THE PRESIDENT: Colonel Smirnov.
MR. COUNSELLOR SMIRNOV: It appears to me, Mr. President, that that part of the document which refers to Major General Westhoff occupies merely one paragraph, namely, Paragraph 7, of the document in question. This part deals with the initial stage of the perpetration of the crime, namely, with the stage of the conception, the stage of the planning of the crime.
The document also speaks of other stages in the commission of this crime. Moreover, it is an official document, presented according to Article 21 of the Charter. It seems to me that I have thereby said all that is necessary, Mr. President.
THE PRESIDENT: Do you wish to say anything further, Dr. Nelte?
DR. NELTE: No, thank you. I merely ask the Court to decide; in that case I should have to request that General Westhoff be admitted as a witness to testify that the conclusion drawn in this report does not correspond with what he said.
DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen and for the Reich Cabinet): May I make a few legal remarks, a few generally legal remarks regarding Article 21 of the Charter?
In all criminal procedure of every country we find the primary principle of oral court proceedings. Only if this cannot be carried out are part of the proceedings, so to say, transferred outside the court. In most codes of criminal procedure of the various countries we have a provision similar to that of Article 21 of the Charter that previous decisions of a court should not be re-examined in new proceedings, but that such decisions should be binding.
In this Trial the Charter extends this provision further to cases which obviously, because of their scope, should not be further discussed here. Therefore the decision that government reports should be considered as evidence is clearly taken up in Paragraph 21. It is clear to every jurist that this provision in itself is to an extent a flaw in proceedings because through it certain rights are lost to the defendants. On the other hand one cannot, of course, ignore the argument that there is subject matter which, because of its extent, cannot be practically discussed in a trial in which the time is limited.
Paragraph 21 of the Charter therefore gave the Tribunal the possibility of accepting such reports as valid evidence. But this provision is not compulsory for the Tribunal. So far as I can see from the German text before me it is provided that the Tribunal should accept these reports, but it does not say that the Tribunal must do so. Therefore it is in every case left to the discretion of the Tribunal whether the nature of the report makes it advisable to accept such a report in evidence.
We now have here a rather striking case which, in my opinion, clearly shows that the Tribunal can make use of its discretion and reject this document. The Defense have taken the position that this subject of evidence could be taken care of by a witness. The examination of the witness would have provided the Defense with the right of cross-examination.