to the consent of the Reich Minister of the Interior, the constitution and procedure of the courts established under martial law shall be regulated by the Reich governor.

4. Extent of Application of this Decree

XIV

(1) The provisions contained in sections I-IV of this decree apply also to those Poles and Jews who, on 1 September 1939, were domiciled or had their residence within the territory of the former Polish state, and who committed the punishable act in any part of the German Reich other than the Incorporated Eastern Territories.

(2) The case may also be tried by the court within whose jurisdiction the former domicile or residence of the perpetrator is situated. Sections V-XII apply accordingly.

(3) Paragraphs 1 and 2 do not apply to punishable acts tried by the courts in the Government General.

5. Concluding Regulations

XV

Within the meaning of this decree, the term “Poles” includes protected and stateless persons who belong to the Polish racial community.

XVI

Article II of the decree of 6 June 1940, concerning the introduction of German Criminal Law in the Incorporated Eastern Territories (Reichsgesetzblatt I, p. 844) no longer applies to Poles and Jews.[348]

XVII

The Reich Minister of Justice is authorized to issue rules and administrative regulations concerning the execution and implementation of this decree and to decide in all cases of doubt, in agreement with the Reich Minister of the Interior.

XVIII

This decree shall come into force on the fourteenth day after its promulgation.

Berlin, 4 December 1941

The President of the Ministerial Council
for the Defense of the Reich

Reich Marshal Goering

The Plenipotentiary for the Administration of the Reich

Frick

The Reich Minister and Chief of the Reich Chancellery

Dr. Lammers

EXTRACTS FROM AN ARTICLE BY DR. ROLAND FREISLER, UNDER SECRETARY IN THE REICH MINISTRY OF JUSTICE, JANUARY 1942, CONCERNING CRIMINAL JURISDICTION FOR POLES[349]

The German Criminal Code for Poles by Dr. jur. Roland Freisler, State Secretary of the Reich Ministry of Justice, member of the Presidency of the Academy for German Law.

*******

II

The objective Criminal Jurisdiction for Poles

*******

It is not contradictory to justice if criminal jurisdiction for Poles is different from the German criminal jurisdiction. Even if one people within a state can be subject to one [system of] law only, it is yet quite possible that for another nationality within the same state another [system of] law is applicable. Whether this condition should be brought to bear must be determined by the necessities of the State. It is essential of course that the other national group can perceive the law in force for its members in order to be able to abide by it.

For there must be a standard whereby it can regulate its behavior. By this standard the conduct of its nationals can be judged fairly. There is nothing contrary to justice if the one criminal law in its general aspect is milder, the other, viewed as a whole is severer. After all there is justice in a sphere of severity as well as in a sphere of leniency.

If the administration of criminal justice for Poles devotes exactly the same care to the investigation of the facts of a case, as does the administration of criminal justice for Germans, viz, avoiding everything which even very remotely might resemble a judgment on suspicion, if, besides, it judges the established facts just as conscientiously according to the law applicable to Poles, as it judges the established facts in the case of Germans according to the general German penal law, and if, finally, it endeavors to render the right judgment in the award of punishment within the compass of the penal law applicable for Poles, as within the compass of the penalties pursuant to the general German penal law for Germans, the criminal jurisdiction for Poles is just, regardless of the different evaluation of actions of Germans and Poles, which might be necessary in many cases. The political task of the administration of criminal jurisdiction is not at all incompatible with justice.

The directives for arriving at a just decision, especially in the case of the law pursuant to Number II, in the criminal jurisdiction for Poles are deprived by viewing the German people and Reich as a whole in regard to the necessities of the State, the judicial comprehension of which is given by the political aim of German work in the Incorporated Eastern Territories. Looking at the individual Poles who have been committed for trial it follows from the general, legally established subordination law to which he is subject pursuant to Number I, and which should dominate and guide his whole conduct. By considering both points, i.e., State necessity and the duty of subordination, no divided result can be arrived at in any individual case, because the duty of subordination of the Pole in the Incorporated Eastern Territories is a State necessity, and because on the other hand the extent of this duty of subordination in itself is determined by the aim of the German construction work, i.e., by State necessity.

The German administration of criminal jurisdiction for Poles exercised in the fulfillment of the Polish task of the German folkdom in the Incorporated Eastern Territories will be characterized by justice just as it is in every other German administration of justice.

*******

The penal code for Poles has only one form of detention—the punitive camp. Therefore, this takes the place of confinement in a fortress, imprisonment, penal servitude as provided by the general German penal code. In the penal registers the punitive camp term will be recorded as “penitentiary” [Zuchthaus]. This does not mean, however, that it will be like penitentiary [service] in every respect. Thus not every term in a punitive camp will be regarded as “penitentiary”; only a term of increased severity in a punitive camp in the meaning of the regulations for the noninclusion of the period of detention in custody in the term of imprisonment for the duration of the war, will be regarded as “penitentiary.” However, where no special ruling is applicable, it will have to be concluded from the recording of the term in a punitive camp in the penal register that its legal status is that of penitentiary [service], as far as this can be applied to the State legal status of a Pole.

The judge may also pronounce a sentence of detention of increased severity in a punitive camp. In doing so, however, he does not choose another method of punishment. Legally the sentence of increased severity term in a punitive camp has to be considered as being the same as pronouncement of punishment of increased severity in a legal system, which allows the judge the possibility of sentences of increased severity.

*******

From the much increased minimum duration of terms of increased severity in a punitive camp (2 years) and from its increased limit (15 years) it follows that the judge is expected to make use of it in serious cases, which is also especially emphasized in the decree.

In case of death sentences the same methods of execution are in force, as applied by the German Criminal (Penal) Code.

By adding fines, confiscation of property, imprisonment, and capital punishment the penal code for Poles intends to complete the punitive methods applicable to Poles.

III

Law of procedure against Poles

d. Preliminary proceedings.

*******

By the general principle of every German administration of criminal jurisdiction, viz, that it must serve to establish actual facts and their true judgment—a principle which is adhered to without exception and unalterably the freedom of judgment in the arrangement of the preliminary proceedings finds its unchangeable limit (the same has to be said with regard to the trial). From this it follows as a matter of course that the public prosecutor in the preliminary proceeding will have to examine all evidence, extenuating as well as aggravating, and investigate it.

It is just as self-evident that in the place of preliminary proceedings by the public prosecutor and the decision of the public prosecutor concerning the indictment and abatement there can be no Klageerzwingungsverfahren[350] on the part of a private person in consideration of the principle of liberty of decision with regard to prosecution or nonprosecution, just as prosecuting authority no private person can appear as prosecutor, replacing the public prosecutor neither independently nor as coprosecutor; consequently the Pole can be neither plaintiff nor coplaintiff. In order to avoid any misinterpretation in this direction this has been expressly stated already in the decree establishing a penal code. In the decree establishing the penal code for Poles it is stated expressly: “The public prosecutor prosecutes crimes of Poles and Jews * * *.” (Number IV) “Poles and Jews can take neither civil action nor act as coplaintiffs.” (Number XI). From the first of these two legal provisions it follows also that against the Pole no civil action nor action as a coplaintiff can be taken; the public prosecutor alone is competent to prosecute.

If the liberty of decision in determining the procedure as well as the main trial is stressed time and again, on the other hand it must nevertheless be emphasized that the establishment of the true facts of the case is the purport and the rendering of a just verdict the aim of every criminal proceeding against Poles. Therefore, nothing may be disregarded which may serve to establish the truth and to arrive at a just verdict. For this it is essential that the accused is heard,—as long as he does not use this possibility granted him for propaganda—and that he can defend himself in connection with the accusation, that he may offer evidence of any kind, that he can express himself with regard to the findings of the evidence heard, and that he may have the last word. In cases where difficulties arise from difference of language it is of course essential that the possibility of understanding is secured, if necessary with the help of an interpreter. The judge and all the officials of the administration of justice always and without exception will speak German. Likewise all evidence, as far as it is not declared with certainty as being unsuitable right away, must be fully investigated.

The giving of the opportunity to the public prosecutor and the judge to use their own discretion in the arrangement of proceedings was possible only because it may be assumed that no German public prosecutor and no German judge in any proceeding conducted by him will ignore these principles.

Should that happen, however, in an isolated case, it is to be expected that the public prosecutor will appeal against a decision arrived at during a trial exhibiting such fundamental defects with the legal measures at his disposal. The senates of the four district courts of appeal, which are the highest authority in Polish matters, guarantee that they display in these cases by the way in which they deal with appeals that such high principles may not be left out of consideration and that they express this clearly in the reasons given for the verdict, although this is not absolutely necessary for the establishment of the sentence itself, because it is not a revised judgment but a sentence on appeal * * *.

f. Execution of a sentence.

*******

Even if every sentence can be carried out immediately nevertheless it is self-evident that the authority carrying out sentences will not proceed to the execution if in a specific case the possibility exists that the condemning verdict can undergo a substantial change by legal measures to the advantage of the condemned person or even be changed into acquittal. It is completely self-evident that the severest penalty will not be put into effect before it has the force of law; this is also impossible because the decision of the supreme authority as to the execution or nonexecution can only be brought about after the sentence becomes valid. It has also to be expected that the executing authority will stay the execution of the penalty if that authority or the public prosecutor—perhaps because of new evidence—later arrives at the conclusion that the condemning sentence cannot be upheld, or at least reckons with the not too distant possibility of such a result of an appeal or of a retrial.

The decree contains no specification that the court of appeal, or court of retrial, or its president can order a stay of execution of a sentence. The legislator believed he could abstain from such a specification, because the attorney general will see to it in the way of administration that such a stay is brought about at the suggestion of the president. It is not necessary that everything should be ordered in the way of legislation that can be safeguarded in the way of administration.

g. Legal means—The public prosecutor can “lodge an appeal against sentences passed by the judge of a local court with the district court of appeal. The period of time within which an appeal is to be lodged is 2 weeks.” (Number VI) The extension of the time limit is explained not only by the poor rail and postal communications which are sometimes even worse in the Incorporated Eastern Territories than in other parts of the Reich. Its explanation is to be found above all in the fact that it is also the duty of the public prosecutor to examine whether an appeal is to be lodged on behalf of the condemned person. The condemned person will quite often suggest this to him. The public prosecutor will then require a certain amount of time in order to examine whether the new statements and evidence, which the defendant has perhaps given him when he suggested such an appeal. For that the summary examination of evidence offered will often be necessary and will take a few days. Just when the public prosecutor is confronted with the question whether he is to lodge an appeal on behalf of the condemned person he will do well to hold himself more than ever aloof from the bad custom of lodging an appeal “as a precaution.” For in this case he would raise false hopes and in addition, even if he does not subsequently maintain the appeal, would in the eyes of the condemned divest the judgment of some of its authority. He must therefore have time for a summary examination. From this resulted the extension of the time limit for the lodging of an appeal.

SUPPLEMENTARY DECREE, 31 JANUARY 1942, CONCERNING THE ADMINISTRATION OF PENAL JUSTICE AGAINST POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES

1942 REICHSGESETZBLATT, PART I, PAGE 52

Pursuant to article XVII of the decree concerning the Administration of Penal Justice against Poles and Jews in the Incorporated Eastern Territories of 4 December 1941[351] (Reichsgesetzblatt Part I, page 759), the following is decreed:

Article I

Articles I to III of the decree of 4 December 1941 (Reichsgesetzblatt I, p. 759) may be equally applied with the consent of the public prosecutor to offenses committed before the decree came into force.

Article II

(1) The court may rule in every case that Poles and Jews be interrogated by a commissioned or requested judge; article 251, paragraph 2, of the Reich Code of Criminal Procedure and article 252, paragraph 3, of the Austrian Code of Criminal Procedure will remain unchanged.

(2) This regulation equally applies to Poles and Jews who, on 1 September 1939, resided or were abiding in the territory of the former Polish State and who are interrogated as witnesses in other parts of the German Reich.

Berlin, 31 January 1942

The Acting Reich Minister of Justice

Dr. Schlegelberger

The Reich Minister of the Interior

As deputy: Pfundner

EXTRACT FROM THE MINUTES OF A CONFERENCE BETWEEN DEFENDANT ROTHENBERGER AND THREE JUDGES OF THE HAMBURG COURTS, 23 JANUARY 1942, CONCERNING THE EXEMPTION OF DESTITUTE JEWS FROM COURT FEES

Notes on a discussion held on 23 January 1942

*******

II. Present: Senator Dr. Rothenberger, Local Court Judge Dr. Schwarz, Presiding Judge Korn of the District Court, Judge Dr. F. Priess of the District Court of Appeal

[Marginal note] copy made out for: 3715-1b 1/17 a-c

extract

The senator [the defendant Rothenberger] reported that the question of the Armenrecht[352] concerning Jews has come into the foreground again. With the district court there were two cases pending. He requested that contacts with the judges of the district court and of the local court be taken up at once so that a uniform line is followed to the effect that the Jews be denied the benefits of the Armenrecht. It would be entirely out of the question that Jews be granted the benefits of the Armenrecht subsequent to the present development. This would apply especially to Jews who had been evacuated, but in his opinion also to those who had not been evacuated. With regard to the matter it had to be considered whether or not any material claims of the Jews could still be answered in the affirmative. Concerning this question, it might, however, be practical to maintain a certain reserve.

Presiding Judge Korn of the district court had raised certain objections to the denial, because up to now it was lacking any legal basis.

Hamburg, 27 January 1942

For information—1. To Councillor of the Local Court for information and further action (with regard to II)

2. To High Judicial Inspector Bellair for further action 27 January 1942

[Illegible initials]

323-1b 2/1

UNDATED REPORT FROM THE DISTRICT COURT IN HAMBURG CONCERNING GRANTING OF BENEFITS FOR DESTITUTE PERSONS TO A JEW, TOGETHER WITH TWO LETTERS OF DEFENDANT ROTHENBERGER AND AN INTEROFFICE MEMORANDUM, 13 FEBRUARY-22 MAY 1942

Excerpts from the File Prenzlau against Behrens and Lundin—2 0.84/41

The Jewish plaintiff Israel Prenzlau proposed that Armenrecht be granted him in an intended lawsuit against Karl Behrens and Paul Lundin in consideration of a claim which is supposed to have arisen from the withdrawal of the Jewish co-associate from the G.m.b.H. [limited liability company].

On 30 June 1937 the plaintiff withdrew from the Prenzlau, Behrens, and Lundin G.m.b.H. The firm is now continuing its business as a trading company with unlimited liability of the partners. At the time of the withdrawal, it had not yet been ascertained that a former employee had defrauded the firm for the amount of 80,000 reichsmarks. He maintains that he retains his share of the claim against Hahn, or rather those firms which by default have rendered possible the loss to the G.m.b.H. of so large an amount. The defendants, in the course of the Armenrecht proceedings, have offered 3,000 reichsmarks in settlement of the claim, subject to approval by the Gau economic adviser. The Gau economic adviser, after only a preliminary short comment, gave the following interpretation on 6 November 1941:

“In reply to your inquiry I state my point of view in detail.

“In a lawsuit between a German national and a Jew I consider the settling of a dispute by legal measures inadmissible for political reasons. The German national as party in the lawsuit, pursuant to his clearly defined legal standard derived from his political training since 1933, can expect that the court will decide the case by a verdict that is to meet a conclusive decision on the case. What is expected is a decision which was arrived at not from purely legal points of view, as result of a legal trend of thoughts, but which is an expression of the way in which National Socialist demands, concerning the Jewish question, are realized by German lawyers. Evading this decision by a compromise might mean encroaching upon the rights of a fellow citizen in favor of a Jew. This kind of settlement would be in contradiction to the sound sentiments of the people, I therefore consider it as inadmissible.”

The defendants thereupon refused a settlement with the plaintiff and now deny they owe him anything.

On 6 December 1941 the district court [Hamburg] granted Armenrecht. Subsequently, action was brought in as follows:

1. To disclose to the plaintiff what the payments have been, which have been made so far to the parties entitled to redress pursuant to the claim against Hahn.

2. To pay defendant 22 percent of the total amounts received, with 4 percent interest from the day the action was filed.

The court intends now to issue a conclusion based on evidence.

3715-1b 1 17

13 February 1942

To the President of the District Court

Hamburg

1 Document

With regard to the pending case Prenzlau against Behrens and Lundin I do not intend to approach the economic adviser of the Gau for the time being, seeing from the documents that the ultimate beneficiary of the claim—the son of the plaintiff—emigrated in the year 1938 and his property has therefore surely been confiscated. I fail to understand why the court granted Armenrecht to the assignee, a Jew, without first consulting the authority for sequestration of property. The cession most probably will become meaningless as it was transferred in trusteeship by the son to the father shortly before his emigration.

Please discuss the matter with the judge.

[Typed signature] Dr. Rothenberger

Written: 13 February 1942

Read:

Mailed: 14 February 1942

Note

The senator discussed in Berlin the question of granting Armenrecht to Jews. A ruling will probably be issued shortly. Every case coming on hand must first be submitted to the senator. President Korn and President Dr. Segelken have been informed by me to this effect.

Hamburg, 24 February 1942

[Illegible initial]

[Handwritten notes]

Local Court Judge Dr. Bartsch for information.

25 February 42

Seen 25 February 1942

[Signed] Sen

22 May 1942

3715-1b/1/17/

To the President of the District Court

Hamburg

Subject: Granting of Armenrecht to Jews

Reference: Your letter A.R. 53/42

1 Document

I hereby return the document Prenzlau against Behrens and Lundin 2648/41-20 H 28/41 sent to me with report of 7 May.

With his circular ordinance of 5 March 1942—3715 IV b 3 332, with which you are familiar, the Reich Minister of Justice has annulled his circular ordinance of 23 June 1939—3740 IV b 1118, stating that the granting of Armenrecht to Jews could be taken into consideration only in such cases where the carrying out of the lawsuit is in the common interest. In consequence thereof I consider it adequate that the Armenrecht granted to plaintiff Prenzlau be cancelled.

Please have this taken into consideration by the court in a form which you deem appropriate.

[Typed signature] Dr. Rothenberger

22 May 1942

Written: 22 May 1942

Read:

Mailed: 23 May 1942

LETTER FROM DEFENDANT SCHLEGELBERGER TO LAMMERS, 12 MARCH 1942, EXPRESSING CONCERN ABOUT CONTEMPLATED ANTI-JEWISH MEASURES; REPLY FROM LAMMERS, 18 MARCH 1942; LETTER FROM SCHLEGELBERGER TO SEVEN GOVERNMENT AND PARTY AGENCIES ON “THE FINAL SOLUTION OF THE JEWISH PROBLEM,” 5 APRIL 1942; FILE NOTE ON SITUATION OF BERLIN JEWS, 21 NOVEMBER 1941

Berlin, 12 March 1942

The Acting Reich Minister of Justice

Dear Reich Minister Dr. Lammers:

I have just been informed by my Referent about the result of the meeting of 6 March regarding the treatment of Jews and descendants of mixed marriages. I am now expecting the official transcript. According to the report of my Referent, decisions seem to be under way which I am constrained to consider absolutely impossible for the most part. Since the results of these discussions are to constitute the basis for the decision of the Fuehrer, and since a Referent from your Ministry participated likewise in these discussions, I urgently desire to discuss this matter with you on time. As soon as I have received the transcript of the meeting, I shall take the liberty in calling you to ask you if and when a discussion may take place.

With sincerest regards and Heil Hitler!

Yours devotedly

[Typed signature] Dr. Schlegelberger

To the Reich Minister and Chief of the Party Chancellery

Dr. Lammers,

Berlin

01/108

The Reich Minister and Chief of the Reich Chancellery

Pk 3614 B

at present Fuehrer Headquarters

Under Secretary Professor Dr. Schlegelberger,

Acting Reich Minister of Justice

Subject: Total solution [Gesamtloesung] of the Jewish question

In reply to the letter of 12 March 1942

Dear Dr. Schlegelberger:

I will be very glad to comply with your request and to discuss this question with you. I shall probably be visiting Berlin again toward the end of the month and will then have you informed about a suitable date.

Heil Hitler!

yours sincerely,

[Signed] Dr. Lammers

The Acting Reich Minister of Justice

Secret Reich Matter

IV b 40 g RE

To:[353]

1. The Chief of the Party Chancellery

Attention: SS Oberfuehrer Klopfer

2. The Reich Minister of the Interior

Attention: Under Secretary Dr. Stuckart

3. The Chief of the Security Police and the SD

SS Obergruppenfuehrer Heydrich

4. The Deputy for the Four Year Plan

Attention: Under Secretary Neumann

5. The Foreign Office

Attention: Under Secretary Luther

6. The Reich Minister for the Occupied Eastern Territories

Attention: Gau Leader and Under Secretary Dr. Meyer

7. The Race and Settlement Main Office of the Reich Leader SS

Attention: SS Gruppenfuehrer Hofmann

Subject: Final solution [Endloesung] of the Jewish problem

1. The final solution of the Jewish problem presupposes a clear-cut and permanently applicable definition of the group of persons for whom the projected measures are to be initiated. Such a definition applies only when we desist from the beginning from including descendants of mixed marriages of the second degree in these measures. The measures for the final solution of the Jewish problem should extend only to full-blooded Jews and descendants of mixed marriages of the first degree, but should not apply to descendants of mixed marriages of the second degree.[354]

2. With regard to the treatment of Jewish descendants of mixed marriages of the first degree, I agree with the conception of the Reich Minister of the Interior which he expressed in his letter of 16 February 1942, to the effect that the prevention of propagation of these descendants of mixed marriages is to be preferred to their being thrown in with the Jews and evacuated. It follows therefrom that evacuation of those half-Jews who are no more capable of propagation, is excluded from the beginning. There is no national interest in dissolving the marriages between such half-Jews and a full-blooded German.

Those half-Jews who are capable of propagation should be given the choice to submit to sterilization or to be evacuated in the same manner as Jews. In the case of sterilization, as well as in that of evacuation of the half-Jew, the German-blooded partner will have to be given the opportunity to effect the dissolution of the marriage. I see no objection to the German partner’s obtaining the possibility of divorcing his or her sterilized or evacuated partner in a simplified procedure without [having to observe] the limitation of article 53 of the marriage law.

3. An exception might be worthy of consideration with respect to those half-Jews whose descendants are becoming members of the German national community, and who are finally absorbed by it. If these descendants are to be incorporated into the German national community as full fledged members—which has to be the aim in case of a genuine final solution of the Jewish question—it seems advisable to protect them from being treated as inferiors or from having feelings of inferiority which could arise easily out of the knowledge and the bad conscience that their immediate ancestors have been affected by the planned defensive measures of the national community. For this reason, it should be considered whether or not half-Jews whose living descendants are not half-Jews should be spared from evacuation as well as sterilization.

4. I have no scruples against facilitation of divorce of marriages between racial Germans and Jews. This facilitation should also be extended to marriages with persons who are considered as Jews. The divorce will have to be granted upon the request of the German-blooded partner in a simplified procedure. I have considerable scruples about compulsory divorces, for instance, on motion of the public prosecutor. Such compulsion is unnecessary because the partners will be separated in any case by the deportation of the Jewish partner. An enforced divorce, moreover, is without avail, because, though it cuts the marriage ties, it does not cut the inner tie between the partners; moreover, it does not relieve the German partner from the scorn to which he is exposed by clinging to his marriage. Finally, a clinging to marriage on the part of the German-blooded partner is to be expected only in the case of older marriages which have endured throughout many years. In cases in which the Jewish partner, as a rule, is not evacuated but confined to an old people’s ghetto, the German-blooded partner who disclaims his membership in the German community should not be prohibited from being admitted to the ghetto.

[Typed signature] Dr. Schlegelberger

Note—In view of the present position of the Jews, discussions are pending in the building whether Jews are to be deprived of the right to participate in a lawsuit and whether some other ruling is to be made concerning their representation before court. The decisive factor is whether the immediate removal of all Jews can be counted upon. About 77,000 Jews live in Berlin alone. About 7,000 of these have been removed so far. The Labor Exchange for Jews, 15 Fontane-promenade—Government Counsellor Epphaus—and the Secret State Police (Dept. Burgstrasse—official in charge, Pruefer) have “reserved” the Jews, who at present are difficult to replace, who are working in armament factories and other war essential concerns. Furthermore, Jews living in privileged mixed marriages have not so far been removed. On the other hand, all Jewish legal consultants [Konsulenten] in Berlin have been ordered to leave. These Jews are today “reserved.” Accordingly, it must be assumed that a considerable number of Jews will remain on Reich territory, and particularly in Berlin, for some time to come.

Berlin, 21 November 1941

[Typed signature] Lutterloh

Ministerialdirigent

Senior Government Counsellor Dr. Gramm

Please inform the Under Secretary.

EXTRACTS FROM AN ARTICLE IN STREICHER’S[355] “DER STUERMER,” 2 APRIL 1942, CONCERNING THE KATZENBERGER TRIAL AND JUDGMENT

Der Stuermer

DEATH TO THE RACE DEFILER

A Trial before the Nuernberg Special Court

Race defiler Katzenberger—13–14 March 1942—page 2, column 1

*******

The prosecutor reads the charge. The Jew Katzenberger had committed “race defilement” with the now 31-year-old business proprietress Irene S., of Nuernberg, of German blood, from 1932 until the year 1940 (!) by exploiting this woman’s financial difficulties. He did not even shrink back from exploiting—for his Talmudic practices—the conditions caused by the war and the absence of the husband S. who has been conscripted for military service. Irene S. is charged with attempting to withhold the deserved punishment from the Jew by committing perjury in the pretrial interrogation.

How Katzenberger defends himself (p. 2, col. 1)

*******

How will Katzenberger try to deceive the Court and escape avenging justice?

The Jew Katzenberger developed special tactics of his own. He pretends not to have engaged in “race defiling,” but to have entertained merely “fatherly” relations with Irene S. * * * Only out of “pure fatherly” sentiment has he thrown cigarettes to her through the window and given her lots of shoes.

*******

Before the verdict (p. 2, col. 4)

After the presentation of evidence has been concluded, the prosecutor rises. With sharp words he characterizes the defendant as a criminal, who did not even shrink back from exploiting war conditions for his shameless activities. As a race defiler and public parasite in the sense of the law, Katzenberger has forfeited his life. Therefore, the death sentence should be pronounced against him. The other defendant, Irene S., should be sentenced to 2 years’ hard labor and loss of civil rights for 2 years.

*******

In his final statement the Jew Katzenberger eventually tries at least to save what can be saved.

Once more he tries to act the “benefactor,” in order to appeal to the pity of the judges. With an impudence which only a Jew can muster, he characterizes all that has been presented against him, as “backstairs’ gossip” and finally even wants to claim Frederick The Great as his principal witness. But the president does not permit a Jewish race defiler to soil the figure of the great Prussian King. The court then adjourned for deliberation.

Sentenced to death! (p. 3, col. 1)

When the court reenters the courtroom to announce the verdict one can already see from the earnest looks of the judges that the fate of the Talmudic criminal has been sealed.

As a race defiler and public parasite Katzenberger is sentenced to death.

The codefendant Irene S. gets 2 years’ hard labor and loss of civil rights for perjury. President of the District Court of Appeal R. points to words in the findings of the verdict, which prove to what extent the German judges are imbued with the tremendous importance of the racial laws. The president brands the depravity of the defendant and stamps him as an evil public parasite. “Racial defilement is worse than murder! Entire generations will be affected by it into the remotest future!” President of the district court of appeal R. in his speech also refers to the guilt of Jewry in this war. “If today German soldiers are bleeding to death, then the guilt falls upon that race which from the very beginning strived for Germany’s ruin, and still hopes today that the German people will not emerge from this struggle.” In the case of Katzenberger the court had to pronounce the death sentence. The physical destruction of the perpetrator was the only possible atonement.

The end (p. 3, col. 1)

With the findings of the verdict the sentence of the Special Court has become effective.

Why the “Stuermer” describes the Katzenberger trial in detail (p. 3, col. 2)

*******

The Jew Katzenberger was sentenced to death as a race defiler and public parasite. This sentence (it is not the first of this kind in the Reich) was pronounced in Nuernberg and thus honors the city whose name was bestowed upon the racial laws of 15 September 1935. For the “Stuermer” however, this sentence signifies a special satisfaction, because it was the “Stuermer” which, in a special edition of the year 1938, had demanded the death penalty for race defilers.

*******

If today Jewish race defilers are really sentenced to death, then this proves that the “Stuermer” has been a good prophet for many years.

Race defilers are public parasites (p. 3, col. 4)

*******

Jewish race defilers therefore will have to take care in the future. They do not risk their freedom only but also their heads and necks. The patience of the German people has become exhausted. It does not treat Jewish public parasites more tenderly any longer than the public parasites from our own ranks. In this sense the Katzenberger trial has received a significance which goes far beyond the Nuernberg courtroom.

Everything for the German people (p. 3, col. 4)

The world Jewry will discover that Germany knows how to defend herself with the severe measures against Jewish race defilers. Now it will again write using the old long-tried tactics, about the “medieval conditions” prevailing in Germany. It will again glorify those “poor, deplorable, harmless Jews,” who become the victims of National Socialist legislation. It will give vent to spite and malice toward Germany.

OPINION AND SENTENCE OF THE NUERNBERG SPECIAL COURT IN THE KATZENBERGER CASE, 13 MARCH 1942, IN WHICH DEFENDANT ROTHAUG WAS PRESIDING JUDGE[356]

Sg No. 351/41

Verdict

In the name of the German People

The Special Court for the district of the Court of Appeal in Nuernberg with the District Court Nuernberg-Fuerth in the proceedings against Katzenberger, Lehmann Israel, commonly called Leo, merchant and head of the Jewish religious community in Nuernberg, and Seiler, Irene, owner of a photographic shop in Nuernberg, both at present in arrest pending trial the charges being racial pollution and perjury—in public session of 13 March 1942, in the presence of—

The President—Dr. Rothaug, Senior Judge of the District Court;

Associate Judges—Dr. Ferber and Dr. Hoffmann, Judges of the District Court;

Public Prosecutor for the Special Court—Markl; and

Official Registrar: Raisin, clerk,
pronounced the following verdict:

Katzenberger, Lehmann Israel, commonly called Leo, Jewish by race and religion, born 25 November 1873 at Massbach, married, merchant of Nuernberg; Seiler, Irene, née Scheffler, born 26 April 1910 at Guben, married, owner of a photographic shop in Nuernberg, both at present in arrest pending trial have been sentenced as follows:

Katzenberger—for an offense under section 2, legally identical with an offense under section 4 of the decree against public enemies in connection with the offense of racial pollution to death and to loss of his civil rights for life according to sections 32–34 of the criminal (penal) code.

Seiler—for the offense of committing perjury while a witness to 2 years of hard labor and to loss of her civil rights for the duration of 2 years.

The 3 months the defendant Seiler spent in arrest pending trial will be taken into consideration in her sentence.

Costs will be charged to the defendants.

Findings

I

1. The defendant Katzenberger is fully Jewish and a German national; he is a member of the Jewish religious community.

As far as his descent is concerned, extracts from the birth registers of the Jewish community at Massbach show that the defendant was born on 25 November 1873 as the son of Louis David Katzenberger, merchant, and his wife Helene née Adelberg. The defendant’s father, born on 30 June 1838 at Massbach, was, according to an extract from the Jewish registers at Thundorf, the legitimate son of David Katzenberger, weaver, and his wife Karoline Lippig. The defendants’ mother Lena Adelberg, born on 14 June 1847 at Aschbach, was, according to extracts from the birth register of the Jewish religious community of Aschbach, the legitimate daughter of Lehmann Adelberg, merchant and his wife, Lea. According to the Thundorf register, the defendant’s parents were married on 3 December 1867 by the district rabbi in Schweinfurt. The defendant’s grandparents on his father’s side were married, according to extracts from the Thundorf register, on 3 April 1832; those on his mother’s side were married, according to an extract from the register of marriages of the Jewish religious community of Aschbach, on 14 August 1836.

The extracts from the register of marriages of the Jewish religious community at Aschbach show, concerning the marriage of the maternal grandparents, that Bela-Lea Seemann, born at Aschbach in 1809, was a member of the Jewish religious community. Otherwise the documents mentioned give no further information so far as confessional affiliations are concerned that parents or grandparents were of Jewish faith.

The defendant himself has stated that he is certain that all four grandparents were members of the Jewish faith. His grandmothers he knew when they were alive; both grandfathers were buried in Jewish cemeteries. Both his parents belonged to the Jewish religious community, as he does himself.

The court sees no reason to doubt the correctness of these statements, which are fully corroborated by the available extracts from exclusively Jewish registers. Should it be true that all four grandparents belonged to the Jewish faith, the grandparents would be regarded as fully Jewish according to the regulation to facilitate the producing of evidence in section 5, paragraph 1 together with section 2, paragraph 2, page 2 of the ordinance to the Reich Civil Code of 14 November 1935 Reichsgesetzblatt, page 1333. The defendant therefore is fully Jewish in the sense of the Law for the Protection of German Blood.[357] His own admissions show that he himself shared that view.

The defendant Katzenberger came to Nuernberg in 1912. Together with his brothers, David and Max, he ran a shoe shop until November 1938. The defendant married in 1906, and there are two children, ages 30 and 34.

Up to 1938 the defendant and his brothers, David and Max, owned the property of 19 Spittlertorgraben in Nuernberg. There were offices and storerooms in the rear building, whereas the main building facing the street was an apartment house with several apartments.

The codefendant Irene Seiler arrived in 1932 to take a flat in 19 Spittlertorgraben, and the defendant Katzenberger has been acquainted with her since that date.

2. Irene Seiler, née Scheffler, is a German citizen of German blood.

Her descent is proved by documents relating to all four grandparents. She herself, her parents, and all her grandparents belong to the Protestant Lutheran faith. This finding of the religious background is based on available birth and marriage certificates of the Scheffler family which were made part of the trial. As far as descent is concerned therefore, there can be no doubt about Irene Seiler, née Scheffler, being of German blood.

The defendant Katzenberger was fully cognizant of the fact that Irene Seiler was of German blood and of German nationality.

On 29 July 1939, Irene Scheffler married Johann Seiler, a commercial agent. There have been no children so far.

In her native city, Guben, the defendant attended secondary school and high school up to Unterprima [eighth grade of high school], and after that, for 1 year, she attended the Leipzig State Academy of Art and Book Craft.

She went to Nuernberg in 1932 where she worked in the photographic laboratory of her sister Hertha, which the latter had managed since 1928 as a tenant of 19 Spittlertorgraben. On 1 January 1938, she took over her sister’s business at her own expense. On 24 February 1938, she passed her professional examination.

3. The defendant Katzenberger is charged with having had continual extra-marital sexual intercourse with Irene Seiler, née Scheffler, a German national of German blood. He is said to have visited Seiler frequently in her apartment in Spittlertorgraben up to March 1940, while Seiler visited him frequently, up to autumn 1938, in the offices of the rear building. Seiler, who is alleged to have got herself in a dependent position by accepting gifts of money from the defendant Katzenberger and by being allowed delay in paying her rent, was sexually amenable to Katzenberger. Thus, their acquaintance is said to have become of a sexual nature, and, in particular, sexual intercourse occurred. They are both said to have exchanged kisses sometimes in Seiler’s flat and sometimes in Katzenberger’s offices. Seiler is alleged to have often sat on Katzenberger’s lap. On these occasions Katzenberger, in order to achieve sexual satisfaction, is said to have caressed and patted Seiler on her thighs through her clothes, clinging closely to Seiler, and resting his head on her bosom.

The defendant Katzenberger is charged with having committed this act of racial pollution by taking advantage of wartime conditions. Lack of supervision was in his favor, especially as he is said to have visited Seiler during the black-out. Moreover, Seiler’s husband had been called up, and consequently surprise appearances of the husband were not to be feared.

The defendant Irene Seiler is charged with having, on the occasion of her interrogation by the investigating judge of the local Nuernberg Court on 9 July 1941, made deliberately untrue statements and affirmed under oath that this contact was without sexual motives and that she believed that to apply to Katzenberger as well.

Seiler, it is alleged, has thereby become guilty of being a perjuring witness.

The defendants have said this in their defense—

The defendant Seiler—When in 1932 she arrived in the photographic laboratory of her sister in Nuernberg, she was thrown completely on her own resources. Her sister returned to Guben, where she opened a studio as a photographer. Her father had recommended her to the landlord, the defendant Katzenberger, asking him to look after her and to assist her in word and deed. This was how she became closely acquainted with the Jew Katzenberger.

As time went on, Katzenberger did indeed become her adviser, helping her, in particular, in her financial difficulties. Delighted with the friendship and kindness shown her by Katzenberger she came to regard him gradually as nothing but a fatherly friend, and it never occurred to her to look upon him as a Jew. It was true that she called regularly in the storerooms of the rear house. She did so after office hours, because it was easier then to pick out shoes. It also happened that during these visits, and during those paid by Katzenberger to her flat, she kissed Katzenberger now and then and allowed him to kiss her. On these occasions she frequently would sit on Katzenberger’s lap which was quite natural with her and had no ulterior motive. In no way should sexual motives be regarded as the cause of her actions. She always thought that Katzenberger’s feelings for her were purely those of a concerned father.

Basing herself on this view she made the statement to the investigating judge on 9 July 1941 and affirmed under oath, that when exchanging those caresses neither she herself nor Katzenberger did so because of any erotic emotions.

The defendant Katzenberger—He denies having committed an offense. It is his defense that his relations with Frau Seiler were of a purely friendly nature. The Scheffler family in Guben had likewise looked upon his relations with Frau Seiler only from this point of view. That he continued his relations with Frau Seiler after 1933, 1935, and 1938, might be regarded as a wrong [Unrecht] by the NSDAP. The fact of his doing so, however, showed that his conscience was clear.

Moreover, their meetings became less frequent after the action against the Jews in 1938. After Frau Seiler got married in 1939, the husband often came in unexpectedly when he, Katzenberger, was with Frau Seiler in the flat. Never, however, did the husband surprise them in an ambiguous situation. In January or February 1940, at the request of the husband, he went to the Seiler’s apartment twice to help them fill in their tax declarations. The last talk he ever had in the Seiler apartment took place in March 1940. On that occasion Frau Seiler suggested to him to discontinue his visits because of the representations made to her by the NSDAP, and she gave him a farewell kiss in the presence of her husband.

He never pursued any plans when being together with Frau Seiler, and he therefore could not have taken advantage of wartime conditions and the black-out.

II

The court has drawn the following conclusions from the excuses made by the defendant Katzenberger and the restrictions with which the defendant Seiler attempted to render her admissions less harmful:

When, in 1932, the defendant Seiler came to settle in Nuernberg at the age of 22, she was a fully grown and sexually mature young woman. According to her own admissions, credible in this case, she was not above sexual surrender in her relations with her friends.

In Nuernberg, when she had taken over her sister’s laboratory in 19 Spittlertorgraben, she entered the immediate sphere of the defendant Katzenberger. During their acquaintance she gradually became willing, in a period of almost 10 years, to exchange caresses and, according to the confessions of both defendants, situations arose which can by no means be regarded merely as the outcome of fatherly friendliness. When she met Katzenberger in his offices in the rear building or in her flat, she sat often on his lap and, without a doubt, kissed his lips and cheeks. On these occasions Katzenberger, as he admitted himself, responded to these caresses by returning the kisses, putting his head on her bosom and patting her thighs through her clothes.

To assume that the exchange of these caresses, admitted by both of them, were on Katzenberger’s part the expression of his fatherly feelings, on Seiler’s part merely the actions caused by daughterly feelings with a strong emotional accent, as a natural result of the situation, is contrary to all experience of daily life. The subterfuge used by the defendant in this respect is in the view of the court simply a crude attempt to disguise as sentiment, free of all sexual lust, these actions with their strong sexual bias. In view of the character of the two defendants and basing itself on the evidence submitted, the court is firmly convinced that sexual motives were the primary cause for the caresses exchanged by the two defendants.

Seiler was usually in financial difficulties. Katzenberger availed himself of this fact to make her frequent gifts of money, and repeatedly gave her sums from 1 to 10 reichsmarks. In his capacity as administrator of the property on which Seiler lived and which was owned by the firm he was a partner of, Katzenberger often allowed her long delays in paying her rental debts. He often gave Seiler cigarettes, flowers, and shoes.

The defendant Seiler admits that she was anxious to remain in Katzenberger’s favor. They addressed each other in the second person singular.

According to the facts established in the trial, the two defendants offered to their immediate surroundings, and in particular to the community of the house of 19 Spittlertorgraben, the impression of having an intimate love affair.

The witnesses Kleylein, Paul and Babette; Maesel, Johann; Heilmann, Johann; and Leibner, Georg observed frequently that Katzenberger and Seiler waved to each other when Seiler, through one of the rear windows of her flat, saw Katzenberger in his offices. The witnesses’ attention was drawn particularly to the frequent visits paid by Seiler to Katzenberger’s offices after business hours and on Sundays, as well as to the length of these visits. Everyone in the house came to know eventually that Seiler kept asking Katzenberger for money, and they all became convinced that Katzenberger, as the Jewish creditor, exploited sexually the poor financial situation of the German-blooded woman Seiler. The witness Heilmann, in a conversation with the witness Paul Kleylein, expressed his opinion of the matter to the effect that the Jew was getting a good return for the money he gave Seiler.

Nor did the two defendants themselves regard these mutual calls and exchange of caresses as being merely casual happenings of daily life, beyond reproach. According to statements made by the witnesses Babette and Paul Kleylein, they observed Katzenberger to show definite signs of fright when he saw that they had discovered his visits to Seiler’s flat as late as 1940. The witnesses also observed that during the later period Katzenberger sneaked into Seiler’s flat rather than walking in openly.

In August 1940, while being in the air-raid shelter, the defendant Seiler had to put up with the following reply given to her by Oestreicher, an inhabitant of the same house, in the presence of all other inhabitants: “I’ll pay you back, you Jewish hussy.” Seiler did not do anything to defend herself against this reproach later on, and all she did was to tell Katzenberger of this incident shortly after it had happened. Seiler has been unable to give an even remotely credible explanation why she showed this remarkable restraint in the face of so strong an expression of suspicion. Simply pointing out that her father, who is over seventy, had advised her not to take any steps against Oestreicher does not make more plausible her restraint shown in the face of the grave accusation made in public.

The statements made by Hans Zeuschel, assistant inspector of the criminal police, show that the two defendants did not admit from the very beginning the existing sexual situation as being beyond reproach. The fact that Seiler admitted the caresses bestowed on Katzenberger only after having been earnestly admonished, and the additional fact that Katzenberger, when interrogated by the police, confessed only when Seiler’s statements were being shown to him, forces the conclusion that they both deemed it advisable to keep secret the actions for which they have been put on trial. This being so, the court is convinced that the two defendants made these statements only for reason of opportuneness intending to minimize and render harmless a situation which has been established by witnesses’ testimony.

Seiler has also admitted that she did not tell her husband about the caresses exchanged with Katzenberger prior to her marriage—all she told him was that in the past Katzenberger had helped her a good deal. After getting married in July 1939 she gave Katzenberger a “friendly kiss” on the cheek in the presence of her husband on only one occasion, otherwise they avoided kissing each other when the husband was present.

In view of the behavior of the defendants toward each other, as repeatedly described, the court has become convinced that the relations between Seiler and Katzenberger which extended over a period of 10 years were of a purely sexual nature. This is the only possible explanation of the intimacy of their acquaintance. As there were a large number of circumstances favoring seduction no doubt is possible that the defendant Katzenberger maintained continuous sexual intercourse with Seiler. The court considers as untrue Katzenberger’s statement to the contrary that Seiler did not interest him sexually, and the statements made by the defendant Seiler in support of Katzenberger’s defense the court considers as incompatible with all practical experience. They were obviously made with the purpose of saving Katzenberger from his punishment.

The court is therefore convinced that Katzenberger, after the Nuernberg laws had come into effect, had repeated sexual intercourse with Seiler, up to March 1940. It is not possible to say on what days and how often this took place.

The Law for the Protection of German Blood defines extra-marital sexual intercourse as any form of sexual activity apart from the actual cohabitation with a member of the opposite sex which, by the method applied in place of actual intercourse, serves to satisfy the sexual instincts of at least one of the partners. The conduct to which the defendants admitted and which in the case of Katzenberger consisted in drawing Seiler close to him, kissing her, patting and caressing her thighs over her clothes, makes it clear that in a crude manner Katzenberger did to Seiler what is popularly called “Abschmieren” [petting]. It is obvious that such actions are motivated only by sexual impulses. Even if the Jew had only done these so-called “Ersatzhandlungen” [sexual acts in lieu of actual intercourse] to Seiler, it would have been sufficient to charge him with racial pollution in the full sense of the law.

The court, however, is convinced over and above this that Katzenberger, who admits that he is still capable of having sexual intercourse, had intercourse with Seiler throughout the duration of their affair. According to general experiences it is impossible to assume that in the 10 years of his tête-a-tête with Seiler, which often lasted up to an hour, Katzenberger would have been satisfied with the “Ersatzhandlungen” which in themselves warranted the application of the law.

III

Thus, the defendant Katzenberger has been convicted of having had, as a Jew, extra-marital sexual intercourse with a German citizen of German blood after the Law for the Protection of German Blood came into force, which according to section 7 of the law means after 17 September 1935. His actions were guided by a consistent plan which was aimed at repetition from the very beginning. He is therefore guilty of a continuous crime of racial pollution according to sections 2 and 5, paragraph 11 of the Law for the Protection of German Blood and German Honor of 15 September 1935.

A legal analysis of the established facts shows that in his polluting activities, the defendant Katzenberger, moreover, generally exploited the exceptional conditions arising out of wartime circumstances. Men have largely vanished from towns and villages because they have been called up or are doing other work for the armed forces which prevents them from remaining at home and maintaining order. It was these general conditions and wartime changes which the defendant exploited. As he continued his visits to Seiler’s apartment up to spring 1940, the defendant took into account the fact that in the absence of more stringent measures of control his practices could not, at least not very easily, be seen through. The fact that her husband had been drafted into the armed forces also helped him in his activities.

Looked at from this point of view, Katzenberger’s conduct is particularly contemptible. Together with his offense of racial pollution he is also guilty of an offense under section 4 of the decree against public enemies. It should be noted here that the national community is in need of increased legal protection from all crimes attempting to destroy or undermine its inner solidarity.

On several occasions since the outbreak of war the defendant Katzenberger sneaked into Seiler’s flat after dark. In these cases the defendant acted by exploiting the measures taken for the protection in air raids and by making use of the black-out. His chances were further improved by the absence of the bright street lighting which exists in the street along Spittlertorgraben in peacetime. In each case he exploited this fact being fully aware of its significance, thus during his excursions he instinctively escaped observation by people in the street.

The visits paid by Katzenberger to Seiler under the cover of the black-out served at least the purpose of keeping relations going. It does not matter whether during these visits extra-marital sexual intercourse took place or whether they only conversed because the husband was present, as Katzenberger claims. The motion to have the husband called as a witness was therefore overruled. The court holds the view that the defendant’s actions were deliberately performed as part of a consistent plan and amount to a crime against the body according to section 2 of the decree against public enemies. The law of 15 September 1935 was promulgated to protect German blood and German honor. The Jew’s racial pollution amounts to a grave attack on the purity of German blood, the object of the attack being the body of a German woman. The general need for protection therefore makes appear as unimportant the behavior of the other partner in racial pollution who, however, is not liable to prosecution. The fact that racial pollution occurred at least up to 1939–1940 becomes clear from statements made by the witness Zeuschel to whom the defendant repeatedly and consistently admitted that up to the end of 1939 and the beginning of 1940 she was used to sitting on the Jew’s lap and exchanging caresses as described above.

Thus, the defendant committed an offense also under section 2 of the decree against public enemies.

The personal character of the defendant likewise stamps him as a public enemy. The racial pollution practiced by him through many years grew, by exploiting wartime condition, into an attitude inimical to the nation, into an attack on the security of the national community during an emergency.

This was why the defendant Katzenberger had to be sentenced, both on a crime of racial pollution and of an offense under sections 2 and 4 of the decree against public enemies, the two charges being taken in conjunction according to section 73 of the penal code.

In view of the court the defendant Seiler realized that the contact which Katzenberger continuously had with her was of a sexual nature. The court has no doubt that Seiler actually had sexual intercourse with Katzenberger. Accordingly the oath given by her as a witness was to her knowledge and intention a false one, and she became guilty of perjury under sections 154 and 153 of the penal code.

IV

In passing sentence the court was guided by the following considerations:

The political form of life of the German people under national socialism is based on the community. One fundamental factor of the life of the national community is the racial problem. If a Jew commits racial pollution with a German woman, this amounts to polluting the German race and, by polluting a German woman, to a grave attack on the purity of German blood. The need for protection is particularly strong.

Katzenberger practiced pollution for years. He was well acquainted with the point of view taken by patriotic German men and women as regards racial problems and he knew that by his conduct the patriotic feelings of the German people were slapped in the face. Neither the National Socialist Revolution of 1933, nor the passing of the Law for the Protection of German Blood in 1935, neither the action against the Jews in 1938, nor the outbreak of war in 1939 made him abandon this activity of his.

As the only feasible answer to the frivolous conduct of the defendant, the court therefore deems it necessary to pronounce the death sentence as the heaviest punishment provided by section 4 of the decree against public enemies. His case must be judged with special severity, as he had to be sentenced in connection with the offense of committing racial pollution, under section 2 of the decree against public enemies, the more so, if taking into consideration the defendant’s personality and the accumulative nature of his deeds. This is why the defendant is liable to the death penalty which the law provides for such cases as the only punishment. Dr. Baur, the medical expert, describes the defendant as fully responsible.

Accordingly, the court has pronounced the death sentence. It was also considered necessary to deprive him of his civil rights for life, as specified in sections 32–34 of the penal code. When imposing punishment on the defendant Seiler, her personal character was the first matter to be considered. For many years, Seiler indulged in this contemptible love affair with the Jew Katzenberger. The national regeneration of the German people in 1933 was altogether immaterial to her in her practices, nor was she in the least influenced when the Law for the Protection of German Blood and Honor was promulgated in September 1935. It was, therefore, nothing but an act of frivolous provocation on her part to apply for membership in the NSDAP in 1937 which she obtained.

When by initiating legal proceedings against Katzenberger the German people were to be given satisfaction for the Jew’s polluting activities, the defendant Seiler did not pay the slightest heed to the concerns of State authority or to those of the people and decided to protect the Jew.

Taking this over-all situation into consideration the court considered a sentence of 4 years of hard labor as having been deserved by the defendant.

An extenuating circumstance was that the defendant, finding herself in an embarrassing situation, affirmed her—as she knew—false statement with an oath. Had she spoken the truth she could have been prosecuted for adultery, aiding, and soliciting. The court therefore reduced the sentence by half despite her guilt, and imposed as the appropriate sentence 2 years of hard labor. (Sec. 157, par. I, No. 1, of the Penal Code.)

On account of the lack of honor of which she was convicted, she had to be deprived of her civil rights too. This has been decided for a duration of 2 years.

Taking into consideration the time spent in arrest pending trial: Section 60, Penal Code. Costs: Section 465, Code of Criminal Procedure.

[Signed] Rothaug

Dr. Ferber

Dr. Hoffmann

Certified:

Nuernberg, 23 March 1942

The Registrar of the Office of the Special
Court for the district of the Nuernberg Court
of Appeal with the District Court Nuernberg-Fuerth

[Stamp]

District Court

[Illegible signature]

Nuernberg-Fuerth

Justizinspektor

LETTER FROM DEFENDANT SCHLEGELBERGER AND GREISER, REICH GOVERNOR OF THE WARTHEGAU (POLAND) TO LAMMERS, 15 DECEMBER 1941, STATING THAT GREISER’S AUTHORITY CONCERNING THE EXECUTION OF DEATH SENTENCES AND PARDONING OF POLES AND JEWS IS NO LONGER RESTRICTED

Berlin, 15 December 1941

II a-2-3020/41

To the Reich Minister and Chief of the Chancellery of the Reich

Subject: Letter of the cosignatory Reichsstatthalter of the Reichsgau Wartheland, dated 13 November 1941

Since the cosignatory Reichsstatthalter of the Reichsgau Wartheland has been notified by the cosignatory Reich Minister of Justice, that until further notice, that is for the duration of war, the delegation of authority to the Reichsstatthalter in the Reichsgau Wartheland to order the execution of death penalties against Poles and Jews, as well as for pardoning of Poles and Jews who have been sentenced to death, is no longer restricted, the contents of the communication of 13 November is of no further consequence.

[Signed] Schlegelberger

[Signed] Greiser

Rk 1000 B

LETTER FROM THE PROVINCIAL PRESIDENT OF UPPER SILESIA TO LAMMERS, 26 JANUARY 1942, REQUESTING THE POWER OF AMNESTY FOR POLES AND JEWS SENTENCED TO DEATH

BK 1279 28 January 1942 [Initial] Fi [Ficker]

Provincial President

Of the Province of Upper Silesia

O. P. I b 3

[Handwritten] on hand RM 1,000 B 1ob

[Initial] Ma 28/1

[Initial] Gg

[Illegible initial]

28/1

To the Chief of the Reich Chancellery

Reich Minister Dr. Lammers

Reich Chancellery

Berlin

Dear Reich Minister:

The decree of 4 December 1941, 1b (Reich Law Gazette I, p. 759), concerning penal measures against Poles and Jews in the Incorporated Eastern Territories aims at punishing quickly and effectively criminal acts committed by Poles and Jews within the Incorporated Eastern Territories. Its success, however, is doubtful as long as it is necessary to obtain a decision from the Reich Minister of Justice before granting amnesties [Gnadenrecht] to Poles and Jews sentenced to death. In view of the peculiar criminal and political situation in Upper Silesia, which is marked by the growing Polish resistance movement, such delays—especially in wartime—are intolerable.

I therefore request you to take steps to have transferred to the power of granting amnesties—at least for the duration of the war—to Poles and Jews within the province of Upper Silesia who have been legally sentenced to death.

I should like to point out especially that according to an article in the periodical “Deutsches Recht,” 1941, (p. 2472), the Gauleiter and Reichsstatthalter in the Reichsgau Wartheland [Greiser][358] has already been granted similar powers.

Heil Hitler!

Yours

[Signed] Bracht

N 89 Justice 12

LETTER FROM DEFENDANT SCHLEGELBERGER TO LAMMERS, 26 MAY 1942, TRANSMITTING A COPY OF SCHLEGELBERGER’S DECREE DELEGATING THE RIGHT TO PARDON POLES AND JEWS TO REICH GOVERNORS AND PROVINCIAL PRESIDENTS

[Stamp]

Reich Chancellery 7996B-2 June 1942

[Initial] Fi [Ficker]

1 enclosure

Reich Minister of Justice

9170 East /2—IIa-2-1054/42

[Initial] Kr [Kritzinger]

To the Reich Minister and Chief of the Reich Chancellery

Subject: Delegation of the right of pardon in the case of Jews and Poles

Reference: Letter of 16 March 1942—Reich Chancellery 2477 B.

1 enclosure

I enclose for your information a copy of my decree of 28 May 1942, by which I, in agreement with the Reich Minister and the Chief of the Presidential Chancellery, delegated the exercise of the right of pardon in the case of Poles and Jews sentenced by general courts in the Incorporated Eastern Territories to the Reich governors and provincial presidents of these provinces for the duration of the war.

The Acting Minister

[Signed] Dr. Schlegelberger

[Handwritten notes]

1. Submitted to the Reich Minister.

[Initial] L [Lammers] 6 June

2. File!

[Initial] Kr [Kritzinger] 3 June

[Initial] F [Ficker] 2 June

[Decree delegating Right to pardon Poles and Jews to Reich Governors and Provincial Presidents]

I delegate for the duration of the war the exercise of the right to pardon Poles and Jews sentenced by the general courts in the Incorporated Eastern Territories (including the Special Courts), as far as the Fuehrer has delegated it to me and no other delegation has yet been made by me, to the Reich governors (attorneys general) each for his respective province, in the Reich provinces of Wartheland and Danzig-West Prussia and the provincial presidents of the provinces of Upper Silesia and East Prussia.

Berlin, 28 May 1942

The Acting Reich Minister of Justice

[Signed] Dr. Schlegelberger

(Seal)

to 9/70 East /2—II a-2-1054/42

7886 B   341357

LETTER FROM THE REICH MINISTRY OF JUSTICE, SIGNED BY FREISLER, TO PRESIDENTS OF DISTRICT COURTS OF APPEAL AND OTHERS, 7 AUGUST 1942, CONCERNING “POLES AND JEWS IN PROCEEDINGS AGAINST GERMANS”

The Reich Minister of Justice

4110-IV a-4-1586

To the

Presidents of the District Courts of Appeal,

Attorneys General at the District Courts of Appeal

For information to:

(a) The Presidents of the Reich Supreme Court and of the People’s Court,

(b) The Chief Reich Prosecutors at the Reich Supreme Court and at the People’s Court.

Subject: Poles and Jews in proceedings against Germans

Enclosures: Copies for the Presidents of the District Courts, Chief Public Prosecutors, Local Courts, and Public Prosecutors at the Local Courts

The Penal Ordinance for Poles of 4 December 1941[359] (Reichsgesetzblatt I, p. 759) was intended not only to serve as a criminal law against Poles and Jews, but beyond that also to provide general principles for the German administration of law to be adopted in all criminal proceedings against Poles and Jews irrespective of the role which the Poles and Jews play in the individual proceedings. The regulations of article IX, for instance, according to which Poles and Jews are not to be sworn in apply to proceedings against Germans as well.

I have found that the special legal status of the Poles and Jews who are subject to the penal ordinance for Poles is not always taken into account. Reference is therefore made to the following points:

1. Proceedings against Germans should be carried on whenever possible without calling Poles and Jews as witnesses. If, however, such a testimony cannot be evaded, the Pole or Jew must not appear as a witness against the German during the trial, he must always be interrogated by a judge who has been appointed or requested to do so, (art. II, par. 1 of the Order for Execution of 31 Jan. 1942[360]—(Reichsgesetzblatt I, p. 52)).

2. Evidence given by Poles and Jews during proceedings against Germans must be received with the utmost caution especially in those cases where other evidence is lacking. I request that the Fuehrer order published in my circular decree of 3 September 1941-4103-II a-2-2041/41 concerning the interrogation of enemy subjects be applied to Poles and Jews as well.

3. Proceedings against Germans on the basis of charges preferred by Poles and Jews are only justified if sufficient proof is available that such a charge is well founded and if paragraph 153 of the Code of Criminal Procedure appears to be nonapplicable right from the beginning. As a rule, a thorough interrogation of the person preferring charges will have to take place first. The public prosecutor will also limit his application to the police in the same way. Coercive measures against the accused German as well as his official interrogation should in every case be undertaken only if the suspicion that the German has committed a serious offense has been sufficiently substantiated.

No information about the result of the proceedings is to be given to a Pole or Jew who has preferred charges against a German.

As deputy:

[typed] Signed: Dr. Freisler

Certified.

[Signed] Kanniess

Senior clerk of Ministerial Chancellery

[Stamp]

Reich Ministry of Justice

Office of the Minister

NOTES OF THE REICH MINISTRY OF JUSTICE ON A CONFERENCE OF 9 OCTOBER 1942 ON TRANSFER OF CONVICTS AND “ASOCIALS” IN VARIOUS CATEGORIES TO THE AFRICA BRIGADE, SPECIAL COMMANDOS IN THE EAST, AND TO HIMMLER

Copy

Conference on 9 October 1942

SECRET

I. AFRICA BRIGADE

The Fuehrer has ordered the formation of an Africa Brigade composed of members of the age groups 1908 and younger who had hitherto been classified as unworthy of military service. The military unworthy assigned to the brigade in the African theater should be given the opportunity to redeem themselves, and thereby obtain permanent military worthiness. Those called up by virtue of the Fuehrer’s orders are to be classified as military worthy for the duration of their military service.

For the execution of the Fuehrer’s order, the High Command of the Armed Forces has issued the order of 2 October 1942—Az 12 i 10.34 AHA/Ag/E (Ia)—Nr.550/42 g Kdos (top secret). Accordingly, the following will be called up:

1. Military unworthy German citizens of the age group 1908 or younger who have been sent to the penitentiary for 3 years or less and have not been penalized for the same or similar offenses either before or after the original offense.

2. Military unworthy German citizens of the same age group who have been sentenced to the penitentiary for 3 to 5 years for a first offense, and have no previous or later sentences.

3. Military unworthy German citizens of the same age group who have been sentenced to the penitentiary for 3 years (ref. par. 1) and who still are serving their sentences, in case they have served 1 year with good conduct.

Concerning paragraphs 1–3, those called up must be fit for field and tropical service. Individuals with homosexual tendencies, or who were punished for high treason, or have been ordered to be held in custody for security reasons, or to be castrated are not to be called up. For those unfit to serve who have been sentenced to and have served up to 1½ years in the penitentiary and have otherwise served sentences for only minor offenses, the restoration of military worthiness will continue as a rule through the pardon channels. These may, as usual, be placed in various units of the army.

The measures necessary in the administration of justice according to this order are put into effect—

Pardon proceedings instigated by the local recruiting authorities on behalf of those sentenced who belong to the age groups of 1908 and younger will not as a rule be continued. The armed forces replacement offices concerned will be informed by the pardoning authorities, to desist from further processing of these requests by order of the High Command of the Armed Forces. Exceptions are proceedings against those, who have been sentenced up to 1½ years’ penitentiary (see above). These proceedings will be acted upon in the manner heretofore customary, and if need be, presented to the Reich Minister of Justice for decisions.

The attorneys general will issue a report on the number of convicts who are still in confinement who come under this category for induction. They will simultaneously compile lists which will contain personal particulars of those persons sentenced (name, birth-date and town, occupation, sentence, expiration date, behavior, etc.). The list will be sent to the army office concerned. The named prisoners will await the army’s call.

II. SPECIAL COMMANDOS IN THE EAST

The Reich Marshal has expressed the wish to have convicts made available to be used as special commandos in the East, and to carry out sabotage behind the enemy’s lines. He refers to convicts who strayed off the straight and narrow and have not committed especially dishonorable deeds, for whose person and deed one may have human understanding. Especially suited are poachers who out of a passion for hunting have trespassed, and smugglers who have risked their lives in battle on the borders against the custom officials.

The poachers are already being turned over to the Reich Leader SS for special duties. The number of smugglers who come under consideration is exceptionally small. A telephonic questioning of the 13 district attorneys located on the borders of the Reich, disclosed only 2 suitable smugglers in confinement and three are being investigated. In the case of the latter, the citizenship is doubtful. There are no similar groups of convicts for this task who could make any difference in amounts. Under these circumstances it appeared practical to give the attorneys general the general task of obtaining the convicts, appropriate for this purpose, and reporting them. Prerequisites are, voluntary enlistment, physical fitness for military service, age 18 to 45 years, confinement of at least 1 year for a deed not especially dishonorable. The following are exceptions:

a. Foreigners, stateless persons, those of non-German blood.

b. Persons who have been punished because of homosexuality or high treason, or against who imprisonment for security reasons or castration has been ordered.

The appropriate request to the attorneys general has been made. The reports are expected before 25 October 1942. They are being checked in the Reich Ministry of Justice. The names of those convicts appearing suitable according to this will be made known to the Reich Marshal. Insofar as they fulfill also the prerequisites for induction into the Africa Brigade, a corresponding reference will be necessary.

III. DELIVERY OF ASOCIAL CONVICTS

[Asoziale Strafgefangen]

Persons in penal institutions designated as asocial persons by judicial decision are to be turned over to the Reich Leader SS.

1. Persons in custody for reasons of security—Persons in custody for reasons of security who are in German penal institutions will be put at the disposal of the Reich Leader SS. The execution of sentence will be regarded as interrupted by the delivery.

In detail the following principles should govern proceedings:

a. Persons under court martial sentences will not be delivered. Prisoners sentenced by former Polish courts or by courts of the Government General, will be transferred; before this, however, agreement with the Governor General will be obtained. The workhouse according to Austrian law is not equivalent to security custody [Sicherungsverwahrung].

b. Whether women are also to be delivered is still doubtful. This question will be discussed with SS Gruppenfuehrer Streckenbach. In this regard it will have to be a fundamental point from the beginning that in the case of female Poles, Jews, and gypsies no doubt about the delivery can exist.

c. Foreigners are not affected. Poles, Russians, Ukrainians, Jews, gypsies do not rank as foreigners, however, Latvians, Estonians, do. Czechs sentenced by German courts will be handled like Germans.

d. The sick will be delivered, as soon as they are able to be transported. The question whether prisoners in penal institutions who according to the opinion of the institution are insane should be delivered will be discussed with SS Gruppenfuehrer Streckenbach.

e. The delivery of persons in custody for security reasons will take place as a matter of basic principle also in the case of such prisoners who on account of age or for other reasons no longer seem dangerous. An exception will be made only in the case of persons in security custody, in whose case the institution is convinced that because of their favorable development they can be released within a predictable time. These cases will be laid before section XV for individual checking.

f. Persons sentenced who are still serving penitentiary sentences, but who in addition have been sentenced to security custody, will be put at the disposal of the Reich Leader SS.

g. When delivering prisoners it must be taken into account that the production of industries important to defense should suffer no stoppages. Insofar as necessary workers to replace them must be trained first.

h. The question, to whom the delivery will be made, will be discussed with SS Gruppenfuehrer Streckenbach.

i. In the immediate future only persons who have received final judgment will be taken; the decision on future sentences is in abeyance. For the reception of persons sentenced later, individual institution will be designated, the number of which is to be limited as much as possible.

2. Jews, gypsies, Russians, and Ukrainians will be delivered to the Reich Leader SS without exception.

3. Poles—Ethnic Poles who are subject to the Polish criminal law regulations or have been delivered to the Polish penal authorities and who have more than 3 years’ sentence to serve will be delivered to the Reich Leader SS.

Poles with smaller sentences will remain in custody of the prison system. After serving their sentences they will be reported by name to the police just the same.

4. Penitentiary prisoners—Penitentiary prisoners of the German and Czech ethnic groups, who are sentenced to a punishment of over 8 years, will be individually checked to see whether they are according to their personality, asocial, i.e., whether they will be worthless forever to the nation. If the answer to this question is affirmative, they will be delivered to the Reich Leader SS.

The check-up will be undertaken in section XV (Vice President of the People’s Court Engert, Oberregierungsrat, Hupperschwiller, Chief Public Prosecutor Meyer). Vice President Engert will regulate the technical execution. The decisions in individual cases are incumbent upon him. Special cases will be reported to the Reich Minister of Justice.

The guiding principles for those in security custody (III, 1) are valid, and furthermore the following is to be observed in this regard.

On the treatment of Czechs sentenced by courts in the Protectorate a conversation with the Reich Protector is necessary. The question whether Alsatians and Lorrainers who have been sentenced in Alsace and Lorraine should be taken must be cleared by negotiation with the chiefs of the civil administration.

Persons originally sentenced to death whose sentences have been commuted to penitentiary sentences over 8 years fall under the scope of the action, insofar as they are regarded as asocial. Under this requirement those sentenced persons are also included who have close relatives in the field, and prisoners for whom, because of their commitment in the removal of aerial bombs, a later commutation is contemplated.

On the treatment of persons sentenced who are lodged in curative or medical institutions, negotiations with SS Gruppenfuehrer Streckenbach must be undertaken.

[typed] Signed: Dr. Crohne

13 October

LETTER FROM REICH MINISTER OF JUSTICE THIERACK TO BORMANN, 13 OCTOBER 1942, CONCERNING THE “ADMINISTRATION OF JUSTICE AGAINST POLES, RUSSIANS, JEWS, AND GYPSIES”

T 459

The Reich Minister of Justice

Berlin, 13 October 1942

[Handwritten] Dispatched 13/10.

[Initials] Kue [Kuemmerlein]

To Reichsleiter Bormann

Fuehrer Headquarters

Subject: Administration of criminal justice against Poles, Russians, Jews, and gypsies

Dear Reichsleiter:

With a view to freeing the German people of Poles, Russians, Jews, and gypsies, and with a view to making the eastern territories incorporated into the Reich available for settlements of German nationals, I intend to turn over criminal proceedings against Poles, Russians, Jews, and gypsies to the Reich Leader SS. In so doing I work on the principle that the administration of justice can only make a small contribution to the extermination[361] of members of these peoples [Angehoerige dieses Volkstums auszurotten]. Undoubtedly the administration of justice pronounces very severe sentences on such persons, but that is not enough to constitute a material contribution toward the realization of the above-mentioned aim. Nor is any useful purpose served by keeping such persons in German prisons and penitentiaries for years, even if they are utilized as labor for war purposes as is done today on a large scale.

I am, on the other hand, of the opinion that considerably better results can be accomplished by surrendering such persons to the police, who can then take the necessary measures unhampered by any legal criminal evidence. I start from the principle that such measures seem entirely justified in wartime, and that certain conditions which I consider essential are fulfilled. These conditions consist in the prosecution of Poles and Russians by the police only if they resided until 1 September 1939 in the former state territory of Poland or the Soviet Union; and secondly, that Poles who were registered as being of German descent will continue to be subjected to prosecution by the administration of justice as before.

On the other hand, the police may prosecute Jews and gypsies irrespective of these conditions.

But no changes whatsoever are to be made in regard to the prosecution of other foreign nationals by the administration of justice.

The Reich Leader SS, with whom I discussed these views, agrees with them. I also informed Dr. Lammers.

I submit this matter to you, dear Reichsleiter, with the request to let me know whether the Fuehrer approves this view. If so, I would then make my official recommendations through Reich Minister Dr. Lammers.

[Handwritten] After one week.

[Initial] Kue [Kuemmerlein] 10/19, 10/26

Heil Hitler!

yours

[Initial] Th [Thierack]

LETTER OF THE REICH MINISTRY OF JUSTICE TO LEADING JUDGES AND PROSECUTORS, 4 APRIL 1944, TRANSMITTING A REPORT OF THE REICH STATISTICAL BUREAU ON “CRIMINALITY IN THE GREATER GERMAN REICH IN THE YEAR 1942,” EXCLUSIVE OF CASES HANDLED BY THE PEOPLE’S COURT

The Reich Minister of Justice

4206 III a-4-446

To the Presidents of the Reich Supreme Court and the People’s Courts

To the Presidents of the Districts Courts of Appeal and the
Chief Reich Prosecutors
at the Reich Supreme Court and the People’s Court,
as well as the Public Prosecutors at the Courts of Appeal

Subject: Development of criminality

1 enclosure: 1 copy each of the enclosed report regarding criminality in the Greater German Reich in the year 1942

I am enclosing one copy of the report regarding criminality in the Greater German Reich. Please acknowledge and treat confidentially.

By order:

[Typed] Signed: Grau

Certified: [Signed] Seemann

Judicial Clerk

[Stamp]

Reich Ministry of Justice

Ministerial Chancellery

[Handwritten] To Under Secretary Dr. Klemm

Reich Statistical Bureau

Criminality in the Greater German Reich in the year 1942

1. Total result

Since 1 January 1942 the Reich statistics of criminality comprise territorially the area of the Greater German Reich with the exception of the Alpine and Danube Gaue where the criminal law of the Reich as the exclusive basis of the statistics of criminality in the Reich, has not yet been introduced in its totality. As to persons, the statistics of criminality in the Reich enumerate separately—

a. German nationals and aliens (aliens too will be enumerated separately from 1 January 1943 on).

b. Members of the Protectorate.

c. Poles and Jews sentenced on the basis of the Penal Ordinance for Poles.

d. Other racial Jews.

Taking these individual groups together, a total of 457,129 persons were sentenced[362] with legally binding effect in the Greater German Reich for crimes and offenses against laws of the Reich (not counting sentences for crimes and offenses against laws of the Reich falling under the jurisdiction of the People’s Court) that is, 9.4 percent more than in the year 1941 (417,923). The number of persons convicted with legally binding effect amounts to 417,001—91.2 percent of the total number of persons accused; 1941 [amounted] to 377,072—90.2 percent. Punishment was inflicted on 372,502 persons convicted (1941: 346,105)—89.3 percent (91.8 percent) and punishment and corrective measures on 2,449 (3,082)—0.6 percent (0.8 percent).

Of 29,305 (1941: 30,540) persons sentenced 6.4 percent (7.3 percent) were acquitted. In addition corrective measures were decreed in the case of 139 (134) defendants who were acquitted, in the case of 487 (495) corrective measures were decreed independently, and in the case of 35 (54) persons a motion to decree corrective measures independently was refused.

In 10,162 cases (2.2 percent) compared with 9,628 (2.3 percent) in the previous year, proceedings were quashed by the court.

In the year reported on 84,318—20.2 percent of the total number of persons convicted, compared with 92,546—24.5 percent in the year 1941, were persons who had been previously convicted of crimes or offenses against laws of the Reich.

Total number of persons convicted—

19411942
NumberPercentNumberPercent
I. Crimes and offenses in violation of the Reich Penal Code232,88861.8240,47357.7
II. Crimes and offenses in violation of other laws of the Reich144,18438.2176,52842.3

Thus, the proportion of crimes and offenses in violation of the Reich Penal Code decreased from 1941 to 1942, whereas the proportion of those in violation of other laws of the Reich increases as a result of the growing number of violations of wartime penal legislation.

Detailed information concerning the extent of criminal acts in 1942, important for reasons of criminal policy as well as numerically compared with the previous year, is furnished in the chart [1] below.

19411942
Total number of persons sentencedPersons previously convicted among themTotal number of persons sentencedPersons previously convicted among them
Sexual crimes and offenses against morality13,5914,54410,5883,074
Thereunder--
Sodomy and bestiality3,9631,5222,790936
Indecent assault on persons under 14 years of age4,3741,3643,415964
Murder1875015342
Manslaughter1513711825
Abortion2,9934823,193425
Slight, dangerous, and serious bodily injury13,3533,43910,0242,215
Larceny, also in the case of repeated offenses77,55621,67589,65621,188
Aggravated larceny, also in the case of repeated offenses12,1923,93615,5873,776
Embezzlement10,9874,12910,1792,968
Robbery, also in the case of second offenders and extortion equivalent to robbery30010418659
Extortion512182353102
Receiving stolen goods, also in the case of repeated offenses10,9562,32914,7782,619
Simple fraud, also in the case of repeated offenses16,2588,00512,5515,266
Forgery of Public Documents, etc.8,0522,0759,9522,069
Arson1212311920
Major and minor crimes by breach of official duties2,2083542,471311
Crimes and offenses against the law concerning dealings with food, etc. (Adulteration of foods)3,4336682,801557
Law concerning fire arms1,6263041,317206
Law for the protection of German blood and German honor (race pollution)1898610946
Decree against people’s parasites3,8221,9416,3492,602
Decree concerning Crimes of Violence282149263131

Thus, we find an increase, to a more or less considerable degree, in the following crimes: abortion (+6.7 percent), larceny and aggravated larceny (+15.6 percent and +27.8 percent resp.), and receiving of stolen goods (+34.9 percent). The three last named criminal acts, the most important of which are directed against property, constitute approximately 50 percent of all crimes and offenses against the Reich Criminal Code recorded for this year. The same offenses constituted only 43.2 percent of the total in 1941. Cases of forgery of public instruments also show an increase (+23.6 percent), partly in consequence of the forging of the numerous identity cards and papers necessitated by the government control of economy. Offenses by breach of official duties, likewise, have increased in number (+11.9 percent). The increase of cases pertaining to the decree against people’s parasites is particularly noticeable (+66.1 percent).

On the other hand, all categories of sexual crimes have decreased in number (-22.3 percent), particularly unnatural sexual offenses (-29.6 percent) and indecent assault on persons under 14 years of age (-21.9 percent). Decreases are also recorded for the various types of willful bodily injury (-24.9 percent), for the two capital crimes, murder and manslaughter (-18.2 percent and -21.9 percent resp.), among the crimes against property, embezzlement (-7.4 percent), for both robbery and extortion equivalent to robbery (-38 percent) as well as extortion (-31.1 percent) to a considerable extent, and, furthermore, for fraud (-22.8 percent). The decline in the number of convictions arising from crimes of violence (-6.7 percent) is also notable.

Sentences imposed in 1942 (1941) (this covers both fines and imprisonment) are as follows: 2,199 (1,085) death sentences, 20,104 (15,981) limited sentences of penitentiary [Zuchthaus] (including severe penal camp), 194,386 (162,768) sentences of imprisonment (including ordinary penal camp) and 162,158 (170,254) fines.

A comparison between this and last year’s criminal statistical data for individual groups cannot be drawn because of the introduction of a revised system of enumeration, previously mentioned, that went into effect 1 January 1942. Until then the Reich criminal statistics had not yet provided such an analysis of individual groups.

2. Ethnic members of the German national community and foreigners

a. Sentences

In 1942 a total number of 378,670 persons, both ethnic members of the German national community as well as foreigners were legally sentenced within the Greater Reich for crimes and offenses against Reich laws (not including sentences for crimes and offenses against Reich laws falling within the jurisdiction of the People’s Court). Of these, 341,540, or 90.2 percent were legally convicted. Penalties alone were imposed on 297,324, or 87.1 percent of those convicted, whereas both penalties and measures of security and reform were imposed on 2,332 or 0.7 percent. The number of convicted persons, punishment for whom was set aside in accordance with the juvenile court law amounts to 2,911 or 0.8 percent. However, for the vast majority of these cases measures of reform were ordered and these amounted to 10,233 according to this year’s record. Juvenile detention was ordered in the case of 37,717 defendants, which means 11 percent of all convicted ethnic members of the German community (and foreigners), and 71.9 percent of the total number of juveniles within this particular group who were subject to a penalty. In addition, prison sentences of indefinite duration were imposed on 1,256 juveniles.

For the recorded year 26,544 defendants or 7 percent of the total number, were acquitted. Besides, in 135 instances acquittal was granted along with measures of security and reform, in 475 cases such measures alone were imposed, and in 35 cases motions for measures of security and reform were rejected.

Proceedings were quashed by courts in 9,941 cases, representing 2.6 percent of the total of persons brought to trial.

212,410 or 62.2 percent of the total of convictions of German nationals (including foreigners) in 1942, represent crimes and offenses in violation of the Reich Penal Code and 129,130 or 37.8 percent represent crimes and offenses in violation of other laws of the Reich.

b. Personal Data on Convicted Persons

Of convicted German nationals (and foreigners) 116,754 or 34.2 percent in 1942, were female and 52,423 or 15.3 percent were juveniles (ranging in age from 14 to 18). The age group of 18 to 21, normally representing the heaviest criminal quota, participates in the total of convictions only with a number of 34,401 delinquents or 10.1 percent, due to the drafting of many of these age brackets. The number of persons already previously convicted for crimes and offenses against laws of the Reich amounts to a total of 77,322 or 22.6 percent of whom 18,478 or 23.9 percent had more than 4 previous convictions. 36,419 of the convicted persons or 10.7 percent were foreigners, of whom 3,064 or 8.4 percent represented juveniles.

c. Individual Criminal Acts

Chart 1 A[363] affords a view into the criminal structure of 1942. According to this, the various acts of theft form, as previously, the greater part of the total of convictions (91,476 or 43.1 percent; all of whom are persons convicted for crimes and offenses in violation of the Reich Penal Code). If one disposes of insult as a petty and civil offense (13,516 or 6.4 percent), there follows—though at a greater interval—the other two significant offenses against property, i.e., fraud (11,567 or 5.4 percent) and receiving stolen goods (12,115 or 5.7 percent). The fifth place is accorded to sexual offenses (10,205 or 4.8 percent) among which the indecent assaults on persons under 14 as well as sodomy and bestiality (32.7 percent and 26.2 percent resp.) represent comparatively the greater share of all sexual crimes and offenses. Then follow again two offenses against property, i.e., embezzlement (9,328 or 4.4 percent) and forgery of documents (8,628 or 4.1 percent).

In major crimes, murder participates with 117 convictions; manslaughter with 101, and robbery together with extortion equivalent to robbery with 147 delinquents.

If one arranges the above discussed, numerically significant criminal acts in accordance with convicted adults and juveniles the following results: Of the total number of adult and juvenile persons convicted for crimes and offenses in violation of the Reich Penal Code, the percentage is as follows:

AdultsJuveniles
Petty larceny33.849.3
Aggravated larceny3.817.5
Embezzlement4.82.7
Receiving stolen goods6.42.5
Fraud6.02.8
Forgery of Public Documents4.13.8
Sexual crimes and offenses4.75.1

In petty and aggravated larceny together, the number of crimes represent approximately two-thirds for juveniles and slightly less than four-tenths for adults.

Due to enactment of laws pursuant to war exigencies, the following other crimes and offenses deserve mentioning: They are arranged in order of the number of their convictions.

Persons
convicted
with legally
binding
effect
Penal ordinances relating to the rationing of consumer goods of 5 April 194018,565
Decree amending the penal code for the protection of the military power of the German nation of 25 November 19399,263
Amongst them: prohibited contact with prisoners of war (article 4)9,103
War Economy Decree of 4 September 19398,097
Decree against people’s parasites of 5 September 19395,029
Decree, subject: special measures concerning foreign broadcasts of 1 September 1939985
Decree relating to crimes of violence of 5 December 1939194

d. Sentences pronounced

Chart No. 2[364] gives the particulars about the sentences pronounced.

According to it, in 1942, 1,061 death sentences were pronounced, among them 18 against juveniles. 15,830 defendants were sentenced to terms in penitentiary for definite periods of time, of them 6,543 or 41.3 percent to a period of 3 years and more, 56 terms in penitentiary for a definite period of time were pronounced against juveniles.

Of the total number of terms of imprisonment amounting to 143,685—in the year reported on short-term sentences formed 41.5 percent of them, these of medium length 47.3 percent, long-term imprisonments 10.3 percent, and these of undefined length 0.9 percent.

Fines were imposed in 141,464 cases. Detention was pronounced in 378 cases.

In 1942 juvenile arrest was pronounced against 37,717 juveniles, i.e., against 71.9 percent of the total number of juvenile delinquents, among them were 25,562 arrests or 67.8 percent for a definite period of time. The proportion of chronologically defined terms of imprisonment of more than 2 weeks to the total number of arrests is 51.5 percent. 12,155 or 32.2 percent of the juveniles were sentenced to weekend incarceration, and among them 23.6 percent to the loss of three and four of their weekly off-times.

Of the protective and reformative measures described in article 42a of the Reich Penal Code, the following have been decreed with legally binding effect in 1942:

Placing into a lunatic asylum906
Placing into a reformatory institution for alcohol addicts90
Placing into a workhouse400
Protective custody1,414
Sterilization of dangerous sexual offenders152
Ban on the exercise of trade or profession298

In greater detail in the period reported on protective and reformative measures were decreed e.g., in the case of convictions for indecent assault on persons under 14 years of age; 232 times or 7.0 percent of the persons convicted for the offenses in question; for repeated petty larceny, 334 times or 7.4 percent; for repeated aggravated larceny, 195 times or 25.1 percent; and for repeated fraud, 271 times or 20.2 percent.

3. Other Groups of Persons

The following gives detailed particulars concerning the number of Protectorate Nationals, Poles and Jews, as well as racial Jews brought to trial in Greater Germany (exclusive of the Alpine and Danube Gaue) in 1942.

Protectorate
Nationals		Poles
and Jews		Racial
Jews
Persons brought to trial13,06063,7861,613
Juveniles brought to trial4825,16944
Percentage of persons brought to trial3.78.12.7
Convicted persons12,11761,8361,508
Percentage of persons brought to trial92.896.993.5
Acquitted8711,81674
Percentage of persons brought to trial6.72.84.6
Persons previously convicted2,4934,237266
Percentage of total convicted20.66.917.6
Persons with more than 4 previous
convictions among these		76659343
Percentage of previously convicted30.714.016.2

The figures given above concerning the convictions of Poles and Jews, refer exclusively to convictions according to the Penal Ordinance for Poles, that is to say, mainly to such crimes which have been committed in the Incorporated Eastern Territories. However, crimes are also included which have been committed in other districts of the German Reich by Jews and Poles, who on 1 September 1939 had their residence or permanent abode in the territory of the former Polish state (No. XIV of the Penal Ordinance for Poles).[365]

Contrary to expectations, the quota of Poles and Jews previously convicted is low; this can first of all be explained by the fact that some of the criminal records were destroyed in the eastern territories; furthermore that during the fighting in autumn 1939, the Poles opened the doors of the penitentiaries and released dangerous criminals who, in most cases, turned criminals again and were brought before the German summary courts; a great number of those retaken, against whom fresh violations of the law could not directly be proved, were sent to concentration camps as a preventive measure. In both instances, therefore, persons who had previous convictions were thus omitted from the census of criminal statistics. Taking these points into consideration, the quota of Poles and Jews previously convicted has still to be regarded as comparatively high.

Particulars concerning the most important punishable actions, committed by the above mentioned groups of persons which have led to a conviction, can be obtained from chart I B.

With regard to the penalties imposed upon them by the courts a total of 1,138 Protectorate Nationals, Poles, and Jews, as well as Jews by race were sentenced to death during the current year according to chart 2. These figures include 930 Poles and Jews sentenced under the crimes ordinance for Poles. The total number of penal servitude sentences, imposed for limited periods of time, against Protectorate Nationals and Jews by race amounts to 2,237 and the jail sentences amount to 7,321. By virtue of the criminal ordinance for Poles the sentence of penal camp for hard labor was imposed in 2,017 cases and that of regular penal camp in 43,180 cases.

The total fines imposed, amount to 20,694.

85 defendants had their property confiscated.

*******

Chart 2 Punishments meted out in the year 1942 on account of crimes and offenses against Reich laws

SentencesPunishments[366] meted out to--
German Nationals
(and Foreigners
Total of this
total to
juveniles		Inhabitants of
the Protectorate		Poles[367]
and
Jews		Racial Jews
Death sentences1,0611818693022
Penal servitude sentences:
For life
For a certain length of time, in toto15,850562,112125
For less than 3 years9,307181,29456
For 3 years and more6,5433881869
Total of jail sentences143,8859,6956,875646
Of them--
For less than 3 months59,7362,5202,595348
For 3 months up to 1 year88,0125,3153,020218
For one year and more14,8815041,05180
For an undetermined length of time1,2561,2569
Severe penal camp total of
sentences imposed		2,017
Of them--
For less than 5 years1,257
For 5 years or more760
Ordinary penal camp total
of sentences imposed		43,180
Of them--
For less than 1 year32,540
For 1 year or more10,640
Confiscation of property4783
Fines141,4642,0213,03716,939718
Confinement in a fortress
Arrest37831544
Arrest of juveniles in toto37,71737,717134
namely: for a certain period in toto25,56225,562
of this, for more than 2 weeks13,16513,165
Total of weekend imprisonments12,15512,155
Of this, [those with]
3 and 4 pass privileges		2,8662,866

THIRTEENTH REGULATION UNDER THE REICH CITIZENSHIP LAW, 1 JULY 1943[368]

1943 REICHSGESETZBLATT, PART I, PAGE 372

Under article 3 of the Reich Citizenship Law of 15 September 1935 (Reichsgesetzblatt I, p. 1146), the following is ordered:

Article 1

1. Criminal acts committed by Jews shall be punished by the police.

2. The decree concerning penal law for Poles [Polenstrafrechtsverordnung] of 4 December 1941[369] (Reichsgesetzblatt I, p. 759) shall no longer apply to Jews.

Article 2

1. The property of a Jew shall be confiscated by the Reich after his death.

2. The Reich may, however, grant compensation to the non-Jewish legal heirs and persons entitled to sustenance who have their domicile in Germany.

3. This compensation may be granted in the form of a lump sum, not to exceed the ceiling price of the property which has passed into possession of the German Reich.

4. Compensation may be granted by the transfer of titles and assets from the confiscated property. No costs shall be imposed for the legal processes necessary for such transfer.

Article 3

The Reich Minister of the Interior with the concurrence of the participating supreme authorities of the Reich shall issue the legal and administrative provisions for the administration and enforcement of this regulation. In doing so he shall determine to what extent the provisions shall apply to Jewish nationals of foreign countries.

Article 4

This regulation shall take effect on the seventh day of its promulgation. In the Protectorate Bohemia and Moravia it shall apply where German administration and German courts have jurisdiction; article 2 shall also apply to Jews who are citizens of the Protectorate.

Berlin, 1 July 1943

The Reich Minister of the Interior

Frick

Chief of the Party Chancellery

M. Bormann

Reich Minister of Finance

Count Schwerin von Krosigk>

Reich Minister of Justice

Dr. Thierack

SELECTIONS FROM CORRESPONDENCE PRECEDING ISSUANCE OF THIRTEENTH REGULATION UNDER REICH CITIZENSHIP LAW, 3 AUGUST 1942–21 APRIL 1943, INVOLVING LIMITATIONS UPON LEGAL RIGHTS OF JEWS, THEIR PUNISHMENT BY POLICE, AND RELATED MATTERS[370]

1. Letter from the Reich Ministry of Justice to several leading Reich authorities, 3 August 1942

Direct Reich Chancery 10939 B

Reich Minister of Justice

III a-2 1637 42  1506/5

Carbon Copy

Berlin W 8, 3 August 1942

Urgent Letter

To the

a. Reich Minister of the Interior

b. Reich Leader SS and Chief of the German Police

c. Reich Minister for People’s Enlightenment and Propaganda

d. Foreign Office

e. Chief of the Party Chancellery, Munich

f. Reich Protector for Bohemia and Moravia

Subject: Restriction of legal rights [Rechtsmittel][371] for Jews in criminal cases

1 Enclosure

Enclosed I submit the draft for an ordinance concerning the restriction of legal rights for Jews in criminal cases with the request to state your opinion in regard to it.

I have emphasized the importance in war of this ordinance, because it indirectly serves national defense. The dissatisfaction which is apparent in wide circles of the German population with regard to the fact that legal rights in criminal cases are still afforded to Jews and that they are still given the right to appeal to the courts in cases of sentences inflicted by the police is liable to weaken the determination of the German people to defend itself in this contest which has been imposed on it.

As Deputy:

[typed] signed: Dr. Freisler

2. Draft enclosed with the letter of the Reich Ministry of Justice of 3 August 1942

Copy

[Handwritten] 1508/05

Ordinance concerning the restriction of legal rights for Jews in criminal cases

Of....................1942

The Ministerial Council for the defense of the Reich decrees with force of law:

Article 1

Jews are not entitled to make use of the right of appeal, revision (appeal for nullification pursuant to the former Austrian law which has remained in force), and complaint against decisions in criminal cases.

Jews cannot appeal to courts for a decision against sentences inflicted by the police.

In cases where an appeal for legal rights has been filed already or a decision by a court proposed at the time this ordinance is being enforced, those are considered as cancelled.

Berlin,....................1942

The President of the Ministerial Council for
the Defense of the Reich,

[Handwritten] GFM [General-Feldmarshall]

Reich Minister and Chief of the Reich Chancellery

To IIIa-2 1637.42

344528

3. Letter from the Reich Ministry of the Interior to the Reich Ministry of Justice, 13 August 1942

Reich Chancery 11452B 15 August 1942 [Initial] Fi [Ficker]

Reich Minister of the Interior

Ib 1200/42  1508/06

7035

Use this reference in your reply.

Reference 15/8

Urgent Letter

S.Ang. of 21/8

To the Reich Minister of Justice

Subject: Restriction of legal rights for Jews

Referring to your letter of 3 August 1942 RK. 11405 B im Gg. 1b-III-2 1637.42

The same considerations which have prompted your suggestion to deny legal rights to Jews in criminal cases also apply to administrative matters. I would like to ask you, therefore, to extend the draft of an ordinance concerning the restriction of legal rights for Jews in criminal cases at the same time also to administrative matters, giving it about the following tenor:

Ordinance concerning the restriction of legal rights for Jews

Of....................1942.

The Ministerial Council for the Defense of the Reich decrees with force of law:

Article 1

Jews are not entitled to make use of the right of appeal in criminal or administrative cases.

They cannot appeal, as is otherwise admissible, to the courts for a decision against a decision taken.

Nor can they enter a protest which otherwise might be admissible.

Article 2

In cases where an appeal for legal rights or a protest has been filed already they are considered as canceled.

Article 3

This ordinance is enforced 7 days after its announcement. It is valid also in the Protectorate of Bohemia and Moravia and the Incorporated Eastern Territories.

Berlin,....................1942

The President
of the Ministerial Council for the
Defense of the Reich

Delegate General for the Reich Administration

Reich Minister and Chief of the Reich Chancellery

Copies to the supreme Reich authorities, except the Reich Minister of Justice with the request to state their opinion by 21 August 1942, in case of difference of opinion. Otherwise agreement will be assumed.

As deputy:

[signed] Dr. Stuckart

4. Letter from the Reich Ministry of Justice, signed by the defendant Schlegelberger, to the Reich Ministry for People’s Enlightenment and Propaganda, 13 August 1942

The Acting Reich Minister of Justice

Copy

III a 2 1706.42

Berlin, 13 August 1942

[Handwritten] 1508/06

Urgent Letter

To the Reich Minister for People’s Enlightenment and Propaganda

Berlin

Subject: Restriction of legal rights for Jews

Referring to urgent letter of 12 August 1942[372] R 1400/23.7.42/122/1.9.

I. I thought of meeting at first the most urgent need within the compass of my sphere of activity, viz, that of adjusting the administration of justice from a legal point of view, and moreover I had prepared a corresponding draft for the other administration of justice belonging to my sphere of activity. However, I did not want to take the initiative to make suggestions concerning matters which are beyond the sphere of my department.

The draft enclosed in your urgent letter includes all supreme authorities of the Reich, especially that of the Reich Minister and all ministers whose sphere of work is connected with matters of administrative law. While, as far as the sphere of activity of these ministers is concerned I still adhere to the opinion that I should refrain from making suggestions on my part, I declare that I have no objections against an extension of my draft to matters of administrative law and to decisions by administrative authorities.

II. 34529 114058

II. On the assumption that an extensive regulation of the situation of the Jews with regard to legal and administrative decisions is desired, it seems necessary to me that the question of the admissibility for a Jew to testify on oath be legally regulated too, and this regulation had best be included in the same decree.

Therefore, I furthermore suggest that the decree should provide that the Jew is not admissible to testify on oath. Thereby the taking of an oath or the furnishing of an affidavit by Jews is in general impossible.

In my opinion, however, the fact that the Jew is not permitted to take an oath should not make the Jew have a better legal position than the person who is authorized to take an oath. Therefore, I further suggest to include a regulation according to which the testimony of a Jew which could have been made under oath—if it had been given by a person who is permitted to take an oath—should be treated like testimony given under oath as far as criminal cases are concerned. My idea in this connection is that the chiefs of the supreme authorities of the Reich should order administratively that it should be pointed out to the Jew that he could be legally prosecuted if he commits an offense against his duty to give true testimony, but I do not propose to make this a prerequisite of being liable to punishment.

In my opinion, comprehensive settlement of the problem requires furthermore the exclusion, for reasons of foreign policy, of all Jews from the regulations of this decree who are citizens of a foreign nation.

Therefore, under the assumption that the persons participating in the comprehensive solution of the problem and those supreme authorities of the Reich which are in charge of specialized sectors agree, I would suggest to give the following wording to the decree:

Decree concerning the restriction of legal rights for Jews and their inadmissibility to take an oath.

dated....................1942

The Ministerial Council for the Defense of the Reich orders the following to be enforced as a law:

Article 1

Jews are not entitled to lodge a plea for appeal, revision, and complaint (nullity plea and appeal under the still valid parts of Austrian law) against the decisions of the courts.

Jews cannot apply for a judicial decision against penal measures inflicted by the police.

Article 2

Jews cannot make use of the legal rights provided against decisions made by the administrative authorities.

Article 3

Insofar as legal right has already been exercised or an application for legal decision has been requested when this law comes into effect, they are considered to be withdrawn.

Article 4

Jews are not entitled to take an oath.

Article 5

The regulation concerning perjury and false oath applies to untrue statements of Jews not made under oath, if a person entitled to take an oath could have been sworn to this statement. In the same manner the regulations concerning the making of a false declaration in lieu of oath are to be applied to the untrue declaration of a Jew, if the declaration was the substitute for a declaration in lieu of oath or a statement with reference to such a declaration.

Article 6

The regulations do not apply to Jews who are citizens of a foreign nation.

Article 7

The supreme authorities of the Reich are authorized to issue regulations for the execution within their jurisdiction.

[Typed] signed: Dr. Schlegelberger

344531

5. Letter from Reich Leader SS to Lammers, 25 August 1942

13/9 RK. 12020 B 27 August 1942

[Initial] Fi [Ficker]

The Reich Leader SS

and

Chief of the German Police

in the Reich Ministry of the Interior

20/9

S IV B 4 b—Ref. No. 1268/42

Please quote above reference and date in reply.

[Handwritten] Submitted last to RM 11853 tz 1b

1508/7

Urgent Letter

To the Reich Minister and Chief of the Reich Chancellery

Berlin

[Initial] L [Lammers] 30 August

Subject: Limitation of legal rights for Jews

Reference: Urgent letter of the Reich Minister for Popular Enlightenment and Propaganda sent to you on 21 August 1942—R 1400/13 August 1942, 122—1,9.

Considering the fact that up to now, the competent authorities disagree and that moreover a number of further questions must be regarded as not clarified, I consider the suggestions which have been made up to now as not yet arrived at a stage when they could be submitted to the Ministerial Council for the Defense of the Reich, and for this reason I have asked the Reich Minister of Justice to arrange for a discussion for the clarification of these essential questions.

By order:

[Typed] Signed: Suhr

Certified:

[Illegible signature]

Employee of the Chancery

Resubmitted because of RM 11850 (marked red), Office 13/19

[Stamp]

The Reich Leader SS

and Chief of the German Police

[Initial] F [Frick] Sept. 12

6. Letter from Martin Bormann to the Reich Ministry of Justice, 9 September 1942

National Socialist German Labor Party

Party Chancellery

The Chief of the Party Chancellery

Copy

To the Minister of Justice

Berlin W 8

Wilhelmstr. 65

Subject: Limitation of legal appeal for Jews. RM 11405 B

Reference: Your letter of 13 August 1942—III a 2 1706.42—.

The limitation for legal appeal for Jews proposed by you extends in the sphere of court decisions only to the legal appeal in a limited sense—that is to say to appeal, revision, and complaint. This regulation does not represent a comprehensive solution of the problem, since the Jews will still be given the possibility of making use of legal aids [Rechtsbehelfen] in a wider sense.

The considerations which are decisive for your draft also apply to almost all cases of “legal aids.” In criminal cases this applies above all to objections against penal rulings and to pleas for resumption of proceedings. In the sphere of civil law it would apply, e.g., to reminders of cost and execution matters, objections to execution orders and judgments by default, as well as to nullity and restitutions suits.

Also, a limitation of the admissibility of suits protesting against executions and suits filed by a third party will have to be taken into consideration, as in these cases, too, the result will be a legal aid against a judicial decision. I think it necessary to include all those cases too into the regulation.

I further request you to include into the draft a regulation declaring inadmissible the declining of a judge by a Jew.

I have no objections against the provisions of the draft relative to the disqualification of Jews to take an oath.

Heil Hitler!

[Typed] Signed: M. Bormann

Certified copy:

[Signed] Doser

7. Letter from the General Plenipotentiary for the Administration of the Reich to a number of leading Reich authorities, 29 September 1942

Copy

RK. 136 2 B 29 Sept. 1942

[Initial] Fi [Ficker]

The General Plenipotentiary

for the Administration of the Reich

GBV. 788/42

2425

[Handwritten] Last submitted RK 12853 B

Berlin, 29 September 1942

[Stamp] See document of 8.10.

Urgent Letter

To the:

[Handwritten] Submitted with RK 442 B. attached October 2

Subject: Ordinance concerning legal restrictions to be imposed on Jews

On the basis of a discussion of 25 September 1942 between the officials in charge, a new draft of an ordinance concerning the restrictions imposed on Jews in the proceedings before the administrative agencies or courts has been drawn up under the title, “Ordinance concerning Legal Restrictions to be Imposed on Jews.” Please let me know as soon as possible your opinion about the enclosed new formulation.

If no reply has been received by 14 October, your consent will be taken for granted.

This copy is forwarded for your information and with the request that you take a decision by 14 October.

As deputy:

[Signed] Stuckart

Justice 1

To the other supreme Reich authorities

8. Draft of proposed decree enclosed with the letter of the General Plenipotentiary for Reich Administration of 25 September 1942

Appendix to GBV 788/42—2425

25 September 1942

Draft of an Ordinance concerning Legal Restrictions to be imposed on Jews of..............1942.

The Council of the Ministers for Reich Defense ordains with the force of law:

Article 1

(1) Jews will have no right of appeal [Rechtsmittel] from the decisions of administrative agencies and courts, nor other legal means [Rechtsbehelfen] to attack the same. Should, at the time when the present ordinance takes effect, an appeal already be lodged, it will be treated as withdrawn.

(2) Other applications from Jews to the administrative agencies or courts are admissible only insofar as the administrative agency or court would be of the opinion that the consideration of the application would be in the common interest.

Article 2

Jews cannot testify under oath.

Article 3

(1) The regulations concerning perjury apply to the untrue, unsworn testimony of a Jew when the testimony could have been sworn to if it had been made by a person capable of taking an oath.

(2) Similarly, the provisions concerning false assurances in lieu of affidavits apply to a statement made by a Jew, if such a statement was intended to replace an assurance in lieu of affidavit, or a deposition made with reference to such an assurance.

(3) The Jew shall be warned that any such untrue deposition or false statement will be punished according to those provisions.

Article 4

Statements of a Jewish party to the proceedings with respect to the question whether a witness or expert should be put on oath, will be disregarded.

Article 5

In the sentencing of Jews the provisions concerning the deprivation of civil rights will not apply.

Article 6

Jews cannot challenge German judges on grounds of partiality.

Article 7

At the death of a Jew his fortune escheats to the Reich.

Article 8

The Reich Minister of the Interior in agreement with the supreme Reich authorities in interest will issue the necessary legal and administrative provisions for the implementation and amendment of the present ordinance. He will hereby determine how far this ordinance is to apply to Jews of foreign nationality.

Article 9

This ordinance will take effect on the seventh day after its promulgation. It also will apply in the Incorporated Eastern Territories. In the Protectorate of Bohemia and Moravia it will apply within the limits of the German administration and the German jurisdiction.

Berlin

The President of the Council of
Ministers for Reich Defense

The Plenipotentiary General
for Reich Administration

The Reich Minister and Chief of
the Reich Chancellery

9. Letter from the General Plenipotentiary for Reich Administration to the Reich Chancellery, 3 April 1943

The General Plenipotentiary for Reich Administration

GBV 262/43  1508/10

2425

[Handwritten notes] RK 4482 E

RK 13672B 52 M

2 Enclosures

Berlin, 3 April 1943

To the Reich Minister and Chief of the Reich Chancellery for Under Secretary Kritzinger

Subject: Ordinance concerning legal restrictions to be imposed on Jews

With reference to today’s conference between Under Secretary Kritzinger and Under Secretary Dr. Stuckart, I am forwarding herewith in duplicate—

(1) the draft of the ordinance concerning the legal restrictions to be imposed on the Jews.

(2) the copy of the letter of the Chief of the Security Police and SD of 8 March 1943 (II A 2 No. 22 III/43 176—).[373]

By order:

[Signature illegible]

Justice 1

344545

10. Letter from Kaltenbrunner, Chief of the Security Police and the SD, to Frick, 8 March 1943

The Chief of the Security Police and the SD

Copy

II A 2 No. 22 III/43-176

Urgent letter

To the Reich Minister of the Interior,
Party member Dr. Frick

Berlin NW 7

Unter den Linden 72

My dear Reich Minister:

Upon request I have been informed by Department I that you have stopped the passing of the ordinance concerning the legal restrictions to be imposed on Jews, as in view of the development of the Jewish question, you no longer consider this ordinance necessary.[374] May I therefore point out the following views taken by the Security Police, which are in favor of an immediate passing of the ordinance:

1. Previous evacuations of Jews have been restricted to Jews who were not married to non-Jews. In consequence, the numbers of Jews who have remained in the interior is quite considerable. As the ordinance would also include these Jews as well, the measures it plans are not objectless.

2. The provision of article 7 of the ordinance according to which at the death of a Jew his fortune escheats in its entirety to the Reich results in the accumulation of considerably less work for the State Police. At the present time the procedure used by the State Police in handling the confiscation of such Jewish inheritances must frequently be modified to suit each special case. If the decree were decided on these separate procedures would no longer need to be carried out. The ordinance would therefore bring about an effective reduction in present administrative activity.

3. The provision according to which the application of criminal law against Jews is transferred from the judicial authorities to the police, is based on an agreement between the Reich Leader SS and the Reich Minister of Justice Dr. Thierack. This agreement has been approved by the Fuehrer. For if it is to be put into practice it must be embodied in the form of a law, as the present competence of justice, which is based on criminal procedure, can only be modified by a legal provision.

If the ordinance which is planned does not come into force, this provision as it is planned must then be set down in an independent law which, however, is undesirable.

I beg you to consider the above-mentioned views and to examine whether in spite of them an immediate passing of the ordinance does not seem indicated.

Heil Hitler!

Yours obediently,

[Typed] signed: Dr. Kaltenbrunner

344547

11. Note of the Reich Chancellery, 6 April 1943, 1508/11

(14./4.) To RK. 13672 B, 4482 E

[Handwritten] 1508/11

1. Note—Under Secretary Stuckart asked me over the telephone to obtain the opinion of the Reich Minister and Chief of the Reich Chancellery as to the draft of the ordinance which had been sent him with the accompanying letter of 3 April. As Under Secretary Stuckart informed me, the Reich Minister of the Interior himself has his doubts as to whether the ordinance is still necessary. When Stuckart approached the Party Chancellery on the question, Reichsleiter Bormann suggested that he should obtain the opinion of the Reich Minister and Chief of the Reich Chancellery.

On 5 April I discussed the affair with Under Secretary Klopfer. The latter is of the same opinion as myself, that with the exception perhaps of articles 6 and 7 of the draft, the ordinance can be dispensed with. As regards article 7 of the draft, Under Secretary Klopfer took my point of view that the possibility must be considered of directing the heritage of deceased Jews either in part or in its totality to their non-Jewish relatives.

The Reich Minister, to whom I reported on 6 April, is of the opinion that we should decline as far as possible from a settlement of the matter by an ordinance.

In order to help on the affair I came to an agreement with Under Secretary Klopfer and suggested to Under Secretary Stuckart that the question of the further consideration of the draft should be raised at a discussion in which, in addition to myself and him, Under Secretary Klopfer and Under Secretary Rothenberger and the Chief of the Security Police Kaltenbrunner should take part. Under Secretary Stuckart agreed to this and suggested that the conference should take place on Wednesday, 14 April, 11 o’clock.

2. RKabR. Dr. Ficker with the request for his consideration.

3. Resubmit 14 April (in Berlin).

[Initial] F [Ficker]

8 April

[Initial] Kr [Kritzinger]

344549

12. Note of the Reich Chancellery, 21 April 1943

Reich Chancellery 4611 E

for files Rk. 4748 E

[Handwritten] 1508/12

Berlin, 21 April 1943

1. Note—The Under Secretary conference, suggested by us, about the draft on a decree concerning the limitation of the legal right of Jews, which was at that time completed in the Reich Ministry of the Interior took place today at the office of Under Secretary Stuckart. Under Secretary Rothenberger, Under Secretary Klopfer, SS Gruppenfuehrer Kaltenbrunner, and I were present as well as Under Secretary Stuckart.

The discussion showed that only articles 6 and 7 of the provisions of the draft of the order are considered necessary in which connection article 7 is to be supplemented by a regulation which makes possible, in the case of a confiscation of property, a settlement in favor of non-Jewish heirs and legal dependents.

It was furthermore considered suitable to have the regulation issued as a supplementary ordinance to the Reich citizens’ law.

The regulation accordingly would approximately take the form as shown in appendix II.

[Enclosure] Appendix II.

2. To the Reich Minister with request for consideration.

[Initial] L [Lammers] 28 April

3. RK ab R. Dr. Ficker, respectfully.

[Initial] Kr [Kritzinger]

Justice 1

s.Rk 5761

344550

13. Draft of a decree concerning the Reich Citizenship Law, enclosed with the note of the Reich Chancellery of 21 April 1943

[Handwritten] Supplement to the Reich Citizenship Law and Appendix II

Decree Concerning the Limitation of the Legal Rights of the Jews

[Handwritten] 1508/13

dated................1943

(Abbreviated Form)

Article 1

1. Punishable offenses of Jews will be punished by the police.

2. The decree concerning the administration of penal justice against Poles and Jews of 4 December 1941 (Reich Legal Gazette I, p. 759) no longer applies to Jews.

Article 2

On the death of a Jew, his property is forfeited to the Reich.

[Handwritten] Hardship clause in favor of non-Jewish heirs and legal dependents.

Article 4

The Reich Minister of the Interior, in agreement with the top Reich authorities concerned, issues the legal and administrative regulations which are necessary for the execution and supplementing of this ordinance. In this case he determines how far this order applies to Jews of foreign nationality.

Article 5

This ordinance will come into force on the seventh day after its promulgation. It will also apply to the Incorporated Eastern Territories. In the Protectorate of Bohemia and Moravia it will apply to the sphere of German administration and German jurisdiction.

Article 2 also applies to Jews who are subjects of the Protectorate.

Berlin,............1943

344551

The President of the Ministerial Council
for the Defense of the Reich

The Plenipotentiary General for the
Reich Administration

The Reich Minister and Chief of
the Reich Chancellery

DRAFT OF PROPOSED MEMORANDUM TO HITLER FROM MINISTRY OF JUSTICE, APRIL 1943, INITIALED BY DEFENDANT ROTHENBERGER AND MINISTERIAL DIRECTOR VOLLMER, CONCERNING IMMINENT PROSECUTION OF A JEWESS FOR SELLING HER MOTHER MILK TO A GERMAN PEDIATRICIAN

The Reich Minister of Justice

Information for the Fuehrer

(1943 No.)

After the birth of her child, a full-blooded Jewess sold her mother milk [Muttermilch] to a pediatrician and concealed that she was a Jewess. With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception [Betrug]. The buyers of the milk have suffered damage, for mother’s milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for, so that the parents, who are unaware of the true facts, need not subsequently be worried.

I shall discuss with the Reich health leader the racial hygienic aspect of the case.

Berlin,..............April 1943

(Referent: Ministerialrat Dr. Malzan)

To the Under Secretary

[Initial] R [Rothenberger]

[Initial] V [Vollmer] 19 April

SECRET JUDGMENT OF FIRST SENATE OF PEOPLE’S COURT CONCERNING TWO POLES, 21 MAY 1943, AND DIRECTIVE OF MINISTRY OF JUSTICE TO DEFENDANT LAUTZ CONCERNING THE MANNER OF CARRYING OUT THE EXECUTION OF ONE OF THE DEFENDANTS

9 J 190/420

Copy

1 H 110/43

SECRET!

In the Name of the German People

In the case against—

1. the porter Paul Stefanowicz, from Berlin, born 5 January 1922 in Olyka (District of Rovno),

2. the laborer Franz Lenczewski, from Berlin, born 1 August 1924 in Sandec (Government General), Poland, at present in custody pending trial for treasonable intent, et cetera, the People’s Court, First Senate, on the basis of the session of 21 May 1943, in which the following participated as judges:

as representative of the Chief Reich Prosecutor [the defendant Lautz]:

Local Court Judge Dr. Pilz,

found:

As Poles, the defendants harmed the interests of the Reich by leaving their places of work in Berlin in August 1942 and going to the Reich border, with the intention of remaining in Switzerland until the end of the war.

The defendant Stefanowicz is therefore condemned to death.

The defendant Lenczewski, since he acted under the influence of Stefanowicz, who is mentally greatly superior to him, will receive a sentence of 8 years in a penal camp, and the period of custody for investigation will be included in this term.

Findings

Both defendants are ethnic Poles, were formerly Polish citizens, and on 1 September 1939 resided in the former Republic of Poland.

Both defendants reported for work and were assigned to work in Berlin; Lenczewski in April 1941 in a chocolate factory, Stefanowicz in January 1942 at the Neukoelln hospital.

Of the two defendants, Stefanowicz makes a much more intelligent and bold impression. He belongs to the Polish intelligentsia, which is the stronghold of the Polish spirit of resistance. Consequently in March 1942 shortly after he began his work, he left his place of work and attempted to flee to Denmark. He was arrested in Flensburg, however, and after 2 months in a labor reformatory camp he was returned to his place of work in Berlin. There he was noted for his anti-German attitude. According to his own statement, the nurses threatened that his attitude would bring him into the concentration camp one of these days. It was Stefanowicz who persuaded the codefendant Lenczewski, who is nearly 2 years younger and was at the time the deed was committed barely 18 years old, to leave his place of work and escape with him to Switzerland in order to live a more comfortable life there. They agreed to escape on 2 August 1942.

On that day they left Berlin and went via Augsburg and Innsbruck to Landeck/Tyrol. From there they went on foot toward the Swiss border, with the intention of crossing the border secretly. In the mountains, however, they suffered from bad weather, and on 6 August 1942 they were arrested by a customs patrol in See (Tyrol), very close to the Reich border.

The prosecution assumes that the defendants had the intention of joining the Polish Legion. Both defendants, however, have denied this from the beginning and maintain that they merely wanted to get better working conditions in Switzerland. The assumption of the prosecution is doubtless supported by the fact that members of the former Polish State who wanted to join the legion have frequently been arrested at the border under similar circumstances. On the other hand, no evidence has been presented that the defendants were in contact with such circles. As for their personality, neither of them gives an impression of a fighter but rather an effeminate one, and the fact that they merely wanted to go to Switzerland in order to live a better life there, could not be disproved.

Nevertheless, as Poles, both of them have harmed the interests of the German Reich by their conduct. For they were assigned to work in the Reich, and in total warfare any loss in this regard harms the interests of the Reich. They were aware of this fact, especially since they intended to remain in Switzerland permanently and thus to deprive the Reich of their work for the entire duration of the war (crime under art. 1, par. 3 of the Regulation on Administration of the Penal Law against Poles and Jews in the Incorporated Eastern Territories of 4 December 1941 (Reichsgesetzblatt 1, p. 759)).

The law provides the death penalty for this offense, as a rule. Only in less severe cases can a prison sentence be imposed. The case of the defendant Stefanowicz is not a less severe case. As already emphasized, he belongs to the Polish intelligentsia, which is the stronghold of the spirit of resistance. From the very beginning he failed to adapt himself to the order prevailing in the Reich and once before made an unsuccessful attempt to escape to Denmark. He is also responsible for the fate of his codefendant Lenczewski, to whom he is mentally far superior. He was therefore given the death sentence. On the other hand, in the case of the defendant Lenczewski, who did not make a very independent impression during the trial, who was very young at the time the deed was committed, and who succumbed to the influence of his mentally superior friend, a sentence of 8 years in a penal camp was considered sufficient. The period of custody for investigation was included in this term.

Under the law, the defendants have to bear the costs of the trial, since they have been convicted.

[Signed] Laemmle

[Signed] Dr. Schlemann

25 May 1943

Carbon copy

The Reich Minister of Justice

Berlin, 7 August 1943

IV g 10a 4910 c/43 g

Urgent—Secret

The Chief Reich Prosecutor with the People’s Court,

Berlin

personally or to his deputy in office

Reference GJ 190/42g 30 July 1943

Enclosures:

Referring to the proceedings against Paul Stefanowicz who was sentenced to death on 21 May 1943 by the People’s Court, I send you a fair copy and certified copy of the decree of 5 August 1943[375] with the request to take the necessary steps with the greatest possible speed. The executioner Reichhart is to be entrusted with the carrying out of the execution. As to the delivery of the body to an institute according to article 39 of the Reich Ordinance of 19 February 1939, the Anatomical Institute of Munich University is to be taken into consideration.

Please refrain from publicity, either through the press or through posters.

By order

[Typed] Dr. Vollmer[376]

OPINION AND SENTENCE OF THE NUERNBERG SPECIAL COURT, WITH DEFENDANT OESCHEY AS PRESIDING JUDGE, 29 OCTOBER 1943, BY WHICH TWO FOREIGN WORKERS WERE CONDEMNED TO DEATH[377]

Beg. f. H.V. Sg No. 256/1943

[Stamp]

The sentence is effective and must be executed.

Nuernberg, 3 November 1943

The Chief Registrar

of the Office of the District Court

Criminal Division

[Signed] Ramsenthaler

Chief Court Clerk

Sentence

In the Name of the German People

The Special Court

for the area of the Nuernberg District Court of Appeal at the Nuernberg-Fuerth District Court in the criminal case against Kaminska, Sofie, farm laborer in Uffenheim and 1 other person charged with a crime under part I, section 4 No. 1 of the Penal Ordinance for Poles and Jews, at a public session on 29 October 1943 attended by—

Presiding judge—District Court President Oeschey;

Associate judges—Local Court Judge Dr. Pfaff and

District Court Judge Dr. Gros;

Public Prosecutor for the Special Court;

Public Prosecutor Markl, and as registrar of the office.

Court Clerk Kastner rules as follows:

Kaminska, Sofie; nee Uba, born on 1 September 1907 at Czenstocice, widow, Polish farm laborer,

Wdowen Wasyl, born on 20 February 1923 at Zatwanica, single, Ukrainian farm laborer,

both last residing in Uffenheim, both under arrest pending trial are guilty: Kaminska slapped a German soldier, threatened him with a hoe, and threw a stone after him; furthermore offered resistance to a policeman when she was being arrested. Wdowen tried by force to prevent Kaminska’s arrest.

They are therefore sentenced to death; Kaminska under articles II, III, and XIV of the Penal Ordinance for Poles; Wdowen is sentenced as a public enemy.

Findings

The defendant Kaminska, who belongs to the Polish ethnic group and who on 1 September 1939 was residing in the territory of the former Polish State, attended elementary school and after having finished school worked as a laborer on several farms in Poland. She was married in 1929 and since then had three children. Her husband was killed in action during the Polish campaign in October 1939. At the middle of December 1939 she came to Germany being committed to work there. She was first employed for over a year by a farmer in Weidenheim, then for a year by the farmer Landshuter at Unternzenn, and since 15 March 1942 she has been employed by the farmer Gundel at Uffenheim. Leo Gundel is 60 years old and fragile; his daughter manages the farm. At Weidenheim the defendant Kaminska met the codefendant Wdowen who belongs to the Ukrainian ethnic group. Wdowen never attended school, he can neither read nor write, nor had he learned a trade. Until he came to Germany in March 1940 for labor commitment he worked as a farm laborer for his parents and for other farmers in the territory of the former Polish state. In Germany he was first employed by a farmer in Weidenheim, and in March 1942 he was transferred to Gundel together with Kaminska. Wdowen started a love affair with the defendant Kaminska in Weidenheim. The child born in June 1942 is a result of that relationship. The defendant took the child to her mother in Wussiowa in March 1943.

On 1 July 1942 the two defendants entered Gundel’s home and demanded money from the daughter, Marie, for the journey which the defendant Kaminska had made to Poland to take her child to her mother. When the daughter refused the request, they turned to old Gundel who was also present in the room. When he, too, refused to pay any money to Kaminska both defendants became more and more insistent; the defendant Wdowen even gave the farmer a push. In his distress, Gundel called for the help of the army private Anton Wanner, who used to work on the farm as a laborer and who happened to be spending his leave there. Wanner was in uniform. He came into the living room and told the defendants to leave immediately. The defendant Kaminska at once attacked the soldier, slapping his face once. Thereupon, Wanner slapped her face. Now a fight resulted during which his infantry assault badge fell to the ground. Wanner, feeling himself threatened, drew his bayonet and yelled at Wdowen, “Get out, you bully.” The defendant Kaminska by this time ran out of the room and took a hoe which was leaning near the staircase. She did not get a chance of attacking him as the soldier quickly closed the door.

Shortly afterward Wanner was riding on his bicycle along the road to Uffenheim to go to the police station. When he was passing the two defendants who were walking in the same direction, the defendant Kaminska threw a stone weighing half a pound after the soldier without, however, hitting him.

The next day police sergeant Dirmann went to Gundel’s farm, but the defendant Kaminska was working in the fields. There, the police official told her to follow him. The defendant Kaminska followed him unwillingly and hesitatingly. The codefendant Wdowen ran after the police official, although the latter had forbidden him to follow them. On the way Dirmann twice slapped Wdowen’s face to force him to turn back. Despite this he followed the two to the prison cell. When Dirmann wanted to put Kaminska in the cell she began screaming. Wdowen rushed up to them and embraced Kaminska with both hands so that the police official was prevented from arresting Kaminska. Only after several other people who were called in by the police official came to his aid, he succeeded in overpowering the two defendants and putting Kaminska in the cell.

The defendant Kaminska states that she learned before 1 July 1942 at the employment office that the farmer Gundel had to pay her travel expenses both ways. On 1 July 1942, she made only these demands. Besides, she only slapped the soldier after he had slapped her face. She had not purposely torn off his infantry assault medal. It was true she had fetched the hoe but she had not raised it to assault the soldier but only to intimidate him.

The defendant further admits having picked up a stone on the way to Uffenheim and having thrown it after the soldier; she merely mentioned as an excuse that she had been so angry that she had picked up a stone and thrown it at Wanner.

Regarding her arrest by police sergeant Dirmann, the defendant says she had offered resistance because she had been afraid that the police official would throw her into a cellar; she had not known before what the official really wanted from her.

The defendant Wdowen denies having struck or attacked the old man Gundel and the soldier in the living room. He had only received a blow on the nose from Wanner when Wanner had said something to him and to Kaminska which he could not understand. He had not seized or held him.

Concerning the arrest of Kaminska, Wdowen states that he had “already thought” that Kaminska was to be arrested by the police official; he had also kept “running after them,” although he had been forbidden to do so, and he did not let himself be intimidated by the slappings. Outside the cell he had intended to tear Kaminska away from the police official because he had felt sorry for her. The excuses which the defendants have put forward are irrelevant; for the rest, the afore-mentioned facts have been confirmed by the witnesses Gundel and Wurm. The soldier Wanner has been reported missing since the fighting in Tunisia. The witness, police sergeant Wurm testified, however, that Wanner had made definite and clear statements. The court is therefore convinced that the defendant Kaminska hit the soldier first; she was not authorized to do so in any way. When the witness Miss Gundel had told her that she would first make inquiries at the employment office as to whether the demands for payment of travel expenses were justified, the defendant Kaminska should have been satisfied. If despite that she continued to insist on her imagined demand and together with Wdowen behaved insolently towards Miss Gundel and her father, it was absolutely understandable that old Gundel called the soldier Wanner for help. The defendant Kaminska should have complied immediately with Wanner’s demand to leave the room. She cannot claim that she did not understand his demand. If instead of immediately leaving the farmer’s living room, she slapped the soldier’s face then this constituted a bodily maltreatment and thereby an assault and battery.

As the codefendant Wdowen, too, according to the credible statements which the soldier Wanner had made to the police sergeant Wurm, either gripped the soldier or at any rate took sides with Kaminska, so that Wanner had to fear a joint attack, it was understandable that he drew his bayonet in his defense. If the defendant Kaminska had to run out of the house to get a hoe and with it had walked towards the front door where the soldier was standing, Wanner had to fear the possibility of an attack on his life, although it was not established at the trial whether the defendant had already lifted the hoe to hit him. This behavior must be regarded as a threat within the meaning of article 241 of the Criminal (Penal) Code.

The defendant admits that after the incident in Gundel’s room, “some time later” on the way to Uffenheim she, in her anger, picked up a stone weighing a half pound and threw it after the soldier Wanner who was sitting on a bicycle, however, without hitting him.

The facts thus established prove that the defendant has committed a crime within the meaning of article 1, paragraph 1 of the Law against Violent Criminals of 5 December 1939. For this the death sentence is imposed on a person who, among other things, when committing a serious act of violence uses cutting or thrusting weapons or with such a weapon threatens the body or life of another person.

An act of violence within the meaning of that provision is constituted by a violent attack on a person which, according to design or execution or in view of the consequences for the person who is being attacked, endangers the security afforded by law to a high degree, and which therefore is particularly rejected and detested by the national community which is engaged in a fight for its right of existence, according to the verdict of the Reich Supreme Court of 26 January 1942, Second Criminal Senate, January 1942.

In the present case, the basic punishable deed is a threat within the meaning of article 241 of the Criminal (Penal) Code.

The defendant by throwing, in her anger, such a heavy stone after the soldier did not merely make a purposeless gesture. The court is convinced that it is evident from the over-all attitude of the defendant Kaminska, which she had previously displayed toward the soldier, that she meant to hit Wanner. A stone weighing half a pound when being thrown by someone in a condition which the defendant herself described as anger may kill a human being. Thus, a stone of that weight must be considered equal to a cutting or thrusting weapon; it must be considered as an object equal to a weapon within the meaning of the law against violent criminals. The defendant dared attack a German soldier, she took up an offensive position which would have caused grave injury if the soldier had not evaded the stone which was thrown at him. The defendant was about to endanger gravely the life and health of a German national. The German nation which is engaged in a grim defensive struggle rightly expects the most severe methods to be taken against such alien elements. The crime of the defendant, by design, and execution, as well as a considerable violation of the security afforded by law, constitutes a serious crime of violence within the meaning of the law against violent criminals. The fact that the criminal is a Pole is of particular significance.

From the name of the law it is concluded that it can only be applied against persons who are to be regarded as violent criminals. The defendant had not been provoked to the violent action. After she had failed to hit him with the hoe, she tried to hit the soldier on the road. The over-all behavior of the Polish woman, also toward the farmer, proves that the crime is not alien to her nature. She thereby characterizes herself as a Polish violent criminal. The defendant cannot dispute that she resisted with all her strength when a police official wanted to put her in a cell. Her excuse that she had not known what the official wanted from her cannot be believed. She knew in what manner she had acted toward the Germans on the previous day. She therefore had to expect the police official who moreover was in uniform to try and arrest her. The court has no doubt that she, as well as Wdowen who admitted having assumed that Kaminska was to be “picked up” because of her behavior on the day before, knew that she would now be arrested. By her violent resistance outside the cell, she therefore violated article 113 of the Criminal (Penal) Code.

According to the opinion of the medical expert, which the Court shares, the defendant shows no symptoms which could justify doubts as to her responsibility for the crime.

As the defendant on 1 September 1939 was a resident in the territory of the former Polish State, she had to be found guilty in application of articles II, III, and XIV of the Penal Ordinance for Poles, of a crime of assault and battery in conjunction with a crime of threat, a crime under article 1, paragraph 1 of the Law against Violent Criminals, and of a crime of offering resistance to the police.

The defendant was further charged with intentionally having torn off the infantry assault badge of the soldier Wanner. That could not be proved during the trial. The witness, Miss Gundel, testifies that after the defendant Kaminska had slapped the soldier’s face, a fight ensued and that afterward the soldier’s infantry assault medal was missing. In view of this evidence there is, at any rate, a possibility that the badge might have loosened in the course of the fight. A particular acquittal was not necessary, however, as the attitude of the defendants must be regarded as one action.

Although the old feeble farmer Gundel was not physically injured by the thrust of the defendant Wdowen, he did rightly feel the action of the Ukrainian to be an offense to his honor as a German. The defendant Wdowen, by holding Kaminska with both hands when the Polish woman was about to be put into a cell so that the police official was unable to do so for the moment, and by allowing himself to be removed only after the intervention of other persons, offered forceful resistance to an official who was lawfully doing his duty.

By his action, he also tried to free the codefendant Kaminska from the hold of the official in whose custody she was.

His act, therefore, constitutes an attempt to free a prisoner in conjunction with resistance to the police under articles 120, 43, 113, 73 of the Penal Code.

That, however, does not exhaust the entire unlawful character of his deed.

The defendant Wdowen knows very well that the German economy, on account of wartime conditions, is dependent on foreign labor, in particular on labor from the eastern territories. He speculated that his offenses would be overlooked in order not to lose him as a worker. The defendant also knew that because of the drafts into the armed forces the security organs in the Reich have been reduced and that Germany is deprived of the population fit for military service so that the rural population is largely helpless against the insolent and obstinate behavior and against attacks, which occur more and more on the part of such elements from the East. The defendant Wdowen, therefore, committed the offense taking advantage of the extraordinary wartime conditions. His action is therefore particularly despicable and demands that the ordinary limit of punishment be exceeded.

The defendant therefore had to be sentenced for a crime under article 4 of the Decree against Public Enemies in conjunction with resistance toward the police and an attempt to free a prisoner.

Under article III, paragraph 2 of the Penal Ordinance for Poles, the death sentence must be passed if the law provides for it. The defendant Kaminska, therefore, under the law against violent criminals is deserving of the death penalty.

The death penalty has to be pronounced as the only just atonement because the security afforded by law within the German living space must be protected against Polish criminality with the utmost severity. The defendant Wdowen, if only by his behavior toward the feeble old farmer Gundel proved that he is an insolent aggressive fellow inasmuch as he kept following the police official, although he had been chastized twice. It is to be concluded that he was waiting for a favorable moment to free the codefendant Kaminska by force, and finally by attempting to prevent by force the police official from the execution of his official duties and the latter having to call for assistance, he topped his provocative, dangerous behavior. Every security organ enjoys the special protection of the Reich. He who impedes in such a provocative manner the security organs, which are stationed at home, and which on account of their numerical minority are particularly overburdened during the war, must expect the Reich to react with utmost severity. That applies, in particular, to the foreign workers from the East who work in the Reich. In view of that, the court has assumed a particularly grave case within the meaning of paragraph 4 of the Decree against Public Enemies, and has not attached any decisive importance to the circumstances alone that the defendant Wdowen has had no previous convictions and has hitherto not attracted any unfavorable attention during his stay in Germany. Therefore, the defendant Wdowen had to be sentenced to death under the penal law of article 4 of the Decree against Public Enemies.

Costs: Paragraph 465, Code of Criminal Procedure.

[Signed] Oeschey[378]

Dr. Gros[379]

Pfaff[380]

CIRCULAR LETTER OF HIMMLER TO THE SUPREME REICH AUTHORITIES, 10 MARCH 1944, NOTING THAT “THE ACCOMPLISHED EVACUATION AND ISOLATION” OF JEWS AND GYPSIES HAD MADE MEANINGLESS THE PREVIOUS MANNER OF PUBLISHING SPECIAL DIRECTIVES CONCERNING THEM

Berlin, 10 March 1944

The Reich Leader SS

Minister of Interior Affairs

S. Pol. IV D 2 c—927/44 g-24

[Initial] Th [Thierack]

[Stamp] Reich Ministry of Justice

17 March 1944

Dept. VII

SECRET

To the Supreme Reich Authorities

Subject: Posted prohibitions concerning Poles, Jews, and gypsies

The separately published decrees and rules governing the livelihood of Poles, Jews, and gypsies within the jurisdiction of the Reich, have frequently led to a summary equalization of these groups in the public eye as far as sale-and-utilization prohibitions, public announcements in the press, etc., are concerned. This attitude does not correspond with the differentiated political position to be granted to these groups now, and in the future.

As far as Jews and gypsies are concerned the accomplished evacuation and isolation of these groups by the Chief of the Security Police and the SD has made the publication of special directives (concerning the all inclusive prohibition of participation in many livelihoods) in the previous manner meaningless. Therefore, corresponding public directives may be eliminated.

The decrees and regulations which have been decided upon to govern the livelihood of the Poles will remain as before. For political practical reasons it is hereby recommended to maintain a certain amount of restraint in the public directives of these regulations, be it in posters, signboards, on press releases, etc.

I wish that the subordinate officers be informed of the necessary directives.

[Typed] Signed: H. Himmler

Certified: [Illegible signature]

SS Sturmbannführer

LETTER FROM THE CHIEF OF SECURITY POLICE AND SD TO MINISTRY OF JUSTICE, 3 MAY 1944, ENTITLED “REQUESTS MADE BY THE COURTS FOR INFORMATION ON JEWS,” AND INTEROFFICE MEMORANDUMS LEADING TO DISPATCHING OF A LETTER DRAFTED BY DEFENDANT ALTSTOETTER

The Chief of the Security Police
and the Security Service

IVA b (I) a 4647/43

Please state this business number,
the date and the subject in
correspondence

[Stamp] Reich Ministry of Justice

5 May 1944

Dept. VII-VI

[Initial] Th [Thierack]

[Initials] Kle [Klemm]

To the Reich Minister of Justice

Berlin

Subject: Requests made by the courts for information on Jews

Reference: None

In a number of proceedings for the checking of descent, the District Court Vienna requested information about the whereabouts of Jews, in some cases it requested this information from the central office for the regulation of the Jewish problem in Bohemia and Moravia at Prague, and in some cases directly from here. These Jews were at some time either evacuated to the East or were sent to Theresienstadt. Although my local office drew the attention of the District Court Vienna several times to the fact that such requests, as well as applications for the admission of such Jews as witnesses before courts or for hereditary biological examinations cannot be granted on account of reasons stated by the Security Police, the District Court Vienna renews its applications continuously.

Besides the fact that the Jews for years had time and opportunity to clarify their position with regard to descent, the proceedings for the checking of the descent demanded by the Jews or their families are according to experience in general made only in order to conceal their descent so that they would not be subject to the measures of the Security Police intended for them, or to those which have already been carried out. For this reason and in the interest of urgent dispatch of work important to the war effort the granting of applications of this kind has to be refused for the time being.

Therefore, I request to direct the District Court Vienna not to submit any such applications in future. I would be grateful to be informed about the steps taken from there.

As deputy:

[illegible signature]

The Reich Minister of Justice

Berlin, 3 June 1944

VIb 2 1124/44

Dispatched 14 June 1944, [initial] B

[Stamp] Office

8 June 1944

H/Frl. [illegible]

1. To the President of the Court of Appeal, Vienna

Subject: Handling of cases concerning descent of Jews or Jewish persons of mixed race

No previous correspondence.

The Chief of the Security Police and the Security Service pointed out that in cases concerning descent of Jews and Jewish persons of mixed race the office of the police are frequently asked for information on the place of abode of deported Jews by the courts especially by the District Court Vienna, or that their admission, as witnesses or for the purpose of examination for hereditary biological expert opinions is requested. These requests cannot be granted for reasons of the Security Police.

Even if the hearing (and examination)[381] of the Jews (be an important piece of evidence for the clarifying of the question of descent) in many cases help to frustrate the intentions (of the Jews) to conceal their descent, reasons of the security police demand to desist therefrom (from this piece of evidence).

In the near future I intend to issue in a decree detailed regulations for the handling of cases concerning the descent of Jews and Jewish persons of mixed race. Already now I request to inform the District Court Vienna (and other courts, in your district, which according to your judgment, Mr. President of the Appellate Court, should be informed) of the following:

(insert)[382]

As deputy:

2. To the Chief of the Security Police and the Security Service

Subject: Requests for information on Jews made by the courts.

Reply to the letter of 3 May 1944—IV A-4-b (I) a-4647/43

1 enclosure (copy of 1)

[Stamp] Dispatched: 14 June 1944

3475/2

[Initial] B

In the enclosure I submit a copy of my letter to the president of the Appellate Court Vienna for your information.

By order

[Initial] Al [Altstoetter]

3. Ministerial Counsellor Rexroth

With the request to settle the arrangement of the report with the Minister

The settlement of the arrangement of the report was not possible on 3 June 1944

Before dispatch

Mr. Minister is informed

[Illegible initials]

[To the] Minister [of Justice] with request to permit the dispatch of the above letter signed by me. The arrangement of the report could be settled in connection with the report on the decree concerning a general order on the handling of cases concerning the descent of Jews and Jewish persons of mixed race. It is intended to put into the draft of this official decree, the directives in the above letter sent to the president of the Appellate Court Vienna for information to all presidents of the appellate courts and general public prosecutors.

[Signed] Altstoetter, 3 June

[Initial] R [Rexroth] 3 June

[Insert]

(In cases of Jews who were deported to Theresienstadt or to other places, a hearing as witnesses or a hereditary biological examination is impossible for reasons of the Security Police, because persons to accompany them and means of transportation are not available. If the residents registration office or another police office gives the information that a Jew has been deported, all other inquiries as to his place of abode as well as applications for his appearance [before court], questioning and examination are superfluous. On the contrary, it has to be assumed that the Jew is not obtainable for the taking of evidence.

If in an individual case it is in the interest of the public to make an exception and to render possible the taking of evidence by special allocation of persons to accompany and means of transportation for the Jew a report has to be submitted to me in which the importance of the case is explained. In all cases offices must refrain from direct application to the police offices, especially also to the central office for the regulation of the Jewish problem in Bohemia and Moravia at Prague, for information on the place of abode of deported Jews and their admission, hearing or examination.)

[Initial] R [Rexroth] 3 June

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[383]

DIRECT EXAMINATION

*******

Dr. Kubuschok (counsel for defendant Schlegelberger): Since the Jewish question is of particular importance for several points in the indictment, I would ask you first of all to tell us what your personal attitude to the Jewish question was.

Defendant Schlegelberger: As far as I am concerned, there is and there was no Jewish question. This is my attitude: all races were created by God. It is arrogant for one race to place itself above another race and try to have that race exterminated. If a state deems it necessary to defend itself against being inundated and does so within the frame of a social problem, then it can and must be done by applying normal, decent means.

During the Goebbels campaign in 1938 I was abroad. When I heard about those events I said to my family: “We must be ashamed of being Germans.” That was my view at that time and that is my view today. The only person with whom I am united in faithful friendship until today because we went to school together is a full Jew. I succeeded in saving his life all through that era. He again holds his former office as a judge. My physician too is half-Jewish. That attitude of mine naturally meant that on many occasions I was faced with inner conflicts. I ask you to consider that the Jewish problem was regarded as the central problem of the National Socialist State and the entire life in Germany was to be placed in line with that. Concerning that question Hitler and his followers worked in an entirely uncompromising manner; that an expert administrator could not bypass that basic attitude is a matter of fact. I shall have an opportunity to demonstrate what my personal attitude was toward those questions and how it always evidenced itself in an effort to put a check on the wishes of party policy, to make improvements and to exercise as far as possible a moderating influence on the practical application of those matters.

Q. What were the manifestations of your attitude to the Jewish question in your office?

A. The prosecution charges me with having cooperated in taking measures against the Jews. That the ordinance of 4 December 1941[384] against Jews in the eastern territories must be evaluated under particular points of view, I shall show in connection with the Polish question. For the rest, I ask you to consider that in view of the strength of the powers with which I was engaged in a struggle, a hundred percent victory of the Ministry of Justice was entirely out of the question. In that sphere, too, faithful to my basic attitude, I did work to make justice prevail; but frequently I had to content myself with making a compromise and I had to be pleased when at least I had achieved some amelioration. To use a customary phrase, if I had drawn the consequences from every defeat, I would have deprived myself of all possibility to aid the Jews. Quite apart from the fact that the resignation from office, before the war would have been a factual impossibility, and during the war a legal impossibility until a new minister was appointed.

With the permission of the Tribunal I will prove how difficult it was by citing an example. When the Party started a campaign against Jewish lawyers, I went to see Hitler and told him that it was untenable to remove from their profession Jewish lawyers among whom research people of repute were included, and with whom I myself had worked. I was pleased when I succeeded in persuading Hitler that that was correct and in achieving his agreement that he would reject the wishes of the Party. To inform the agencies concerned, I called a meeting of Ministers of Justice of the Laender who were still in office in those days and informed them about Hitler’s decision. The result was surprising. I encountered bitter resistance, and the meeting bore no result. Hitler asked for Guertner to come to see him and asked him for information as to whether I was not perhaps a Jew myself. Then the Party began to exercise pressure on Hitler. He abandoned his decision, and the Jewish lawyers were removed from office. So as to make it possible at least for the Jews to preserve their rights, I proposed to set up the institute of the so-called Jewish consultants where former lawyers worked as consultants.

As to my own attitude toward these problems, that I could show properly only where I, myself, had to make the decisions. In this connection, I attach importance to the fact in saying here that nothing is more removed from me than here to play the part of the friend of the Jews. I am not a friend of the Jews; I am not a friend of the Aryans as such; but I am a friend of justice. And anybody who saw me at work and wishes to give a just opinion can confirm that with regard to all those who in my opinion were unjustly persecuted; no matter what their race or what their class, I tried to help them with all my strength.

Roosevelt, the former President of the United States of America, in 1944, in an address to the United Nations said, “Hitler asserts that he had committed the crimes against the Jews in the name of the German people. May every German show that his own heart is free of such crimes by protecting the persecuted with all his might.” I can claim for myself that I acted accordingly. Concerning the members of the Ministry who were not fully Aryan, I kept them in office; and as has been established at this trial concerning judges who were not fully Aryan, I left large numbers of them in their offices irrespective of the Party purge. I looked after those who had been dismissed from their posts, and who were non-Aryans, and who had Jewish relatives. As far as possible, I protected them against being driven out of their homes and being deported.

Q. Concerning the question of civil servants remaining under Dr. Schlegelberger who were not fully Aryan, persons who were only dismissed on the basis of Thierack’s list, I refer to Exhibit 42.[385] On the legal provisions concerning the fact that since 1933 a minister could not resign on his own, I will submit Schlegelberger Documents 79 and 80.[386]

Witness, you also dealt with a bill concerning people of half Jewish race. The prosecution has included those documents under PS-4055, Prosecution Exhibit 401.[387] Will you tell us something about those documents?

A. That document has been the subject of the discussion before the International Military Tribunal. The document, if my recollection is right, consists of two parts. On 12 March [1942], there was a letter from me to Reich Minister Lammers, and a letter of 5 April, to various agencies.

Q. May I interrupt you for a moment? The first letter is dated 6 March, and is in the English text on page 95.

A. I thought you were talking of the discussion which took place on 6 March.

Q. Yes, on page 95.

A. First of all, I’d like to speak about the letter of 12 March. That was, as I said, a letter from me to Reich Minister Lammers. From that letter I gathered that on 6 March there was a discussion about the treatment of persons of mixed origins, partly Jewish, partly Aryan. In that conference, the SS had demanded that people of mixed origin were to be treated in the same way as full Jews and were to be sent to labor camps in Poland.[388] If that had been done, a demand which for a long time had been voiced by the Party in a categorical manner would have been carried out. If one reflects to what extent the police measures were carried out in those days against Jews, one had to recognize that now the question of the fate of the mixed Jews had entered into an acute phase.

When I heard about the subject of that discussion, the question arose immediately whether one could, and how one could, intervene. My moral obligation was clear to me. There was the difficulty that it was a different department; that in itself was difficult to interfere with a different department in its work; and again and again there would be the additional difficulty that I was no minister. But to put it plainly, it was the case of an under secretary who was only appointed [as acting Reich Minister of Justice] under a system by which he could be given notice any day. If I had attempted to attack that political solution with legal or ethical weapons, nothing would have been done and there would have been nothing but mockery about me. Thus, I had to find a different way.

I had to try to approach somebody who perhaps might have the possibility to talk some sense into Hitler, and that person was Reich Minister Lammers, a man from the group of old civil servants, a man who had a feeling for right and justice, and whom I had frequently assisted in difficult situations. I could be quite open and frank with him; and, therefore, the quite open way in which I talked in my letter was without any pretense. I described the suggestions as entirely impossible. I did so knowing that thereby I was interfering with affairs which had nothing to do with me as far as my department was concerned, for the judiciary only had an outside interest in those affairs. There was a question of compulsory divorce, a question which naturally I answered in the negative; a question which was naturally very important for those whom it concerned, but the importance of which was not comparable to the great problem which was now my concern. Lammers said I could talk to him, but that conversation never came off, and probably it did not come off because Lammers was away at the [Fuehrer] Headquarters. Thus, I had to act on my own initiative, and, as I have said, I could not act in basing myself on legal and ethical considerations because that would have amounted to doing nothing. I had to limit myself concerning the agencies in question to acquaint them with the fact that the solution which they intended to apply was not possible. The entire idea and the entire way of thinking concerning that question altogether was based upon the desire to see to it that a further increase of persons of mixed origin, Aryan and Jewish descent, was to be avoided. I used that as my basis, and this is what my proposal amounted to. Certain groups were to be exempted from the solution altogether from the very outset. First, persons of mixed descent of the second degree, that is to say those persons who had only one Jewish grandparent; second, a person of mixed descent of the first degree, that is to say a person who had two Jewish grandparents; of those the people who were not able to propagate; and three, those persons of mixed descent, first degree, whose offspring under the law were not considered half-Jews. By that proposal, therefore, all persons of mixed descent, second degree a very large number, and a considerable number of people of mixed descent first degree, would have been excluded from this measure. The remaining persons were of mixed descent, first degree. For them I suggested that if they were to prefer it, they were to be sterilized rather than deported to Poland. May I draw the attention to this point. The idea of escaping deportation by voluntary sterilization did not originate within myself. That idea originated from the persons of mixed descent themselves. I knew that persons of mixed descent had asked physicians to exempt them from the application of the Nuernberg laws and had themselves suggested to afford them the possibility of sterilization. In view of that situation in which they found themselves, I thought it justified to revert to the suggestion which these people themselves had made originally, and to afford them an opportunity in that manner to escape deportation to Poland. The prosecution employed that suggestion of mine to raise charges against me. I believe that if one thinks things out until the last, it is not so difficult to recognize that these charges are unfounded. My suggestion, altogether my work in that respect as I have said before, was not one of the tasks of the judiciary. If I went beyond the limits of my department, one must bear in mind that the charge would only be justified if one took it for granted that I was a model of active National Socialists, an active National Socialist who overcomes every obstacle even the limitations of his department, and I would assume that everything that has been discussed here so far will show that to assume such an active National Socialist ardor would be complete nonsense. I acted in accordance with my ethical feelings; the only motive for me was the intention to check a development which was fatal for a large number of persons. There are, after all, situations where one can only escape a larger evil by applying a smaller evil. But that somebody who all his life has thought along the lines of law, found it extremely difficult to make a decision of that kind, that the Tribunal will understand.

Q. Under Document NG-151,[389] the prosecution has submitted documents concerning limitations of the legal means for Jews in penal cases. Please give us an explanation concerning those documents.

A. Those documents begin with a letter by Freisler dated, I believe, 3 August 1942. In that letter Freisler tells the agencies in question about a bill concerning the problem we have just mentioned. The reason for his suggestion, he referred to as the exigencies of the war, he says that the state of affairs is untenable, and that it weakens the defensive will of the German people. Freisler wrote that letter without my knowing anything about it beforehand, but afterward he told me about it and gave me his explanation. This is what he told me: Himmler and his agencies had pointed out again and again that the present state of affairs was an impossibility; only a radical separation of the entire Jewish problem from the judiciary and transfer to police was conceivable. Again here we find—I shall have to revert to that later—Himmler had also said that the administrative measures against the Jews had advanced so far that it would be nonsense, in particular concerning criminal Jews, to be more lenient; therefore, one had to guard against allowing these criminal Jews, who were already under the supervision of the judiciary, such benefits as legal protection.

Himmler’s desire to transfer Jewish affairs to the police was too much even for Freisler. Perhaps he was also particularly proud of his paternity of the penal ordinance concerning Poles and Jews which he considered his own sphere. Therefore, so he told me—and I believed him—in all circumstances he wanted to adhere to the competence of the courts; but he then convinced himself that somehow or other he had to make a concession because otherwise events would move without us.

Furthermore, we of the administration of justice, particularly in the Incorporated Eastern Territories, suffered from a severe lack of judges, and we could only master that difficulty if we exempted a number of judges from service in the armed forces. If Freisler and we had refused consistently to comply with Himmler’s wishes, it would have been easy for Himmler to get Hitler to agree to cancel such exemptions from service with the armed forces, and thus the administration of justice in the eastern territories would have come to an end altogether. In order to avoid this danger, Freisler believed that he had found a way out in limiting legal remedies and thereby to start out on a way which we later on, inside Germany, in cases against Germans, had to take on account of the lack of judges. That is why he made the suggestion. I could not altogether agree with Freisler’s arguments, but I attached importance to the fact that this new regulation was to be final and was to appear as such to the outside world, too. That might strengthen our position toward the opposing forces and, therefore, in the letter I wrote afterward,[390] I discussed the question of whether Jews are able to take an oath, and I included that question in my draft so as to make that draft more well rounded and complete. In itself this question of the oath was important, for under German law it is the duty of the judge to attach equal weight to statements made under oath, and statements made while the person was not under oath.

There again we were faced with a case in which a concession which in itself was immaterial but which to the outside world, nevertheless, seemed important, had to be made in order to pacify Party circles. If one wants to evaluate such a procedure, one must bear in mind that 1 month later Thierack did find a final and comprehensive solution. He dropped my suggestion and transferred the Jews to the police.[391]

Q. The prosecution also submitted Document NG-589, Prosecution Exhibit 372,[392] a document which concerns a curtailment of the poor law privileges of the Jews. Was that ruling made at your suggestion?

A. No. I only heard about that ruling here when the document book was submitted. At every ministry certain matters which are not of much importance are dealt with quite independently by departments which are below the under secretary or the minister. It is altogether out of the question that an under secretary or minister deals with everything personally. He would even misunderstand his function if he were to do so. Those matters, for example, the question of the poor law, fell within the competence of the then Assistant Under Secretary Hueber, who signed the ordinance.

As I said, I only heard about it here, but I should like to add that the institution of the poor law was created so as to enable poor persons to conduct civil litigations. The granting of poor law privileges does not mean that the person to whom it is granted can conduct proceedings free of costs, but it only exempts him from payment in advance. He is still under an obligation to pay.[393]

The poor law institution, therefore, so to speak is an institution of government welfare. For a long time before Hueber ordered it, government financial support of Jews had been stopped, and they had been referred to their own Jewish welfare organizations. The uncurtailed provisions governing the poor law, therefore, were not in accordance with the line otherwise observed, and Hueber refers to that when he considers the old ordinance as outmoded.

Q. I do not know whether the witness’ statements were clear enough to elucidate the concept of the poor law. I hear that the expression in English has been translated by “poor law.” That translation might perhaps lead to confusion. We are concerned here merely with the question of costs and merely with the exemption of paying costs in advance, and that is the cost of civil litigation.

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Q. I come now to the introduction of the German criminal law in the Incorporated Eastern Territories. Will you please give a short review of the general development of that question?

A. These matters, as far as the time was concerned, are connected with what I said before. Among the drafts sent out in February 1940, there was also one about the introduction of criminal law.

Q. May I interrupt you? That, again, is Exhibit 459.[394]

A. That draft comes from Freisler’s sphere, and in the absence of the Reich Minister of Justice Guertner, as well as Freisler, I signed that draft upon the request of the Minister. That draft provided absolutely equal treatment of Germans and Poles. Later on, 6 June 1940, a decree was issued about the introduction of penal law in the Incorporated Eastern Territories and that decree was only designed for Poles and Jews; that shows that before my time, and without any assistance on my part a special law was created for Poles and Jews. Apparently Freisler afterward gave in to the efforts of the Party and had managed after hard struggles to obtain the approval of Guertner, who, as I know, was against such a thing on principle. But the decree of 6 June 1940 bears the signatures of Frick and Guertner.

Q. That decree will be contained in my document, Schlegelberger 60.[395] Then, it came to the penal ordinance concerning Jews and Poles, 7 December 1941, that is Exhibit 343.[396] Will you please discuss that decree in detail?

A. That decree of 7 December 1941 which has been the subject of a detailed discussion in this trial is based on the following: The decree of June 1940, in the view of the department of criminal legislation in the Ministry, was not satisfactory. And that was because the extent of punishment was not sufficient, neither the maximum nor the minimum of punishment was sufficient. There was also a lack of specific provisions. In addition to that, the Reich Chancellery had informed the Ministry, that the deputy of the Fuehrer and the Party, demanded a discriminatory law concerning Poles and Jews.

Q. I refer to Exhibit 341.[397]

A. Therefore, the Department for Penal Legislation—that was before my period in office as Acting Reich Minister of Justice—had started to work out a new draft which should take care of these deficiencies. When I took over after Guertner’s death, Freisler reported to me about that matter and told me the following: It was Himmler’s intention to obtain sole competency for all cases against Poles and Jews, and that Gauleiter Greiser of Warthegau province was of the same opinion, and he if necessary wanted to eliminate the administration of justice with the aid of civilian courts martial. Bormann was of the same opinion and demanded, first of all, the introduction of corporal punishment. According to this information I had to expect a fight with the Party. This fight which was fought to maintain legal procedures for Poles and Jews in all events, could only be successful if I could point out that the courts had at their disposal an appropriate procedure and appropriate provisions which were sufficient for all, even the most serious cases. The new draft,[398] in my opinion, was designed to rebut the assertion by the Party that the courts could not master the situation. Therefore, in April 1941, I submitted that draft to the Ministerial Council for Reich Defense to the attention of Reich Minister Lammers, in order to achieve a decision. I also announced to Lammers that I had to see him in advance to inform him about the situation, and about the conditions which lead to the draft in that form. The prosecution has repeatedly referred to that covering letter which accompanied the draft.[399] Therefore, I should like to explain the reason for this letter, and the manner in which it was written. According to the legal provisions, to those provisions which I have already discussed, I had to have the approval of the Party Chancellery, but only then did I have any chance to obtain that approval, if that draft was implemented with those main points which I considered necessary.

If I had described in my letter the contents and consequences of the draft without exaggeration, I could never have expected the approval of the Party Chancellery. Therefore, I had no alternative but to emphasize the increases in the severity of treatment with exaggerated expressions, to pass over less severe provisions, and to leave out references to decrees which would make this decree more lenient. Whether it came to any conference with Lammers, I could no longer tell. I remember quite clearly the event which proved to me that my assumption was correct, that we would have to expect a most energetic attack on the part of Himmler.

In the summer of 1941, Himmler asked me to come to a conference. That was the only one I ever had with Himmler. There was a great pressure with regard to time connected with that request. Himmler told me that he was on his way to see Hitler and that he had to have my approval. Penal cases against Poles and Jews should be turned over to him, that is to say, to the police. That was regardless of where the acts had been committed.

I rejected that categorically and told him that for that kind of change of competence, there was no reason whatsoever, particularly since in a very short time a new regulation could be expected about that question by the Ministerial Council for Reich Defense. That, of course, made Himmler suspicious. At that time, it did not seem to him to be the right thing to fight against the Ministerial Council for Reich Defense which was under the presidency of Goering, at that time a strong opponent. Himmler seemed to depart for a short time from his original plan.

The Ministerial Council for Reich Defense passed that draft in December of the same year and that determined and assured the competence of the courts for penal cases against Poles and Jews[400]. When I left office that was immediately changed as could be seen from these proceedings. That decree dates back to December 1941, as I have already pointed out the period when my task as Acting Minister of Justice came to an end. It is not surprising that I could not gain a clear picture, as to how that decree was applied and what the consequences were.

I do recognize that one could criticize individual sentences at least as far as the limited amount of material is concerned which is available to us now. However, considering that there were about half a million penal cases during 1 year—as regrettable as it may be in the individual case—it is not very decisive for an over-all judgment of conditions. I owe it to the German judges to state here frankly and publicly that as long as I could observe their activity, they have discharged their duties with a definite desire for justice in general.

Concerning the criticism which was voiced against this decree, I should like to say the following in detail. The most essential feature of that decree was its practical application. I took every opportunity when a judge from the eastern territories came to see me to point out that that decree gave a great deal of latitude to the judges; that therefore, the judges for the procedure as well as for the sentencing had to keep in mind that they were servants of justice. Beyond that I caused Freisler to discuss the point of view of just application in an article in a magazine, Deutsche Justiz (German Justice).[401] Deutsche Justiz, an official publication, was read by all judges and prosecutors, and that made absolutely certain that they knew how Freisler thought about it, and that he did not want any arbitrary application. That achieved that Freisler himself was prevented from giving individual directives or expressing opinions which would go contrary to the meaning of that decree. In view of his unstable nature, this was particularly important.

This article by Freisler took into account my demands by stating that it was a serious duty of judges and prosecutors in cases of Poles and Jews to apply the same maximum care as they would in the case of Germans. The prosecutors are instructed in preliminary investigations to examine also points in favor of the defendant very carefully so that the defendant can recognize the charges made against him and is put in a position to prepare his defense. The courts are admonished to keep in mind that it was not within the meaning of the decree that facts which were of little or no importance should be artificially exaggerated. What harms an individual does not harm the Reich. Sufficient opportunity should be given to the defendant to use legal remedies, to explain things, and to state his views to the evidence submitted. Everything should be avoided which in the least would make the sentence look like a sentence based on suspicion. Under all circumstances, the extent of the punishment should be within sound measure. The legal remedy of appeal should be applied by the prosecutor, also in favor of the defendant and for that express purpose, the time limit was extended to twice its normal length.

Presiding Judge Brand: Mr. Schlegelberger, you are referring to an article by Freisler, are you not?

Defendant Schlegelberger: Yes.

Presiding Judge Brand: Does that have an exhibit number, or will it have?

Dr. Kubuschok: I will submit that article as Document Schlegelberger 61; 61 will be the number of that article. It is in my document book.

Presiding Judge Brand: 161?

Dr. Kubuschok: No, only 61 in document book 3, Schlegelberger document book 3.

Presiding Judge Brand: Thank you very much.

Defendant Schlegelberger: The right for civil suits for Poles and Jews had already been rescinded by the old decree. A new decree brought modification by which also Germans should not have that right any longer as Freisler explained. And now the most important element—the latitude and extent of punishment was increased not only toward heavier punishment, but also by decreasing the minimum. The death penalty was mandatory only where an act of violence was committed against a German on account of his being a German. That was already contained in the old decree. In all other cases, apart from the death sentence, there was an opportunity for a prison term.

In the old decree, in the case of anyone owning or carrying weapons a death penalty was mandatory. The new decree provides for the possibility of a prison term which goes all the way down to 3 months in prison. That modification applied to a large number of offenses. Also, the mandatory death sentence for arson was abolished. Apart from that, I am of the opinion—and it has been mentioned here frequently—that whether the death penalty is mandatory or optional, a judge who does not want the sentence of death in taking into account the facts in a case, can almost always avoid that possibility.

The prosecution asserts that the new decree excludes the clemency plea for Poles and Jews. That is not correct. If it is stated that the sentence was final and had to be executed immediately that only means that with the exception of that right the sentence is final. I will not discuss the question as to whether a sovereign can forego the use of the clemency plea from the outset, but it is beyond doubt that the Ministerial Council for Reich Defense could not have excluded the right of pardon on the part of Hitler. Besides, for the Incorporated Eastern Territories, the pardon regulations of 1935 applied. Article 453 of the Code of Criminal Procedure, according to which execution of the death sentence is only possible after it has been ascertained that the authority in charge of the clemency prerogative has refused to make use of this prerogative was especially emphasized upon my demands in Freisler’s article. In fact, Poles were pardoned. That was mentioned in these proceedings. I would like to refer to two cases which I remember: the case Pitra and the case Wozniak.

Dr. Kubuschok: Those cases are contained in Document NG-398, Prosecution Exhibit 253.[402]

Defendant Schlegelberger: The right to have defense counsel is not taken from the defendant by that decree. On the basis of the regulations concerning Special Courts of that time, a defense counsel had to be appointed for the defendant. And I may say in conclusion that the penal ordinance concerning Poles and Jews guaranteed the Poles and Jews a court procedure and a sentence by the court. Also, it prevented these defendants from being dealt with without the protection of the court and being turned over to the police.

Q. I am just informed that the translation on one point was in error. The witness stated that he would not discuss the question as to whether the right for pardon on the part of the sovereign, or the supreme authority of the state, could be omitted, and instead of the word “sovereign,” the word “defendant” came over the channel.

According to Exhibit 346, retroactivity of the penal ordinance for Poles and Jews was ordered.[403] What can you say in that connection?

Mr. LaFollette: I did not get the Exhibit number.

Dr. Kubuschok: Exhibit 346.

Defendant Schlegelberger: I have described how great the pressure on the part of Himmler and Bormann had been. We had just succeeded in calming these parties down. They had had quite different ideas of the practical application, but now Freisler again piped up. He complained that in past cases the old decree was still applicable. In order to prevent a renewed debate about the competency of the police, that request for retroactivity was granted. Besides, that decree concerning retroactivity had a consequence which the Party officials had not taken into account, most probably, because now, on these many pending cases against people who had been found to have arms, not the old decree but the new decree had to be applied which also gave the possibility of a penalty of 3 months’ prison term instead of the death sentence, which was mandatory under the old decree.

Q. The prosecution charges you with having introduced or contributed toward introducing the Standgerichte—the civilian courts martial—in the Incorporated Eastern Territories. Document NG-136, Prosecution Exhibit 345[404] is in point. What can you say in that connection?

A. Apart from the general desire to turn over cases of Poles and Jews to the police, Himmler and Bormann, as it was said once, had a special preference and desire for the establishment of civilian courts martial. One could not quite bypass that desire in the decree concerning Poles and Jews, but it was possible to establish an obstacle. I did so, including the provision that civilian courts martial could only be established with the approval of the Minister of Justice and the Minister of the Interior. Greiser, with the support of Himmler, had recognized that that clause or that provision would make it impossible for them to have their wishes fulfilled.

Therefore, bypassing the Minister of Justice, they went directly to Hitler. Lammers, by order of Hitler, informed me that Hitler had decided that the demand for the establishment of civilian courts martial and the transfer of rightful pardon should be granted.

What I had always tried to achieve by various means had not been achieved; on the contrary, that which I had tried to avoid had come true. By the decision on the part of the Fuehrer, my hands were tied.

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CROSS-EXAMINATION

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Mr. LaFollette: Now I believe you testified on direct examination that you yourself had no anti-Semitic feelings as such against the Jews as a race; that also you sought justice rather than to classify people as groups. That, as I gather, was right?

Defendant Schlegelberger: Yes, that is correct.

Q. If then you extended the Nuernberg laws[405] by decree into the eastern territories, that would be a little inconsistent with your own feeling about the matter, would it not?

A. Certainly not.

Q. May I hand you a copy of an order of the 31 May 1941 which as I read it has the effect of extending those laws into the eastern territories. This order was signed by you. That is the prosecution’s document NG-1615, which we asked to have marked for identification as Prosecution Exhibit 521,[406] Your Honor.

If Your Honors please, if the Tribunal will permit me, I have had English copies of this and I thought they were here. I am advised that they are not in here now. I will furnish them. May I proceed and then furnish them to the Tribunal?

Have you examined that exhibit, Doctor?

A. Yes.

Q. It is signed by you as Acting Reich Minister of Justice, Martin Bormann, and Dr. Stuckart. Is that correct?

A. Yes. There are two decrees on the same day.

Q. Yes. Article 3 provides the Act for the Protection of German Blood and Honor of 15 September 1935 shall be applicable in the annexed eastern territories. That is what is known as the Nuernberg law, is it not?

A. Yes.

Q. That was applied to the eastern territories?

A. In regard to this decree, I would like to say something, if I may.

Q. Surely.

A. These two decrees of 31 May 1941; the first one is an order introducing it; and the second one is the executive order of the Law for the Protection of German Blood and Honor. They have to be looked at together. As far as the basic question of the introduction of that law is concerned, the prosecutor has already spoken about my personal feelings. I shall leave them out of consideration for the moment. In regard to the question as to whether the Nuernberg laws were supposed to be introduced, the following were the decisive legal sources:

First, here too the directives of policy which Hitler had issued; secondly, the political responsibility of the Ministry of the Interior, as the central office for questions regarding the eastern territories, and the leader of the Party Chancellery.

The Ministry of Justice in regard to these laws participated only because the so-called law for the Protection of German Blood and Honor, by which Minister Guertner was completely surprised at the time, contained a penal regulation. If now, in accordance with the political directives, one had to introduce this decree, the penal regulation, of course, had to be introduced too, and from that resulted, of necessity, the signature. Moreover, from the connection of these two decrees, it is apparent without any doubt that the decrees do not apply to Poles, either Jews or non-Jews, but only to German citizens, and that they had to comply is obvious.

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[407]

DIRECT EXAMINATION

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Dr. Schilf (counsel for defendant Klemm): We come now to the third phase of your activity, namely, your activity in the Party Chancellery in Munich.[408] I ask you, first of all, how did it happen that you came into the Party Chancellery at all? Please also tell the exact dates to the Tribunal first.

Defendant Klemm: I began my activities in Munich on 17 March 1941. At that time the Party Chancellery did not exist at all. At that time there was only the staff of the Deputy of the Fuehrer, and that was Reich Minister Hess. Reichsleiter Bormann who had the position of chief of staff was not in Munich at all, but since the beginning of the war, in the Fuehrer Headquarters in the immediate proximity of the Fuehrer. That remained the same way during the entire course of the war. From the Party Chancellery I knew the chief of Department III, that is Under Secretary Klopfer. I have known him since 1924 or 1925; that is, from my student days. We had not seen each other at all for 1 or 2 years and had not written to each other. We met by chance in Berlin in January 1941 in front of the Reich Chancellery, on the occasion of the funeral of the Reich Minister of Justice Guertner. I had come for this funeral from The Hague and Klopfer happened to be in Berlin. At that time Klopfer had just been given Department III in the staff of the Deputy of the Fuehrer, and he asked me whether I would like to work in his department, and to take over the group in charge of the administration of justice. That group consisted at that time of two or three people, and there was no group leader because he was employed in other matters.

Q. I believe that is sufficient to describe the cause—

A. I said at the time to Klopfer that I liked it very much at The Hague; that I had an independent position there. I was able to work independently, but during the war things were not done in accordance with the personal wishes of a person; that I would work wherever I was assigned to work. I never heard anything about it again until one day Seyss-Inquart called me to him and told me that he had had a lengthy correspondence with the Party Chancellery, that the Chancellery had asked for me, that he had fought against this, but in the end had to give in after all. And he had agreed to the chief of staff of the Deputy of the Fuehrer to put me at his disposal, and therefore, he instructed me to start my service in Munich 4 days or a week later. That is how I entered the staff of the Deputy of the Fuehrer at the time.

Q. Before we now turn to your activities in detail in the Party Chancellery, it seems to be necessary to tell the Tribunal the most important facts about the organizational structure of the Party Chancellery or the staff of the Deputy of the Fuehrer. You know that the Party Chancellery has a bad reputation. We want to tell the Tribunal first the outside organizational structure.

A. The staff of the Deputy of the Fuehrer had that name until the middle of May 1941, until the time when Reich Minister Hess—that is the Deputy of the Fuehrer—secretly flew to England.[409] At that time the staff was transformed into the Party Chancellery, and for the sake of simplicity I shall only use the name “Party Chancellery” from now on.

The Party Chancellery was an organization with, in my estimation, from 750 to 1,000 persons. There was one office in Munich and one in Berlin. The Party Chancellery was divided into three divisions, and these divisions were again subdivided into groups:

Division I, which is of no interest here, was in charge of management, building, and maintenance; and in that division the personnel of the Party Chancellery itself was administered. Furthermore, the registry was there and the telegraph and teletype system.

The nucleus of the Party Chancellery as a Party office was Division II, the Party political division. Here was the actual leadership of the Party, that is, the NSDAP, and here was the direct channel to the Gaue, the Kreise, and the local groups. A certain Friedrichs was in charge of this division.

Division III was the State or constitutional division as it was called. Under Secretary Dr. Klopfer was in charge of it. Here everything was dealt with which had to do with the State and the State functions of the Party Chancellery, while, as I have already stated, purely Party matters were dealt with in Division II.

Q. Would you please explain to the Tribunal the contrast between this office, the Party Chancellery, and the purely Party offices of the NSDAP?

A. In addition to the Party Chancellery, the Party had different offices on the level of the Reich leadership, for instance, to cite examples, the Reich Legal Office, the Office for Agricultural Policy, and the Office for Public Welfare. Thus, there were a number of different agencies. Party jurisdiction went through up to the supreme Party court. It also was divided into Gau and Kreis courts. In addition to that there were also, of course, some other Reich offices, such as the office for Reich propaganda matters and Reich organizational direction, and so on.

Within the Party Chancellery, in addition to these three divisions, there was also the so-called Reichsleiter Bureau, Reich Leader Office. That was, so to speak, the staff formerly closest around Reich Minister Hess and later on around Reichsleiter Bormann. This Reich Leader Office Bureau, which at times had up to three jurists on its staff, met partly in Munich and partly in Berlin, in the office there, and partly at the Fuehrer Headquarters immediately with Bormann.

Q. You spoke of Division III as the State or constitutional division. I ask you whether it was anchored on a legal basis.

A. If I speak of a state or constitutional division, I give it this designation because of the nature of the work of that division. Division III was, so to speak, the counterpart of the State organization in the Party sector. Division III was divided into seven groups. I shall describe this organization somewhat later.

By virtue of the “law to secure the unity of Party and State,”[410] the Deputy of the Fuehrer had been made a Reich Minister. Supplementary decrees, and orders laid down that the Deputy of the Fuehrer, had to participate in the making of national laws and ordinances, by having to approve the drafts of such decrees. This right was then transferred to the leader of the Party Chancellery, and in a more stringent form—as the witness Schlegelberger has already testified—quite clearly in a circular, or perhaps in an ordinance it was repeatedly stated that the leader of the Party Chancellery always had the position of a participating minister. In the same way as in the purely legislative field, the Deputy of the Fuehrer entered into personnel matters of the government. No higher official could be employed or promoted if this measure in the State sector was not approved by the Deputy of the Fuehrer and later by the leader of the Party Chancellery.

In order to fulfill these State and constitutional functions, Division III had been formed in the Party Chancellery, or rather earlier, in the staff of the Deputy of the Fuehrer. As I have already stated, it consisted of seven groups:

Group III-A, above all, dealt with the sphere of the Reich Ministry of the Interior and questions of nationality [Volkstum]. During the last period of my time in Munich, the witness Anker, who was examined here as a witness for the prosecution, was in charge of Group III.

In Group III-B, all economic matters were dealt with: economics, food, traffic, mails, and armaments.

Group III-C, the group of which I was in charge, dealt with laws and orders as far as they had been issued by the Ministry of Justice, and with questions of Party law.

Group III-D worked on educational and ecclesiastical questions, as well as matters of the Foreign Office.

Group III-E dealt with financial questions, and Group III-P (Paula) dealt with personnel matters; that is, all State personnel matters, without consideration of the fact as to whether they originated from the judiciary, the administration, finance, or anywhere else.

Then there was a group, III-S, which had special tasks in the cultural field.

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Q. Witness, you have now listed the individual groups, seven, as you stated. I now ask you to make a statement as to how the individual groups of the Party Chancellery were in contact with each other or how they worked together.

A. In my description I omit Division I, because it only dealt with technical matters of the management of the office, administrative details within the Party Chancellery. I can limit myself to the relationship of Division II, that is the purely Party political division, and Division III. These two divisions worked not with each other but against each other. Already this structure was quite arbitrary and unorganized. For example there were fields of work which had the same name in both divisions. In the course of time Division II arrogated this to itself. This battle between the two divisions was not based only on purely factual reasons in the fields of work but also had other deeper reasons. In Division III officials were working who had almost exclusively been detailed by their ministries for such work. In Division II only political leaders were working whole time who, for the most part, looked down upon the jurists with contempt. The word “jurist” was a kind of epithet, and they saw in the people of Division III only civil servants and deputies of the ministries. They did not concede that we did any political work at all, and especially not work of a party political nature. They did not acknowledge us as political leaders at all. We in Division III were only a necessary evil in the Party Chancellery; that is how they saw things, because without the experts they could not get along. This disrespect—I cannot call it anything else—this disrespect on the part of Division II was especially strengthened by the attitude of Bormann toward Division III. He had approximately the same attitude. The result was that between Divisions II and III there was a constant malicious fight for competency. Division II constantly tried to arrogate to itself matters which could have something remotely to do with Party matters. These attempts took place also when State matters were predominantly or exclusively concerned; that is, if the effects would take place in the State sector. This situation was favored by the unbelievable conditions that existed in the registry. This registry had been built up by laymen. In 1933 Germany had several million unemployed, and an effort was made to find a place for these people and again give them an opportunity to make a living. The result was that people were put in such positions only to find a place for them, people who had no idea about an organizational structure. In this registry, former streetcar conductors and violinists were employed, people who knew nothing about it. Therefore, the entries were constantly directed to wrong places and then the other division did not let them go out. Whether a letter went to Division II, or Division III, or directly to Bormann was in many cases just a question of luck.

Q. I wanted to ask you also, in Division III was there also a financially worse position compared with the people in Division II?

A. We were paid the same way as we were paid when we were in the employ of the State, while the political leaders, the Main Office political leaders, had their own salary scale; and I do not want to repeat here; I can refer to what the witness Anker stated who explained that a political leader of Division II in the same position as Anker got about double the amount of salary than an official.

Q. I want to demonstrate to the Tribunal the borderline of competency between Divisions II and III. I have here a document which the prosecution believed they could bring into some kind of connection with your case. It is Document NG-364, Prosecution Exhibit 108.[411] This is the infamous letter about the lynching of Allied airmen who had bailed out. The letterhead is the NSDAP, Party Chancellery. Further, the leader of the Party Chancellery and the place from which it was sent is the Fuehrer Headquarters. The date is 30 May 1944.

A. Even though this is a circular from the Party Chancellery at a time at which I had been out of the Party Chancellery already for 5 months, I do know that such circular letters in principle were not submitted by Division II to Division III when they were in a draft form or for cooperation, even if the police, the Wehrmacht, and the administration of justice and their spheres of work were discussed in it.

Q. The letter is signed by Bormann. In the same document, that is Exhibit 108, there is contained another letter which also has the date 30 May 1944. It is addressed to all Gau leaders and Kreis leaders, and refers to Bormann’s circular letter. It is signed by Friedrichs. Is Friedrichs the chief?

A. Friedrichs is the chief of Department II.

Q. Before, when you were speaking about the registry and the delivery of letters, you mentioned that many letters went directly to Bormann, to the Fuehrer headquarters. Thus, these letters did not go to Munich to the divisions that had been established there. Was there any standard in regard to the distribution of these letters, to whom they were to be sent?

A. If personal letters to Bormann in his position as Reichsleiter or as secretary of the Fuehrer were received by a minister or a Reichsleiter or a Gauleiter or any other prominent person in the service of the State or the Party, these letters always went first to Bormann in the Fuehrer Headquarters. Other letters went quite frequently first to Bormann. It depended entirely on who of the people I described before, who did not have the requisite training at the registry, and the mail got such a letter into his hands and how he forwarded it. Of course, efforts were made to make as few mistakes as possible which would arouse Bormann. The result was that as much as possible was sent to Bormann so that the reproach could not be made that he had been skipped.

Q. Perhaps we can clarify this by means of an example. The prosecution introduced Document NG-558, Prosecution Exhibit 143.[412] This is a personal letter which Thierack wrote to Bormann, dated 13 October 1942. In this letter the information is passed on that in the extermination of Jews and Poles the administration of justice wanted to give a helping hand. In the form in which it is submitted, this letter is addressed personally by Thierack to Bormann. I am asking you whether this letter went via your Group III-C, that is the legal division, or whether Bormann later sent it to your legal division and thus informed you about it?

A. Whether this letter was sent to Bormann too, by Thierack, I don’t know. It did not come to Munich to Group III-C. I personally saw this letter for the first time here when the document was submitted.

Q. We have another document here, that is NG-280, Prosecution Exhibit 70.[413] It is a letter which Lammers, who was then Chief of the Reich Chancellery, sent to Bormann. It is a complaint about an inadequate sentence regarding a Pole. This document contains several letters. We are here concerned with the third letter with the address: “To Reichsleiter Bormann.” I ask you to also make a statement in regard to this whether the legal group or you personally had this letter, as shown to you, put at your disposal.

A. This letter came to Bormann personally, and in the same way as the preceding letter from Lammers to Bormann which was written by him personally. Group III-C, Bormann-Lammers, was not informed about this correspondence. I have to add something here. Bormann had, after all, two functions. He was leader of the Party Chancellery and he was secretary to the Fuehrer. He stayed almost exclusively in the Fuehrer Headquarters. It was often difficult to find out whether Bormann acted as leader of the Party Chancellery or as secretary of the Fuehrer. In a case like the one here, Exhibit 70, certainly the Fuehrer exercised criticism and to that extent Bormann then acted as the Fuehrer’s secretary. He then referred the matter to the State sector via Lammers. In addition, an exterior circumstance must be considered between the Fuehrer Headquarters and the Party Chancellery in Munich; there were thousands of kilometers. For some time the Fuehrer headquarters was in Vinnitsa in the Ukraine. In the immediate proximity of the Fuehrer Headquarters were the field headquarters of Lammers, that is, of the Reich Chancellery. For purely technical reasons the mail went immediately back and forth between the Fuehrer Headquarters and Lammers’ field headquarters.

Q. Another interim question, Mr. Klemm. You characterized Bormann in two capacities; one, as leader of the Party Chancellery, and secondly, as secretary of the Fuehrer. This letter which I am just showing to you, however, contains the designation Reichsleiter Bormann. Was that a third capacity in which Bormann worked?

A. In contrast to other Reichsleiters, as far as I know, Bormann became Reichsleiter, more or less, in title only. Goebbels, for example, was a Reichsleiter too, because he was in charge of the Reich Propaganda Office. On top of that, he was also Reichsleiter Goebbels, the Gau Leader of Berlin. At the very moment in which Bormann became leader of the Party Chancellery and in addition secretary of the Fuehrer, the concept Reichsleiter did not signify a special office or a special function any more.

Q. That is enough. Since you have described the geographical and technical conditions in which the correspondence went as a rule, I now want to ask you in principle, did you at all receive information about that correspondence which went to Bormann to the Fuehrer Headquarters or which went from Bormann from the Fuehrer Headquarters or which went from Bormann from the Fuehrer Headquarters to other State offices or Party functionaries?

A. That depended. There were several possibilities. Either Bormann answered such letters immediately himself, or those parts of the Reich leader’s office which were also in the Fuehrer Headquarters dealt with them. I have already mentioned that sometimes up to three jurists belonged to the Reich leader office who advised Bormann.

A certain proof of the fact that Bormann dealt with a matter himself is the initials “Bo.” Very frequently we were not informed about such matters, because often they were put in the files of the secretary of the Fuehrer which did not concern us in the Party Chancellery after all.

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Q. Mr. Klemm, you spoke about several possibilities concerning Bormann receiving letters or sending letters. You said it all depended on the circumstances. I now ask you to explain to the Tribunal further what additional possibilities existed in order to clarify whether you were informed about any measures taken by Bormann or not.

A. The second possibility was that Bormann wrote his decision or his opinion on the margin of the letter and then gave it to the Referent in the Party Chancellery and left it up to him to draft the answer in accordance with the decision he had written in the margin. Whether the answer to the letter then formulated was signed by Bormann himself, or whether the Referent, his group leader, or the division chief signed it, depended in each case on who signed the first letter.

Q. The documents which I just mentioned were all brought into close connection with your person by the prosecution, apparently solely because the Party Chancellery is mentioned on these documents. I now come to Document NG-412, Prosecution Exhibit 77.[414] On this, there is your name. The connection with your person is very clear here. It concerns an approval that you gave to a draft of a law which the Reich Ministry of Justice had drafted on order of the Party Chancellery. The contents were retroactive application of regulations concerning treason. I would like to ask you on the basis of what you explained, was this approval given on your own decision or on Bormann’s instructions?

A. I did not give this approval by my own decision. In the case of drafts of laws in particular, Bormann always reserved the right to make the decision for himself. In this case the letter concerned, which the Ministry of Justice had, among others, probably also addressed to the leader of the Party Chancellery, was returned from the Fuehrer Headquarters. Probably on the margin it said “approved,” or “yes,” or “in accordance,” those were the words which Bormann used; and since in this letter of the Ministry of Justice a wish of the Fuehrer was referred to which he had expressed already before in discussions, it was quite clear for Bormann that he would agree, and in such a case I could then sign.

Q. This letter of the Party Chancellery is dated 18 June 1942 and also has the file number III-C; that evidently was issued by the legal group. I would like to ask you now to describe somewhat more in detail the sphere of the task of the legal group.

[Recess]

Q. We discussed Exhibit 77, that was the approval of the Party Chancellery to a draft or law which was prepared by the Ministry of Justice. I had asked you what matters in the legal group of the Party Chancellery were dealt with by you in addition?

A. I want to summarize the tasks of the legal group briefly. First it had to deal with laws and drafts and decrees of the Reich Ministry of Justice, unless for reasons of their subject, they were dealt with by another group, because that group appeared to be competent. Secondly, penal matters based on the law on insidious acts, as far as on the basis of legal provisions the approval of the chief of the Party Chancellery was required for the prosecution. Thirdly, complaints from Party offices or individuals against decisions by the courts. Fourth, complaints from the administration of justice against interference by Party offices into pending trials. Fifth, to observe especially civil and penal cases which concerned the Party. Sixth, matters of legal reform, and seventh, expert opinions in the field of the Party law.

Q. As for the first group, approval of laws and drafts, was that approval of the Party Chancellery for drafts of law based on a legal foundation?

A. I have already made statements concerning that question when I explained why there was a Department III, the so-called state law and constitutional law department in the Party Chancellery. The chief of the Party Chancellery, on the basis of certain legal provisions in the case of any law or draft or any decree was a minister who had to participate in its drafting, that is to say, he had the same position as a minister participating in legislation.

Q. In discussing the first part of your activities you made the reservation that the legal group in the Party Chancellery dealt only with those drafts which for reasons of their subject did not belong within the competency of another group. Would you please elucidate to the Tribunal what you mean by that?

A. First I have to make a more general reservation. It was not the task of individual groups of Department III or of Department III itself to display any political activity. The Party political elements connected with a problem were to be dealt with by the political offices of the Party. I had listed before the Reich Legal Office, the Office for Agrarian Policy, the Office for Public Health and others. These offices within the Party developed their policies through the Reichsleiters who were in charge of these offices, and did that directly with the Fuehrer. The groups of Department III, and above all not the Legal Group, could not deal with the individually specialized matters to the extent that it would have been necessary. I have already explained that Group III-C comprised four to six officers. That group was balanced in the Ministry of Justice by well over 200 experts. Our tasks—and above all because each individual in that group considered himself a representative of the thought of the Ministry of Justice,—were to prevent difficulties which might arise by some legal arrangement between the Party and the offices of the administration of justice. For instance, in Group III-C, we always were very skeptical to any general clauses which were contained in a draft and laws because such general clauses are the pets of the layman, and he sticks to them because that affords him the opportunity to criticize. That arrangement which was as such provided by law that the chief of the Party Secretariat always had the capacity of a participating minister, was not agreed to by various sectors of the administration of the State, and thus, for instance, Goering in his various positions which he held at the same time, as Minister for Aviation, as Plenipotentiary of the Four Year Plan, and as chairman of the Ministerial Council for the Defense of the Reich, never stuck to it, and never submitted any drafts. Likewise, the High Command of the Armed Forces never submitted the drafts of laws as far as they concerned the administration of justice, penal regulations, et cetera, to the Party Chancellery. The individual group, however, the legal group could not independently deal with a draft, if problems were dealt with in that draft which did not immediately concern the legal group but in their essence concerned other ministries, for instance, all questions of nationality, were dealt within Group III-A. For instance questions of Poles and Jews, Group III-C, to cite another example, in the field of law concerning hereditary estates, could not decide independently. That was claimed by Group III-B, which was in charge of questions of food, the Food Ministry, to which the hereditary estate court belonged also. I believe these examples should be sufficient.

Q. You had set forth that the various subgroups of III were offices corresponding to the institutions of the State, that you would consider the Ministry of the Interior as analogous to Group III-A. I ask you now since you mention Poles and Jews, the problems of which were to be dealt with by III-A, whether the purpose for that was that as far as the organization of the State was concerned, the Ministry of the Interior took a leading part in dealing with these questions?

A. Group III-A had dealt with these problems because it was the equivalent of the Ministry of the Interior. It was dealt with there only and if on the one side the Ministry of the Interior took the leading part, then Group III-C had nothing to do with those matters at all.

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Q. Then, since you worked in the Party Chancellery, Document NG-151, Prosecution Exhibit 204[415] was submitted in connection with you. It is a proposal on the part of the Reich Minister of Justice of 3 August 1942, with the designation “Limitation of Legal Remedies in Penal Matters for Jews.” On page 108 of the German text, a letter is submitted which has the signature of Bormann. Next to Bormann’s signature there is also the file note “III-C,” that is to say, the symbol of the Legal Group [in the Party Chancellery].

I ask you to comment on that and to tell us whether you or your Legal Group had anything to do with that matter.

A. To answer this intelligently, I have to refer to the entire document submitted by the prosecution. The document comprises 25 pages, and that letter from Bormann is put at the end. The entire procedure, however, can be understood only if one puts these various documents in the correct chronological order, for only then can one see how this entire development can be subdivided into three phases.

On 3 August 1942, the Ministry of Justice distributes its first draft, which is draft number 1. The letter of 13 August 1942 shows the approval of the Reich Ministry of the Interior, with supplementary suggestions. In the meantime, however, the Ministry for Propaganda quite apparently, although there is nothing contained in this file about that, has made counterproposals and distributed those to all offices concerned. That can be concluded from the fact that on 13 August—that is to say, on the same day when the Ministry of the Interior first approved proposal number 1 with certain supplementary requests—on the very same day, the Ministry of Justice distributed suggestions for draft number 2, at the same time referring to suggestions made by the Ministry of Propaganda. That draft number 2 was approved on 20 August 1942 by the Food Ministry, which also stated requests for supplementation in its field, that is, in the field of civil administrative law. Then, on 9 September 1942, the chief of the Party Chancellery states his approval, and in that letter also the request is expressed that the suggested draft concerning a restriction of legal remedies for Jews should be supplemented.

As for the second phase, dealing with draft number 2, there are two events to be noted—one, a certain activity of the Reich Chancellery, that is to say Lammers, who suggests to the General Plenipotentiary for the Administration of the Reich, that is, the Reich Minister of the Interior, that he should see to it that these suggestions are adjusted to meet the requirements and then submitted.

And the second is a letter from the Reich Leader SS of 25 August 1942, who suggests a conference regarding draft number 2. On 10 September 1942, the High Command of the Wehrmacht also states its approval, and that second phase of developments ends with the result that the leading part is transferred from the Ministry of Justice to the Ministry of the Interior. The final conclusion of that phase is the letter from the Plenipotentiary for the Administration of the Reich, that is to say, the Ministry of the Interior to the participating supreme offices of the Reich containing draft number 3. Now the third and last phase of this development starts, and the procedure as submitted in documentary form by the prosecution for more than half a year does not produce any results as far as matters developed. In the documents submitted by the prosecution the only further development is that on 3 April 1943 the Minister of the Interior writes to the Reich Chancellery, that is to say, to Lammers and encloses a letter by Kaltenbrunner from the police of 8 March 1943 where the demand is made that the Jews should be completely removed from the administration of justice. These documents then contain only two further notations of the Reich Chancellery of 6 April 1943 and of 21 April 1943. The first notation deals with a conference between the Under Secretary Kritzinger on the part of Lammers, Reich Chancellery, Stuckart on the part of the Ministry of the Interior, and Klopfer for the Party Chancellery, the Party Secretariat. And the last notice of 21 April refers to a conference of various under secretaries from the Reich Chancellery, Party Secretariat, Ministry of the Interior, Ministry of Justice, and Kaltenbrunner on the part of the police. The result of that conference is what we designate as the 13th decree amending the Reich Citizen Law. The Party Chancellery letter from 9 September 1942 does only refer to draft number 2 of the Ministry of Justice, that is the draft of 13 August 1942. The problem of removing the Jews entirely from the administration of justice and to declare them incapable of inheriting property, that problem was not all under discussion at the time when that letter was written, and the suggestions made in that letter do not represent any change against the fundamental character of that draft. They supplement the draft only to the legal systematic side. In as far as the Party Chancellery suggests that legal remedies should be included, they are suggestions of a minor weight compared to those that are already planned in the draft. According to the draft, limitations were provided to appeals and revision, that is, matters which are directed to the next higher resort. Whereas in the suggestion for supplementation made by the Party Chancellery legal remedies are referred to which are normally directed to the same court in the form of a reminder or a complaint. The next suggestion to limit the right of challenging a judge is the same provision which is also part of the IMT charter. This letter of 9 September 1942 I did not draft. Besides since it was issued more than 1 month after the letter of 13 August, other offices must have participated. Who it was in Group III-C who drafted that letter and who was the referent dealing with the matter I can no longer tell. I cannot even recall ever having seen that letter such as Bormann signed it. It is quite possible that I was away on a duty trip and that my deputy signed it for me.

Q. I believe, Mr. Klemm, that that is sufficient.

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Q. Then, concerning Poles, Jews, and members of the Protectorate, Document 664-PS, Prosecution Exhibit 348,[416] was submitted, that is a circular letter from Himmler with the classification of secret, and was sent to all Reich authorities. Your initial is on that letter because it was received in the Ministry and apparently came to your attention. In this letter it is stated that posters such as “no Jews permitted to enter public places and stores” should disappear. It was no longer necessary to show such practice to the public because the people concerned by evacuating and isolating them were no longer there. I ask you, did that lead you to the conclusion that the Jews were to be exterminated or already, at the time of this circular, had been exterminated?

A. I would never have gotten a thought of that kind. I know nothing about the places in the East. I knew that Jews lived in a city for themselves in Theresienstadt near Leitmeritz. On the contrary, I remember having seen series of pictures in magazines, I believe pictures from Theresienstadt were shown of the Jewish mayor, of the Jewish police, also of the baths and restaurants, and similar things. Also, I believe from Warsaw, such pictures were shown in German illustrated magazines. One could not gather any more from that circular letter than that or conceive the thought that it had anything to do with the extermination or anything similar to it.

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Q. In addition, Document NG-900, Prosecution Exhibit 453,[417] was submitted against you. This concerns a document which treated so-called complaints of descent of Jews. The decisive question in this document is whether you, from the letter which is contained in this document, which was written by the chief of the SD and the Security Police, could gain the conviction that Jews should be exterminated. If you have the document in front of you—it consists of several letters—the first is of 3 May 1944, there the chief of the SD writes to the Reich Minister of Justice in this letter, and the subject is a request for information about reports regarding Jews. Please comment on this.

A. In regard to the first question I can only repeat what I have already stated in regard to Prosecution Exhibit 348. No such thought ever occurred to me. Moreover, I only saw the introductory letter of this document on which the Minister had written “V”—which meant “Vortragsanordnung,” schedule of report. With that, the matter was taken out of my sphere of activity.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG[418]

DIRECT EXAMINATION

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Dr. Koessl (counsel for defendant Rothaug): It has been asserted that you had coupled together the Katzenberger and Seiler proceedings in order to exclude the Seiler woman as a witness.[419] What was the situation there?

Defendant Rothaug: Under the German Code of Procedure, there are always as many penal proceedings pending as there are defendants. Under certain conditions, such penal proceedings can be tried together for the purpose of uniform trial and decision. That is what we call joinder of penal cases. That joinder may be decided by the court, concerning cases which are pending with it separately. But such joinder may be established by the prosecution itself by one combined indictment. That was what was done in the Katzenberger-Seiler case. The prosecution, by filing one indictment for both defendants, had already established the joinder prior to the files reaching the court. The joinder of the two cases was therefore neither due to a file prepared by me, nor to a file prepared by the court.

Q. Would it have been possible for the prosecutor to proceed differently?

A. Naturally. He could have filed separate indictments. The question was merely whether that would have been correct from the technical point of procedure.

Q. What are the legal provisions on which a joinder of penal cases is based at the Special Court?

A. A joinder is based on article XV, section 2 of the competency order.

Q. When do the conditions exist for a joinder, such as demanded by the law?

A. Such conditions can arise from all sorts of situations. They exist in particular if one offense developed from another offense, and if the judgment has to be based on the same facts. That was the case in the Katzenberger-Seiler affair, which we have been discussing.

Q. What was the reason for the prosecutor to connect the two cases?

A. Both cases, as is proved clearly by the opinion of the court, had to be decided on the basis of the same facts. Therefore, a joinder was altogether natural and corresponded to the customary treatment such as was applied in other cases as well.

Q. What was the legal nature of such joinder?

A. It was purely a measure of expediency.

Q. Is a defendant entitled to ask for not combining his case with that of another defendant because in the case of a joinder he loses evidence?

A. The defendant does not have such a claim. According to the general legal doctrine, which existed prior to 1933, a joinder is admissible even if, as a result of a joinder, one codefendant can no longer appear as a witness. But if it is decisive that the codefendant should appear as the witness, the two cases can be separated after all so as to have an opportunity to examine the codefendant as a witness. But that is left entirely to the discretion of the court, and the defendant has no claim to have that question decided in one definite way.

Q. When several penal cases are combined, does that mean that all possibility is excluded to examine one of the codefendants in the same proceedings as a witness? I would like you to supplement your previous answer and to tell us whether it is possible temporarily to separate proceedings.

A. Such temporary separation is allowed expressly by jurisdiction. Therefore, during one proceeding, temporarily a separation can be ordered. One codefendant can be examined as a witness, and after he has been examined the case can be recombined.

Q. Did anybody at any time—be it the prosecutor, the defense counsel, or the defendant—during the trial make a motion to separate proceedings?

A. Such a motion was not made either at the trial or outside of it by anybody. Not even the mere idea of doing that was ever mentioned, and the reason was that at that time nobody regarded the joinder of the two cases as a defect.

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Q. In the case under discussion, was it likely that the chances of the two defendants might be affected by joining their cases?

A. As I have stated before, the legal position of the defendants could not be affected, and their chances were not affected either. If one had thought that their chances might be affected, I think in that case the two defense counsel would have made a motion to have the two proceedings separated. If one wishes to judge the situation properly, one has to bear in mind the following: that is to say, one has to think of the situation such as it would have been if the Seiler woman had not been a codefendant but a witness. In that case, she would have made no different statements at the trial than she had made at her interrogation under oath before the investigating judge, for she made the same statements as a codefendant, and we had to discuss her statements under oath before the investigating judge from every point of view for the purpose of the verdict. What difference would there have been, as far as our judgment was concerned, if she had repeated the same statements at the trial in her capacity as a witness? The real problems of the proceedings would and could not have been affected in any way by that.

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Presiding Judge Brand: Were tickets issued for admission to the trial?

Defendant Rothaug: Yes, Your Honor.

Dr. Koessl: I shall come back to those tickets later. What importance had to be attributed to the fact that a trial was held in front of such a large public?

Defendant Rothaug: Under the German Code of Penal Procedure, the fact that the public is admitted to a trial constitutes one guaranty that the proceedings will be conducted in an orderly manner.

Q. Did Katzenberger have a defense counsel?

A. Yes, he had.

Q. Was that defense counsel a Jew?

A. Yes, he was.

Q. Did the Seiler woman have a defense counsel, too?

A. Yes, she had.

Q. What sort of a man was the defense counsel for Seiler? Was he a National Socialist, or what was he?

A. I knew him. He wasn’t a National Socialist for certain. My impression was that he was entirely uninterested in politics and devoted to his profession.

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Q. Now, we’re going to examine the statements by the witness Seiler. The statements by the witnesses Ferber, Seiler, and Dr. Baur[420] are criticizing your method of conducting the Katzenberger case.

According to the testimony of the witness Seiler, you addressed the audience and said—“The Jews are our misfortune. It is the fault of the Jews that this war happened. Those who have contact with the Jews will perish through them. Racial defilement is worse than murder, and poisons the blood for generations. It can only be atoned by exterminating the offender.” (Tr. p. 1053).

Did you make remarks of that kind, or of a similar nature, or what exactly did happen?

A. That expression—“The Jews are our misfortune” or “It is the fault of the Jews that the war happened,” or “Those who have contact with the Jews will perish through them”—those expressions are well known slogans from the Stuermer, which I think appeared in large letters in every issue of the Stuermer.

Presiding Judge Brand: Mr. Witness, the only question before you is whether you used, in substance, the language which was attributed to you. You may answer that question. We are not concerned with who else used the same language.

Defendant Rothaug: Neither on duty nor in my private life did I use such generalizations, but the facts which have been discussed here, and which were mentioned in that issue of the Stuermer, concerning all that I would like to give my view on one point. That is the question as to war guilt. I can remember more or less exactly—and that idea is also mentioned in the opinion of the judgment in the same way in which I expressed it at the trial. Naturally, it was not the purpose of the trial to prove that it was the fault of the Jews that war had broken out. The point was, however, this. As is known, both defendants tried to make the situations which incriminated them appear more harmless, as if their relations had been everyday matters. And in that connection, I remember that I put it to Katzenberger that, particularly here in Nuernberg, he must have known that such relations were particularly dangerous even if the relations had been harmless, because, ever since 1933, he had observed the developments, and then, finally, war had broken out and the Jews were held responsible for the war, and all these events should have caused him to be wise and to abandon relations which were bound to endanger him, even if those relations had been only harmless—and if they had been harmless it would, after all, have been easy to abandon them. That thought of which I made use by way of arguments, both at the trial and in my oral opinion, that thought appeared in the Stuermer. It said, if I remember correctly: “He also mentioned the fact that it was the fault of world Jewry that war had come.”[421]

Dr. Koessl: Now, it has been alleged that in other cases too, you addressed the audience. What were the speeches about? What was the purpose of those speeches?

Defendant Rothaug: I am charged with having addressed the audience, particularly in connection with the Katzenberger case. In addition to the generally acknowledged fact that, under the German Code of Penal Procedure, trials have to be held in public, there is also a fact that by the trial this general law consciousness should be deepened—

Presiding Judge Brand: We have extended beyond our time for the recess. We’ll take 15 minutes’ recess now.

[Recess]

Dr. Koessl: Witness, you came to the explanation of the connections where you have made the so-called speeches to the audience. Will you explain the purpose and the connections for making these so-called speeches?

Defendant Rothaug: I base myself on the fact that the reason for the trials being public according to the German rules of procedure was that the conscience of law should be strengthened and that the population should be educated in the meaning of the laws. Our sphere dealt with entirely new legislation, new in consideration of the basis on which it was founded and of its purposes; for that reason—and of course one has to consider that this new legislation provided severe and most severe consequences, and that makes it understandable why I—and that was with approval of all interested offices of the administration of justice—was of the position that it was necessary to bring as quickly and as effectively as possible this legislation before the population in order to warn them because that warning in a certain sense is a justification of the severe sentence, particularly the extent of the sentence; and that explains why I had the intention to conduct my trials before the public and as many people as possible and as broadly as possible. That also explains why it was not only my intention to describe the bare legal facts but the offenses regardless in what field they were committed and to explain them from the point of view of the doctrine of the State and from the points of view of the legal system and the political point of view. The guiding thought for me was that it was our duty, and at the same time, our justification before the public, to explain that the sentence pronounced in any individual case was the direct consequence of the legislation provided therefore. It has to be added that fundamentally according to German rules of procedure, the sentence can only be based on the entirety of the trial; that is to say, that all points of view which are concerned with the penalty or the extent of penalty have to be discussed in all details during the trial because that alone puts the defendant in a position to recognize the main points which may be directed against him; and I also want to emphasize that at no time were lectures made for their own purpose, but that such statements were made in connection with the testimony of the defendant or the witnesses at the time and at the place where it seemed proper.

Q. Ferber charges you generally, and particularly, in the case Katzenberger.

A. I intended to add, that it is therefore quite certain that at that session I also stated my opinion concerning the problem of race defilement on the basis of the doctrine of the State and on the basis of the legal system, and on the basis of our political and legal foundations. That I also discussed the danger in the manner that these things were regarded at that time according to the legal situation, the danger arising from the mixture of races to coming generations, that I consider to be a fact. What words I used and what thoughts I may have expressed in detail in discussing these matters, that, of course, I could no longer tell today. But what I object to is the assertion that these may have been statements of the level of the “Stuermer;” and with absolute certainty I should like to exclude the possibility that in that connection I demanded any physical destruction. That, according to the law, would not have been possible. That, of course, based on the fact of the war which went far beyond any racial point of view.

*******

Q. The witness Seiler in her direct examination testified that she and the defendant Katzenberger had denied under oath at various times those relations. Was Katzenberger heard under oath?

A. No, he was not heard under oath. That was not admissible under German law because German law holds that the defendant had to be entirely free to use all possibilities for his defense. That is considered a certain guarantee to aid in finding the truth.

Q. The witness Seiler also stated in her direct examination that the judge, Rothaug, used the assumption of her guilt as the basis for the entire conduct of the trial. The reason for that discrimination in her opinion had been that Rothaug did not want to hear any answer. Did you examine the witness Seiler thoroughly?

A. Of course, she was examined thoroughly, and I may point out—and that can be found also from reading the opinion—that this was a so-called case of circumstantial evidence, that a large number of individual situations of more or less importance were compiled in order to make it possible to reconstruct the circumstances which were of importance for the evaluation; and it was always like that, and it was no different in this Katzenberger-Seiler case, that I discussed with the defendants every phase and every little detail; not only in order to completely clarify any particular action, that of course, was the main purpose; but beyond that it was of importance to establish what the point of view of the defendants was, and how they described matters; that is the reason why that matter took a day and a half, and in addition to that, after the examination of every witness who offered something new, again the two defendants were heard thoroughly concerning the new situation. At any rate the evidence which was taken as the basis for the judgment, was discussed in all possible detail.

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Q. Among the judges concerned during the deliberations, was there any doubt about the guilt of Katzenberger?

A. I remember the deliberations very well. That conference was as peaceful as could be; for in the course of the trial, which lasted a day and a half, the entire occurrence, as far as the facts were concerned based upon the statements of the defendants and on what the witnesses testified to, had developed into such a clear picture that there could not have been any differences of opinion; and, after a very short time—and I remember that very well also—we arrived at a decision and actually started to write the judgment down, but considering the importance of the case, we extended the time for deliberations so that the impression should not be given that we wanted to pronounce a hasty decision. There were no difficulties at all, the reason being that the facts themselves were of compelling logic, and that anything else which was the consequence of the facts just arose from them logically and in the way one had to evaluate those things at that time, and of course, we could not evaluate it based upon any different philosophy.

Q. Which motions were made by the defense counsel?

A. I would like to say with certainty that one of the defense counsel, without being able to tell who it was, made an attempt in the direction of a lenient sentence, and he was trying to combat its evaluation as a serious case, but there was no doubt left about the basic facts in the case. That is the way I remember the case, and it must have been like that; and that was also manifest by the calm deliberations where no points of argument came in existence.

Q. Was any one of the associate judges of a different opinion concerning the extent of punishment? Did any one of them vote against the death penalty, for instance?

A. The core of the question from the very beginning was the following.

Presiding Judge Brand: Let me ask you a question. Did all of the judges vote for the death penalty? Answer yes or no.

Defendant Rothaug: Yes, absolutely.

Presiding Judge Brand: Next question.

Dr. Koessl: At that time, among the jurists around you—but those who were not in direct contact with the case—were there any discussions about that sentence?

Defendant Rothaug: In no way at all. That sentence was never criticized in any way or considered doubtful by jurists who were not connected with the case which would normally be possible.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[422]

DIRECT EXAMINATION

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Dr. Wandschneider (counsel for defendant Rothenberger): We come now to a new subject which plays an important part within the scope of national socialism; that is, the Jewish question. Will you please tell the Tribunal quite generally what your point of view is concerning the Jewish question.

Defendant Rothenberger: Concerning the Jewish question, there were in the NSDAP already before 1933 two factions which opposed each other. One was the so-called Streicher wing which put the racial problem in the foreground. The other wing was the so-called social wing, led originally by Gregor Strasser. Gregor Strasser, already as early as the end of 1932, went into open opposition, and in 1934 was killed together with Roehm. Among the men who emphasized the beliefs of that social group was Kaufmann. That was conditioned by the fact that in Hamburg, of course, social problems played an important role. The Jewish question did not play the same part in Hamburg as in many other parts of the Reich. One reason for that was that on account of a large Portuguese immigration in Hamburg, the connection to western Jewry had been very strong for centuries; particularly the so-called good old Hamburg families are greatly mixed by intermarriage. Furthermore, it was due to the fact that the people of Hamburg are generally more tolerant in their basic temperament.

Another indication of the attitude of the people of Hamburg to the Jews was, for instance, that the display of the so-called Stuermer boxes in Hamburg was prohibited by Reichstatthalter Kaufmann. I, of course, officially and also privately was in close contact with Jews. I knew the advantages and disadvantages of Jewry.

Q. Now, of course, it is known to you, Dr. Rothenberger, that the Party program ambiguously states its position to the Jewish question. I assume you knew the Party program at that time. Could you comment on that as to what thoughts you had concerning the attitude the Party would take to the Jewish question?

A. In the beginning of 1933, I believed that just as in many of the Party platforms many points are made which later do not play an important role. Gradually, however, I realized that the general line became more severe. It is beyond doubt that any German under the influence of propaganda considered a limitation of the Jews in cultural and spiritual life absolutely required, and so did I. But what was generally rejected in Hamburg was any method of violence, any economic exploitation and any kind of hatred. As for the general line, such as it developed gradually in Germany, I could not change anything anymore. In each individual case of my personal and official sphere of influence, individually and from the human point of view, I helped.

Q. In connection with this question, the pogroms against Jews of November 1938 play a part. Will you please state to us what experiences you have made of these pogroms and what your attitude was.

A. On the day before the pogroms—that is the night before—by way of rumor I heard of the intention that Jewish shops were to be looted. There again to obtain information I got in touch with the Reichstatthalter Kaufmann who told me that he had asked for information in Berlin because he had also heard about it, and he had already alerted the Hamburg police too. He had posted them before the Jewish shops so that nothing should happen, and in fact, in Hamburg nothing did happen with the exception of a few individual cases. About that, in the document submitted, NG-629—

Q. I refer to Document NG-629, Prosecution Exhibit 28[423] which has already been mentioned.

A. It also mentions that due to the attitude of Reichstatthalter Kaufmann, nothing happened.

Q. Will you please discuss now the question of the legal position of Jews, as far as you had to do with it.

A. As for the legal point of view, of course in the course of years many instances of conflict occurred to everyone; also to me. In a meeting in Berlin about various legal questions negotiations were made, and the result of these negotiations as far as it concerns questions of civil law was passed on by me to the subordinate courts. As far as matters of penal law were concerned, it was passed on by the General Prosecutor at Hamburg. The opinion which the Ministry stated at that time in matters of civil law was just about in accordance with my own opinion.

Q. Here again we are concerned with Exhibit 28, which has already repeatedly been mentioned; specifically the point of view of the Ministry which Dr. Rothenberger mentioned and which he shared and passed on to the subordinate officials can be found on the last page of Exhibit 28.

A. If I may be permitted, I would like to point out that during the same press conference I mentioned two further points; one the question of sensational reports in the press about trials, where I promised to get in touch with the competent agencies to see that such sensational reports would have to cease; and the other concerning the speed of signing the sentences. I pointed out that no pressure should be permitted to be exerted on judges so that they should be given an opportunity to work on their opinions in all peace and quiet.

*******

Q. Dr. Rothenberger, we will now go over to another subject. Now we are going to deal with the beginning of the war. I want to ask you about the Jewish problem which we have already discussed. In what way did the Jewish problem develop after the outbreak of the war, as far as your opinion goes.

A. The outbreak of the war increased the difficulties of the Jewish problem in Germany considerably. The situation became considerably more acute, and in particular under the influence of propaganda. Under that influence, naturally difficult legal conflicts arose as far as the situation of a Jew in court proceedings was concerned. Previously, as Dr. Schlegelberger emphasized, already there had existed separate welfare institutions for Aryans and non-Aryans. There was the NSV for the Aryans, and there were separate welfare institutions for the non-Aryans. For the jurisdiction, that resulted in complete uncertainty on the part of the judges as to the question whether a Jew can be allowed to conduct proceedings without paying costs. There were courts which granted that privilege; there were other courts that did not. I considered that a uniform jurisdiction on these matters was necessary. Naturally I was not uninfluenced by the situation then prevailing; and, therefore, I supported a proposal to the Reich Ministry of Justice that a uniform jurisdiction should be developed to the effect that such privileges were not to be granted to the Jews. The importance of those privileges concerning costs and nonpayment of costs has been characterized by Dr. Schlegelberger who said that the State makes an advance which the person concerned has to pay back, that is to say he is not exempted from paying costs caused by court proceedings. The prosecution in submitting evidence read out a sentence which is supposed to have originated with me. I only want to correct the matter to say that Document NG-589, Prosecution Exhibit 372,[424] shows that that sentence is not mine, but was phrased by the Gau economic adviser. The other exhibits which refer to that question are NG-392—

Q. Dr. Rothenberger, may I interrupt you for a moment so that we can quote the correct exhibit numbers to the Court? They are Exhibit 373,[425] Exhibit 462,[426] and Exhibit 372. Would you please continue?

A. The only thing I can add is that it happened fairly frequently, and that it appears altogether understandable that the Jews in order to avoid having their property confiscated upon their emigration, transferred their property to somebody else in a fake transaction. Thus, the whole problem became more complicated and more difficult for the courts.

Q. In what way were you concerned with curtailment of Jewish legal rights which emerged in the subsequent period?

A. I had to deal with that question once again in the spring of 1943. At the end of April, Thierack one day asked me to go see him and told me that on the same day a discussion would take place, a so-called conference of under secretaries. That conference was to be held at the Reich Ministry of the Interior. I believe I had no knowledge of those developments until then.

Q. May I interrupt you, Dr. Rothenberger? At the moment we are concerned with Document NG-151, Prosecution Exhibit 204,[427] which Dr. Rothenberger wants to discuss. This Exhibit 204 is composed of a number of letters in which a draft on curtailment of legal means and legal recourse for Jews is discussed and in which various ministries give their views. Will you tell us, please, whether you had anything to do with that matter?

A. Until that conference I had nothing to do with the previous history. That is due to the fact that the first draft originates from a time before I had assumed office. It is dated 3 August 1942, and it is signed by Dr. Freisler. The second draft is dated 13 August, and that also was before I assumed office. As this was a matter concerning penal law I was not informed about the developments during the subsequent period. As I can see from the documents now, in September 1942 the so-called GBV, the Plenipotentiary General for the Reich Administration—that was the Reich Minister of the Interior—was in charge of the drafting and conference which I have mentioned took place at the Reich Ministry of the Interior.

Q. Would you tell us something about the course of the conference of April 1943?

A. Thierack, before I went to the conference, handed me a draft. That was the draft by the GBV of 25 September 1942. That was already 6 months old by that time because the conference took place in April 1943. I was annoyed anyhow that I was now to deal with a matter the previous history of which I did not know. I had a look at the draft in Thierack’s office and when I had read it, I said to him that I was against such far-reaching restrictions.

What seemed embarrassing to me, in particular, was the provision that if the Jew was not to swear an oath, he was yet to be punished for perjury. Thierack said to me that doesn’t matter. In his somewhat brusque and curt manner he said, “You will have to go there, for I am the minister and I cannot attend a conference of under secretaries.” That, as a matter of fact, was not the custom. I went to the Reich Ministry of Interior. To begin with, I maintained reserve, because I had not dealt with the matter beforehand. Then I heard from the others who were present there that they too were against such an ordinance. Thereupon, I said that that was my personal opinion, too. Of course, I could not say as to the minister’s decision. He was in favor of it, as he had told me beforehand.

Then the provisions of that draft were dropped. Only one person who was present objected; that was Kaltenbrunner. Kaltenbrunner said he had to attach a decisive importance to at least two provisions becoming law. He was referring to 2 provisions which, in effect for some time, had already been applied, which however, required subsequent legalization. One provision was that the property of a Jew who dies goes over to the Reich. He said—as is evident in detail from the exhibit—that until now Jewish property in the case of death had been regarded as so-called property of an enemy of the State and had, therefore, been confiscated all along. But he would like to have a legal provision, because that would constitute a technical administrative simplification.

That provision, as I see from the file, had not been incorporated into the draft before by the Reich Ministry of Justice, but by the Reich Ministry of Interior. It appears for the first time in the draft of 25 September 1942. The Ministry of Justice, thus, did not deal with it. The second provision—

Presiding Judge Brand: Would you mind telling us what happened to that provision?

Defendant Rothenberger: Yes. That provision did become law afterward. Yes, I meant to say that.

The second provision which Kaltenbrunner wanted to become law and considered necessary was a provision, which has already been discussed here, and it concerned handing over the penal jurisdiction over Jews from the administration of justice to the police. As far as I was concerned that resulted in an entirely new situation, for that provision was not contained in the previous draft. I felt I could not assume any responsibility for such a provision, all the more so as I had no formal competence for penal matters. I would have to report to the minister as I had been requested by him to do.

Dr. Wandschneider: Did you make a report to Dr. Thierack?

Defendant Rothenberger: I went to see Thierack on the same day, and I told him that he had now for the second time confronted me with a very embarrassing situation, by bypassing me in a fundamental question of the administration of justice which did not concern me formally, but which concerned me as a jurist and as a human being. I could not assume the responsibility and I offered him my resignation.

Thierack was very angry and said, “I shall decide the day when you will leave the office.” In saying that, he referred to the compulsion to which all of us were subject in time of war, that is to say, the compulsion of not being able to leave our service voluntarily.

He then added ironically, “For the rest—in the future you will have nothing to do with penal matters even when I am away for I have already asked Lammers to appoint a second under secretary,[428] and I shall get some help that way.” I mentioned these facts briefly in another connection this morning.

Subsequently I had nothing to do with the ordinance. I merely read that later, on the first of July 1943 with both provisions; it took effect. I felt unfree, and from that time on I stuck all the more to the one task, which still remained to me, that is, the task of the administration of justice proper; the strengthening of the judiciary.

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CROSS-EXAMINATION

*******

Mr. King: Dr. Rothenberger, the document which has been placed before you is NG-1656 [Pros. Ex. 535].[429] It is an information for the Fuehrer report. I would like to, with your concurrence, read it. You say—“After the birth of her child a full-blooded Jewess sold her mother milk to a pediatrician and concealed the fact that she was a Jewess. With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception. The buyers of the milk have suffered damage for mother’s milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for, so that the parents who were unaware of the true facts need not subsequently be worried.”

Do you recall the origin of this particular document?

Defendant Rothenberger: I do not remember the facts. It is quite impossible that I wrote this, because I never drafted the Fuehrer Information. I do not even remember whether it ever came to my attention later. I ask to be shown the original of that Fuehrer Information.

Q. I will be very happy to do that, Dr. Rothenberger. Is that your initial?

A. That shows that I have seen it later, but not at all that I was the author. It can be seen from the original, naturally, that the Fuehrer Information had neither a date nor a signature and the Fuehrer Information also shows that there is a notation on it “to the Under Secretary”—for information, that means. As I can see from the initial, it apparently came to my attention without, however, identifying myself in any manner with the contents of that Fuehrer Information.

Q. Have you finished, Dr. Rothenberger?

A. Yes.

Q. Your feeling, of the moment, is that you had nothing to do with the authorship of this document?

A. I consider it quite impossible that I would have identified myself even at that time with such an opinion.

Presiding Judge Brand: I have a question of information. Would your initials have been placed on it before or after the distribution of the document?

Defendant Rothenberger: Whenever such Fuehrer Informations were sent out—and I cannot see that that was the case—then they were afterward brought to my attention.[430]

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EXTRACT FROM THE TESTIMONY OF DEFENDANT OESCHEY[431]

DIRECT EXAMINATION

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Dr. Schubert (counsel for defendant Oeschey): I am now coming to the subject of violent criminals and the first case I want to refer to is the case of Kaminska and Wdowen. The prosecution introduced Exhibit 201, which included extracts from the official files.[432] The prosecution also introduced affidavits, Prosecution Exhibits 229, 235, and 635.[433] Finally there is the witness Gros[434] who was heard on those cases (Tr. p. 2828). Please comment on it.

Defendant Oeschey: The account given of that case by the witnesses who were heard on it gives the impression as if Kaminska had been convicted merely for having thrown that stone, but that was not the case.

What was of great significance were the events which had preceded that attack which are not mentioned by the witnesses, but which were the factors which made that case so grave that led to its being evaluated as the crime of a violent criminal.

The witness, in giving an account of that case, omitted to mention that the offense began with an act of blackmail committed by the two defendants for they approached their employer, whose name was Gundel. He was an old weak man. They asked Gundel for money to which they were either not entitled at all or to which their title was extremely doubtful. And when Gundel asked that they should give him some more time, they tried to force him to give them the money by attacking Gundel, that is to say, the defendant Wdowen attacked Gundel and slapped his face. That explains why Private Wanner appeared on the spot and intervened. That factor, too, was omitted by the witnesses and that is why it was not made clear that Wanner came to the aid of Gundel and in doing so Wanner limited himself to asking the two defendants to leave Gundel’s room. But the witnesses omitted to mention that the two defendants now assaulted Wanner who after all had behaved absolutely correctly, and Kaminska when Wanner had been able to ward off the first attack took up a hoe and tried to attack Wanner with that hoe, and Wanner was only able to evade that blow by showing presence of mind and closing the door which happened to be between him and Kaminska. Shortly after Kaminska threw a stone—

Presiding Judge Brand: Wait a minute. If I remember correctly, you are merely reviewing now the findings which are contained in the transcript of the case and which is in evidence. We have examined that.

Defendant Oeschey: I merely wanted to explain that the whole of that action did not consist of isolated facts but that it is necessary to evaluate all those facts together in order to comprehend the legal evaluation of the offense as a whole.

Dr. Schubert: Witness, I now ask you to tell us what was the nationality of those two defendants.

Defendant Oeschey: Wdowen’s nationality I am afraid I can’t remember. The Kaminska woman was a Pole. Anyway, I don’t think Wdowen was a Pole.

Q. Well, what was he?

A. He was a Ukrainian.

Q. On the basis of what provision did the prosecution file its indictment?

A. The prosecution filed an indictment on the basis of part I, section 4, Number 1 of the law against Poles.[435]

Q. Against whom?

A. Against both defendants. If I am right—well, I am not quite sure whether my memory serves me well—(document handed to witness). Against Kaminska the indictment was based on part I, article 4 of the law against Poles and with Wdowen it was based on a crime of having aided in somebody else’s crime, articles 4 to 7 of the law against Poles. Also she was convicted on the basis of having offended against article 4 of the public enemies law.

Q. You saw that in the official court files?

A. Yes, I saw that from the original files of the Nuernberg Special Court, SG 256/43.[436]

Q. Both the witnesses Pfaff and Gros today draw back from this judgment.[437] Gros said that he voted against it. Pfaff wasn’t clear in what he said about it. My first question to you is this. Did you in any other case announce a judgment without having had at least one associate agree with your view, as provided by law?

A. No, I never did that.

Q. Did you force Gros and Pfaff to agree with you in passing the death sentence on these defendants?

A. In this case they were as free in their decision and in their opinion as I left them in every other case.

Q. What did the court say of the offense against the woman, Kaminska? Was the decision in accordance with the indictment?

A. No. The court did not convict Kaminska under article 1, section 4, No. 1 of the law against Poles and among us judges there was a fairly long discussion on that point. That is to say, we debated the question as to whether the offense of Kaminska could be sentenced under the provision of the law against Poles which I have just mentioned. As far as I remember the associate judge, Pfaff, was inclined to answer that question in the affirmative. Gros, as well as myself, however, had doubts about that. That legal provision assumes that the violent crime was directed against a member of the armed forces in which case the death sentence becomes mandatory. But in view of the entire facts of the case it appeared doubtful whether Kaminska, in committing her offense, had realized at all that the person she was attacking was a member of the armed forces. According to the facts, that element did not play a part. In the view of Gros and myself, therefore, the elements needed for convicting a defendant under part I, section 4 of the law against Poles were lacking. The further examination had to discover whether the offense was to be sentenced under article I of the decree against violent criminals of 5 December 1939.[438] That question, too, we debated at great length and that is a point which I remember. We scrutinized quite a number of decisions made by the Reich Supreme Court and studied a number of commentaries. As far as I recollect, neither of the associate judges had any doubts about that view.

With these Reich Supreme Court decisions the legal questions had been clarified beyond all doubt.

Q. Witness, is it correct that Kaminska was not convicted under the law against Poles?

A. Kaminska, as the law against Poles prescribes in paragraphs II and III, was convicted under the decree of 1939, the decree against violent criminals, which applied to all violent criminals in Germany, and she was convicted under that law as concerns the question of her guilt as such and as concerns the sentence.

Q. The witness Gros testified that she had been convicted for racial and political reasons. What do you have to say to that?

A. That is altogether untrue. The decision was based solely on the logical application and interpretation of the law in accordance with the decisions of the Reich Supreme Court while taking into consideration the particularly difficult and dangerous conditions prevailing in the rural districts in wartime. Such points of view as those of race and biology and whatever else you may call them, as I pointed out yesterday, played no part whatsoever in any of my decisions and judgments.

Q. And you will now tell us something about the Wdowen case. The witnesses Gros and Pfaff evidently tried to minimize that offense. What do you have to say to that?

A. The facts of the case can be seen from the judgment which is available to the Tribunal, and I therefore need not to go into any detail. Apart from the fighting and the aid given by Kaminska, this was a very violent and altogether unusual attack against the policemen; it was a kind of attack on the policeman who had arrested the Kaminska woman, and Wdowen was trying to get the policeman to release his grip on Kaminska. Gros and Pfaff as witnesses disputed that fact; one can only refer to the fact that Wdowen himself never disputed his own intentions and his motives.

Q. What was the legal evaluation of the Wdowen offense?

A. That offense by Wdowen was considered by the court as a crime under article IV of the decree against public enemies[439] and the indictment had given the same evaluation. I should like to point out that assaults of that nature against police officials ever since the beginning of the war, and that is by all courts who tried such crimes, had been sentenced under the same provisions, that is to say under article IV of the decree against public enemies. As a rule, the Wdowen case is by no means an exception. The need to protect particularly rural districts and the need which became greatly increased due to the wartime conditions, and such need for protection was due to the fact that the police was very short of staff, and, because of all that, an attack of that kind on the police—who worked under very difficult conditions—always resulted in a very severe penalty.

Q. Was the law against Poles applied in the Wdowen case?

A. No, it wasn’t. Only article IV of the law against public enemies.

Q. Was the Wdowen case the subject of differences of opinion at the consultations?

A. As far as I remember, it wasn’t.

Q. Did the prosecution consider both defendants as meriting the death sentence?

A. The prosecution from the very beginning considered that the death sentence should be asked for both defendants, and accordingly, it informed the Reich Ministry of Justice before the indictment was filed. The Reich Ministry of Justice concurred with the view of the prosecution and approved it.

Dr. Schubert: I am now passing on to the next case of violent criminals.

*******

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ALTSTOETTER[440]

DIRECT EXAMINATION

*******

Dr. Orth (counsel for defendant Altstoetter): Do you remember Prosecution Exhibit 204, Document NG-151?[441] That document is concerned with the events which lead up to the 13th decree concerning the Reich Citizenship Law.[442]

Defendant Altstoetter: Yes.

Q. In article II of the draft, it was provided that when a Jew died his property was forfeited to the Reich and that for non-Jewish heirs and persons who were entitled to alimony, a hardship clause should be added, is that correct?

A. Yes.

Q. The treatment of hereditary provisions according to the plan for the distribution of work was to be dealt with by Department VI of the Ministry of Justice.[443] In connection with the intended contents of the provisions in article II of the draft, could that not justify a conclusion that you and your department had something to do with that decree?

A. No, the order that Jewish property was to be forfeited to the Reich in case of death of a Jew was not a hereditary ruling. It was a matter of police confiscation and that concerned only the Ministry of the Interior and only that Ministry was responsible. That is evident too from the document itself and that from the final draft, no, not the final draft, the draft before the final draft, which shows that the provision of article II, section I, originated with the Ministry of the Interior.

Q. I am now going to show you the text of the 13th amendment of the Reich Citizenship Law. Please have a look at article II of the decree. On the basis of this provision, do you have further indication that Department VI did not have anything to do with the promulgation of this decree? A. Yes, the wording of these provisions, already in article I, because if Department VI, I mean the section that dealt with hereditary law, had had anything to do with this decree, they would have chosen the version which existed in the civil code for hereditary rights of the State [Fiskus][444] which is provided there for special cases. I am referring to article 1936 in the civil code, which has always existed. Furthermore, the provision under article II shows that hereditary rights of Jews and non-Jews, [benefiting from the will] of a deceased Jew as such were not affected. Otherwise, one could no longer have spoken of persons entitled to inherit. According to that provision, or rather in spite of that provision, for example in the case of a mixed marriage, the Jewish partner of the marriage could be or become heir to the non-Jewish partner. In the case of hereditary settlements, provisions would have had to be made concerning the rights of third persons, that is to say, non-Jewish subsequent heirs. Furthermore, we would have had regulations concerning the legal validity of transactions among living people, concerning the part of the estate not comprised by inheritance regulations. Section II also mentioned non-Jewish persons entitled to receive support from the deceased, although generally in the case of death any obligation to look after the maintenance of third persons comes to an end.

Q. If Department VI had had anything to do with the 13th decree, what Referent of the Department would have dealt with it?

A. Ministerialdirigent Dr. Hesse, Ministerial Counsellor Rexroth, or Ministerialdirigent Dr. Stagel would have dealt with it in that case.

Q. Did Department VI have anything to do with the handling or carrying out the 13th decree?

A. No.

Q. Did you or Department VI at a later time have anything to do with the handling of Jewish hereditary law?

A. Yes, in 1944 the Minister of the Interior approached the Reich Ministry of Justice with a request concerning an executory order of the 13th decree, to incorporate in it provisions, which were to change or amend article II of the Reich Citizenship Law. The ministry of the Interior had recognized that article II had certain defects, and therefore asked us to find a solution concerning the hereditary law. I objected to this request from the Reich Ministry of the Interior, although the Minister of Justice was of different opinion.

Q. Do you know how that matter developed further?

A. As for the details of the subsequent development I do not remember them, but one thing I remember for certain, Hesse, with my consent, when Thierack the Minister of Justice had declared himself ready to collaborate in the preparation of this executory order, contacted the competent Referent of the Ministry of the Interior, and convinced them that the provision, purely technically, for the Reich Ministry of Interior, amounted to a basic change of the previous decree, that is to say the 13th decree. He also told them that we didn’t want to have anything to do with this matter. The Ministry of the Interior then withdrew its request, and I was told by Hesse that the matter of a Jewish hereditary law would now be dropped. In effect, an executory order in connection with the 13th decree concerning the Reich Citizenship Law was promulgated on 1 September 1944, and that by the Ministry of the Interior alone without any participation of the Reich Ministry of Justice and without incorporating the provisions concerning article II of the 13th decree, which had originally been requested.

Q. In summing up, Witness, I should like to ask you, is it correct that Department VI, during your term of office, did not participate in the making and carrying out of laws concerning confiscation of Jewish property and that during that time legal provisions about the exclusion of Jewish hereditary rights were not issued?

A. Yes, that is true.

Presiding Judge Brand: May I ask you concerning that. I am wondering if I have the correct understanding of your testimony. Do you intend to say that this 13th decree did not change the previous law of inheritance, the rights of inheritance, but that the only effect was to provide for police confiscation, is that right?

Defendant Altstoetter: Yes, yes, quite. That is my opinion.

Q. Well, was it your opinion that the provision for police confiscation was invalid?

A. Invalid? Invalid, no, not invalid.

Q. The courts which had to do with matters of inheritance in general were courts with which your department had dealt, were they not?

A. Yes, Your Honor.

Q. Well, when a question of inheritance under the general law came up in the courts in which they were confronted with this 13th decree concerning police confiscation, what did the courts do?

A. I got to know of only one single case which may be connected with this problem, and I am thinking of a case of recognition of the right of subsequent inheritance. The district court of appeals and the seventh civil senate of the Reich Supreme Court at the time decided that the right of subsequent inheritance remained legal and that regardless of the provisions which had been issued in connection with the Jewish problem, the estate, if a case of subsequent inheritance occurred, would have to be passed on to the subsequent heir. Other cases, I do not remember.

Q. Was that the equivalent or did it amount to holding that the decree for police confiscation was invalid?

A. I am sorry. I did not understand.

Q. The Supreme Court apparently refused to apply the provisions of the decree for police confiscation, did it not?

A. I can’t say for certain. If I remember rightly the Reich Supreme Court, concerning the question of the validity of that decree did not express its opinion at all.

Q. Well, it didn’t enforce the decree, did it?

A. No, the Reich Supreme Court said, the subsequent heir who comes after the immediate heir is not affected by that decree, and therefore, his rights remain his rights.

Q. And who was the subsequent heir? Was he a Jew?

A. All I remember is his name. Whether he was a Jew I don’t know, but I don’t think he was. Probably he was non-Jewish.

Q. Well, what was your opinion as to what a court could do when the law of inheritance provided that one person should receive the Jewish estate and that the decree for police confiscation provided that the property should be confiscated?

A. In practice it was like this. The law of inheritance remained as it was from the point of view of legal theory; but the property left by a Jew which was forfeited to the Reich when the Jew died, however, no longer existed.

Q. It existed. You don’t mean it vanished in the air? You mean it was—

A. No, that is to say, it had now gone to the police or to the finance office, they had now taken into their hands the property left by the Jew.

Q. Then I take it in practice the courts did not enforce what you have stated would be the valid law of inheritance?

A. I assume that such cases did not come before the courts.

Q. Well, didn’t matters of inheritance in general as to the Germans come before the courts?

A. Yes, yes they did.

Dr. Orth: I think that is all.

*******

Dr. Orth: Please explain briefly to the Tribunal what one understands under German law by “matters of descent.”

Defendant Altstoetter: The fact that from the biological point of view a certain man has fathered a certain child is under the German civil code, the decisive criterion for the status and the legal position of the child, and therefore, also for the rights and claims of such a child. However, as we know, it is frequently difficult to establish the true biological descent of a child, and it was particularly difficult at the time of the promulgation of the civil code. Pursuant to the achievements of biological science, the German legislator had established certain legal suppositions concerning the legal descent. On the basis of those provisions the biological descent and the legal descent not infrequently appeared to be different. As science progressed, in particular in the field of biochemistry, hereditary biology, and anthropology, after the civil code had come into force, more and more reliable methods of science were discovered in order to prove or at least exclude biological descent of a child from a certain father. As a result, litigations between father and child became more and more frequent concerning the true biological descent, that is to say, concerning the question as to whether the legal father was also, biologically speaking, the child’s father.

Under German law, all those cases of litigation are described as matters of descent. A partial complex is formed by those cases where Jews and persons of mixed descent, in the majority already adults, wanted the matter clarified in a court for themselves or their progeny, that contrary to the legal supposition, biologically and consequently also legally, they were not—or, at any rate, not to the extent that had been assumed—the children of a Jew or a person of mixed descent.

*******

Presiding Judge Brand: Could you tell us in a few words what, if anything, your Department VI had to do with matters pertaining to descent cases such as you have described them?

Defendant Altstoetter: Those descent cases played a great part from the point of view of my department exercising supervision. I shall revert to that matter quite briefly.

Q. Over whom or over what did you exercise supervision?

A. The Ministry of Justice, because of the treatment to be accorded to such descent cases constantly received complaints, in particular, complaints stating that these proceedings never made any progress. Furthermore, and I shall revert to this, too, we received complaints—

Q. That doesn’t answer my question. I am sorry to interrupt you. Your department exercised supervision in matters pertaining to descent. Over whom did you exercise supervision?

A. We had that supervision over the courts and over the public prosecutors.

*******

Dr. Orth: Witness, will you please comment again on Exhibit 453?[445]

Defendant Altstoetter: Here I have to say first, briefly, that the descent cases which I have just mentioned, especially the right of the prosecution to raise charges in descent cases, since the so-called laws concerning Jews were issued, were used as a means for Aryanization as we called it. In cases, that is to say, where a man who according to the law was considered to be a Jew was of the opinion that he was not to be considered a Jew, he himself filed a claim for the establishment of the fact that he was not a Jew, that is, that he was not a descendant of a Jew. Or if his right to file that claim or the right of his father to do so no longer existed because the term to do so had expired, he went to the public prosecutor to make the public prosecutor file this claim. The latter was the case when a suit was filed in order to challenge the legality of a marriage. Now in cases where these claims were filed in the course of the war, particularly during the last years of the war, considerable difficulties arose. I only want to mention two, but there were more of those. One was the lack of experts in the field of genetics which was caused by the war. The other reason was the thing that had occurred with the courts in Vienna. In other courts it did not occur, as far as I know. There in Vienna a particular difficulty arose owing to the fact that the police, as far as Jewish witnesses for these descent trials were concerned—in most cases it was a question of so-called witnesses for the investigation or witnesses for the purpose of comparison—that the police, as I said, for reasons of security had removed these witnesses and now refused to produce them or to release them. That can be seen from the letter of the police of 3 May 1944, which is in this exhibit. Objections against the attitude of the police which were raised by the subdepartment chief, Ministerialrat Rexroth, in the course of a conference with a Referent, were only successful to the extent that the police consented in exceptional cases to produce witnesses if the Reich Minister of Justice expressly demanded that. Moreover, the police referred to the lack of means of transportation and escort personnel caused by the war. With matters as they stood, the Reich Ministry of Justice could do nothing else but to bring them to the attention of the courts in Vienna through the president of the district court of appeals. For the people concerned who desired to carry out by that suit, as I have called it, an Aryanization, the fact that these witnesses were not produced as a rule did not amount to any disadvantage. The persons concerned on their part, either if they had instituted the proceedings themselves in their own interest or if they had requested of the public prosecutor to institute proceedings, had themselves presented to the public prosecutor evidence for their assertion that they were not descendants of a Jew or a person of mixed Jewish descent. And if the court could not produce the expert opinions of geneticists which officially had to be produced and for which these witnesses for the purpose of comparison were needed, then the court could do nothing else but on the basis of the evidence which the Jews concerned had submitted, to decide, and that this evidence was in favor of the person filing the claim is obvious. And to that the remarks in Exhibit 453 refer, that one had to put up with it if in this manner the intentions to cover up for the true descent could not be prevented.

Q. Witness—

Presiding Judge Brand: Let me ask you this. Concerning these claimants suspected of being Jews but claiming to be Aryans, how far back did they have to trace their ancestry to prove that they were Aryans?

Defendant Altstoetter: They were not compelled to go far back. It sufficed to prove that either one of the parents was not Jewish, and if that could not be proved, they also could refer to the fact that other ancestors of theirs were not Jewish. The question as to whether a person was a Jew or was not a Jew was laid down in the meaning of the Nuernberg laws, these laws and the decrees to carry out these laws. But the suits themselves were not concerned with that, but subsequently the main thing was whether—

Q. Did they have to prove that their grandparents were not Jewish?

A. Mr. President, we have to distinguish here—

Q. Just tell me yes or no first, and then you may distinguish. Here is a man who claims he is an Aryan. He wants to prove it. What of his ancestors must he prove were not Jews? Can you answer?

A. Framed in this way, as far as these suits were concerned, I cannot answer the question because as far as these suits were concerned that question was of no importance.

Q. Was he an Aryan if his grandfather was a Jew?

A. He had two grandfathers and two grandmothers.

Q. Yes.

A. And there the distinction was made, but according to the Nuernberg laws, which were only of interest before the administrative authorities and not for these trials, the distinction was made whether he was one-eighth, one-fourth, or one-half Jew, that is to say, a person of mixed descent of that degree, or whether he was a full Aryan. But I say that that is a question which for carrying out these descent cases was of no importance.

Q. Will you tell me then, and do it briefly, because I know you can, what did the person have to prove in order to establish in a descent case that he was an Aryan?

A. It was established, Mr. President, that contrary to the legal assumptions, he was not the descendant of that and that father. Nothing else.

Q. That is, that he was not the descendant of his purported father.

A. Of the purported father according to the legal assumption.

Q. That is, if the father was a Jew.

A. If the father was a Jew.

Q. Then he had to prove he was a bastard. Is that what you mean?

A. Yes. If it was at all a question of legitimacy. There were such cases of descent also outside of marriage, illegitimate. These descent cases were not restricted to Jews. There were not at all any special regulations for Jews.

*******

3. NATIONALS OF THE WESTERN OCCUPIED COUNTRIES—THE NIGHT AND FOG DECREE

LETTER FROM KEITEL, CHIEF OF ARMED FORCES HIGH COMMAND, TO MINISTRY OF JUSTICE, 12 DECEMBER 1941, TRANSMITTING HITLER’S NIGHT AND FOG DECREE AND ITS FIRST IMPLEMENTATION ORDER; INTEROFFICE MEMORANDUM REQUESTING TRANSMITTAL OF THE LETTER TO DEFENDANT SCHLEGELBERGER

Chief of the Supreme Command of the Armed Forces

14 n 16 WR (I3/4)

No. 165/41 g

(When answering, please refer to above file number, date and subject.)

[Stamp] Secret

To the Reich Minister of Justice

Attention: Under Secretary Dr. Freisler

Subject: Prosecution of criminal offenses
against the Reich or the occupying
power in the occupied zones

3 enclosures

With regard to the oral conversation between Under Secretary Dr. Freisler and the chief of my legal section,[446] I enclose herewith a decree of the Fuehrer and Supreme Commander of the Wehrmacht of 7 December 1941[447] and an order for its execution of the same day.[448] I agree with the opinion of the State Secretary that the execution of the Fuehrer decree necessitates a close cooperation between the Reich Ministry of Justice and the Supreme Command of the Wehrmacht.

I instructed my officials to assist your agencies in every respect. I ask you to settle the question regarding the manner of imprisonment in your provision for the execution of decree.

[Signed] Keitel

Action taken by II a 118 and 119/42 g

II a 116/42 g

3 enclosures

12

received 26/1

Sch [Schlegelberger]

Ministerialrat Dr. Gramm, State Secretary Dr. Freisler asks to transmit the enclosed letter to State Secretary Dr. Schlegelberger for his information

[Signed] von Hackwitz

19 January 1942

SECRET NIGHT AND FOG DECREE OF HITLER, SIGNED BY KEITEL, 7 DECEMBER 1941, CONCERNING MEASURES TO BE TAKEN AGAINST PERSONS OFFERING RESISTANCE TO GERMAN OCCUPATION

Secret

The Fuehrer and Supreme Commander of the Armed Forces

Directives for the Prosecution of Criminal Acts against the Reich or the Occupying Power in the Occupied Territories of 7 December 1941

Since the beginning of the Russian campaign, Communist elements and other anti-German circles have increased their assaults against the Reich and the occupation force in the occupied territories. The extent and the danger of these activities necessitate the most severe measures against the malefactors in order to intimidate them. To begin with, the following directives should be observed:

I

In case of criminal acts committed by non-German civilians and which are directed against the Reich or the occupation force, endangering their safety or striking force, the death penalty is indicated in principle.

II

Criminal acts contained in paragraph I, will on principle, be tried in the occupied territories only when it appears probable that death sentences are going to be passed on the offenders, or, at least, the main offenders, and if the trial and the execution of the death sentence can be carried out without delay. In other cases the offenders, or, at least, the main offenders, are to be taken to Germany.

III

Offenders who are being taken to Germany are subject to court martial procedure there only if particular military interests should require this. German and foreign agencies will be told upon inquiries on such offenders that they were arrested and that the state of the proceeding does not allow further information.

IV

The commanders in the occupied territories and the judicial authorities, within their jurisdiction, will be personally held responsible for the execution of this decree.

V

The Chief of the High Command of the Armed Forces will decide in which of the occupied territories this decree shall be applied. He is authorized to furnish explanations, to issue supplements, and implementation directives. The Reich Minister of Justice will issue implementation directives within his jurisdiction.

By order:

The Chief of the High Command of the Armed Forces

[Signed] Keitel

Distribution:
Foreign Office
Reich Minister and Chief of the Reich Chancellery

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

Army High Command (Chief, Army Armament and Commander of the Replacement Army, Army Legal Department) with 7 numbered copies

Navy High Command (Navy Legal Department) with 1 numbered copy

Reich Air Minister and Commander in Chief of the Air Force with 1 numbered copy

President of the Reich Military Court

Commander Armed Forces Southeast with 4 numbered copies

Plenipotentiary for the Armed Forces with the Reich Protector for Bohemia and Moravia

Armistice Commission Wiesbaden

OKW:

KEITEL LETTER OF 12 DECEMBER 1941, TRANSMITTING THE FIRST IMPLEMENTATION DECREE TO THE NIGHT AND FOG DECREE

[Stamp] SECRET

The Commander in Chief of the Armed Forces

14 n 16 WR (I 3/4)

No. 165/41 g

[Stamp] L. 15 Dec. 1941

Az. 14g po 10

No. 37787 41

12 December 1941

Subject: Prosecution of criminal acts against the Reich or against the occupying power in occupied territories

1 enclosure

It is the long considered will of the Fuehrer that in case of attacks against the Reich or the occupation force in the occupied territories, other measures than those in present use should be taken. The Fuehrer is of the following opinion: in connection with such activities imprisonment, even life imprisonment, is considered as a sign of weakness. An effective and lasting deterrent can only be achieved by death sentences or by measures which will keep the relatives of the perpetrator and the population in suspense concerning the fate of the perpetrator. This purpose is served by deportation to Germany.

The attached directives for the prosecution of crimes correspond to this conception of the Fuehrer. They were examined and approved by him.

[Signed] Keitel

Distribution[449]

[Handwritten notes] Clarify as soon as possible.

1. Are the provisions concerning shooting of hostages, etc., annulled by that order?

2. Is it clear to the Army High Command, especially to the Quartermaster General, who has been omitted in the distribution?

[Initial] W [Warlimont] 17 December

Secret

First Decree for the carrying out of the Fuehrer’s and Supreme Commander’s directives concerning the Prosecution of Criminal Acts against the Reich or the Occupying Power in the Occupied Territories

By virtue of chapter V of the directives of 7 December 1941 of the Fuehrer and Supreme Commander concerning the prosecution of criminal acts against the Reich or the occupying power in the occupied territories, I order the following:

I

The conditions of chapter I of the directives will as a rule be applicable in cases of—

1. Assault with intent to kill.

2. Espionage.

3. Sabotage.

4. Communist activity.

5. Crimes liable to create disorder.

6. Favoring of the enemy by the following means:

a. Smuggling people into a country.

b. The attempt to enlist in an enemy army.

c. Support of members of an enemy army (parachutist, etc.).

7. Illegal possession of arms.

II

(1) The criminal acts described in section I of the directives are to be tried in the occupied territories only under the following conditions:

1. It must be probable that a death sentence will be pronounced against the perpetrators or at least against the principal perpetrator.

2. It must be possible to carry out the trial and the execution of the death sentence at once (on principle a week after the capture of the perpetrator).

3. Special political misgivings against the immediate execution of the death sentence should not exist.

4. Apart from the death sentence for murder or partisan activities no death sentence against a woman is to be expected.

(2) If a sentence which has been pronounced according to section I is annulled, the trial can continue in the occupied territory, if the conditions of section I, No. 1, 3, and 4 still exist.

III

(1) In case of criminal acts mentioned in section I of the directives, the highest judicial authority in agreement with the counter intelligence officer examines whether the conditions for a trial in the occupied territories exist. If he agrees that they are, he orders the session of the court martial. If he denies it, he submits the documents to his superior commanding officer (sec. 89, par. 1 of the decree on criminal procedure during wartime). The latter may reserve the decision to himself.

(2) The superior commanding officer renders the final decision as to whether the conditions for a trial in the occupied territories exist. If he agrees that they do, he orders the highest judicial authority within his command to deal with it. If he denies it, he gives the order to the secret field police to take the perpetrator to Germany.

IV

(1) Perpetrators taken to Germany will be subjected there to court martial proceedings only, if the High Command of the Armed Forces or the superior commanding officer declare in their decision according to chapter III that special military reasons require court martial proceedings. If such a declaration is not made, the order that the perpetrators be taken to Germany means a transfer according to section 3, paragraph 2, sentence 2 of the decree on criminal procedure during wartime.

(2) If the superior commanding officer uses his authority according to paragraph 1, he submits the documents to the High Command of the Armed Forces through official channels. The perpetrators are to be designated “prisoners of the armed forces” when being transferred to the secret field police.

(3) The High Command of the Armed Forces determines the tribunal for those perpetrators who are subjected to court martial proceedings according to paragraph 1. It may waive the competence of the armed forces tribunals. Moreover, it can suspend the proceedings for any time it chooses.

V

The trial in Germany will be held under strictest exclusion of the public because of the danger for national security. Foreign witnesses may be questioned during the trial only with the permission of the High Command of the Armed Forces.

VI

The regulations on the procedure before tribunals of the Armed Forces included in the decree of the High Command of 13 September 1941 concerning the situation in Norway (Armed Forces Operational Staff/Department L (IV/Qu) No. 002034/41 top secret) and of 16 September 1941 concerning the Communist revolutionary movements in the occupied territories (Armed Forces Operational Staff/Abt. L (IV/Qu) No. 002060/41 top secret) are superseded by the directives and this executive order.

VII

(1) These directives will become effective 3 weeks after they are signed. They are to be applied in all occupied territories with the exception of Denmark until further notice.

(2) The orders issued for the newly Occupied Eastern Territories are not affected by these directives.

(3) Chapter I of the directives is applicable for pending trials. The highest judicial authority and the superior commanding officer can accordingly apply chapter III of this executive order in case of such trials. If the superior commanding officer orders that a perpetrator be taken to Germany, chapter IV will be applicable. In case of perpetrators who were taken to Germany before these directives became effective, the High Command of the Armed Forces can proceed according to chapter IV, paragraph 3.

The Commander in Chief of the Armed Forces

[Signed] Keitel

Distribution:

Foreign Office

Reich Minister and Chief of the Reich Chancellery

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

High Command Army (Chief Army Armament and Commander of the Replacement Army, Army Legal Department) with 7 numbered copies

High Command Navy (Navy Legal Department) with 1 numbered copy

Reich Minister for Air and Commander in Chief of the Air Force with 1 numbered copy

President of the Reich Military Court

Armed Forces Commander Southeast with 1 numbered copy

Plenipotentiary for the Armed Forces with the Reich Protector in Bohemia and Moravia

Armistice Commission Wiesbaden

High Command Armed Forces:

LETTER FROM UNDER SECRETARY FREISLER TO GENERAL LEHMANN, 16 DECEMBER 1941, TRANSMITTING A DRAFT OF A PROPOSED IMPLEMENTATION ORDER TO THE NIGHT AND FOG DECREE, TOGETHER WITH AN INTEROFFICE NOTE OF 25 DECEMBER 1941

Priv. II

v. Ha/La

16 December 1941

[Handwritten] Officially dispatched, 16 December

Secret [Handwritten] IIa 117/42 g

Sheet 13

Secret!

To Ministerialdirektor Dr. Lehmann
Chief of the Armed Forces Legal Division with the High
Command of the Armed Forces

Dear Ministerialdirektor,

Dear Party Member Lehmann,

Being in the possession of your letter of the 12th of this month, I send you attached hereto the draft of an executive order. Taking your consent for granted, the Reich Minister of Justice intends to publish it.[451] I should be obliged to you, if we could discuss our views in the beginning of next week. (Prior to that time I shall be on an official trip.) In the meantime, Ministerialdirektor Schaefer is also ready to discuss this matter with you. Ministerialdirektor Schaefer will prepare the necessary administrative regulations on the basis of the provisions issued or proposed.

Heil Hitler!

[Initial] Fr [Freisler]

[Illegible stamp]

[Italicized text crossed out in original document]

Before dispatch

submitted to State

Secretary Dr. Schlegelberger

with the request to take note.

Berlin, 16 December

[Signed] Freisler

22. 12. to II a 116/42 g

[Enclosure]

[Executory decree to Hitler’s Night and Fog order of 7 December 1941]

Regarding the execution of the afore-mentioned decree, I decree:

1. I reserve to myself the decision as to which court is materially and locally competent to deal with a case.

2. The public prosecutor shall prefer charges after earnest reflection according to his duty.

3. The order, application, and termination of the arrest pending trial are at the discretion of the public prosecutor.

4. The trial will be conducted behind closed doors.

5. The admittance of evidence of foreign origin depends on the preceding consent of the public prosecutor.

6. Prior to the verdict the public prosecutor may revoke the indictment or move for a suspension of the proceedings.

The motion of the public prosecutor to suspend proceedings must be granted by the court.

The public prosecutor must be given an opportunity to state his opinion, should the court decide on making an exception to his motion in re.

[Initial] Fr [Freisler] 16 December

[Initial] Sch [Schaefer] 16 December

[Entire document handwritten]

Secret

1. Note. I had an oral discussion in this matter on 19 December, and on 24 December I had a discussion by telephone with Ministerialdirektor Lehmann. He told me, that the High Command of the Armed Forces had, in principle, agreed to the draft submitted to it with regard to the executive order but that, nevertheless, it would give a reply in writing. The question has not been decided whether the High Command of the Armed Forces within its jurisdiction, will give the right to handle the case to the higher military court or the military courts. There is also the necessity of settling some other questions which presumably will be attempted in a conference of delegates in the beginning of January. It would be advisable for the Reich Ministry of Justice to await further information from the High Command of the Armed Forces. Transfers of the cases to courts should not be expected before the second half of January.

Experts in charge of this matter with the High Command of the Armed Forces are—

Furthermore with the counterintelligence office of Colonel Bentivegni, Chief of Counterintelligence III.

2. To Ministerialrat Grau, with the request to take note.

[Initial] Gr [Grau]

25 December

I beg you to take care of the file and handle it in the future.

[Signed] Schaefer

24 December

CIRCULAR DECREE OF THE REICH MINISTRY OF JUSTICE, SIGNED BY UNDER SECRETARY FREISLER, 6 FEBRUARY 1942, ASSIGNING PARTICULAR SPECIAL COURTS TO HANDLE NIGHT AND FOG CASES

The Reich Minister of Justice

II a 119/42 secret

[Stamp] Secret

Circular decree on the implementation of the executive decree of 6 February 1942, concerning the directives issued by the Fuehrer and Supreme Commander of the Armed Forces for the prosecution of criminal acts against the Reich or the occupying power in the occupied territories.

For the further execution of the directives mentioned before, I decree:

1

Competent for the handling of the cases transferred to ordinary courts, including their eventual retrial, are, as far as they originate from the occupied French territories, the Special Court and the chief public prosecutor in Cologne; as far as they originate from the occupied Belgian and Dutch territories, the Special Court and the chief public prosecutor in Dortmund; as far as they originate from the occupied Norwegian territories, the Special Court and the chief prosecutor in Kiel; for the rest, the Special Court and the attorney general at the Berlin district court. In special cases I reserve to myself the decision of competence for each individual case.

2

The Chief Public Prosecutor will inform me of the indictment, the intended plea and the sentence as well as of his intention to refrain from any accusation in a specific case.

3

The choice of a defense counsel will require the agreement of the presiding judge who makes his decision only with the consent of the prosecutor. The agreement may be withdrawn.

4

Warrants of arrest will be withdrawn only with my consent. If such is intended, the chief public prosecutor will report to me beforehand. He will furthermore ask for my decision before using foreign evidence or before agreeing to its being used by the Tribunal.

5

Inquiries concerning the accused person or the pending trial from other sources than those armed forces and police agencies dealing with the case will be answered by merely stating that * * * is arrested, and the state of the trial does not allow further information.

Acting:

[Typed] Signed: Dr. Freisler

Certified: [Signed] Kersten

Chief Secretary of the Ministerial Chancellery

Circular stamp of the Reich Ministry of Justice

LETTER FROM THE SS ECONOMIC AND ADMINISTRATIVE MAIN OFFICE TO CONCENTRATION CAMP COMMANDERS, 18 AUGUST 1942, TRANSMITTING INSTRUCTIONS FOR TREATMENT OF NIGHT AND FOG PRISONERS

Copy

Oranienburg, 18 August 1942

SS Economic and Administrative Main Office[452]

Chief of Division D—Concentration Camps

D I/Az.: 14 c 2/Ot./U.

Secret Diary No. 551/42

Subject: Prisoners who come under the Keitel decree

Reference: Reich Security Main Office—IV C 2 Gen. No. 103/42 of 14 August 42 and attached extract of 4 August 1942

Enclosure: 1

To the Camp Commandants of the Concentration Camps Dachau, Sachsenhausen, Buchenwald, Mauthausen, Flossenbuerg, Neuengamme, Auschwitz, Gross-Rosen, Natzweiler, Niederhagen, Stutthof, Arbeitsdorf, Ravensbrueck, and Prisoner of War Camp at Lublin

I am sending you, for information and execution, enclosed extract from the Nacht und Nebel [Night and Fog] Decree for official use in concentration camps, in connection with prisoners who come under the “Keitel Decree.”

In the event of the transfer of such prisoners, it is to be pointed out that the prisoners come under the “Keitel Decree” or the Nacht und Nebel Decree.

[Typed] Gluecks

SS Brigadier General and Brigadier General of the Waffen SS

Certified true copy

Natzweiler, 24 August 1942

[Signed] Melzer

SS-Corporal

Seal

To department III with the request to inform the postal department.

Copy

IV D 4—103/42 g

Berlin, 4 August 1942

Extract from the Nacht und Nebel Decree for official use in concentration camps

By decree of the Commander in Chief of the Armed Forces dated 12 December 1941 regarding the prosecution of punishable offenses against the Reich or the occupation forces in the occupied areas (called in short Nacht und Nebel Decree), it has been directed by virtue of a Fuehrer order, that persons who, in the occupied territories, take action against the Reich or the occupation forces, shall be removed to the Reich for deterrent purposes. Here they are to be transferred to a Special Court. Should this not be possible for any reason, these persons will be placed in a concentration camp under sentence of protective custody. Protective custody as a rule lasts until the end of the war.

As it is the purpose of this decree to leave the relatives, friends, and acquaintances in uncertainty regarding the fate of the prisoners; they are not allowed to have any means of communication with the outside world. They may therefore neither write, nor receive letters, parcels, or visits. Nor will any kind of information regarding the prisoners be given to any agency outside.

In cases of death, the relatives are not to be informed until further notice. There has not yet been a final ruling on this question.

These regulations apply to all prisoners regarding whom it is stated in the detention particulars or in the detention certificates of the Reich Security Main Office that they come under the Nacht und Nebel Decree. Furthermore, all prisoners come under it who are described as “Porto” or “Continent” prisoners.

If it should occur that prisoners who come under the Nacht und Nebel Decree, have, through an error, had the opportunity of informing their relatives, further exchange of correspondence with their relatives should, for tactical reason, be granted them within the framework of the general regulations regarding correspondence for persons under protective custody.

[Typed] Signed: Dr. Hoffmann

Certified true copy.

Natzweiler, 24 August 1942

[Signed] Melzer

[Seal]

SS Corporal

MEMORANDUMS OF DEFENDANT VON AMMON TO DEFENDANT ROTHENBERGER, 9 AND 26 SEPTEMBER 1942, CONCERNING PENDING NIGHT AND FOG CASES AND THE HANDLING OF THESE PRISONERS

1. Note. Criminal proceedings according to the directives of the Fuehrer for the prosecution of criminal acts against the Reich or the occupying power in the occupied territories of 7 December 1941[453] (so-called Nacht und Nebel cases) pending on 1 September 1943 are—

a. With the Chief Public Prosecutor in Kiel (from the occupied Norwegian territories) 9 cases with a total of 262 accused.

b. With the Chief Public Prosecutor in Essen (from the occupied Belgian and northern French territories) 180 cases with a total of 863 accused.

c. With the Chief Public Prosecutor in Cologne (from the occupied French territories—with the exception of northern France) 177 cases with a total of 331 accused.

Since 31 August 1942, trials have been held before the Special Court in Essen. On 31 August 1942 the first death sentence (against Kratz) was passed.

2. To be submitted to:

[Initial] R. [Rothenberger]

Berlin, 9 September 1942

[Signed] von Ammon

[Handwritten notes]

[Signed] Dr. Crohne 10 September

[Signed] Ebersberg

[Initial] E

Notes for State Secretary Dr. Rothenberger

On 24 September a report was submitted to the Reich minister on the legal basis (Fuehrer decree for the prosecution of criminal acts against the Reich or the occupying power in the occupied territories of 7 December 1941 and orders for execution) and on the present stage of the so-called Nacht und Nebel proceedings.

On 1 September 1942 pending were—

1. With the Chief Public Prosecutor in Kiel (from the occupied Norwegian territories) 9 cases with a total of 262 accused.

2. With the Chief Public Prosecutor in Essen (from the occupied territories of Belgium and northern France) 180 cases with a total of 863 accused.

3. With the Chief Public Prosecutor in Cologne (from the occupied French territories—with the exception of northern France) 177 cases with a total of 331 accused.

The Reich Minister has ordered the following changes to be made in the present procedure:

1. The Special Courts in Kiel, Essen, Cologne, and Berlin with exclusive competence hitherto, are to some extent to be replaced by the People’s Court.

2. The present procedure, according to which the accused are kept in custody indefinitely by the judiciary authorities when an indictment was either impossible or not answering the purpose, is to be abolished.

Furthermore, the Reich Minister wishes the question of the competence for pardons settled in such a way that in cases which have been handed over to the common court authorities, these (not the authorities of the armed forces) shall make the decision for pardon.

To give consideration to these questions, a departmental meeting with the High Command of the Armed Forces Legal Division and Counterintelligence is to be held on 2 October 1942.

Berlin, 26 September 1942

[Typed] signed Dr. von Ammon

[Handwritten] for further action

[Initial] A [Ammon]

2 October

LETTER FROM MINISTRY OF JUSTICE, INITIALED BY DEFENDANTS METTGENBERG AND VON AMMON, TO VARIOUS JUDGES AND PUBLIC PROSECUTORS, 21 DECEMBER 1942, CONCERNING OBJECTIONS TO ELECTIVE DEFENSE COUNSEL IN NIGHT AND FOG TRIALS

The Reich Minister of Justice

IVa 2069.42 g

Berlin, 21 December 1942

[stamp]

mailed 9 January 1943

[Handwritten] Ru.

[Stamp] Secret

To—

a. The President of the People’s Court

b. The Chief Public Prosecutor at the People’s Court

c. The President of the Military Court

d. The Presidents of the Courts of Appeal in Hamm,
in Westphalia, Kiel, and Cologne

e. The Attorney General at the Military Court

f. The Attorneys General in Hamm,
in Westphalia, Kiel, and Cologne

[Stamp]

Subject: Prosecution of criminal acts against the Reich or the occupying power in the occupied territories

[Stamp]

[Stamp]

To the Chancellery

22 December 1942

made out: Reply:

Before mailing

To the High Command of the Armed Forces
Armed Forces Legal Department

for information.

Send copy there.

Several attorneys general have raised the question of whether elective defense counsel are to be admitted in the procedures transferred to the general courts according to the directives of the Fuehrer, dated 7 December 1941, dealing with the prosecution of criminal acts against the Reich or the occupying power in the occupied territories. I have contacted the High Command of the Armed Forces in this respect. We are both of the opinion that in view of the regulations in force for keeping secret the procedures in question, there are basic objections to the admission of elective defense counsel. The interests of the defendants can be taken care of by giving them defense counsel according to paragraph 32 of the competence regulation.

By Order

[Department] III

21 December

[Initials illegible]

[Department] IV

[Initial] M [Mettgenberg] 21/12

[Initial] A [von Ammon] 17/12

EXTRACTS FROM OFFICIAL CORRESPONDENCE ARISING OUT OF THE QUESTION OF PROVIDING DEFENSE COUNSEL IN NIGHT AND FOG TRIALS, 4 JANUARY—19 FEBRUARY 1943

[Letter from the President of the Essen Special Court to the President of the Essen District Court, 4 January 1943]

The President of the Special Court

Essen, 4 January 1943

Secret

To the President of the District Court in Essen

Concerning—Prosecution of criminal acts against the Reich or the occupying power in the occupied territories.

The German Penal Code applies to the prosecution of criminal acts against the Reich or the occupying power in occupied territories. This does not exclude the application of article IV, paragraph 32 of the competence decree of 21 February 1940 concerning necessary defense, included in the Reich Minister of Justice’s executive decree of 6 February 1942.[454] Foreign defendants must therefore have counsel if there is a possibility of the death sentence (or life imprisonment) being imposed. That is frequently the case in these trials. An increasing number of more copious cases with several defendants are now coming up. Very frequently the only evidence against defendants pleading not guilty consists of statements of codefendants, so that in view of the possibility of conflicting interests, it is only rarely possible to appoint one counsel for a number of defendants. Recently, seven counsel had to be appointed for one trial lasting several days. At that time it was most difficult to find enough counsel in a position to take over the defense. The course of proceedings was repeatedly interrupted owing to the inability of counsel to appear. In a few days another case with about 30 defendants will come up, for which a number of counsel will presumably have to be appointed, too. A number of similar trials may be expected shortly.

Such a strain for trials lasting all day for several days upon the few lawyers, who are overworked due to their representing their drafted colleagues, is in my opinion untenable under present circumstances. The resultant drain upon the State treasury is considerable. When the second court for these special cases which will soon be needed is set up, it will be next to impossible to get the requisite number of counsel. The interests of foreign defendants can hardly be considered sufficiently important to justify continuous demands of this kind on staff and public funds.

I therefore suggest that the Reich Minister of Justice should lay down the following by virtue of the powers granted in No. V of the Fuehrer’s directives of 7 December 1941:

Article IV, paragraph 32 of the competence decree of 21 February 1940 is not applicable. The president of the court will appoint a counsel for the defendant if the latter is unable to defend himself or if for any other special reasons it seems desirable that the defendant be represented.

[Signed] Goebel[455]

District Court Director [Landgerichtsdirektor]

[Memorandum, 18 January 1943, from Ministerial Director Grau to defendant von Ammon asking for comments on the proposal of the President of the Special Court in Essen.]

Secret

In reference: III a 184/43g

To Oberlandesgerichtsrat Dr. von Ammon

Account of proceedings enclosed with request for comments. In case a regulation of the nature suggested by the Essen Special Court should be considered necessary, a legal decision along the lines of the draft could be made. The formulation of this communication intends to leave untouched in principle the necessity for defense in the cases concerned and only to permit individual exceptions of the compulsory regulation contained in paragraph 32 of the competence decree (ZustVO).

I consider it doubtful whether the principle of the necessity of having a defense should be abandoned also in cases where the death sentence may be expected. Here the existing regulations should be waived only in cases of the utmost urgency.

Berlin, 18 January 1943

[Signed] Grau

[Answer, 1 February 1943, from the Reich Ministry of Justice, initialed by defendants Mettgenberg and von Ammon.]

To Ministerialrat Grau

Department IV suggests that section 2 of decree No. 7 of 7 December 1941 be given roughly the following form:

“In trials in which according to the regulations a defense counsel has to be appointed for the defendant, the regulation may be ignored if the president of the court is convinced that the character of the defendant or the nature of the charge make the assistance of a defense counsel superfluous.”

However, it might be expedient to obtain the comments of the President of the People’s Court, and of the chief Reich prosecutor at the People’s Court, the presidents of the courts of appeal at Kiel and Cologne and the attorneys general in Hamm, Cologne, and Kiel.

Berlin, 1 February 1943

[Initials] V [Vollmer]

M [Mettgenberg] 1 February

A [von Ammon] 30 January

[Letter, 9 February 1943, from the Reich Ministry of Justice, initialed by defendants Mettgenberg and von Ammon.]

Berlin, 9 February, 1943

The Reich Minister of Justice

III a 184/43 g

Secret

1. To

a. The President of the People’s Court[456]

b. The Chief Public Prosecutor at the People’s Court[456]

c. The Oberlandesgerichtspraesidenten in Kiel and Cologne

[Initial] Th [Thierack]

d. Chief Public Prosecutors in Hamm, Kiel, and Cologne

[Stamp] To files 9 February 1943

Subject: Crimes against the Reich or the occupying forces in occupied territory

The president of the Essen Special Court reports that in trials for the above-mentioned offenses, where a defense is necessary, because of the sentence which may be expected, it is often difficult to obtain counsel for the defense when [defendants who have confessed in cases where there is a collision of interest between the defendants][457] a defense counsel always has to be obtained. The requisite number of lawyers is not always obtainable, the course of the main proceedings is also frequently hampered by the inability of individual lawyers to appear.

I therefore propose to insert in No. 7 of the decree for the carrying out of the directives laid down by the Fuehrer and Supreme Commander of the Armed Forces of 7 December 1941 the following regulation, which is to be paragraph 2:

“In trials before the Sondergericht [Special Court] in which according to the regulations defense counsel has to be provided for the defendant, the regulation may be ignored when the president of the court can conscientiously state that the character of the accused and the nature of the charge make the presence of a defense counsel superfluous.”

Please comment as soon as possible.

By order:

[Department] IV

[Department] III

[Initial Illegible]

[Initials] V [Vollmer] 4 February

M [Mettgenberg] 4 February

A [Ammon] 3 February

C [Crohne] 3 February

2. 3 weeks later.

3 March

SECRET INSTRUCTIONS OF REICH MINISTRY OF JUSTICE TO PROSECUTORS AND JUDGES, INITIALED BY DEFENDANTS ALTSTOETTER, METTGENBERG, AND VON AMMON, 6 MARCH 1943, CONCERNING MEASURES NECESSARY TO MAINTAIN SECRECY OF NIGHT AND FOG PROCEDURES

Draft

Berlin, 6 March 1943

The Reich Minister of Justice

IV a 398/43 secret

[Stamp] Secret

Secret

1. To:

a. The Chief Reich Prosecutor at the People’s Court

b. The Attorneys General in Celle, Duesseldorf, Frankfurt/Main, Hamburg, Hamm, Kiel, and Cologne

c. The Attorney General at the Berlin Court of Appeal

Subject: Criminal procedures on account of criminal acts committed against the Reich or the occupying power in the occupied territories

Enclosures: Extra copies for the Chief Public Prosecutors in Essen, Kiel, and Cologne and for the Attorney General at the Berlin District Court

For the attention of:

a. The President of the People’s Court

b. The Presidents of the District Courts of Appeal in Hamm, Kiel, and Cologne

c. The President of the Berlin Court of Appeal

Enclosures: Extra copies for the Presidents of the District Courts in Hamm, Kiel, Cologne, and Berlin

[Stamp] Chancellery of Justice

6 March 1943

With regard to criminal procedures on account of criminal acts against the Reich or against the occupying forces in the occupied territories (so-called Night and Fog cases) I request the observance of the following directives in order not to endanger the necessary top secrecy of the procedure, particularly, regarding the execution of death sentences and other cases of death among prisoners. [Italicized text crossed out in the original document.]

1. The cards used for investigations for the Reich crime statistics need not be filled in. Likewise, notification of the penal records office will be discontinued until further notice. However, sentences will have to be registered in lists or on a card index in order to make possible an entry into the penal records in due course.

2. In cases of death, especially in cases of execution of NN prisoners, as well as in cases of female NN prisoners giving birth to a child, the register must be notified as prescribed by law. However, the following remark has to be added: “By order of the Reich Minister of the Interior, the entry into the death (birth) registry must bear an endorsement, saying that examination of the papers, furnishing of information and of certified copies of death (birth) certificates is only admissible with the consent of the Reich Minister of Justice.”

3. In case an NN prisoner sentenced to death desires to draw up a public will, proceedings must follow No. 30, paragraph 2 of my circular ordinance of 19 February 1939, article 417-III a, 318.39. The persons who assist the drawing up of the will are, if necessary, to be sworn to secrecy. The will has to be taken into official custody according to article 2 of the Probate Law. The deposition receipt has to be kept by the prosecution until further notice.

4. Farewell letters by NN prisoners as well as other letters must not be mailed. They have to be forwarded to the prosecution who will keep them until further notice.

5. If an NN prisoner who has been sentenced to death and informed of the forthcoming execution of the death sentence desires spiritual assistance by the prison padre, this will be granted. If necessary, the padre must be sworn to secrecy.

6. The relatives will not be informed of the death and especially of the execution of an NN prisoner. The press will not be informed of the execution of a death sentence, nor must the execution of a death sentence be publicly announced by posters.

7. The bodies of executed NN prisoners or prisoners who died from other causes have to be turned over to the State Police for burial. Reference must be made to the existing regulations on secrecy. It must be pointed out especially that the graves of NN prisoners must not be marked with the names of the deceased.

The bodies must not be used for teaching or research purposes.

8. Legacies of NN prisoners who have been executed or died from other causes must be kept at the prison where the sentence was served.

By order:

[Initials] Sch [Schaefer] 5 March

Mx [Marx] 3 March

A [Altstoetter] 3 March

M [Mettgenberg] 25 February

v. A. [von Ammon] 27 February

[Initials] W [Westphal] 27 February

V [Vogel] 26 February

R [Rexroth] 27 February

H [Hecker] 26 February

Ei [Eichler] 1 March

2. Copy of (1) to District Court Judge Dr. von Ammon and to Chief Public Prosecutor Dr. Metten, also to Dr. Eichler.

3. To be submitted again after being mailed.

[Stamp] Mailed 8 March 1943

[Handwritten] resubmitted [Initials illegible] March 9

[Handwritten notes illegible]

Distribution

The circular ordinance of 6 March 1943-IV a 398/43—has been mailed today to the following addresses:

786b 1. Chief Reich Prosecutor at the People’s Court, Berlin.
7 2. Attorney General, Celle.
8 3. Attorney General, Duesseldorf.
9 4. Attorney General, Frankfurt (Main).
90 5. Attorney General, Hamburg.
1 6. Attorney General, Hamm.
2 7. Attorney General, Kiel.
3 8. Attorney General, Cologne.
4 9. Attorney General at the Court of Appeal, Berlin.
510. President of the People’s Court, Berlin.
611. President of the Supreme Court of Appeal, Hamm.
712. President of the Supreme Court of Appeal, Kiel.
813. President of the Supreme Court of Appeal, Cologne.
799b14. President of the District Court, Berlin.

[Handwritten] 14 Weber

[Stamp] Berlin, W 8, 8 March 1943, 6–7 afternoon

FILE NOTE OF DEFENDANT VON AMMON, 7 OCTOBER 1943, CONCERNING DEFENDANT LAUTZ’ QUESTION AS TO GIVING DEFENDANTS TRANSLATIONS OF THE INDICTMENTS AGAINST THEM IN NIGHT AND FOG CASES

1. Note—Chief Reich Prosecutor Lautz asked me whether there were any objections to translations of indictments in NN proceedings being handed over to the defendants. It has turned out to be inconvenient that the defendants learned the details of the charges raised against them only during the trial. Also the interpretation by the defense counsel is not always sufficient, since their French mostly is not good enough and since the defendants were brought to the place of the trial only shortly before it was held.

The procedure adopted for Czech defendants, viz, having the indictment translated to them orally by a Czech-speaking sergeant, is not possible here since French-speaking sergeants are not available.

After having given a report to Ministerialdirektor of Department IV and to the Minister, I informed Chief Reich Prosecutor Lautz on 6 October 1943 that there were no objections whatever to the intended procedure.

2. Ad procedures of office a 3.—“Prosecution of criminal acts against the Reich or the occupying power in the occupied territories.”

Berlin, 7 October 1943

IVa 2369/43 g

[Initial] A [von Ammon]

SECRET DIRECTIVE OF THE REICH MINISTRY OF JUSTICE, 21 JANUARY 1944, ORDERING TRANSFER TO GESTAPO OF NIGHT AND FOG PRISONERS WHO WERE ACQUITTED, AGAINST WHOM PROCEEDINGS WERE QUASHED, OR WHO HAD SERVED THEIR SENTENCES

The Reich Minister of Justice

IV a 2083.43 g

Berlin, 21 January 1944

Secret

[Handwritten] Immediately!

[Initial] Th [Thierack]

(Stamp)

dispatched: 25 January 1944

1. To the

a. President of the People’s Court

b. Chief Reich Prosecutor at the People’s Court

c. Presidents of the Courts of Appeal in Breslau, Hamm, and Kiel

d. President of the Military Court

e. Attorneys General in Breslau, Hamm, and Kiel

f. Attorney General at the Military Court

Subject: Prosecution of criminal acts committed against the Reich or the occupying power in the occupied territories

Enclosures: Extra copies for the Presidents of the District Courts in Breslau, Essen, Kiel, and Berlin; Chief Public Prosecutors in Breslau, Essen, and Kiel; and for the Attorney General at the Berlin District Court

[Stamp] submitted on 25 January 1944

For information:

a. The other Attorneys General

b. Supreme Command of the Armed Forces

Referring to the letter of 10 November 1943

14 n 16.18 WR (I/3)—129/43 g

c. Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior
—Chief of the Security Police and of the SD—

Referring to the letter of 17 December 1943

IV D 4-103/42 g

As supplement to my circular decree dated 28 October 1942—IV a 1668/42 g—I order the following concerning the treatment of NN prisoners who were acquitted by a general court, against whom such proceedings were quashed, or who served their sentence imposed on them by a general court:

1. If during the trial of an NN proceeding it appears that the defendant is innocent or that his guilt has not been sufficiently established, he will be handed over to the Secret State Police; the public prosecutor will inform the Secret State Police of his opinion whether the defendant can be released and return to the occupied territories, or whether he will continue to remain under detention. The Secret State Police will decide what further actions are to be taken.

2. Defendants who were acquitted, or against whom proceedings were quashed during the trial, or who served a sentence during the war, will be handed over to the Secret State Police for detention for the duration of the war. The Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior has ordered that these defendants will always be given the mildest grade of protective custody, i.e., grade I.

3. Deviations from the regulations as contained in Nos. 1 and 2, will be made only after my approval has been given.

By Order:

As deputy

[Initial] V [Vollmer] Jan. 18

2. Copy of 1 will be sent to the—

a. President of the Senate Hecker

b. Ministerialrat Dr. von Ammon

c. Amtsrat Thienel

d. s 1

3. To be resubmitted after dispatch—

[Initial] A [von Ammon] Jan. 18

Report of 13 December 1943

[Handwritten] submitted with IV a 27/44 g

The decree of 21 January 1944—IV a 2803/43—has been mailed to the following addresses today:

[illegible marginal note]

[Stamp] Berlin, 25 January 1944

LETTER FROM ARMED FORCES HIGH COMMAND TO THE FOREIGN OFFICE, COPY TO DEFENDANT VON AMMON, 4 APRIL 1944, CONCERNING TWO NOTES OF M. DE BRINON, VICHY GOVERNMENT AMBASSADOR, ON NIGHT AND FOG CASES

Copy

High Command of the Armed Forces

14 n 16.18 WR (I/3)

259/44g

Secret

To the Foreign Office

Berlin W 8

Subject: Prosecution of offenses against the Reich or the army of occupation in the occupied territories

2 enclosures[458]

Enclosed two notes of the French Ambassador and Secretary of State de Brinon are submitted

The High Command gives the following comment upon them:

In virtue of the directions given by the Fuehrer on 7 December 1941, capital punishment will be inflicted on principle in the occupied territories for offenses of non-German civilians which are directed against the Reich and the army of occupation and are endangering its safety or readiness for action. Whenever capital punishment would not be probable or could not be immediately inflicted and executed, the perpetrator will be brought to Germany and sentenced there. In some cases perpetrators who have been sentenced in the occupied territories will be committed for imprisonment to a penitentiary in Germany. This will be done for political reasons on principle in case of capital punishments inflicted on women, men of 70 years and older, and fathers of numerous children under age, excepting punishments inflicted on account of murder or of such crimes which are in connection with actions (e.g., partisans).

The transfer to Germany will be made, in accordance with the wishes of the Fuehrer, in order to make an efficacious and lasting warning example. The Fuehrer desires the relations and the population to be kept in suspense as regards the fate of the perpetrator. To German and foreign bureaus it will be replied to inquiries and petitions—“The perpetrator has been committed to prison, further information cannot be given.”

To Ministerialrat von Ammon

It is therefore impossible to comply with the wishes of the Ambassador de Brinon. The High Command requests you to inform him in due form.

By order:

[Typed] signed Dr. Huelle

Berlin, 6 April 1944

High Command of the Armed Forces

14 n 16.18 WR (I/3)

259/44g

To the Reich Minister of Justice

Berlin W 8

In reference to letter of 17 March 1944 (V s1 263/44g). The above copy is forwarded to you for information

By order:

[Signed] Dr. Huelle

[Handwritten note]

To previous correspondence [illegible].

Prosecution of offenses against the Reich or the army of occupation in the occupied territories

[Initial] A [von Ammon]

2.5

FILE NOTE INITIALED BY DEFENDANT VON AMMON ON 10 MAY 1944, CONCERNING THE STATUS OF NIGHT AND FOG CASES AS OF 30 APRIL 1944

Copy

IV n 313/42 secret

Survey of the Status of NN Proceedings on 30 April 1944

I. The following cases were transferred by the military authorities to:

a. Chief Public Prosecutor Kiel—
12 proceedings with 442 defendants.

b. Chief Public Prosecutor Oppeln—
729 proceedings with 4048 defendants.

c. Chief Public Prosecutor Breslau[459]—
1273 proceedings with 2149 defendants.

Total—2014 proceedings with 6639 defendants.

II. Charges preferred by:

a. Chief Public Prosecutor Kiel—
9 proceedings with 345 defendants.

b. Chief Public Prosecutor Oppeln—
494 proceedings with 1578 defendants.

c. Chief Public Prosecutor Breslau—
813 proceedings with 1113 defendants.

d. Chief Reich Prosecutor with the People’s Court—
134 proceedings with 588 defendants.

Total—1450 proceedings with 3624 defendants.

III. Verdicts have been submitted from:

a. Kiel Special Court—
8 cases with 168 defendants.

b. Oppeln Special Court—
307 cases with 725 defendants.

c. Breslau Special Court—
377 cases with 473 defendants.

d. Chief Reich Prosecutor with People’s Court—
115 cases with 427 defendants.

Total—807 cases with 1793 defendants.

[Handwritten] To the files concerning the prosecution of criminal acts against the Reich and the occupying power in occupied territories.

[Initial] A [von Ammon]

10 May

LETTER FROM DEFENDANT VON AMMON TO THE ATTORNEY GENERAL IN MUNICH, 22 NOVEMBER 1944, CONCERNING THE EXECUTION OF NIGHT AND FOG PRISONERS

The Reich Minister of Justice

IV a 676/44g

SECRET

To the Prosecutor General in Munich 35

Subject: Certification of the personal data of executed NN prisoners

Reference: Diary No. 1584/44g

In view of the new arrangement concerning the treatment of NN prisoners in the future there no longer will be executions of NN prisoners in any large numbers.

Therefore, a closer examination of the suggestions, made by the director of the penitentiary and the detention prison Munich-Stadelheim, is not necessary. I request you to notify the latter accordingly.

By order:

[Typed] Dr. von Ammon[460]

[Official seal of the Ministry of Justice]

[Signed] Ruth

Certified: Court Official

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS RUDOLF LEHMANN[461]

DIRECT EXAMINATION

*******

Mr. King: Will you tell us briefly what your rank was and what your duties were in the High Command of the Armed Forces?

Witness Lehmann: I was the Ministerialdirektor in the High Command of the Armed Forces, and I was Chief of the Legal Division of the Armed Forces.

Q. Do you know of the so-called Nacht und Nebel Decree which was issued in the latter part of 1941 over the signature of Keitel?

A. I am very well informed as to how that came about.

Q. Will you tell us briefly how the Nacht und Nebel program was supposed to work? In other words, what was the theory upon which this “Erlass” or decree was issued?

*******

A. There arose in France, after the beginning of the Russian campaign, the resistance movement which became very active. Hitler complained to the justice administration of the armed forces that on account of their attitude they were not in a position to suppress that resistance movement. That is the general background for the Nacht und Nebel Decree.

In detail this is what happened—In the beginning of October 1941 I received a letter from Field Marshal Keitel—but I want to state here that Keitel was always at headquarters, whereas I was always in Berlin. In this letter, which all my assistants have read, Keitel passed on a directive which he had received from Hitler. The letter was quite long, several pages in handwriting. In that letter, it was expressed that Hitler considered the resistance movement in France a tremendous danger for the German troops. It could be seen that the methods previously used were not sufficient to suppress that movement. There was no sense in passing sentences of prison terms—considering conditions as they were—which were handed down after a long period. That was not the right deterrent which the armed forces should employ; therefore, new means would have to be found.

Q. Now, Witness, you have given us some background on the history of the Nacht und Nebel Decree. Will you tell us with some particularity how the Nacht und Nebel program was supposed to work? In what way were the resisters to be handled under the Nacht und Nebel Decree?

A. Yes. That was also stated in that letter by Keitel. The Fuehrer demanded that Frenchmen who were suspected of such acts, during night and fog—that is where the expression comes from—should be brought across the border and that in Germany they should be held completely incommunicado. That should only not apply in those cases where immediately a death sentence could be passed in France. This measure could be used as a deterrent but not the procedures as had been used heretofore. That was the general plan of Hitler’s which did not include anything about the question as to who should deal with these people after they had been brought to Germany.

Q. Now, Witness, did you, in your position with the High Command of the Armed Forces negotiate with the Ministry of Justice regarding the Nacht und Nebel Decree?

A. Yes, but not immediately. At first, in a lengthy conference with Field Marshal Keitel, I tried to thwart the entire plan because I disagreed—I definitely disagreed with it. Details about that conference, I am sure, are not interesting for us now. In doing that, I only had a very limited success; that is, Keitel said that he would be ready to speak to the Fuehrer once more. But already on the occasion of this first conference, he stated that the Fuehrer insisted on the carrying out of that concept and he used a term which I cannot forget. Hitler had said with reference to that—“Nobody can deny that I am a revolutionary of considerable stature. Then I should know best how uprisings can be suppressed.” Keitel then spoke once more to Hitler, as he stated, but it was of no avail. According to Keitel’s information, Hitler said that there were things of which he understood more than jurists do.

In the conference with Keitel, I raised the question immediately as to who should deal with these matters in Germany now. Thereupon, Keitel said, that it would be most according to the desire of the Fuehrer if the Secret State Police would deal with it. But we were against that from the very beginning, and also Admiral Canaris was against it with the same severity.

After the argument had gone back and forth, I received the permission from Keitel to get in touch with the Ministry of Justice.

Q. Do you have any reason which you can state at this time as to why Hitler preferred the Ministry of Justice rather than the army court system to deal with Nacht und Nebel cases?

A. That question can only have been discussed between Keitel and Hitler. It was a way out which I had suggested, because under all circumstances I wanted to achieve that these matters should continue to be dealt with by judges, and since the aversion of Hitler against the armed forces justice was known, it could be assumed that he would still prefer civilian court to us.

*******

Q. When did you first confer with a member of the Ministry of Justice regarding the assumption by the Ministry of Justice of the Nacht und Nebel program?

A. I went to see State Secretary Freisler, I believe, in October 1941. I went to Freisler because he dealt with the criminal cases in the Ministry. He was in charge of them.

Q. Can you tell us what purpose you had in mind in going to Freisler; what proposition did you discuss with him?

A. I discussed with him the proposition that the cases which the military courts in France would not keep should be taken over and tried by the civilian justice administration.

Q. What was Freisler’s reaction to this suggestion which you made?

A. He was not enthusiastic about it but he agreed that one had to try and keep these cases for the administration of justice as such.

Q. Can you tell me this? Did Freisler have the authority to agree on behalf of the Reich Ministry of Justice to assume the trying of Nacht und Nebel cases?

A. That question I can only answer by saying that Freisler told me that first he had to think it over; and secondly, he had to discuss it with State Secretary Schlegelberger who was at that time in charge of the Ministry.

Q. Is it your impression that Schlegelberger was the individual in the Ministry of Justice to whom Freisler went to secure permission and authority on behalf of the Ministry of Justice to try the Nacht und Nebel cases?

A. That is hard to answer. I can only answer it out of my general background by saying that this was a question of considerable importance, and I thought it was quite clear that Freisler told me that he had to ask the man who was in charge of the Ministry, the acting Minister.

Q. Mr. Lehmann, on 23 December 1946 you put your name to an affidavit. Do you recall signing an affidavit about that time?

A. Yes.

Q. I point out to you that this affidavit is now in evidence before this Court as Document NG-484,[462] Prosecution Exhibit 307. I wish to read to you a statement from that affidavit, and ask you a question concerning it after I have read it. The statement is as follows: “Schlegelberger, who was then acting Minister of Justice, was in my opinion the only person who could consent to take over these Nacht und Nebel cases by the Ministry of Justice.” I ask you now, do you still agree with that statement?

A. Yes, with the reservations that I have made before; as far as I was informed about the routine in the Ministry.

*******

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[463]

DIRECT EXAMINATION

*******

Dr. Kubuschok (defense counsel for defendant Schlegelberger): To what extent did you participate in the legislative work and the execution of the Night and Fog Decree, the Nacht und Nebel Erlass?

Defendant Schlegelberger: First, I must make a temporal limitation here. The Tribunal knows that on 20 August 1942 I left the Ministry of Justice. Thus, in regard to my person, only the previous period can be considered. During that time the procedure, as well as taking prisoners into custody, remained exclusively in the hands of the Ministry of Justice.

If I am supposed to make some statements about the decree, I would like to emphasize that the jurisdiction of the Ministry did not refer to the western territories, which are under consideration here. This was entirely under the competence of the military commanders. Hitler had issued the order to Keitel that in the future merely in very clear cases, and in such cases where the death sentence could be expected with certainty, the military courts were to pass sentences. The rest of the culprits were, for the purpose of a deterrent by the police, to be transported to Germany to remain under the custody of the police, and—and this is the expression he used—to disappear during night and fog.

The chief of the legal division of the Wehrmacht, Dr. Lehmann, realized what the situation was, and after unsuccessful attempts with Keitel and with Hitler he tried to have it avoided that the prisoners be left in the custody of the police by having them tried before the ordinary courts. He called on Freisler. Freisler did not disagree with Lehmann, and basically asked for my agreement. I gave my approval.

Here, too, I had to make a serious decision. On the one hand, the fate of the prisoners was concerned. If they were in police custody, their fate could not be controlled. On the other hand, there was the necessity to loosen certain regulations which formed definite components of our legal system.

The Fuehrer order was based on the fundamental idea that the deterring force, through the cutting off of the prisoners from every contact with the outside world, could be achieved in this manner. If we now wanted—and this is the decisive question—to have the direction of the prisoners, if we wanted to avoid having the prisoners remain in police custody and thus not carry out Hitler’s decree but break its head, no other recourse was left to us but to conduct our court proceedings under the point of view of secrecy, since otherwise Hitler would immediately have forbidden and actually prevented the fact that ordinary courts should handle these matters.

However, in order to avoid any doubt, I want to emphasize expressly in the following that I have to state we are concerned only with regulations governing proceedings. The NN prisoners were supposed, and were, to be tried materially according to the same regulations which would have applied to them by the courts martial in the occupied territories. The rules of procedure had been curtailed to the utmost extent. In German law we also know of the possibility, because of the endangering of the security of the State, that the public is excluded when the opinion on which the sentence is based is pronounced. We now had to take one more step, to issue an order to make available the possibility that the pronouncing of the sentence itself would not be made in public. One could not avoid the recognition that otherwise the secrecy would not be maintained, and I have to repeat, the cases would have been taken out of our hands immediately.

Everything else was based on this. For example, the limitation in the selection of defense counsel. Germany had a very eminent legal profession, and in my opinion it was a matter of course that every lawyer fulfilled the oath of secrecy given to him by law. However, one had to realize that as with every other profession, the lawyer’s profession too, during such times, was permeated with bearers of the resistance idea, and therefore, here too, a certain caution was needed and it was necessary to limit the selection of defense counsel.

It is well known that in the executive order which I signed—and it was the same as the draft submitted in the document book[464]—that I limited the use of foreign evidence. However, if one thinks the matter through correctly and thinks of the practical application, one will realize that this limitation worked only in favor of the defendants because numerous acquittals occurred according to the principle, that governs other law as well as ours, in dubio pro reo. In accordance with this basic attitude, it was decisive, under all circumstances, to avoid the subsequent transfer of the NN prisoners to the police.

Presiding Judge Brand: We will recess until 1:30 this afternoon.

AFTERNOON SESSION

(The hearing reconvened at 1330 hours, 30 June 1947)

The Marshal: The Tribunal is again in session.

Dr. Kubuschok: We have come to the discussion of the NN regulations. Will you please continue there?

Defendant Schlegelberger: I have taken the liberty to explain that the purpose in including ourselves in the procedure was to counteract Hitler’s plan to have prisoners in the hands of the police. There arose a problem—If one had to consider that in the regular course of procedure a penalty was found which expired before the end of the war. In such cases there would not have been any possibility to keep these people but they had to be taken over by the police and that would have thwarted the purpose—of the inclusion of our administration. That, one had to consider. The matter was simple, if the prosecutor, after examining the facts, arrived at the result that the penalty had to be so low that the term would expire before the expected end of the war because then he did not demand that a date for the main trial be set; the procedure remained pending and the accused remained in the custody of the administration of justice. The situation however could become more difficult if the prosecutor intended to demand a higher penalty which probably would expire after the end of the war and if the court would arrive at a more lenient sentence. The way out could be found only by quashing the proceedings in time and in order to do that various means could be applied. It could have been put to the court, that is, by legislation of course, to make a decision for this continuance, and could also put the prosecutor in a position where he would demand discontinuance and then let the court decide for discontinuance. I took the latter approach. Therefore, I provided that if the court wanted to deviate from the demands of the prosecution it should inform the prosecutor so that he had the possibility to demand discontinuance, but with all emphasis I want to stress there can be no question that the courts were to be bound in any way by the demands for a penalty on the part of the prosecutor. That would have been quite irresponsible.

Presiding Judge Brand: Dr. Schlegelberger, are you still speaking with reference to the NN case?

Defendant Schlegelberger: Yes. So, it is quite out of the question that the courts were to be bound in any way to the penalty as requested by the prosecutor as Freisler has stated in a letter which was written for special service to Thierack and which is quite wrong, but I repeat again, the intention was only for the court to tell the prosecutor, “we are arriving at a milder sentence than you requested,” so as to put the prosecutor in position to demand discontinuance; then the matter remained in the hands of the administration of justice; that is to say that the defendant was in the custody of the administration of justice. May I summarize. The provisions concerning secrecy had to be made so that the matter would not be taken out of our hands by Hitler. I was faced with the problem as to whether I should refuse to take over the NN case altogether, and the Tribunal will recognize that that would have been very simple for me. I could have held the position that as far as my department was concerned that I had nothing to do with the matter and therefore could reject it or refuse to have anything to do with it. But I could not take the responsibility to assist, to contribute, that the Hitler order be carried out and that the NN prisoners remain in the custody of the police. And, I believe that that decision has also found its justification in the findings of the International Military Tribunal concerning the treatment of these prisoners in the hands of the Gestapo.[465]

*******

EXAMINATION BY THE TRIBUNAL

Judge Harding: Dr. Schlegelberger, you have testified that you favored the decree as to Poles and Jews and the taking over of NN prisoners for trial, to avoid having these people turned over to the police, is that correct?

Defendant Schlegelberger: (Nodded in the affirmative.)

Q. Why was that?

A. May I ask you a question, namely, does this question refer to the Poles and Jews, or as I now understand it, to the NN prisoners?

Q. It applies to both.

A. Well, that was for the following reason. From the cases of transfer about which I reported, I saw that the police was the instrument of power that Hitler used in order to do away with certain people without any legal procedure, and I wanted to give those people a legal procedure with a regular trial.

Q. Now the administration of justice at one time, at least, was responsible for the prosecution and trial of all crimes committed in the Reich, isn’t that correct?

A. Yes.

Q. Was there ever an investigation with subsequent trial after 1 September 1939 for the abuse or murder of a person in the hands of the police or in a concentration camp?

A. I can answer that question by saying that the Ministry of Justice as far as I am informed—that is, these matters were in the penal sector—interfered in every case, even in the case of abuses and concentration camps where they could actually do something about it, only since 1939—I don’t remember the exact date—these matters were taken out of our hands through the special jurisdiction of the SS.

Q. I don’t believe you quite answered my question. Did the Ministry of Justice ever call or ever prosecute a member of the police or somebody connected with the concentration camp because of abuse of the prisoners or murder of prisoners in their hands?

A. Yes, the Ministry did so.

Q. In what cases? That was after 1 September 1939.

A. In any case, it did happen before September 1939. I regret, Your Honor, that I cannot give exhaustive information about this because those are events and trials which were outside of my official duty, but I can say with certainty and under the oath under which I am now that because of abuse in concentration camps measures were taken with the utmost energy.

Q. Did a person who had been handed over to the police or who was sent to a concentration camp, including Poles and other foreigners, have any recourse to the law as administered in the Reich, for his protection?

A. Well, if these people were in the hands of the police, we could not extend that protection to them. As long as those people were in a concentration camp, and to the extent that we had any jurisdiction over concentration camps—to that extent we always intervened, if somehow or other we could find out that there had been some abuse; but later on, from 1939 on, these matters came under the special SS jurisdiction, and we were no longer in a position to interfere[466].

Q. After that these people had no recourse to the law as administered in the Reich?

A. We could not give them any legal recourse; we of the Ministry of Justice could not extend legal protection to them.

Q. Did they have any legal protection?

A. Well, I would like to say there was a jurisdiction over the inmates of the concentration camp and this was in the jurisdiction of the SS courts. That SS jurisdiction in accordance with its duty, could intervene in the same manner as we if anything had happened, that was the legal protection afforded to them.

Q. That was the only legal protection they had?

A. Yes, I could not name any other.

Q. Now, by what laws, orders, or decrees were these people left to the sole jurisdiction of the SS and the police?

A. Well, the Poles and Jews, NN prisoners were only handed over to the police after my time in office. As long as I was in office this did not happen.

Q. I mean, by what order or decree—you speak of a time when the SS had their own courts—by what order or decree—

A. The SS got a special jurisdiction through a law of 1939. The handing over of Poles and Jews, of the NN prisoners, and other people took place through measures of the year 1942, I believe. However, I do not want to make this statement with certainty, because it was after I had resigned.

Q. After this order setting up special jurisdiction for the SS the Ministry of Justice could not prosecute them, isn’t that correct—or try them?

A. No, it couldn’t.

Q. Now, I have here this decree which is found in volume 2, on page 55, decree of 17 October 1939, relative to the Special Courts for the SS.[467] Are you familiar with that?

A. Yes.

Q. After that the Ministry of Justice could not try these people for abuse or murder of persons in their hands, is that correct?

A. Yes, I assume so. Please take into consideration when considering my answers that these matters were apart from my official activity. Therefore, I can rather give an expert opinion than a testimony as a witness.

Q. Well, the effect of this decree was to deprive the people in the hands of the police of all legal recourse, is that not correct?

A. The effect was in any case that they had no recourse to the ordinary means of administration of justice. But the SS jurisdiction in my opinion had the same duties, the same possibilities for their people as we had.

Q. The only recourse, then, was to the SS administration of justice—now, on page 56 there is this decree which is signed by you, implementing that order, which places the police beyond the administration of justice.

A. I didn’t quite understand.

Q. I have here on page 56 of volume 2 a decree concerning the jurisdiction of SS courts and police courts in the Protectorate Bohemia and Moravia[468] which implements to some extent the preceding decree which I called to your attention. This decree is signed by you, which sets up Special Courts for the police, that is, takes them out from under the administration of justice. Now, this is signed by you. Do you have any explanation of that?

A. May I ask you to state the date again, just the date?

Q. 15 July 1942.

A. Is that an order which was cosigned by Keitel? (Document handed to the witness.)

Yes. This decree, however, I believe, has nothing to do with the matters we have discussed so far. This decree as far as I remember, was connected with a decree of January of the same year. In this decree of January in the Protectorate military jurisdiction was rescinded, and only for certain cases the Commander in Chief of the Wehrmacht was granted the right, in the matter of attacks against the Wehrmacht, to found the competency of Wehrmacht courts. The text of this decree which concerns itself with the policy is almost literally the same one as that of the decree of January 1942 regarding the Wehrmacht. Here in this decree for the police, they were concerned with certain courts for the SS. But the Wehrmacht SS [sic], which was considered a special group of the SS was supposed to be treated in the same way [as the Wehrmacht]. Therefore, after a discussion between Keitel and the commander of the SS Wehrmacht [sic], the possibility just as it was given to the Wehrmacht, was given to the SS as a fighting troop, to found such courts. But this has nothing to do with the question of SS jurisdiction, which is another question.

Q. Were there any other orders or decrees issued whereby prosecution of SS and similar units was taken out from under the administration of justice, and if so, what were they?

A. Yes, there was a special law about SS jurisdiction. At the moment, I cannot tell you the date, but it was from 1939. That is the civilian SS. But this decree refers to the SS as part of the Wehrmacht.

Q. Well, is that the decree of 17 September 1939 that I called your attention to?

A. The decree which you were kind enough to show to me just now.

Mr. LaFollette: Will Your Honor permit me? It is October. Your Honor said September.

Judge Harding: It is October, yes.

Defendant Schlegelberger: Yes, 17 October 1939. That is the decree about the SS jurisdiction.

Q. After that decree, did the Ministry of Justice have any means whereby they could protect a person in the hands of the police in any way whatsoever?

A. In my opinion, no; and that is why I tried to keep all these people away from the police. That is why I wanted to keep all these people within the sphere of the administration of justice, so that I could protect them.

Q. Then these foreigners, Poles, and Jews in the hands of the police were beyond any recourse of law in Germany, is that correct?

A. Not in my opinion.

Q. What recourse did they have?

A. Well, they probably had to turn to the higher SS office and to ask for help.

Q. Was that recourse in law or is that merely administrative?

A. Yes. That was more administrative.

Judge Harding: That’s all. That answers my question.

*******

EXTRACTS FROM THE TESTIMONY OF DEFENDANT VON AMMON[469]

DIRECT EXAMINATION

*******

Dr. Kubuschok (counsel for defendant von Ammon): You have stated that you were not a confirmed National Socialist. In view of your attitude, did you not have conflict of conscience sometimes during your activity in the Ministry of Justice?

Defendant von Ammon: To a certain extent I have to answer “yes” to that question. In my official activity, I occasionally had to apply laws or other legal regulations or had to follow instructions issued by my superiors with which I was not quite in agreement in my own mind. In such cases I considered it my duty to follow such regulations and provisions which in my opinion though unpleasant were after all effective. Likewise, I considered it my duty to follow the instructions issued by my superiors. However, I would not have considered myself obligated to follow instructions issued by my superiors which were contrary to law. Such illegal orders however were not given to me. In such cases, however, a certain amount was left up to my own discretion and that happened in many cases. When I applied that discretion I tried as far as possible to make my own opinion apply. Of course, the possibility in those directions were not overly large since as a Referent I had to obtain the agreement of my superiors, the more important decisions. Because of my lenient attitude I was frequently objected to, especially by my superior Vollmer and the Minister of Justice Thierack.

Q. Did your attitude change when the war broke out?

A. Due to the outbreak of the war nothing changed in my basic attitude. I was of the opinion that since the war had broken out, independent of its consequences for national socialism, it would bring about the decision, “to be or not to be” for Germany. Therefore, I believed that every German had to fulfill his duty in his official position.

Q. I now come to the main charge which the prosecution has raised against you in regard to your dealing with the so-called NN cases. Under what circumstances were you entrusted with this new field of work?

A. The distribution of the Referate [sections] was as a rule made by order of the department chief without asking the Referent about it in advance. Thus, I too in February 1942 was assigned by my department chief, Ministerial Director Crohne, to work with NN cases without my knowing for the time being what these NN cases were all about.

Q. What tasks and authorization did you have as Referent of Department IV of the Ministry of Justice for NN cases?

A. In order to answer that question I first have to describe briefly the competency of Departments III, IV, and V.

Department III was the department for criminal legislation, Department IV was for the administration of criminal law, Department V was the department for the administration of penalties. It belonged to the competency of Department III; the preparations of the laws and regulations similar to laws, the housing of prisoners belonged to the competence of Department V and the treatment of these prisoners while they were in prison. Department IV, that is my department, dealt in the main with the cases against the defendants until they were sentenced by a court, including the clemency procedure. Furthermore, the issuance of general provisions regarding legal procedure in as far as Department III was concerned was not competent for this.

Q. As far as Department V was competent, what authorization did you as Referent have with regulation to your superiors?

A. Gramm and Mettgenberg have already testified to this, here on the witness stand. I only have to add some supplementary remarks. As Referent, I had to a certain extent the right to give my signature, that is to say, to a certain extent I could give written or oral statements by order. This right for signature, however, was limited, since due to my being subordinate to the department chief, and for the most part of my activities I was subordinate also to a subdepartment chief. During the first month of my activity in the NN cases my section was directly under the department chief. A few months later, however, Mettgenberg was put in charge as a subdepartment chief between me and the department chief. My authority in relation to my subdepartment chief and department chief were limited through general regulations rather carefully. The regulations applied which were contained in Exhibit 510 submitted by the prosecution.[470] May I refer to these regulations? Regarding the letters by the Ministry of Justice that were sent outside the Ministry of Justice which were submitted by the prosecution, in accordance with the provisions I mentioned, I did not sign a single one finally, but all the letters after I had also cosigned them I submitted to my subdepartment chief for signature. He then for the most referred them to the subdepartment chief or even to the under secretary or to the minister. If the prosecution, contrary to this, in this submission of several documents, stated that the letters of the Ministry of Justice were signed by me, that is an error. There are throughout letters for which I did give a cosignature, that is in the right hand lower corner, they bear my initials, but one of my superiors gave the final signature.

*******

Q. As Referent in NN cases, did you have a large staff of assistants?

A. No. I never had more than one assistant, and he worked only part of the time in NN cases, and then only at the beginning of my activity with NN cases. From the beginning of 1943 on I worked entirely without any assistance. From that time on, due to the heightened drafting for the Wehrmacht, younger gentlemen who could be assistants, were available only to a very limited extent in the Ministry of Justice. From that time on I had only a so-called “Mittlerer Beamter,” a civil servant in the intermediate level [of civil service] for registration and filing.

There was a special provision only for preparation of clemency pleas in death sentence cases. For that work, I had assistance from time to time.

Q. I refer to that extent to Document NG-988, Prosecution Exhibit 510, the plan of distribution of work which shows further facts. Witness, please give us a survey over the periods when the general administration of justice participated in the NN cases.

A. We can distinguish between two periods during which the general administration of justice was concerned with NN cases. The first period extends from February 1942 until October 1942; the second from October 1942 until September 1944, and to some extent until the end of the war. During the first period the executive regulations of the Reich Ministry of Justice of 6 February 1942[471] were decisive in their original form as they had been issued by Schlegelberger and Freisler. Two factors characterized this period. First, the police were involved in the NN cases only to the extent that the transportation of the NN prisoners from the occupied territories was carried out by the police; and secondly, for the sentencing of NN cases only some Special Courts were competent. The competency of the People’s Court did not exist at that time, for those cases.

The second period begins with the changes which were introduced soon after Thierack assumed office. The police now also became competent to the extent that the NN prisoners, for the detention of whom no legal reason existed any more, were transferred to the police for protective custody for the duration of the war.[472] And for the trying of NN cases, in addition to the individual Special Courts, the People’s Court now is competent too. This second period ends with the order that the NN prisoners should generally be returned to the police. This order was issued in September 1944. The return, however, was carried out until the end of the war only partly so that at the end of the war numerous NN prisoners were still in the detention of the administration of justice.

Q. We shall now turn to the first period for which the executive regulations of 6 February 1942 were decisive. Witness, were you involved in the drafting of these regulations and the discussions with the OKW which preceded this decree and which the witness Lehmann testified about?

A. No. I neither participated in the formulation of the regulations nor in the preceding negotiations. The regulations were worked out in the departments for penal legislation, first Department II and later III, and at that time I did not belong to either of them. About the regulations and the preceding negotiations, I heard only on the day when the regulations were issued. On that day—it was 6 February 1942—the presidents of the courts of appeal and the attorneys general of those districts in which the NN cases should in the future be tried, had been ordered to the Ministry of Justice for a discussion.

Immediately preceding the beginning of the meeting my then department chief, Ministerial Director Crohne, had a message sent to me that I should come to the meeting because in future I would have to work with the penal cases which would result from the newly issued regulations.

I then attended that meeting and for the first time, from the mouth of State Secretary Freisler, who was presiding over the meeting, I heard about the Night and Fog Decree and the executive regulations issued pursuant to it.

Q. In the executive regulations of 6 February 1942 there are provisions about the limitation of foreign evidence. Paragraph 5 of the executive regulations, Exhibit 306[473], which, however, are here only in draft form gives this regulation—The use of foreign evidence material requires the prior agreement of the public prosecutor. Furthermore, paragraph 4 of the same regulation provides that the senior public prosecutor has to obtain the decision of the Reich Minister of Justice before he can use foreign evidence material or can agree to the use of foreign evidence material by the court. This latter regulation is contained in Exhibit 308[474].

The indictment asserts that it was one of the purposes of the NN procedure to prevent the defendants from having access to witnesses or any other evidence. What do you have to say about this?

A. First, I would like to correct you, Counsel. You quoted paragraph 4 of the circular decree of 6 February 1942, and by mistake you said that this was the same provision as paragraph 5 which you mentioned before. These are two different regulations. First is paragraph 5 of the executive order of 6 February 1942. That is Exhibit 306, and the second regulation is paragraph 4 of the circular decree of the same day, and that is Exhibit 308.

In answer to the question of what I have to say about the allegation in the indictment, that it was one of the purposes of the NN procedure to make it impossible for the defendants to have access to witnesses or any other evidence, I have to say that that assumption is entirely wrong. The limitations on foreign evidence material was not one of the purposes of the NN procedure, but the absolutely undesired result which resulted from the necessity of keeping the matter secret.

It could never result in a disadvantage for the defendant but would of necessity result in favor of the defendant. The German criminal procedure is based on the assumption that the defendant has no duty or no authority to prove anything. Therefore, any doubt had to work in favor of the defendant. In the same way, doubts which arose out of the limitation of foreign evidence worked in favor of the defendant. Moreover, foreign evidence was in no way excluded altogether but it should only be procured and used in such a way that the secrecy of the proceedings and the keeping incommunicado of the defendant would not be endangered.

Q. What was the effect of the regulations about the limitation of foreign evidence in practice?

A. According to my observation, in the majority of cases these regulations did not lead to any difficulties. In many cases the clarification of the facts was accomplished by the statements of the defendants or codefendants or on the basis of German evidence. This was the case especially in the numerous cases in which simple facts were involved. Thus, for instance, in most of the cases of illegal possession of weapons, a weapon was found in the possession of the defendant. Beyond this, the use of foreign evidence was admissible as far as the secrecy of the proceedings was not endangered by this. Thus, the Ministry of Justice in any case permitted that a foreign witness not before the court trying the case but in the occupied territories could be examined by an investigating judge. If this, however, did not bring about the desired result, if there still existed some doubt as to the guilt, the defendant had to be, and was, acquitted. According to my observations, probably in all courts which had to deal with NN cases, a large number of acquittals were pronounced, because owing to the limitation of foreign evidence defendants could not be convicted. I remember, in particular, extensive trials before the Special Court of Oppeln against numerous defendants who were charged with participation in dangerous resistance movements in Belgium. According to the indictment, I was under the impression that heavy sentences would be pronounced. In effect, however, the result of the trials was quite different. The defendants maintained that it was not a dangerous resistance movement, but a harmless club. In view of the limitation of foreign evidence it was impossible to disprove this defense. Thus, the defendants had to be acquitted, or they could be given only slight penalties because of participation in a club not authorized by the military commander.

Q. Paragraph 6 of the executive orders of 6 February 1942 which have already been mentioned—that is, Exhibit 306[475]—makes the following provision: The public prosecutor can, until the sentence is pronounced, withdraw the indictment or ask that the trial be postponed. The court has to agree to the application of the prosecutor for suspension. If the court wants to deviate from the application made by the public prosecution, it has first of all, to afford them an opportunity to state their opinion.

Witness, what can you say about this regulation?

A. Dr. Schlegelberger, when he was examined, commented extensively on these regulations. I only have to add the following: The procedure described was, as Dr. Schlegelberger stated, introduced in order to prevent NN prisoners from being transferred to the police. For the court itself, in view of its prestige, it probably was not very pleasant. The authors of that regulation realized that too. As I said already in my affidavit of 17 December 1946, that is Exhibit 337[476], even Freisler said in this meeting of 6 February 1942, that with this regulation one had reached the utmost limit of what one could expect of the court. The authors of this regulation, however, believed that they had to put up with that regulation in the interest of the NN prisoners.

Q. The regulation of paragraph 6 of the executive orders which we just discussed—was it ever applied in practice?

A. I don’t believe so. The regulation was in effect only for a brief period. Thierack, in October 1942 soon after he became Minister, rescinded it. During the time that this regulation was in effect, as far as I remember, only very few NN cases were tried. These were clear cases in which the court had no misgivings against agreeing with the plea of the prosecutor. If that regulation would have been applied, the Ministry certainly would have been informed about it, and I certainly would still remember it.

Q. On the changes which Thierack ordered in October 1942, Dr. Mettgenberg has commented.[477] Did you have misgivings against these changes, especially also against the transfer of NN prisoners to the police?

A. The changes which Thierack made also had, without doubt, a favorable side. The unpleasant regulation of paragraph 6 of the executive order of 6 February 1942 was removed. Even Freisler, as I mentioned before, stated about it that with this regulation the outside limit had been reached of what could be expected of the courts. Now, this bad condition was removed, that the justice authorities of the administration had to detain persons in whose cases the reason for detention had to be maintained by the procedure discussed by Dr. Schlegelberger. On the other hand, the transfer of the NN prisoners to the Gestapo was without doubt unpleasant. After the competency of the general administration of justice for the detention of NN prisoners who were acquitted or whose time of arrest had been removed, it again was returned to the armed forces. According to the provision of the NN decree, however, the armed forces, as a rule at least, were not allowed to return these NN prisoners to the occupied territories. Neither, for the reason of keeping this matter secret, could they be set free in Germany. The only way out that Thierack saw was their detention by the Gestapo and the OKW who in the last instance had to decide about this affair agreed to the suggestion by Thierack. If now I am asked if, in regard to the treatment of the prisoners by the police, I had misgivings, I can answer that in the following way: The prisoners were handed over to the police with the express provision that the detention was carried out only for reason of secrecy and in the interest of keeping the whole affair secret. Therefore, the Gestapo merely had to detain them and not to carry out a penalty. As far as I know, in the negotiations between Crohne and the Gestapo, the representatives of the Gestapo stated that in the case of detention of NN prisoners, they would take into consideration the fact that against the prisoners personally there was no longer any charge. Later on, the Reich Leader SS also ordered expressly that the NN prisoners, who were handed over to the police, always should be put on the level of Protective Custody I which was the most lenient level.

Q. I refer to Exhibit 328[478] in regard to the last statements made by the witness.

Witness, as Mettgenberg testified in September 1944, the general administration of justice was again deprived of the competency for NN cases. It was ordered that NN prisoners generally should be handed back to police. What can you say about this?

A. I can confirm the statements made by Dr. Mettgenberg to their fullest extent and only have to make a few supplementary remarks. As Mettgenberg already testified, in the discussions at the OKW, which took place in the beginning of September 1944, the witness Hecker and I represented the Ministry of Justice. Since the matter could not be reported to Minister Thierack in advance, my department chief, Vollmer, had given me the instruction to reserve the right for the Minister to state his opinion. I acted accordingly during the negotiations. The representatives of the OKW then also agreed that the OKW would forward a draft of the intended order of the OKW to the Ministry of Justice and that the Ministry of Justice could then state its opinion on the draft, in writing.

In place of that the OKW then sent us an already filed decree which ordered the discontinuance of the NN procedures and the transfer of NN prisoners to the police. When I reported this to Mettgenberg and together with him to Vollmer, he was very much displeased about the manner of handling used by the armed forces. Vollmer said the OKW had byplayed us in that manner, and he instructed me to talk to the representative of the OKW by telephone and protest against this manner of conducting this business. He said the decisive thing, however, was that the regulation made by the OKW had to be accepted according to the division of business, as the OKW was competent for NN cases.

In accordance with the instructions given by Vollmer, I then telephoned the representative of the OKW and expressed our surprise at the manner of handling this. The representative replied that this was a misunderstanding and he regretted it very much; in any case I can testify that on the part of Department IV of the Ministry of Justice, no agreement for these regulations was given, but that Department IV only through force submitted to the regulation which was made without its agreement.

Q. The meeting in the building in the Reich Military Supreme Court in the beginning of September 1944 was presided over by Dr. Werner Huelle and at that time he was supreme judge. I submit an affidavit by Dr. Huelle that was taken on 17 July 1947.[479] Following the usual introduction formula, it reads as follows:

“By order of the chief of the legal department of the Wehrmacht I presided over the discussion in the beginning of September 1944 in the building of the Reich Military Supreme Court in Berlin. In this meeting the question of the transfer of the NN prisoners was dealt with. The basis of this discussion was a Fuehrer order, which had ordered the return of the NN prisoners to the police.

“The representative of the RSHA insisted on the giving back of the prisoners who had already been sentenced, since the will of the Fuehrer referred also to those and by saying so he referred to a classification which Himmler had written about to Hitler.

“Although in view of this the discussion could have only the value of a technical discussion. I consider it absolutely possible that the referents of the Reich Ministry of Justice reserve to themselves the right of obtaining the opinion of their minister since they had not received instructions from him. More exact statements I can no longer make from memory. In what manner and by whom my office then received a statement by the Ministry of Justice, I do not know since I was not the Referent. With absolute certainty, however, I can say that only the transfer to the police for the purpose of commitment for labor for urgent armament work was considered for which the manpower of the prisoners was needed. My superior, Generaloberstabsrichter Dr. Lehmann, who himself had formerly been a member of the Ministry of Justice, always attached importance to relations without frictions with the administration of justice, and therefore, he had the questions which interested both offices discussed in common.”

Presiding Judge Brand: Will you tell me the author of that affidavit? I did not catch the name.

Dr. Kubuschok: Huelle. I submit this affidavit and ask to reserve the number, von Ammon Exhibit No. 2, for this affidavit.

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Dr. Kubuschok: From the documents submitted by the prosecution, it is apparent that keeping NN prisoners incommunicado was one of the main peculiarities of the NN procedure which was applied from the very beginning. In the opening statement by the prosecution, among others you too are being charged with having systematically carried out and approved these regulations about keeping the procedure secret. In this connection, Exhibit 319[480] is of interest. It contains a circular decree by the Reich Minister of Justice in which several directives are given as to how agencies of the Ministry of Justice are to handle NN cases in order not to endanger the cutting off of NN prisoners from the outside world. What can you say about the origin of this circular decree?

Defendant von Ammon: The circular decree was caused by reports of the Chief Public Prosecutors in Cologne and Essen, about the difficulties resulting from the strict regulations about keeping the NN prisoners incommunicado, especially when NN prisoners died, and they had made suggestions for overcoming these difficulties. The report of the Chief Public Prosecutor in Cologne is contained in Exhibit 314.[481] In this report the decisive questions are dealt with under paragraph [II and] III. The report of the Chief Public Prosecutor in Essen was not submitted in this trial here.

Presiding Judge Brand: The morning recess—15 minutes.

Dr. Kubuschok: Before the recess, you answered the question as to the origin of the circular decree which we discussed. Please continue.

Defendant von Ammon: The circular decree, Exhibit 319, which took issue with the questions raised in the reports from the senior public prosecutor at Cologne and Essen was, as Mr. Mettgenberg has already stated here, the joint work of both Departments III and IV of the Ministry of Justice. I participated in the work on that particular decree, insofar as the competence of my department was affected by drafting the provisions contained in it. Various questions that were settled in that circular decree did not affect the competence of Department IV at all. Thus, for example, the question of burials of NN prisoners who died a natural death while serving their sentences and the question of the possessions they left behind was a matter for Department V to deal with. To that extent only Department V was responsible for the provisions which had been worked out. Apart from my section, there were other sections, partly in Department IV and partly in other departments which were competent. The questions which emerged therefore had to be dealt with by these various sections cooperating.

Q. What are your comments about the contents of the circular decree in general?

A. By that circular decree the existing provisions concerning secrecy were not made more severe in any way. The stringent provisions concerning the seclusion of the NN prisoners from the outside world had applied since the NN decree as such had been issued. As far as we were concerned it was a shock from the very beginning that in the case of the death of an NN prisoner, the relatives could not be informed. That was true in the case of a natural death, as well as in the case of a death sentence being carried out. We, naturally, were aware of the severity of such a provision, but we did not see any possibility of avoiding it, but as far as that was possible within the scope of the severe provisions we wished to take into account the principles of humanity. We did want to make sure that persons who had been sentenced to death would have spiritual care. We did wish to afford them a possibility not only to leave a holographic will but also to make a real testament before a notary or judge. We also wished that NN prisoners who had died should have a proper funeral. That was the purpose of the provisions in the circular decree of 6 March 1943.

Q. Please comment on the more important details of that circular decree?

A. The provisions under paragraphs 1, 3, and 5 of the circular decree, I believe speak for themselves. Concerning the other provisions I would like to say this. Paragraph 4 said that farewell letters by NN prisoners were not to be sent out. That was not a new provision but that was the unavoidable consequence of the NN decree, since the general administration of justice had to deal with NN cases. As early as the first day when the NN provisions had come into force, the Department V, the administration of punishment, had issued a provision to the effect that NN prisoners were not allowed any correspondence. The farewell letters of prisoners who had been sentenced to death also came under that provision. Paragraph 4 of the circular decree furthermore reads that the farewell letters from NN prisoners were to be kept in custody for the time being by the prosecution. It was to be made sure that the farewell letters, when the NN provisions would be rescinded, that is to say, at the latest at the end of the war, would be passed on to the relatives. Paragraph 6 of the circular decree laid down that the relatives were not allowed to receive information about the death of NN prisoners. That was a repetition of the old provision which had existed since the NN decree as such had been issued. It was an unavoidable consequence of the NN decree as such. Paragraph 7 of the circular decree laid down that the dead bodies of NN prisoners who had been executed or who had died from other causes were to be turned over to the Gestapo for their funeral. That provision is not new and is not peculiar to the cases of NN prisoners. That is obvious from Document NG-257, Prosecution Exhibit 322. That document contains the reply from Thierack to the complaint by the chief of the Security Police, that this opinion had not been obtained before paragraph 7 of the circular decree was issued. Thierack’s reply points out that that provision did not provide new tasks for the Gestapo. That the Gestapo was to carry out the funeral, that in itself was not of a dishonorable nature, but funerals in cases where the relatives could not take care of them, that in Germany is one of the duties of the police. Whereas, under the general regulations in such cases the corpse is offered to an anatomical institute for research purposes, an exception was made in the case of NN prisoners, and the corpse was buried. As the provision shows, we, of course, ordered that every NN prisoner receive a grave of his own which was not identified by his name, but figures or something of that nature.

Finally, paragraph 8 of the circular decree laid down that the possessions which NN prisoners had left behind were not to be handed over to the relatives. That also was the necessary result of the provisions which dealt with the seclusion of the NN prisoners from the outside world. On the other hand, we ordered that the possessions which the NN prisoners had left behind were to be taken in custody by the NN prisons and once toward the end of the war, a general public prosecutor—concerning the watches and other articles left behind by NN prisoners, wanted to make his own regulations. Naturally, I repudiated that view.

Q. In its opening statement the prosecution said this: If the armed forces in the occupied territories arrested the people by mistake, who quite evidently had not been guilty of any form of resistance against national socialism, then those victims, for the sake of keeping the program secret, had to be treated in the same manner in which other persons were treated who succeeded in getting away with a prison sentence. Is that correct?

A. That assertion by the prosecution is not correct. First of all, I consider it out of the question that the general authorities of the administration of justice ever had persons handed over to them who quite evidently had not made themselves guilty of any resistance to the occupying powers. Persons who had been arrested were not moved into Germany immediately after their arrest, but to begin with investigations were carried out inside the occupied territories and in particular the defendant was interrogated. In the course of those investigations obvious errors were soon discovered, and in that case the person concerned was not moved to Germany but was set at liberty in the occupied territories. May I refer to the testimony by the witness Lehmann?[482] He testified that the agency of the armed forces in the occupied territories had issued provisions which were to make sure that as far as possible only such matters were handed over to the general administration of justice which were clear cases on account of the evidence that had been obtained. If it did happen after all that a person who was obviously innocent was taken into Germany—I cannot remember that such a case ever occurred—there was the possibility to transfer him to the occupied territories. In this respect, I refer to Documents NG-226, Prosecution Exhibit 313 and NG-205, Prosecution Exhibit 328.

Q. According to the indictment one of the purposes of the NN proceedings is supposed to make it impossible for the NN prisoners to have access to a defense counsel. What do you have to say about this?

A. First of all, the same is true here that was true of the limitation of evidence obtained abroad. Certain limitations of the defense which had been ordered for NN proceedings were not the purpose of NN proceedings, but a consequence which resulted of necessity from the particular manner of these proceedings and from the wartime conditions.

We must distinguish between two different limitations of defense. First of all, a limitation of choosing a counsel; and, secondly, limitation of having counsel appointed by the court.

Q. Please comment first about the limitation of the free choice of defense counsel.

A. In respect to the seclusion of the NN prisoners from the outside world, which had been ordered, the executive office of the Ministry of Justice, in carrying out the NN decree from the beginning believed that a limitation of the free choice of defense counsel was necessary, but they believed that the provisions in paragraph 3 of the circular decree of 6 February 1942 would be sufficient.

Q. That circular decree of the 6 February 1942 is contained in Exhibit 308.[483] I quote the provision concerned: “The choice of a defense counsel requires the consent of the presiding judge who can only give such consent with the agreement of the public prosecutor. The consent may be withdrawn.” Please continue.

A. In the subsequent time, however, we found those provisions not to be sufficient, in order to guarantee the secrecy of the proceedings which after all had been ordered. As the decisive document on the subject is available to the Tribunal I can be brief. I am referring to Exhibit 314.[484] The document contains a report by the senior public prosecutor at Cologne, dated 15 October 1942. In that report he states at length that, so as not to endanger the secrecy of the NN proceedings, he had doubts about consenting to allowing a defense counsel to be chosen freely.

Similar reports, as far as I recollect, were received from other senior public prosecutors as well. The document also shows that at the Reich Ministry of Justice we only, after careful examination, decided on further limiting the free selection of defense counsel. From marginal notes which, however, can only be seen on the photostat of the document and which have not been entered in the document books, the following is to be seen. The question of the free choice of a defense counsel, I first on 22 September 1942 reported on to my subdepartment chief. In accordance with the result of that report of 1 December 1942, I then discussed the matter with the expert of the OKW over the telephone. He first of all reserved his opinion, but on 12 December 1942, he told me that the OKW took the view that the admission of defense counsel selected by the defendant in NN matters was not desirable.

We then contacted Department III of the Ministry of Justice, the department of penal legislation, and when that department took the same view as the OKW, Departments III and IV of the Ministry of Justice issued the joint regulation of 21 December 1942, which is contained in Document NG-255, Prosecution Exhibit 314.

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Q. What about the limitations concerning the necessity of defense?

A. Originally concerning the necessary defense, a provision in paragraph 7 of the executive order of 26 February 1942 applied, according to which the appointment of a defense counsel required the consent of the public prosecutor. May I point out that the following wording of the executive order of 6 February 1942 has not been submitted here as a document. Exhibit 306[485] merely reproduced the draft of that executive order. The provision concerning the necessary defense was issued immediately before the executive decree was issued, and it is therefore not contained in the draft which we have before us here. In the subsequent period opinions were voiced according to which further limitation of defense was considered necessary. The prosecution has submitted Exhibit 317.[486] Although that document unfortunately is very incomplete, it does show that at the Special Court at Essen there had been difficulties in appointing defense counsel as frequently several defendants were dealt with in one proceeding and, on account of the collision of interests, a defense counsel had to be appointed for each defendant.

It is obvious that, in view of having to maintain the work of the court in general, the simultaneous employment of a large number of defense counsel was not desirable. Insofar, the desire of limiting the defense by appointed defense counsel was understandable.

If the report from the presiding judge of the Special Court at Essen points out that the interests of the defendants did not justify so much strain placed on manpower and material, I would point out in this connection that not one of the persons who dealt with the subject at the Reich Ministry of Justice shared that view.

The matter itself was then dealt with at Department III and not in our Department IV, because it concerned a proposed change of a legal regulation. The Referent of Department III then informed me of these events and made a suggestion of his own which unfortunately is not contained in this document.

I then reported the matter to Mr. Mettgenberg and together with him to Mr. Vollmer. The result of that report can be seen from the note made on 1 February 1943 which is initialed by Vollmer and which also bears Mettgenberg’s and my initials.[487] That note provides for certain limitations of defense counsel appointed by the courts, but the document does not show the wording of the decree as it was actually issued later on.

What I remember is that after that decree had been issued, the limitation of defense counsel, appointed by the courts, applied neither to proceedings before the People’s Court nor did it apply to those proceedings where the death sentence could be expected. How insignificant the practical effect of this limitation of the appointment of defense counsels by the courts was is revealed by the position which defense counsel hold under German code of procedure, a position which has been discussed here repeatedly. For the rest, according to my observations, the Special Courts in practice almost always appointed defense counsel.

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Q. Please state some details about the practice followed by the courts.

A. In the final result, and that is still my conviction today, the jurisdiction of the general courts in NN cases was absolutely adequate. This applies to the matter seen as a whole. It applies to the jurisdiction of the People’s Court and especially to the jurisdiction of the Special Courts. In the case of the Special Courts you will see that few death sentences were pronounced whereas the People’s Court in a large percentage of cases pronounced death sentences. However, the percentage of death sentences is not as high as I assumed in my affidavit of 17 December 1946. That is Exhibit 337.[488] In this affidavit I stated—purely off hand, I would like to say—that the majority, that is, more than fifty percent of those indicted before the People’s Court were sentenced to death. I made that statement at the time to the best of my knowledge. However, I did not have any documents of any kind at my disposal, and I had to rely on my memory alone. Today, after I take into consideration the statistical material which the prosecution has submitted, I would assume that about fifty percent of the NN cases sentenced by the People’s Court were sentenced to death. The death sentences which the People’s Court passed were, I think, justified; and I can even say from an international point of view, the death sentence was appropriate. They were cases of espionage, guerilla activities, serious cases of aiding and abetting the enemy, as well as the support of enemy parachutists, etc. About the offenses which were the basis for sentences for the People’s Court, the witness Walter Roemer[489] also testified here in this Court. I refer to the testimony of 24 April by this witness. I can also refer to what the defendant Lautz[490] said here on the witness stand. After examining the statistical material, I have to correct another sentence from my affidavit of 17 December 1946. In that case I stated that aiding and abetting the enemy always practically resulted in a death sentence before the People’s Court. After careful consideration, however, I have no reason for expressing the opinion that the number of death sentences was larger in the case of aiding and abetting the enemy than in the case of espionage and guerilla activity. Here, too, I assume that the death sentence amounted to fifty percent.

Characteristic sentences in these courts were those pronounced for illegal possession of arms. I have already mentioned that in the decree issued by the military commander in normal cases the death sentence was provided and only in lighter cases a prison sentence. In fact, only very few death sentences were pronounced because of the illegal possession of arms. These cases were special cases, as for instance possession of an entire ammunition depot. In an overwhelming majority of cases—and I want to state that illegal possession of arms as far as the number of cases played an important role—only prison sentences were pronounced for the illegal possession of arms. The action by the president of the district court of appeals of Katowice who in the discussion at Oppeln instigated a more severe punishment because of possession of arms was at that time generally rejected. In the few cases in which because of illegal possession of arms, the death sentence was pronounced, almost without exception the execution of the death sentence was avoided by clemency pleas.

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Dr. Kubuschok: I now come to the clemency proceedings of the Reich Ministry of Justice in death sentences pronounced for NN cases. Please comment on this.

Defendant von Ammon: The clemency procedure in NN cases was in principle the same as in the case of other death sentences. However, there were some peculiarities. One of these was that the Gauleiter did not participate in the clemency proceedings, because the crime had been committed in occupied territory and not within the sphere of a Gauleiter.

A further peculiarity consisted in the fact that Hitler, as I already mentioned before, reserved to himself the right to make the clemency decision in death sentences pronounced against women from the Occupied Western Territories.

Finally, I should like to point out that in NN cases, because of the lack of the possibility of a deterrent, there was no so-called “lightning” [Blitz] executions. The practice in regard to clemency questions followed by Thierack was, as has been discussed here frequently, severe. It was not easy for a Referent to succeed in getting clemency granted by him. Nevertheless, I succeeded in doing so in a number of cases.

However, when I made the attempt to bring about the granting of a clemency plea in several cases, I became subject to the scorn of Thierack who made derogatory remarks about the obstinacy which I applied.

Q. The NN regulations in the execution of which you had to cooperate—did you have any misgivings about them?

A. In the application of the NN regulations I was, of course, conscious of their severity. I considered especially severe the strict regulations about the seclusion of NN prisoners from the outside world which made any correspondence of the NN prisoners with their relatives impossible. Furthermore, I considered very severe the regulations which provided that on principle also those NN prisoners, to whom no offense or at least no serious offense could be proved, should remain in custody. That I considered very severe. But I kept to the statements that were made when these regulations were issued, that these regulations were necessary in order to suppress the increasing resistance movement in the occupied territories.

The regulations issued seemed to me to be still better than—and this would have been possible in the case of offenses against the occupying forces in the occupied territories—indiscriminate death sentences.

As the witness Lehmann testified here, the seclusion of NN prisoners from the outside world was, so to say, the price to be paid for the possibility of greater leniency in sentencing. Under this point of view it seemed to me to be acceptable. That very strong resistance movements existed in the occupied territories, which in a certain sense could be considered as a second illegal army and influence the military situation considerably, is an historical fact.

Q. Did you have an opportunity to give up your NN section and to take over another section?

A. As I already stated in the affidavit of 17 December 1946 which I quoted repeatedly, I did not like dealing with NN cases. Whether a person likes his special professional field is, on the whole, dependent on his inner attitude. In any case, I can say about myself that the activity in a section in which of necessity, severity, and above all, death sentences appeared, was not to my liking, especially since people were concerned who as such were not criminals and who could not be denied a human understanding.

For that reason, in the summer of 1944, I made the attempt to swap my section with another section in the personnel division of the Ministry of Justice. At that time it was intended to promote Ministerial Counselor Wittland who was a member of the personnel division. In that case he would have left the Ministry of Justice. The section comprised organization of the courts and civil service law.

At that time I requested to receive this section when Wittland would leave. From August 1944 until January 1945, I used part of my time in order to get acquainted with the personnel department. However, the Party Chancellery then objected to Wittland’s promotion, and, therefore, it did not take place; and I had to remain in my former section.

Q. Did you regard the NN regulations as being within the framework of international law?

A. In answering that question, I have to make a clear distinction. The NN decree was signed by Keitel on order of Hitler. The executive regulations for the NN decree were issued, first of all, by the OKW and for the sphere of the Ministry of Justice, by the Ministry of Justice. The basic executive regulations of the Ministry of Justice in regard to the NN decree were not worked out by me as Referent nor in my department at all. Apart from the leadership of the Ministry, the penal legislation department, Department III, was competent for this. Department IV and I as Referent were in a certain sense merely executive organs in the application of the existing legal regulations.

The examination as to whether the NN decree and the basic executive regulations were in accordance with international law was therefore up to the people who were competent for the issuance of the decree and working on the drafting of the regulations. But the executive organ neither has the duty nor the right for review as has been discussed here frequently.

Of course, as a jurist, I thought about these questions and can say that crimes of that nature as were prosecuted as NN cases can be punished with the most severe penalty according to international law, and that penalties of that kind are also usually applied by all states as is obvious, I believe; that courts martial which otherwise would have tried such cases in the occupied territory, were replaced by civil courts in the home country, is also not contrary to international law.

And now, as to the limiting regulations of the NN procedure, the essential factor was that a just decision by the court was not prevented by them. In the statements I have made so far, I have pointed out that the limiting regulations of the NN procedure did not exert a negative influence for the defendant in the proceeding.

Keeping the prisoners incommunicado had been ordered by the Fuehrer order and by the military authorities. The question of military necessity was not subject to review by us. International law puts these military interests above the personal interests of the inhabitants of the occupied territories.

From all these considerations I did not see that the NN regulations were contrary to international law.

Q. Since the prosecution has submitted documents about the conditions in concentration camps against all defendants who continued working in the Ministry of Justice after 1942, I have to ask you too what you knew about occurrences in concentration camps.

A. My various official positions could not afford me any knowledge about such events. Even at the time when members of the SS did not yet have their independent jurisdiction, when reports about these excesses in concentration camps could thus still reach the Ministry of Justice, my section was not affected by this, and this was entirely regardless of the fact that these reports only provided knowledge of a very small section of actual conditions.

In conversations, too, within the Ministry I heard very little about these matters, probably because they were treated as secret, and I was not in a special confidential relationship with the Referenten who were working on these matters. For those reasons, for example, the occurrences in the Kemna and Hohenstein camps being known to me only here during this trial. I myself never visited a concentration camp. As far as private knowledge is concerned, I considered being kept in the concentration camp, of course, as something unpleasant, especially since the camps were cut off from the outside world, the uncertainty of the period of detention, the lack of orderly legal recourse. That abuses might have occurred for those reasons I assumed without knowing anything definite about it. I did not have acquaintances who had been in a concentration camp and from whom I might have found out some definite details. Although I had quite good relationships with Protestant church circles, for example, I did not even know, did not gain any definite knowledge about Niemoeller’s[491] being kept in a concentration camp. About systematic killings and mass exterminations I heard only after the surrender.

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CROSS-EXAMINATION

Mr. Wooleyhan: Mr. von Ammon, last Friday you stated with regard to your relationship with the Nazi Party that you were a victim of Nazi propaganda and that you were not an enthusiastic Party member for ideological reasons. Weren’t you omitting some very important events in your political career?

Defendant von Ammon: First of all, I believe that I did not express myself in that cross manner, that I described myself as a victim of Nazi propaganda. I only stated that under the influence of Nazi propaganda I saw many a thing in a more favorable light than it actually was, and that I was not an enthusiastic National Socialist, because from my ideological point of view, much kept me apart from the Party. I am not aware of the fact that I left out anything important when making such a statement.

Q. Then you don’t consider it important, noteworthy enough to remember, that on 9 November 1923 you actively participated with Hitler and others in the famous Munich Putsch; why don’t you remember that, Dr. von Ammon?

A. Of course, I remember that, but it is not correct that I left these events out, rather I stated that as a high school student as well as a college student I belonged to patriotic youth organizations and to Nationalists’ associations. Among these Nationalists’ associations also belonged the Bund Oberland, which actually, as you indicated, participated in the so-called Hitler Putsch of 9 November 1923.

Q. As a result of that Putsch in which you participated, wasn’t Hitler tried and imprisoned for high treason, for trying to overthrow the German Republic by force?

A. Yes.

Q. Were you tried, Dr. von Ammon?

A. No.

Q. Why not?

A. Because my participation in the Hitler Putsch was so insignificant. By the way, my participation wasn’t at that time even found out by the authorities, as was the case with the great majority of those who participated.

Q. If your participation and membership in the Nazi activity at that time had become known, you would have lost your job in the government, wouldn’t you, or did you have a job at that time?

A. No, certainly not. First, I was still a college student at that time, as I stated before, and also I do not believe I would have lost my job. Many participants that is, many civil servants who participated at least, if they took part in a subordinate role such as I were not in any way affected in their positions. Moreover, I would like to state at that time it was not a Nazi activity within the meaning of that phrase, the Bund Oberland was not a National Socialist organization. It was a patriotic, self-protective organization, which in the years after the First World War in the fight against the attempted Communist uprising and in the fight against the Polish uprising in Upper Silesia in 1921, without a doubt had gained its merits. To be sure, I participated in the Hitler Putsch at that time, but at that time the fronts were not so well delineated as yet that the actual Putsch could be described as unequivocal Nazi action.

Q. If that is so, Dr. von Ammon, apparently officials in the Ministry of Justice were not aware of it really, because as I read your official personnel files here which came from the Ministry, and which I am sure you have seen many times with respect to your membership in the early political associations, you are credited with having participated, and I am quoting, “in the Nazi uprising in Munich on 9 November 1923.” Now, in later years, Dr. von Ammon, did the Nazi Party ever give you any tangible momento of that famous event of 1923?

A. First of all, in order to correct you, I would like to say that I never saw my personnel files, as you assume, Mr. Prosecutor. I do not know at all what is written in these personnel files. As far as the question is concerned whether I have a tangible momento of my participation in the Hitler Putsch, I have to answer that this momento was limited to a pass which permitted me to participate in the festivities which took place yearly on 8 and 9 November in Munich—

Q. Ah—

A. And I may also add that I only seldom made use of this pass.

Q. What number was that card or pass?

A. Unfortunately I don’t recall.

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Q. Now, Dr. von Ammon, there is just one thing further in this custody-of-the-Gestapo business that confuses me. After the arrangement had been made late in 1944 to transfer these Nacht und Nebel prisoners to the Gestapo for protective custody, there has been a lot of talk here about the fact that the court authorities finally handed these people over to the Gestapo, at least in some measure.

What actually was involved in this handing over of Nacht und Nebel prisoners to the Gestapo as far as the courts and the justice administration were concerned? By handing over, what actually did happen, so far as the courts and the Ministry are concerned? Did you sign a release? Did you actually put them in trucks and take them to the other side of town, or what happened?

A. Unfortunately I cannot give you that information. You have to turn to the Referent of the department for penal administration, to the witness Hecker,[492] who carried out those transfers.

Q. Dr. von Ammon, with respect to the winding up of the Nacht und Nebel affairs in the Ministry in the handing over of these people to the Gestapo, the witness Hecker in Exhibit 416[493] says that you attended a number of the conferences during which this method was ironed out. It’s surprising that you don’t know how it happened. How did these people get off your hands? Was it a paper transfer, or what was it?

A. No, two ordinances of Departments IV and V were issued at that time, and they were issued to the chief general prosecutors concerned, to the effect that they were to transfer the prisoners to the competent authority, the Gestapo.

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Q. You mentioned that the courts in enforcing the Nacht und Nebel program by trying Nacht und Nebel defendants, particularly the Special Courts, had been moderate in their sentences. Now, in view of that, I’m wondering if that is true for the reason that after the Nacht und Nebel program was terminated by these arrangements in 1944, you wrote a letter to the Attorney General in Munich and you told the Attorney General in Munich that in view of the new arrangement concerning the treatment of Nacht und Nebel prisoners in the future, namely their transfer to the Gestapo, “There no longer will be executions of Nacht und Nebel prisoners in any large numbers.”[494] Now, tell me, Dr. von Ammon, if these courts were so lenient and gentle with these Nacht und Nebel defendants, why did you see fit to mention that death sentences weren’t going to be in any large numbers in the future? That’s the same as saying they were large in the past, isn’t it?

A. I stressed above all that the sentences passed by the Special Courts were moderate. It is true that the Special Courts only passed a few death sentences. I did say, however, on the contrary that the People’s Court did pass a large number of death sentences and even mentioned that 50 percent of the persons indicted by the People’s Court were sentenced to death. Those sentences which were intended to be executed in Munich were sentences which had been passed by the People’s Court.

Q. In any event, whether it was the People’s Court or the Special Court, after that Nacht und Nebel program was dissolved, you were of the opinion then that large numbers of death sentences would not be passed in the future?

A. No, actually I was of the opinion that no further death sentences would be passed. The only thing that could still happen was that death sentences would be executed that had been passed prior to September 1944.

Q. And from your letter, it appears that up until that time, they had been large in number, does it not?

A. Well, that is a relative concept—that word “large.”

Q. Oh, of course.

A. I believe that in view of the long period of time—from 1942 until the end of 1944—the number of death sentences which were actually passed is relatively small.

Q. May it please the court, the prosecution offers as Document NG-1886, Prosecution Exhibit 546, the letter written by defendant von Ammon which we have just been discussing.

Presiding Judge Brand: The exhibit is received.

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EXAMINATION BY THE TRIBUNAL

Presiding Judge Brand: I understood you to say that you did not know of any innocent person who was brought to Germany under Nacht und Nebel procedure.

Defendant von Ammon: I was referring to the assertion of the prosecution. The prosecution had maintained that evidently innocent persons had been treated in exactly the same manner as guilty NN prisoners, and it was in reply to that, that I stated that evidently innocent persons were never brought to Germany at all; that is to say, as far as my knowledge goes. If, however, it did happen that a person was evidently innocent and had been brought to Germany, then there was a possibility of releasing him back to the occupied territories.

Q. I still understand you to say that you knew of no innocent person brought under Nacht und Nebel procedure.

A. It may have happened, naturally, but—

Q. I am referring to what you said. Did I correctly understand you to make the statement that you knew of no innocent person who was brought to Germany under Nacht und Nebel procedure?

A. I would like to restrict that to evidently innocent persons, as opposed to a person whose innocence only later was made clear. That naturally happened, too, and such cases did occur and such cases were brought to Germany.

Q. That is a very material modification of your former statement, because you also said that considerable numbers were acquitted. I assume that you do not consider that persons who were acquitted were necessarily guilty; you presume them innocent if they were acquitted, don’t you?

A. Or that the evidence was not sufficient to prove them guilty.

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REDIRECT EXAMINATION

Dr. Kubuschok: In reply to a question by the prosecutor, you spoke of your membership with the Bund Oberland, and you stated that the Bund Oberland on 8 November [9 November] 1923 took part in the so-called Hitler Putsch. You stated that the Bund Oberland was an association—a so-called Nationalistic association of which many members were college students. Did that organization Oberland at a later time ever become incorporated in the NSDAP? Did that nationalistic organization ever become a National Socialist unit by way of incorporation?

Defendant von Ammon: No. After the Bund Oberland had participated in the Hitler Putsch on 9 November, it was dissolved. I believe that at some time later on it came back to life, but I personally no longer took any part in it. As far as I know, it never in any way was incorporated in the National Socialist movement.

Q. How far did you participate in the events of the night of 9 November 1923?

A. The company of the Bund Oberland to which I had been assigned was alerted, on the evening of 8 November 1923. I was not alerted because my name was not on the alert list. I had joined the Bund Oberland only a little before that time. Therefore, I was only told about it on the morning of the 9th. I then joined my company which was stationed in an inn by the Isar, at Bogenhausen, in Munich. There I spent a few hours with the company; then we marched off to the East. There we disbanded and returned to Munich one by one. That was my participation in the event of 9 November.

Presiding Judge Brand: May I ask you—were you armed? Were you armed at that time?

Defendant von Ammon: Yes, I had a gun.

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