Witness, what can you say about this regulation?
A. Dr. Schlegelberger, when he was examined, commented extensively on these regulations. I only have to add the following: The procedure described was, as Dr. Schlegelberger stated, introduced in order to prevent NN prisoners from being transferred to the police. For the court itself, in view of its prestige, it probably was not very pleasant. The authors of that regulation realized that too. As I said already in my affidavit of 17 December 1946, that is Exhibit 337[476], even Freisler said in this meeting of 6 February 1942, that with this regulation one had reached the utmost limit of what one could expect of the court. The authors of this regulation, however, believed that they had to put up with that regulation in the interest of the NN prisoners.
Q. The regulation of paragraph 6 of the executive orders which we just discussed—was it ever applied in practice?
A. I don’t believe so. The regulation was in effect only for a brief period. Thierack, in October 1942 soon after he became Minister, rescinded it. During the time that this regulation was in effect, as far as I remember, only very few NN cases were tried. These were clear cases in which the court had no misgivings against agreeing with the plea of the prosecutor. If that regulation would have been applied, the Ministry certainly would have been informed about it, and I certainly would still remember it.
Q. On the changes which Thierack ordered in October 1942, Dr. Mettgenberg has commented.[477] Did you have misgivings against these changes, especially also against the transfer of NN prisoners to the police?
A. The changes which Thierack made also had, without doubt, a favorable side. The unpleasant regulation of paragraph 6 of the executive order of 6 February 1942 was removed. Even Freisler, as I mentioned before, stated about it that with this regulation the outside limit had been reached of what could be expected of the courts. Now, this bad condition was removed, that the justice authorities of the administration had to detain persons in whose cases the reason for detention had to be maintained by the procedure discussed by Dr. Schlegelberger. On the other hand, the transfer of the NN prisoners to the Gestapo was without doubt unpleasant. After the competency of the general administration of justice for the detention of NN prisoners who were acquitted or whose time of arrest had been removed, it again was returned to the armed forces. According to the provision of the NN decree, however, the armed forces, as a rule at least, were not allowed to return these NN prisoners to the occupied territories. Neither, for the reason of keeping this matter secret, could they be set free in Germany. The only way out that Thierack saw was their detention by the Gestapo and the OKW who in the last instance had to decide about this affair agreed to the suggestion by Thierack. If now I am asked if, in regard to the treatment of the prisoners by the police, I had misgivings, I can answer that in the following way: The prisoners were handed over to the police with the express provision that the detention was carried out only for reason of secrecy and in the interest of keeping the whole affair secret. Therefore, the Gestapo merely had to detain them and not to carry out a penalty. As far as I know, in the negotiations between Crohne and the Gestapo, the representatives of the Gestapo stated that in the case of detention of NN prisoners, they would take into consideration the fact that against the prisoners personally there was no longer any charge. Later on, the Reich Leader SS also ordered expressly that the NN prisoners, who were handed over to the police, always should be put on the level of Protective Custody I which was the most lenient level.
Q. I refer to Exhibit 328[478] in regard to the last statements made by the witness.
Witness, as Mettgenberg testified in September 1944, the general administration of justice was again deprived of the competency for NN cases. It was ordered that NN prisoners generally should be handed back to police. What can you say about this?
A. I can confirm the statements made by Dr. Mettgenberg to their fullest extent and only have to make a few supplementary remarks. As Mettgenberg already testified, in the discussions at the OKW, which took place in the beginning of September 1944, the witness Hecker and I represented the Ministry of Justice. Since the matter could not be reported to Minister Thierack in advance, my department chief, Vollmer, had given me the instruction to reserve the right for the Minister to state his opinion. I acted accordingly during the negotiations. The representatives of the OKW then also agreed that the OKW would forward a draft of the intended order of the OKW to the Ministry of Justice and that the Ministry of Justice could then state its opinion on the draft, in writing.
In place of that the OKW then sent us an already filed decree which ordered the discontinuance of the NN procedures and the transfer of NN prisoners to the police. When I reported this to Mettgenberg and together with him to Vollmer, he was very much displeased about the manner of handling used by the armed forces. Vollmer said the OKW had byplayed us in that manner, and he instructed me to talk to the representative of the OKW by telephone and protest against this manner of conducting this business. He said the decisive thing, however, was that the regulation made by the OKW had to be accepted according to the division of business, as the OKW was competent for NN cases.