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?