As has been emphasized repeatedly, according to German law the Prosecution has the duty, if required by the situation, to make use of all legal remedies also in favor of the defendant. If the defendant foregoes the security of a clearly defined situation and rather takes the risk, in a re-trial to serve the principle of justice as he sees it, then the Chief Reich Prosecutor has to examine whether the sentence was unjust. He, however, has other sources at disposal for his findings than the defendant, who, of course, sees only his own case. Therefore, it is not surprising if the Chief Reich Prosecutor arrives at a different result than the defendant and sees no cause to attack the legal conditions existing. Apart from that I should like to emphasize that a legal remedy used against the defendant has not always led to more severe punishment. The witness for the Prosecution, Doebig, has also confirmed this when he was hoard on the 9th of April before this Court, but quite as infrequently as the Prosecution assumed the extraordinary objection and nullity plea have not been used by the defendant. Naturally, I have to limit myself to the examples submitted by the presentation of evidence on the part of the Prose-cution; for the extraordinary objection I refer to the case Will, where in favor of a defendant who was sentenced to death an extraordinary objection was made. Furthermore, the case Klinzmann, where a sentence already in force was rescinded. Concerning the nullity plea, I referred to the statement by the witness for the Prosecution Ferber of the 8th of April. That witness mentioned a case where the death sentence against a Polo was attacked by means of the nullity plea and the defendant in the re-trial instead of being sentenced to death was sentenced to a prison term.
I, also refer to the Judge's Letter No. 17. Their reference is made to a case of plunder, pilfering, where upon the nullity plea by the Chief Reich Prosecutor, the defendant who had been sentenced to death was acquitted. For the sake of completion I should like to add the following.
With the principle of double jeopardy, No Bis In Idem, the extraordinary objection and the nullity modification plea have nothing to do whatsoever. That principle, according to German law, such as it existed without change since the Code of Legal Procedure was created, implies that nobody can be punished for the same act twice, and that is not even touched upon here.
Q The case Will, just mentioned, is contained in Exhibit 495; the case Klinzmann in Exhibit 137 -
THE PRESIDENT: What is the spelling of that first name?
DR. KUBOSCHOK: W-i-l-l.
Q The Judges Letter No. 17 is contained in Exhibit 86. The Prosecution also deals with the appointment of lay-judges for the People's Court. Would you kindly give us your explanation for that also?
A The judges at the People's Court, whether they were professional judges or lay-judges, were appointed by Hitler, as the Chief of the State. There existed a provision to the effect that for the selection of the lay-judges certain political and military organizations had the right of nomination. On the basis of these nominations the Reich Ministry of Justice, with the Participation of the Reich Chancellory and the Party Chancellory, nominated to Hitler the required number of lay-judges to be appointed. In practice that was just a passing on of the suggestions of nominations made by the organizations. One would have to say in that connection that for practical reasons alone, the selection was restricted to men who were not too much in the foreground within their organization because participation in the sessions of the People's Court consumed a great deal of time. For reasons of expedience, only such men could be a suggested who in their positions up to that time had enough time left that they could be expected to take part in the sessions of the People's Court, and if one would care to examine the entire list one would certainly find a considerable number of older men who were not very active and not very busy any more, rather than younger men.
Q According to the document I have before me, NG-174, Exhibit 77, the Ministry of Justice made a suggestion to increase the severity of penal provisions concerning the preparation of treason. Would you explain this?
A The situation with regard to the law was the following: Preparation for treason, Landesverrat, could not be punished by death. Treason, that is to say the betrayal of the native country, in my opinion, is the most severe and most serious political crime, and tho danger inherent in that crime reveals itself already in its preparation. As can be seen from the document, the question had come before the public and had been discussed in public on the occasion of tho Sklarek case, and had become the subject of a heated discussion. It was known to me that Hitler once before in a cabinet meeting had taken the position that preparation for treason should be punished by death. It was quite obvious for me that as a consequence of the Sklarek case, and on that Hitler's point of view was also known to other people; a new storm would come up; in fact it was the expressed purpose to force matters upon tho Administration of Justice so that afterwards one could make use of these matters, by saying that the Administration of Justice itself was not strong enough to find the right position, or in order to institute and justify proceedings outside the Administration of Justice. I considered it appropriate, therefore, to bring this question into the stage of a legal regulation as quickly as possible. In the draft the death penalty was provided for very serious cases, cases of aggravating circumstances, and that provided the guarantee at least for the fact that in ordinary court proceedings it would have to be examined whether that really was a severe case. The danger was quite acute that unless in time such a law would be promulgated, other elements, namely, the police would have seen to it, and would have taken care of it wholesale without examining individual cases.
Since the cases in question were cases of the part, retroactivity had to be permitted. That is well within all legal guarantees.
Q The decree concerning pilfering of the 16 June 1942 bears your signature. Will you please explain it to us? I want to state that this decree is to be found as Exhibit 165.
A The increasing number of air raids, several raids during one week on the same town, created a situation where under all circumstances an increase in the number of cases of pilfering had to be prevented. In the decree I emphasized that, faced with the misery of the population which was bombed out of their hones, pilferers are of an especially despicable character and I should like to stress this here particularly that these unfortunate people who had to suffer these air raids were in such a state of misery that the Administration would have had to face the most severe reproach and criticism if it had not taken energetic steps against pilferers; and I should like to state further that the entire population of Germany backed up any increase of severity of course, with the exception of pilferers themselves. Therefore, I pointed out that in such cases the administration of justice had to be fast and gave instructions as to the ways and means how these fast measures would be put into effect. But I also stressed that one should be very careful not to exaggerate the term of "pilfering", that not each case of small theft is already pilfering, and that in such cases not the severe provisions for penalty of the decree against public enemies had to be applied but the general provisions of the law concerning theft or similar offenses.
Q From Exhibit 165 I should like to read the end which is found on page 120. I quote from the letter by Schlegelberger to the presidents of the District Courts of Appeal. "However, if the facts are not such that the most severe penalty has to be applied and there is no pilfering, in the sense of Paragraph 1 of the decree against public enemies, in that case the indictment and the sentence have to be governed by the provisions concerning theft and similar offenses.
In general, as an action of a public enemy, it is to be considered a punishable act according to Paragraph 2 or 4 of the decree concerning public enemies." That expresses clearly that, for instance, the taking of an unimportant object could not legally be considered pilfering.
On the part of the Prosecution charges were raised against you for carrying out the procedure against the Czech Prime Minister, Elias. What can you say in that connection?
A The charges concerning the case Elias culminate certainly in the statement that I had tolerated that in these proceedings the indictment instead of being filed by the Chief Reich Prosecutor before the People's Court was filed by a representative of the Gestapo. I believe that the documents submitted by the Prosecution show beyond doubt that I was sternly opposed to these proceedings. Firstly, may I describe the historic background. At the end of September, 1941, I was approached by the president of the People's Court. Dr. Thierack. He told me that he had found out that soon there would be proceedings against the Prime Minister, Elias, before a Standesgericht. He considered it important that trial should take place before the People's Court. He had already contacted the Reich Protector, Heydrich, and received his approval, but he had to make a sacrifice, and that was the sacrifice that he had to agree that the indictment would not be filed by the Chief Reich Prosecutor but by the police. He had been forced to do so because according to information received from the Chief Reich Prosecutor, Lautz, he, Lautz, could only promise to deliver the indictment after several weeks, but that amount of delay was untenable. I told Thierack that I did not approve of his efforts to obtain the competency of the People's Court for the case, and that I definitely did not agree with the elimination of the Chief Reich Prosecutor in the case. If the case was that urgent, the Chief Reich Prosecutor certainly and if necessary with the aid of additional assistants would be able to finish his indictment in time.
I put to Thierack that he had taken the first fateful step in the direction of delivering the administration of justice to the police. Thierack replied that Heydrich had referred to a decree within the scope of his competency as Reich Protector. He, Thierack, as the presiding judge of the court would examine carefully the legal validity of that decree, and he added, " You can rely upon it, Mr. Secretary, that I will not take it too easy with that examination."
I inquired at the Ministry of the Interior which was the central agency of the Government for the Protectorate, and was informed that Heydrich was legally entitled to direct the participation of the police. Chief Reich Prosecutor Lautz was at a conference abroad at the time. When he found out about the matter, he returned immediately and reported to me. I informed him about what had happened and told him to go to Thierack immediately and let Thierack inform him about the state of affairs. The same afternoon the Chief Reich Prosecutor reported to me telling me that he could not do anything because Thierack already was on his way to the airport. In his presence I called the under secretary at the Reich Ministry of the Interior, Dr. Stuckardt. He was the chief of the central agency for the Protectorate, and I asked him to talk to Heydrich in order to obtain the inclusion of the Chief Reich Prosecutor in the trial. Stuckardt complied with my request immediately but told me afterwards that Heydrich bad refused. According to the personal impression which I had gained of Thierack, I came to the definite suspicion that he consciously and intentionally had brought about the elimination, the exclusion of the Chief Reich Prosecutor. I was also told - I don't know by whom -- that that elimination had been arranged by Thierack with Hitler and Heydrich.
That that assumption on my part was correct can be seen from the report by Kritzinger from the material of the Prosecution. Kritzinger reports the following: that decree contained the provision that the Reich Protector in special cases can demand a trial before the People's Court in a procedure which he had to determine.
That provision had the purpose to find a different regulation for the part taken by the Prosecution by turning its function over to the Gestapo. That had resulted from a thorough discussion between Heydrich and Thierack.
In the matter itself I could not do anything. The Prosecutor formally had the right. I did whatever I could, but I could not achieve anything. The correspondence which is contained in the document submitted, by the Prosecution reveals that Heydrich on account account of my opposition had raised serious accusation against me, and that I tried to justify myself.
THE PRESIDENT: We have reached the approximate time for our recess. You may continue the direct examination in the morning at ninethirty. I beg your pardon, Monday morning at nine-thirty. Thank you. That would have been a tragic mistake.
The Tribunal has jointly considered the matter of the necessity for early delivery to us of the daily transcripts of testimony perhaps owing to the complications which arose from the making of the opening statements at the first of the week. There may be some explanation for it, but we have received no daily transcript this week at all. We wish simply to say that it is imperative at this state of the case that we have these daily transcripts as rapidly as is physically possible for them to be produced. I trust that the Secretary-General will communicate with whom it may concern this direction.
MR. LA FOLLETTE: If the Tribunal will permit me to break in, I will say that I need them very badly, too, and I haven't received any.
THE PRESIDENT: They must be produced. We will recess until the time indicated Monday Morning.
THE MARSHAL: The Tribunal will be in recess until 0930 Monday morning. (The Tribunal adjourned until 30 June 47 at 0930 hours.)
Official Transcript of the American Military Tribunal in the natter of the United States of America against Josef A lstoetter, et al., Defendants, sitting at Nurnberg, Germany, on 30 June 1947, 0930-1630, the Hon. James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the Defendant Engert, who is absent due to illness.
THE PRESIDENT: Defendant Engert is excused. Let proper notation be made.
DR. KUBOSCHOK: I continue my direct examination of the witness.
FRANZ SCHLEGELBERGER - Resumed DIRECT EXAMINATION (Continued) BY DR. KUBOSCHOK:
Q Witness, the Prosecution charges you with the introduction of German law in the incorporated Eastern territories. First, since this complex of questions lies earlier, we have to discuss the introduction of civil law. Could you give us a description of the events at that time?
A These events occurred a long time ago. However, I believe that on the basis of the documents submitted by the Prosecution I will be able to reconstruct them and give a clear picture.
As seen from a file note of the Reich Chancellery, the Ministry of Justice in the beginning of February 1940 sent drafts to the Supreme Reich authorities which dealt with the introduction of the entire civil and trade law of the Reich in the incorporated Eastern territories.
Q May I interrupt here for a moment. That file note is to be found in Exhibit 459.
A It was absolutely necessary to do something. After the complete military subjugation of Poland, and after the Partition Treaty between Germany end Russia was carried out, there was no political authority of State in Poland anymore, no executive and no Polish courts. The German judges only knew German law. Added to that was the fact that in the various parts of the Republic of Poland there were different kinds of law prevalent, essentially the law of the country to which these individual parts of Poland had belonged before 1918. In the former German parts there was still German law applied with very few modifications of Polish law, and that demanded by itself the introduction of German law.
When the plan became known, the plan to introduce German civil law in the incorporated Eastern territories, and that without distination as to nationality and descent of the inhabitants, immediately there arose considerable differences of opinion. The customary two fronts were established, on the one hand the principle of territorial law; on the other hand the personality principle; on one side the principle of equality of all inhabitants before the law - that was the point of view of the Reich Ministry of Justice - and on the other side the principle of discrimination and inequality before the law, or to put of more drastically a special law for Poles. That was the principle of the Party.
In order to put that in force. Bormann and Himmler cooperated. From a letter from Bormann to Himmler that can be clearly seen. They arranged before a conference took place in the Reich Ministry of Justice to fortify that special campaign front of theirs, and that by previous conferences with the representatives of the Gauleiter, the Party Chancellery, the Reichskommissar for firtifying of Germandom and the Racial Political Office. If one looks at this, one can see how powerful that front really was. Bormann did not omit anything in order to express in all clarity his point of view to the Reich Ministry of Justice, and it is quite typical that this letter already contains a threat that if by the application of civil law on Poles the German parts of the population would become restless, it would come to the point that the police would have to prevent the thing carrying out of judges' decisions in these countries.
DR. KUBOSCHOK: May I interrupt you for a moment. That letter from Bormann to Himmler will be submitted by me as Document Schlegelberger No. 65. For elucidation I should like to quote a short passage from this letter for the record. I quote:
"As I am informed by reports, German courts already during a period where German civil law has not yet been introduced in the Eastern territories in applying this law treat Poles in a manner which should only be reserved for Germans; that this tendency to introduce German civil law in the Eastern territories will increase is to be assumed.
"May I refer here to the experiences which were had at the time when German criminal law was introduced in the Eastern territories. We have to worry about the fact that sentences by German courts which have been passed in applying German civil law would be extended on Poles and Polish conditions, and that that will lead to the members of the German nation becoming restless. Perhaps in individual cases the execution of sentences passed by the judges may have to be prevented by police measures."
Q Please continue.
A It was clearly recognizable from this letter that the opposition was willing to make use of its power without any reserve. I had no other alternative than to attempt by negotiations to make it clear to the opponents that on the basis of their own principles it was not necessary to carry out their plan, and on that occasion may I elucidate for the benefit of the court how we had to work?
I approached Lammers and maintained my position that all the inhabitants of these territories, should be treated equally. In order to calm down our opponents. I added that perhaps later if the demand for it arose the promulgation of special decrees for Poles might be necessary, but such special decrees were never issued later.
Furthermore, I had to avoid to let it come to a principal decision on the part of Hitler which the opponents had mentioned, because there was no doubt as to what that decision would be. Then I stated my opposition to the possibility of Gauleiters exerting an essential influence on these matters because then it would have been impossible for the Ministry to do anything about it.
Q May I interrupt here again, the witness has just referred to his letter to Lammers as of 18 September 1940, Prosecution's exhibit 338. Please continue.
A Then, later, Bormann stipulated three principles which he would absolutely maintain. First, the introduction of German Reich Law should be made throughout the Reich Provinces. Second, application of civil law to cases of Poles may only take place absolutely, if, according to the meaning of tho case. And, third, any suit by a Pole against a German has to be examined by the Kreisleiter, that is to say, by the Party, that is, previously. During the following discussions I maintained my point of view, and the decree which was issued later, 25 September 1941, shows that I succeeded with my demand for equal treatment. One sentence, however, was contained there -
MR. LaFOLLETTE: (Interposing) Your Honors, only I did not hear the decree, the witness just last mentioned -- 1941) I did not quite get the date, if I may have it.
DR. KUBOSCHOK: I will introduce the decree as document Schlegelberger 64. It is contained in my document book III, on pages 32 to 37.
MR. LAFOILETTE: I am sorry that is interrupted, I did not hear it.
THE PRESIDENT: The date was 23 September?
DR. KUBOSCHOK: 23 September 1941.
A May I add it is in the Reichsgesetzblatt, Part I, page 397. One sentence was added, however, to the effect that the application of legal provisions could not be in contradiction to the sense of the incorporation of these territories. In fact, that passage was meaningless because, for one, these legal provisions were so obvious that they did not need any interpretation. And, then, this jurisdiction, this civil jurisdiction, did not amount to much as a measurement by the high politics, but that passage sounded very well in the cars of the party and gave the party the possibility to save face, and to desist of some demands of a special legislation for the Poles. The civil code and other civil laws were, therefore, expanded and applied with equality to all inhabitants of the territories.
As to further demands of the party to take these examinations of suits by Poles against Germany by the Kreisleiter, I achieved that the party offices were quite excluded, that the information for previous claims were given to the president of the District Courts of Appeal. This was subordinate to the Reich Minister of Justice, that is to say, dependent upon his instructions and directives, and thereby suits from Poles against Germans remained within the sphere of administration of justice, and independent of the will and intervention on the part of the party.
Q I come now to the introduction of the German criminal law, in the incorporated Eastern territories -- will you please give a short review of the general development of that question?
A These matters, as far as the time was concerned, are connected with what I said before. Amongst the drafts sent out in February 1940, there was also one about the introduction of criminal law.
Q May I interrupt you, that, again, is exhibit 459.
A That draft comes from Freisler's sphere, and in the absence of the Minister, as well as Freisler, I signed that draft upon the request of the Minister. That draft provided absolutely equal treatment of Germans and Poles. Later on, 6 June 1940, a decree was issued about the introduction of penal law in the incorporated Eastern territories; and that decree was only designed for Poles and Jews; and, that shows that before my time, and. without any assistance on my part, a special law was created for Poles and Jews. Apparently Freisler afterwards gave in to the efforts of the party, and it was simply possible for bin after extending the struggles and disputes, to obtain the approval of Guertner, who, as I know, in principal, was against such a thing. But, the decree of 6 June 1940, bears the signatures of Frick and Guertner.
Q That decree is contained in my document Schlegelberger 60. Then, it came to the penal decree concerning Jews and Poles, 7 December 1941, that is exhibit 343 -- will you please discuss that decree in detail.
A That decree of 7 Do comber 1941, which was the subject of a detailed discussion in this procedure, is based on the following: The decree of June 1940, in tho view of tho department of criminal legislation for the Ministry was not satisfactory. And, that was because the extent of punishment was not sufficient -- neither the maximum nor the minimum of punishment was sufficient, and there was also a lack of specific provisions. In addition to that, the Reich-Chancellery had informed the Ministry, that the Deputy of the Fuehrer and the party, demanded a discriminatory law concerning Poles and Jews.
Q I refer to exhibit 341.
A Therefore, the Department for Penal Legislation, that was before my period in office, had started to work out a new draft which should take care of these deficiencies. When I took over after Guertner's death, Freisler reported to me about that matter and told me the following: It was Himmler's intention to obtain sole competency for all cases against Poles and Jews, and that Gauleiter Greiser of Warthegau was of the same position, and he, if necessity, wanted to eliminate the administration of justice with the aid of the Standgericht, civil courts martial, Bormann was of the same opinion and demanded first of all the introduction of corporal punishment. According to this information I had to expect a fight with the party. This fight which was fought to maintain legal procedures for Poles and Jews in all events, could only be successful if I could point out that the courts had at their disposal an appropriate procedure and appropriate provisions which were sufficient for all quizzable cases. The now draft, in my opinion, was designed to rebut the assertion by the party that the court could not master the situation. Therefore, in April 1941, I submitted that draft to the Ministerial Counsel for the Reich Defense to the attention of Reichminister Lammers, in order to achieve a decision. I also announced to Lammers that I had to see him before to inform him about the situation, and about the conditions which lead to the draft in that form.
The Prosecution has repeatedly referred to that covering letter which accompanied the draft. Therefore, I should like to explain the reason for this letter, and the manner in which it was written: According to the legal provisions, to those provisions which I have already discussed, I had to have the approval of the Party Chancellory, but only then did I have any chance to obtain that approval, if that draft was implemented with those main points which I considered necessary.
In my letter, I represented the contents and the consequences of that draft without exaggeration. Then I could never expect the approval of the Party Chancellery. Therefore, I had no alternative but to emphasize the increases in the severety of treatment with exaggerated expressions to pass over less severe provisions and to leave cut references to decrees which would make this decree more lenient. Another it came to any conference with Lammers, I could no longer tell. I remember quite clearly the event which proved to me that my assumption was correct, that we would have to expect a most energetic attack on the part of Himmler.
In the summer of 1941, Himmler asked me to come to a conference. That was the only one I ever had with Himmler. There was great pressure with regard to time connected with that request. Himmler told me that he was on his way to sec Hitler and that he had to have my approval. Penal cases against Poles and Jews should be turned over to him, that is to say, to the police. That was regardless of where the acts had been committed.
I rejected that categorically and told him that for that kind of change of competence, there was no reason whatsoever, particularly since in a very short time a new regulation about that question by the Ministerial Counsellor for Reich Defense could be expected. That, of course, made Himmler suspicious. At that time, it did not seem to him to be the right thing to fight against the Ministerial Counsellor for Reich Defense which was under the presidency of Goering, at that time a strong opponent. He seemed to depart for a short time from his original plan. * The Ministerial Counsel for Reich Defense passed that draft in December of the same year and that determined and assured the competence of the courts for penal case against Poles and Jews.
When I left my office that was immediately changed as could be seen from these proceedings. That decree dates back to December '41 as I have already pointed out, the period when my task of taking care cf the affairs of the Ministry of Justice came to an end.
It is not surprising that I could not gain a clear picture as to how that decree was applied and what the consequences were.
I do recognize that one could criticize individual sentences at least as far as the limited amount of material is concerned which is available to us now. However, considering that there were about one half million penal cases, during one year, as regrettable as it may be in the individual case, it is not very decisive for an overall judgment of conditions. I owe it to the German judges to state here frankly and publicy that as long as I could observe their activity, they have discharged their duties with a definite desire for justice in general.
Concerning the criticism which was voiced against this decree, I should like to say the following in detail. The most essential feature of that degree was its practical application. I took every opportunity when a judge from the eastern territories came to see me to point out that that decree gave a great deal of latitude to the judges; that therefore, the judges for the procedure as well as for the sentencing had to keep in mind that he was a servant of Justice. Beyond that Freisler to discuss that point of view of just application in an articles in a magazine, "Deutsche Justiz, "(German Justice). "Deutsche Justiz", an official publication was read by all judges and prosecutors, and that made absolutely certain that they knew how Freisler thought about it and that he did not want any arbitrary application. That achieved that Freisler, himself, was prevented from giving individual directive or expressing opinion which would go contrary to the meaning of that decree. In view of his unstable nature, this was particularly important.
This article by Freisler took into account my demands by stating that it is a serious duty of judges and prosecutors in cases of Poles and Jews to apply the same maximum care as they would in the case of Germans. The Prosecutors arc instructed in preliminary investigations to examine also,points in favor of the defendant very carefully so that the defendant can recognize the charges made against him and is put in a position to prepare his defense.
The courts are admonished to keep in mind that it was not within the meaning of the decree that the facts should be artificially exaggerated, facts which were of little or no importance. What harms an individual does not harm the Reich. Sufficient opportunity should be given to the defendant to use legal remedies to explain things and to state his views to the evidence submitted. Everything should be avoided which in the least would make the sentence look like a sentence based on suspicion. Under all circumstances, the extent of the punishment should be within sound measure. The legal remedy of appeal should be applied by the Prosecutor, also in favor of the defendant and for that express purpose, the time limit was extended to twice its normal length.
THE PRESIDENT: Mr. Schlegelberger, you a re referring to an article by Freisler, are you not?
THE WITNESS: Yes.
THE PRESIDENT: And docs that have an exhibit number are will it have?
DR. KUBOSCHOK: I will submit that Article as Document Schlgelberger 61, will be the number of that article. It is in my document book.
THE PRESIDENT: 161?
DR. KUBOSCHOK: No, only 61 in Document Book 3, Schlegelberger Document Book 3.
THE PRESIDENT: Thank you very much.
THE WITNESS: The right for civil suits for Poles and Jews had already been rescinded by the old decree. A new decree brought modification as Freisler explained that. Also, Germans should not have that right any longer. And now the most important element: the latitude and extent of punishment was increased not only toward greater punishment, but also to a smaller extent. The death penalty is mandatory only where an act of violence was committed against a German on account of his being a German That was already contained in the old decree.
In all other cases, apart from the death sentence, there was an opportunity for a prison term.
In the old decree, in the case of anyone owning or carrying weapons, a death penalty was mandatory. The new decree provides the opportunity of a prison term which goes all the way down to three months in prison. That modification applied to a large number of offenses.
Also, the mandatory death sentence for arson was done away with. Apart from that, I am of the opinion--and it has been mentioned here frequently--that whether the death penalty is mandatory or optional, a judge who docs not want to sentence to death almost always, in taking into account the facts in a case, can avoid that possibility.
The Prosecution asserts that the now decree excludes the clemency plea for Poles and Jews. That is not correct. If it is stated that the sentence was final and had to be executed immediately, that only means that with the exception of that right the sentence is final. I will not discuss the question as to whether a sovereign can forego the use of the clemency plea from the outset, but it is beyond doubt that the Ministerial Counsel for the Defense could not have excluded the right for pardon on the part of Hitler. Besides, for the incorporated Eastern territories the pardon regulations of 1935 applied. Paragraph 453 of the Code of Criminal Procedure, according to which execution of the death sentence is only possible after it has been ascertained that the person cannot contemplated pardon and has refused to do so. That was especially emphasized upon my demands in Freisler's article. In fact, Poles pardoned. That was mentioned in these proceedings. I would like to refer to two cases which I remember; the case Pietra and the case Woscinia.
DR. KUBUSCHOK: Those cases are contained in Exhibit 253.
A. (Continuing) The right of defense counsel is not taken from the defendant by that decree. On the basis of the regulations concerning special courts of that time, a defense counsel had to be appointed for the defendant. And I may say in conclusion that the penal decree concerning Poles and Jews guaranteed for the Poles and Jews a court procedure and a sentence by the court.