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]
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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?