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.