Q. What about the limitations concerning the necessity of defense?
A. Originally concerning the necessary defense, a provision in paragraph 7 of the executive order of 26 February 1942 applied, according to which the appointment of a defense counsel required the consent of the public prosecutor. May I point out that the following wording of the executive order of 6 February 1942 has not been submitted here as a document. Exhibit 306[485] merely reproduced the draft of that executive order. The provision concerning the necessary defense was issued immediately before the executive decree was issued, and it is therefore not contained in the draft which we have before us here. In the subsequent period opinions were voiced according to which further limitation of defense was considered necessary. The prosecution has submitted Exhibit 317.[486] Although that document unfortunately is very incomplete, it does show that at the Special Court at Essen there had been difficulties in appointing defense counsel as frequently several defendants were dealt with in one proceeding and, on account of the collision of interests, a defense counsel had to be appointed for each defendant.
It is obvious that, in view of having to maintain the work of the court in general, the simultaneous employment of a large number of defense counsel was not desirable. Insofar, the desire of limiting the defense by appointed defense counsel was understandable.
If the report from the presiding judge of the Special Court at Essen points out that the interests of the defendants did not justify so much strain placed on manpower and material, I would point out in this connection that not one of the persons who dealt with the subject at the Reich Ministry of Justice shared that view.
The matter itself was then dealt with at Department III and not in our Department IV, because it concerned a proposed change of a legal regulation. The Referent of Department III then informed me of these events and made a suggestion of his own which unfortunately is not contained in this document.
I then reported the matter to Mr. Mettgenberg and together with him to Mr. Vollmer. The result of that report can be seen from the note made on 1 February 1943 which is initialed by Vollmer and which also bears Mettgenberg’s and my initials.[487] That note provides for certain limitations of defense counsel appointed by the courts, but the document does not show the wording of the decree as it was actually issued later on.
What I remember is that after that decree had been issued, the limitation of defense counsel, appointed by the courts, applied neither to proceedings before the People’s Court nor did it apply to those proceedings where the death sentence could be expected. How insignificant the practical effect of this limitation of the appointment of defense counsels by the courts was is revealed by the position which defense counsel hold under German code of procedure, a position which has been discussed here repeatedly. For the rest, according to my observations, the Special Courts in practice almost always appointed defense counsel.
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Q. Please state some details about the practice followed by the courts.
A. In the final result, and that is still my conviction today, the jurisdiction of the general courts in NN cases was absolutely adequate. This applies to the matter seen as a whole. It applies to the jurisdiction of the People’s Court and especially to the jurisdiction of the Special Courts. In the case of the Special Courts you will see that few death sentences were pronounced whereas the People’s Court in a large percentage of cases pronounced death sentences. However, the percentage of death sentences is not as high as I assumed in my affidavit of 17 December 1946. That is Exhibit 337.[488] In this affidavit I stated—purely off hand, I would like to say—that the majority, that is, more than fifty percent of those indicted before the People’s Court were sentenced to death. I made that statement at the time to the best of my knowledge. However, I did not have any documents of any kind at my disposal, and I had to rely on my memory alone. Today, after I take into consideration the statistical material which the prosecution has submitted, I would assume that about fifty percent of the NN cases sentenced by the People’s Court were sentenced to death. The death sentences which the People’s Court passed were, I think, justified; and I can even say from an international point of view, the death sentence was appropriate. They were cases of espionage, guerilla activities, serious cases of aiding and abetting the enemy, as well as the support of enemy parachutists, etc. About the offenses which were the basis for sentences for the People’s Court, the witness Walter Roemer[489] also testified here in this Court. I refer to the testimony of 24 April by this witness. I can also refer to what the defendant Lautz[490] said here on the witness stand. After examining the statistical material, I have to correct another sentence from my affidavit of 17 December 1946. In that case I stated that aiding and abetting the enemy always practically resulted in a death sentence before the People’s Court. After careful consideration, however, I have no reason for expressing the opinion that the number of death sentences was larger in the case of aiding and abetting the enemy than in the case of espionage and guerilla activity. Here, too, I assume that the death sentence amounted to fifty percent.