Q. Witness, we were discussing the guidance of the administration of criminal justice. Please continue with your explanation.
A. Before the recess I had referred to a decree by Guertner which required a constant connection with the courts in order to avoid a discrepancy between the plea of the prosecution and the final verdict. May I continue on this point?
I should like to assume that this decree or this order finds its definite reason in the fact that at that time a large number of new laws had been promulgated for which precedence in sentences did not exist and could not exist. Only gradually it was possible, with regard to these laws, to form a firm foundation based upon sentences and opinions of the supreme judicial authority. Frequently, therefore, surprises occurred if the prosecution in applying the law had a definitely different position from the opinion of the Tribunal. The purpose of that decree was to avoid this ambiguity as far as possible, and to reduce these differences to the least possible measure, also concerning the extent of punishment, which depended on the findings of the court. That quite apparently, as a matter of course, could only be achieved by a conference before the trial. The reports submitted by the prosecution, by the president of the Kammergericht on 3 January 1942, and from the same year by the president of the district court of appeals at Hamm, revealed that some misuse had taken place. It is stated there that the prosecutor after the presentation of evidence—that is to say, during the proceedings—had pointed out to the court what sentence with the approval of the Ministry he would demand, and in so doing created the opinion in the court that he expected that sentence and that penalty.
From this report can be seen that the presidents of the district courts of appeal quite rightly considered this behavior a misuse. The report by the president of the Kammergericht I had not seen until now. I do not know what steps were taken after that report was received by Freisler. Maybe this is a case again, one of these cases, where important matters had been neglected by him.
The report from the president of the district court of appeal at Hamm I remember very clearly. I had made up my mind to put this matter on the agenda of the next meeting of the presidents of the district courts of appeal. These meetings had the express purpose to discuss such questions which had been raised in the reports. Owing to the fact that I left my office soon thereafter, there was no longer any opportunity for me to carry out these intentions.
Q. The two reports you mentioned were submitted by the prosecution as Document NG-445, Prosecution Exhibit 73 and Document NG-395, Prosecution Exhibit 74 with the Documents NG-505 and 508, Exhibits 71 and 72.[257] The prosecution also charges you with having influenced the jurisdiction of the judges. I ask you to state your position with regard to these documents.
A. In the course of the examination today I was compelled on various occasions to explain to what degree the Party intended and tried to wrest various fields from the administration of justice and turn these competencies over to the police. In July 1941 that question was especially acute because there was an attempt to take away from the administration the prosecution of Jews and Poles. The opposition based its arguments on sentences which revealed a certain ignorance on the part of the judges of conditions of actual life. Under any form of government one has heard complaints about the fact that the judges were far removed from the facts and experiences of daily life. In the old Reichstag there was hardly any debate on matters of justice without these complaints, and such complaints naturally coming up during the war and in the course of many events the complete changes of all conditions of life and national economy found plenty of nourishment. It was the duty of the central agency to acquaint the judges with such general points of view and to demonstrate to them what the influence of temporary conditions and recent conditions would have to be upon the policy of criminal law. Apart from that, one had to be vigilant against that danger which I have described, namely, that certain fields of the administration of justice could be wrested from them.
At that time sex crimes of Poles were very frequent. The reason for that could possibly have been that these laborers who had been brought into Germany, in many cases, came into a living community with the families of the employers, that the husbands were usually at the front, and that the Poles themselves, that is, the greater part of the Poles themselves were in Germany without their families. The ground for sex offenses, therefore, was conditioned by these elements, and some judges did not recognize that.
In the documents submitted by the prosecution one case is mentioned which was tried before the Penal Chamber Lueneburg. It is the case of a sex crime committed by a Polish agricultural laborer. That defendant was granted extenuating circumstances, because, and I quote, “He did not have the same restraint toward female co-workers as a German agricultural worker would.” That opinion apparently was untenable. The Reich Supreme Court sharply rejected it. It was also very dangerous at the same time, because if reasons of that kind had become known to Hitler there would have arisen a new grave danger to the entire administration of justice. Therefore, I saw cause to find a different job for this judge who apparently was not aware of prevailing conditions. Cases of this nature and many others which may not have been quite as wrong but could have made a certain impression gave cause and reason for a type of propaganda which promised a great deal of success and that made me write that letter of 24 July 1941 to the court authorities in the provinces where I pointed out that in the cases of definitely criminal elements a sexual crime as a rule should be considered according to the legal provisions and regulations as a crime to be punished with death. The actual documentary background for that letter is to be found in the document of the prosecution. Therefrom one can see in what cases the police may have corrected the sentences by the judges, and one cannot overlook the fact that such frequent interventions on the part of the police to improve on the sentences by the judges represented a signal for the much desired event of taking over the power to punish by the police, and the man in charge of the Ministry conscious of his duty had to take that into account.
Document NG-508, which my defense counsel has mentioned, is the reproduction of a passage from a Hitler speech concerning the administration of justice; it was a speech before the Reichstag; and that concerned in general the necessity of severe punishment in times of war; and according to my duty I brought this speech to the attention of the judges.