DR. KOESSL: May it please the Tribunal. I ask to be permitted to make a correction. I have never heard that Doebig was dismissed. On the contrary he became the presiding judge of the Senate of the Supreme German Court, or the highest German Court.
MR KING: I think we can amend my question to include that he dismissed from the presidency of the court in Nurnberg, and transferred to the presidency of the Supreme Court. May I rephrase that question. Will it be your opinion that his transfer, or his removal from the presidency of the Nurnberg Court was the result of differences with Rothaug? Your answer is - -?
A Yes.
THE PRESIDENT: That was the Nurnberg Court of Appeals?
MR KING: Yes.
THE WITNESS: Yes.
BY MR KING:
Q I have one more question. You testified yesterday that Rothaug reviewed for the SD case which arose in the Nurnberg Special Court. From your conference with him do you know of any other special courts; do you know of cases from any other special courts which Rothaug reviewed, and on which you subsequently reported?
A Yes, in my field about which I had to report, there was also the District Court, the District Court of Bamberg, the neighboring court of the District Court of Bamberg, the special court for that District Court of Appeal, and according to the general consensus of opinion in Party circles it still, from a National Socialistic point of view, had a jurisdiction that was much too lenient, too weak, and not severe enough so far as their verdicts were concerned. About that fact Rothaug told me secretly, and I have also forwarded the opinion of Rothaug about the decisions of that court within the framework of my reports to the RSHA.
Q Besides the cases from Bamberg, were there cases from other courts of which you know?
AAbout other courts, I believe, outside of Bavaria, we spoke once, if I remember correctly. It may nave been the Special Court at Sarrbruecken. I don't think I am mistaken. The cause for these conferences came neither from Rothaug nor from myself; that is to say, not because we knew about any decisions of these courts on our part, but these conversations were started because of an assignment received from the RSHA. At that time my office received a large number of reports from the RSHA about the decisions of these, I believe, three Special Courts. The informative material consisted of SD reports of a moral nature and technical nature, which were supplemented, I believe, by excerpts from decisions of these Special Courts, by mentioning the facts in question and the decisions pronounced. It was quite a considerable amount of material.
With these files there was an accompanying letter to my office, by which the RSHA requested that the President of the Special Court, Dr. Rothaug, should be asked for an expert opinion about that material, to Rothaug so that he, after studying it, should give his opinion about the decisions against which protests were voiced and that he report his opinion to the RSHA. That was also done subsequently.
Q In your reports which you submitted to your superior here in Nurnberg, and which reports were eventually, so far as you know, forwarded to the RSHA headquarters in Berlin and possibly even to the SS headquarters--were these reports secret? Did your name, as reporter, appear on them?
A No. First, to answer the first part of the question, I have to say that principally all matters in the SD were secret.
As far as the second part of your question is concerned, no reporter in my office--and that was all throughout the Reich--was permitted to sign his name personally when he forwarded the reports un less there was a special order to sign by order of the superior.
Besides, there were never any names mentioned in any material that was sent up to higher offices. It was hinted whether the person in question was a judge or a layman, whether it was a judge of a penal court or a civil court. It was explained in some way who the man was from whom the report came, what his position was. But beyond that, I have no doubt that the RSHA, purely from both the form and the content of the report, in all cases, could gather whether the material--especially so far as jurisdiction was concerned, or Administration of Justice was concerned--came from Rothaug.
As far as the results of purely official conversations were concerned, it was also mentioned that it included the experiences, the opinion, and the statement of the presiding judge of the Nurnberg Special Court.
Apart from that, Rothaug often insisted that his expressions, his own expressions, were included in the report be the SD. I believe it is known to you that for certain facts, certain actions by a criminal, for certain formulate of law, Rothaug had his own expressions. And since a personal contact was taken up between the official at the RSHA, the man in charge of law and administration in that office, and Rothaug, in the course of time, there is no doubt that the reports from Rothaug at all times were recognized as coming from him.
MR. KING: The Prosecution has no more questions on direct examination to ask of this witness.
THE PRESIDENT: I should like to ask the witness one question. It appears that Doebig was transferred from the presidency of the Court of Appeals at Nurnberg to some position in the Supreme Court. I should like to know more definitely, if the witness can tell us, just what his position was with the Supreme Court.
THE WITNESS: Doebig, so far as I know, became president of a Senate at the Reich Supreme Court. I believe that he was supposed to be put in charge of the Zivil Senat, the Senat for Civil Cases.
THE PRESIDENT: Do any of defense counsel desire to cross-examine this witness?
CROSS-EXAMINATION BY DR. KOESSL (Counsel for the defendant Rothaug)
Q Witness, your position was that of chief of a department?
A No, in an Abschnitt. May I point out that there was no such expression as Abteilung: there were special departments, Referate.
Q So it was Referat III-A?
A Referat III-A.
Q Referat III-A was part of the Home forces?
A Yes.
Q Your work with Rothaug was based on general directives, on the basis of which the SD groups had to get in contact with the Special Courts; is that correct?
A The real cause for the contact with Rothaug as presiding judge of the Special Court was, as I explained yesterday, the desire of the Inspector of the Security Police and the SD in Munich to be informed about the decisions of the Special Courts, or to remain currently informed about their decisions, because the Inspector of the Security Police and the SD in Munich was, at the same time, supposed to send reports to the Reich Defense Commissar who, at that time, was in Munich, but whose field was all of Bavaria. A measure of that kind was of a local nature, at first only for Bavaria, an internal instruction, let us say, from the RSHA, because a contact of that kind did not exist at that time.
Q But it was a contact which was taken up all over Bavaria?
A Yes.
Q One moment.
A I did not explain that yesterday in sufficient detail. That wish, or that desire, was to be expressed by a letter of the Inspector in Munich to the President of the District Court of Appeals. In this letter which was to be written, ab the same time the man commissioned for that particular district--the areas in question were only Munich, Nurnberg, and Bayreuth--was to be nominated.
That was usually the Rechts-Referent, the man in charge of reporting on legal matters. At that time my office received a carbon copy of that letter from the Inspector. That, at the same time, according to the instructions attached, was the cause for us to immediately take up the conferences with Doebig. When we had this conference, however, we found out that the original letter had not been sent to the President of the District Court of Appeals. What internal reasons may have existed for that, I cannot say, I do not know.
Q The Inspector of the Security Police and of the SD in Munich acted, therefore, obviously upon instructions of the Reich Defense Commissar of Bavaria?
A I could not say that with certainty; I could not even assume it, because I do not know to what extent the Inspector in Munich was in connection with the Reich Defense Commissar.
Q The Inspector in Munich, however, as you said, had held the position of an official, reporting information to the Reich Defense Commissar?
A. Yes, through the channels of the Security Police and SD.
And in that field--
A. One moment. Seen from outside, however, it did not happen in the manner that the inspector went to the Reich Defense Commissar personally, but there were intermediaries between them in the person of the higher SS and the police leaders. That probably was the man who informed the Reich Defense Commissar.
Q. Did the SD have the form, the character, the rights and privileges of an official office, an official authority?
A. May I state first that the SD grew from the Information Service of the Party. That later, according to the explanations that we were given from the moment of the seizuer of power on, that it became a more official character. At any rate, there exists an instruction from the Reich Ministry of the Interior, that is essentially the administrative offices, were instructed, it was pointed out to them that the SD will also from then on work for the State, from which you can see how much of an official character it had. Above and beyond that, during the war years we were repeatedly told, and it was stressed to us, that the SD Main Office, that was Office III in the RSHA, really constituted a Ministry.
Q. Do you still know what the purpose of the visit of the SD leaders with Doebig and Bems was and what considerations, what principal considerations, were discussed on that occasion?
A. As I have already explained, subject at first on the occasion of that official contact, taking up of contact, was that from a authoritative source the reports should be received about pending criminal cases, and of course also about legal problems in connection therewith.
The SD through all its reports from the outside, received information about the consequences on moral of decisions of courts. It is clear to us today that the layman's point of view frequently deviates quite essentially from the facts established in court. And in order to provide a correction a possibility of correction for our reports it was necessary that we establish the official connection to the court authorities.
Q. Therefore it was intended that this contact should correct mistakes in the reports received from other sources, which mistakes were cased on reports from laymen and frequently caused misunderstandings of the facts?
A. That is essentially true.
Q. Now, you discussed at first the conferences. you came to Rothaug first on Saturday mornings in order to get information?
A. Yes.
Q. Did you stick to that in the course of the following period, or were there larger intervals between these meetings?
A. If I should indicate a period first --
Q. I asked only, was that regularly on Saturdays?
A. In the beginning, yes, the first half year.
Q. And later?
A. Later, either if an inquiry had been sent to us from some other source or when, on the basis of reports which we had received from other sources we had questions to put before him, or when Rothaug on his part had to report anything on the basis of his activity --- and I emphasized yesterday that he was very productive for us -that in the field of political law, not only in the field of general law, but beyond that and also in the field of civil law, he brought to as experiences and inspirations.
Q. If I understand you correctly, Rothaug dealt with matters of principle of a general nature, not, for instance, the treatment of individual cases, the manner in which individual cases were handled.
A. You have to distinguish here between the--you have to start here from the assignment which the SE had as information source for the whole country. As I have emphasized, yesterday, the purpose was to eliminate wrong developments first, to point them out. In case cf these developments in the wrong direction it could only be matters of principle in the beginning. According to the instructions we had received, it did not suffice to point out a principal wrong, that is to say, a gap in the law, but it was necessary that on the basis of concrete examples of definite individual examples, that gap be proven, and if possible, at the same time in this case, of coarse, by the expert, recommendations had to be made for modifications. And on the basis of this activity individual cases were the subject of discussions and conferences. Frequently, as far as I remember, it occurred that at times the individual case itself was discussed as, for instance, the case of Katzenberger and another case which I still remember.
Q. So it was a matter of justifying opinions if individual cases were mentioned?
A. Yes.
Q. It was not a matter of interfering into an individual case on the part of superior offices, an interference into a pending, into an actual proceeding?
A. Well, of course it was possible that the individual case itself, though the leadership office, became known to to the Ministry and caused individual measures.
I can give you an example. In the directives concerning files there is a provision according to which wills are to be attached to the files of the court. furthermore, there is s me directive of some sort according to which last letter of soldiers who have been killed could be considered, under certain circumstances, as having the force of a last will. That was particularly customary in the airforce, in the Luftwaffe, that in c se a flier died, these letters were considered, and if there were any provisions in these letters concerning the heritage and there was no other pro f of any will existing, they were considered to represent the will. That happened, for Instance, in one case. There was a s Idler by the name of Schneiderbanger. The woman, we had lost her husband in the first World War, and I believe already one son in this war, lost her last s n. It was in air Combat over London, I believe. She presented to the C art the letter in which e me provisions were included about his luggage, I believe. The Court considered that letter to represent his will, and asked for the original from the woman--asked that the original be put in cue files. Since for sentimental reasons she objected to that, she was threatened with a fine or a prison term. That affair raised a lot of discussion. Various offices of the Party intervened and it came before us. I reported that case. In the opinion of the RSHA it was not an case, a rare case, but it was a development which w aid have to be taken into account either by law or by directive fr m the Ministry. It was strange that in this case the reaction of the Ministry of Justice was not an instruction of a general n tare, but the directive through channels that the woman in this particular case should be permitted to keep the letter.
THE PRESIDENT: One moment, please. The witness answered, some little time ago, that these reports to the RSHA and the answers from them were for the purposes of justifying the opinions of the lower court. At that point, Dr. Koessl asked the question whether it was intended as an interference of those opinions. I couldn't observe that the witness answered that question, and I should like to know whether it was an interference and not merely an attempt to justify.
THE WITNESS: Inasmuch as we discussed these cases at our level, one could net speak of interference in the individual cases. How far the RSHA, through conferences with the various ministries -- in this case, the Ministry of Justice -- could interfere, I am not in a position to estimate.
THE PRESIDENT: I am not so much concerned as to how much they could do, but I am very much interested in knowing what they did do, if anything, in the matter of interference.
THE WITNESS: Well, of course we reported with the intention that a wrong development in individual cases should find correction occasionally, but I am not so familiar with that in the legal field. e received instructions from superior offices that in this one or the other case a measure from the Ministry or the respective superior office was caused by the report.
BY DR. KOESSL:
Q Wasn't it so that at that time the fact had become apparent and noticed that offices which were outside the administration of justice were frequently concerned with matters of justice; for instance, offices of the NSDAP, Kreisleiters, and so on?
A Yes.
Q Were the conferences also concerned with the attempt of preventing such interference?
A I can hardly remember that when speaking to Rothaug that problem was ever discussed to any extent. Occasionally, when mention was made from the outside, that question was touched too; but if I remember correctly, Rothaug was of the position that the Party, for instance, was definitely justified to make its intentions known to the court, he said, in the same manner which for instance the administration of mail service -- in case of a fraud on the part of one of the officials -gives its expert opinion about the case; then, in the same manner, that right should be conceded to the Party.
For that reason, he offered at all times information to the Party and gave also advance information about pending causes and an opportunity to stale its -- the Party's -point of view.
Q That was originated by law, if I remember correctly, witness. Wasn't it provided that in penal cases against members of the Party, on the basis of a legal decision, the Party had to be informed?
A Yes, that of course.
Q That is what I mean. Was there more involved?
A For instance, in cases of malicious attacks, a directive by the Ministry of Justice was required. That directive, as far as I know, came about in cooperation with the Party Chancellery. It is true that the Party Chancellery, certainly before it rendered its decision, received information from the Gauleitung concerned with that case. But I believe that I am not mistaken to assume that Rothaug, even beyond that in local cases of political significance, tried to get the opinion of the Gauleitung concerned.
Q You have told us yesterday that you discussed pending cases on the points of view of the general development of criminality. Was that the basis of your conferences on Saturdays and later on at more frequent occasions?
A Perhaps I can make the answer a little clearer by emphasizing the circumstances under which this more intense cooperation with the Special Court under Rothaug, in particular, came about. The conference between Doebig and the others was concerned with the official agreement, as I have said. The position and the tasks of the SD are known to you. I assume that the SD was in a position to obtain these official infor mations and opinions from the official sources, but we had to try to find out about the matters which were, for instance, in the more detailed files -- matters about which information cannot be obtained through regular channels -- or to find out about matters which went beyond the pattern of an official opinion about a penal case; that is to say, as we have explained before, a particular experience or an opinion about another court.
The obtaining of that information could only be the case if as an SD man I had a closer connection to Rothaug beyond the official character of my mission. And Rothaug, after that first official conference with Doebig -- in a conference between himself and myself -- stated that he was prepared to do so.
Q Did you take up contact with other officials of the administration of justice in your position at that time?
A Here again I have to deal with the administrative organization. As you have heard yesterday, the Abschnitt, after the SD Main Office, was the next lower echelon. It was not cur task as such in all fields, let's say of law and of administration, to obtain and to collect material of information. That task remained to the so-called field offices. I believe we had five in Nurnberg. And these field offices, as far as I am informed, had their confidential agents again; and that there were legal men -- members cf the court -- among those, is quite known. As far as my mission was concerned, that is to say, on order to appraise and evaluate the material which came from the field offices, I needed of course a qualified person -- an expert -- who had a wider field of experience; and for that purpose I needed Rothaug. He agreed, and he also had the right attitude.
Q Yesterday you spoke about the slackening of the security machinery during the war. Could you remember that preventive measures against danger arising through conditions of war was part cf the discussions and conferences with Rothaug?
A You mean measures to be taken by leadership offices?
Q In order to prevent possibilities of dangers arising from special conditions, arising from emergencies of war.
A Of course.
Q Now yesterday you also discussed the treatment of foreigners. Can you remember whether on the part of Rothaug any western foreigners that is, nationalities of western countries -- were judged or sentenced by Rothaug?
A Yes.
Q. What case can you remember particularly?
A. That is known to me?
Q. What is known to you.
A. .....That foreigners were sentenced by Rothaug?
Q. I wanted to ask you particularly of people from Western countries.
A. Do you mean Frenchmen?
Q. French, Belgians... Do you Know a specific Case which came before Rothaug?
A. At the moment, I cannot remember.
Q. Do you remember what Was Rothaug's position in comparing the criminality of people from Western countries, and, say, the Poles?
A. Maybe I can explain it in the following manner: Rothaug, on principle, compared with the treatment of Germans, had a much more severe attitude towards foreigners. He was definitely, and always of the opinion that the foreigners present in the area of Germany had to be watched closely for their attitude, and every move which would tend to become dangerous for the security factor would have to be squashed. And now, to return to your question proper. That ho had a much more severe attitude towards the Poles, for instance, is quite obvious.
Q. Do you Know what had caused that point of view on the part of Rothaug?
A. It is really difficult to put myself into the shoes of Rothaug, as far as that is concerned. Occasionally he pointed out, for instance, in cases of Poles, that the propaganda about atrocities of Poles was at the bottom of it; that a people who had caused so much hardship to the Germans, that a people of that kind stand on a much lower level. He was referring to the Blood Sunday of Bromberg. And if the German people do not want to be defeated, every hostile move, for instance, on the part of the Polish people, would have to be choked off.
Q. Since you have read reports on public opinion, I should like to ask you whether you have ever seen statistics of criminal cases, where you could see the part - the proportion - of the Poles within the total of criminal cases.
A. Official statistics -- that is to say, from the Administration of Justice on a wide field, I can't remember. However, I had Rothaug give me a chart, a list of the criminal cases. It was a sort of statistic next to the total of cases, and the numbers of total cases from month to month and from year to year. Where was a distribution showing different types of crimes, and, also, different columns showing the nationality of the people. This statistical compilation, as far as I received it from Rothaug, was limited to the proper field - his area.
Q. Where was criminality higher in percentage, with the Poles, or with the members of the Western countries; that is, citizens of Western countries.
A. That, I could not answer with certainty. However, I should assume that, naturally, the cases of Poles were more numerous.
Q. Now, you mentioned yesterday that a gap in the law would have to have been bridged as far as the Poles were concerned. Was there such a gap?
A. Initially, there Was no regulation concerning the Poles, and criminal procedures against the Poles, and when they ware sentenced, the acts committed by Poles received a different evaluation in various parts of the Reich; in, for instance, the Special Courts of Nurnberg the cases of Poles were more severe; or, that it saw in a particular action of a Pole already a punishable fact - whereas a different Special Court would not have assumed that. Where were actions of Poles, let us say, as remaining out after curfew in the evening, or failing to register. And the date of registering was established by individual Mayors in some cases.
These facts, as such, could have been taken care of in an administrative way -- in a disciplinary administrative way. Here, in the opinion of Rothaug, it was necessary that these misdemeanors, in some cases misdemeanors against Germans, would have to fine legal penalties. That thought, at a time when larger numbers of foreigners and Poles were brought into the Reich, grew stronger, and particularly because the appropriate administrative measures existed only, for instance, in individual districts, and differed greatly among cases. So that these differences again, since the Poles had a good means of information for themselves, gave them the possibility to avoid it, to circumvent it, so that forcibly the desire to a ruling by way of criminal legislation against Poles and foreigners came about.
Q. If I understood you correctly, it was not a gap that existed because in the administrative field there were regulations -there were regulations of another kind, but what was needed was a basic ruling , a legal decision, in order to assure that differences in treatment should be eliminated.
A. Yes, if I look at it from the point of view of criminal law it still was a gap. There was no basic law at that time. At that time there existed no basic law that dealt with foreigners and Police.
Q. Did you happen to see a draft composed by Rothaug, or were Rothaug's thoughts only forwarded by you in the reports?
A. A draft for a law concerning Poles did not come from Rothaug, of course; but in his reports, and in the reports I passed on, it was expressed - and mostly based on oral statements made by Rothaug -that a legal decision, a legislative decision, would have to include these facts and take them into account. That is to say, for instance, if a Pole does not feed the cattle right, that he puts foreign matter into the food, - that fact, if it has been committed by a Pole, should be viewed differently as far as application of penal law is concerned, than if it had been done by a German.
Q. One moment. Are we concerned here with a difference in dealing in the same cases -- discriminatory treatment of the same case, the same facts; or, is this a discriminatory treatment of the same fact on account of the individual?
MR. KING: One moment, please. I think that the question which defense counsel is putting is a little unfair because he has asked the witness to discuss the law against Poles and Jews, and in that law it specifically states that there is to be a discrimination in dealing with crimes committed by Germans and crimes committed by Poles and Jews, so, in asking this question it seems to me that ho is calling upon the witness to deny what is actually written into the law.
DR. KOESSL: May it please the Tribunal: The case just discussed, as far as I remember, is not included in the law against Poles. WE are concerned here with the problem of finding out what the contents of these suggestions were. The point is to clarify whether the facts differed, or whether it was the person who committed the act, and I asked the witness what Rothaug's opinion was. I believe that is a question concerning the contents, the facts of the conferences, at that time.
THE PRESIDENT: Isn't it the effect of your problem that you are asking Rothaug's opinion of the statute, which does provide for more severe treatment of Poles than it does of other nationalities?
DR. KOESSL: No, Mr. President, I wanted to find out what the thoughts of Rothaug were at that time, not what is position was to the final decree concerning Poles and Jews.
THE PRESIDENT: It is time for our usual morning recess. We'll rule on them matter on reconvening.
(A recess was taken.)
THE MARSHALL: The Tribunal is again in session.
THE PRESIDENT: The witness may answer the question.
A If I understood the question correctly, the Defense Counsel wanted to know whether the attitude of Rothaug was such that already the precept of the idea to judge foreigners such as Poles more strictly in a given case or whether the question was only to judge a certain act more severely; would you please repeat your question again?
Q No, witness, in the discussion of the Polish cases, I want to limit myself to asking you again about the statistics which I mentioned before. Can you remember from the statistics that it was proven that the criminality of the citizens of the western countries was lower than the criminality of the average in Germany; and that the criminality of the Poles? -
MR. KING: One moment -
Q Was that the purpose of the statistics to prove this condition to establish this condition?
MR. KING: One moment; I wonder if we could have a definition from Dr. Koessl of what he means by "criminality". Now, if he is suggesting that by "criminality" he means convictions, naturally we are going to find it much higher for the Poles because by statute and by inclination the Poles were especially singled out. I wonder if we could have a re-definition of the. word "criminality", and just what he means by it.
JUDGE BRAND: May we also inquire if the statistics to which counsel refers were related to and based upon convictions.
THE PRESIDENT: It occurs to me to suggest that that very question was asked a while ago and answered to the best of the ability of the witness. Now, we ruled on the question you asked just before recess that the witness might answer that, but the question that Defense Counsel has now asked is entirely a different question. May be he wanted to abandon the other one, but, if so, I see no occasion for repeating a question which has been asked and answered at great length.