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.
Also, it prevented these defendants from being dealt with without the protection of the court and being turned over to the police.
DR. KUBUSCHOK: I am just informed that the translation on one point was in error. The witness stated that he would not discuss the question as to whether the right for pardon on the part of the sovereign of the supreme authority of the state should be omitted, and in the place of the word "sovereign", the word, "defendant" came over the channel.
BY DA. KUBUSCHOK:
Q. According to Exhibit 346,retroactivity of the decree concerning Poles and Jews was ordered. What can you say in that connection?
MR. LAFOLLETTE: I did not get the Exhibit Number.
DR. KUBUSCHOK: Exhibit 346.
A. I have described how great the pressure on the part of Himmler and Bormann had been. Ye had just succeeded in calming these parties down. They had had quite different ideas of the practical application, but now Greiser again piped up. He complained that in past cases the old decree was still applicable. In order to prevent a renewed debate about the competency of the police, that request for retroactivity was granted. Besides, that decree concerning retroactivity had a consequence which the Party officials had not taken into account, most probably, because now, on these many pending cases against people who had been found to have arms, not the old decree but the new decree had to be applied, which also gave the possibility of a penalty of three months prison term instead of the death sentence, which was mandatory under the old decree.
Q. The Prosecution charges you with having introduced or contributed towards introducing the Standgerichte, the civilian court martial, in the incorporated Eastern territories; Exhibit 345.
What can you say in that connection?
A. Apart from the general desire to turn over cases of Poles and Jews to the police, Himmler and Bormann, as it was said once, had a special preference and desire for the establishment of Standgerichte, civilian court martial. One could not quite by-pass that desire in the decree concerning Poles and Jews, but it was possible to establish an obstacle. I did so including the provision that Standgerichte, civilian court martial, could only be established with the approval of the Minister of Justice and the Minister of the Interior. Greiser, with the support of Himmler, had recognized that that clause or that provision would make it impossible for them to have their wishes fulfilled.
Therefore, by-passing the Minister of Justice, they went directly to Hitler. Lammers, by order of Hitler, informed me that Hitler had decided that the demand for the establishment of civilian courts martial and the transfer of rightful pardon should be granted.
What I had always tried to achieve by various means had not been achieved; on the contrary, that which I had tried to avoid had come true. By the decision on the part of the Fuehrer, my hands were tied.
If the Prosecution, in the table of contents of the document book, states that the right for pardon had been transferred to party officials, that is not correct, because the right for pardon was transferred to the Reich Governors, and the Reich Governors are officials of the State.
Q. According to Exhibit 360, in the case of sentences of Poles, one did not deprive them of their civil rights explicitly.
The formal style and wording used was that the rights which they should have according to Paragraphs 32 to 34 of the Penal Code were taken from them. What can you tell us about that?
A. The forfeiture of as the Penal Code says "civil rights", of course, would only have importance for German citizens. Essentially it means the loss of the active and passive right to vote, the right to vote and the right to be elected, and political rights of various kinds. On the question of the so-called Volksdeutsche, people of the German race, citizenship and citizen rights were frequently in doubt.
Therefore it was intended to find a more neutral formula to take into account these rights which in serious cases such as life terms happened to be expressed. For Poles, therefore, this clause was without meaning unless there was an intention to have them included in the German people's community at a later date. Besides, I am of the position that this neutral language which I think states the forfeiture of rights according to paragraphs 32 to 34, hits the defendants less hard than the explicit statement that he be deprived of civil rights.
Q Exhibit 254 contains a letter to Hess dealing with the rejection of anew amnesty and a limitation of prosecution against punishable acts in detail. Will you please explain that letter?
A The deputy of the Fuehrer upon the request of SS officials had suggested a new amnesty which went far beyond, the amnesty as Hitler proclaimed in October 1939. I objected against an amnesty of that kind and it was never proclaimed. In giving the reasons for my position I said that small cases of theft - that was the expression of the deputy fuehrer - during combat action or shortly after, should only be prosecuted if there were serious reasons to do so. This took into account the special conditions of lack of order at the time of the account and it was in accordance with specific directions contained in our code of criminal procedure, paragraph 153, section 2, that the prosecution can desist from filing an indictment for an act which could not be punished by a penitentiary term but only by prison confinement or fine in case in such an act the guilt of the culprit is small and the consequences insignificant. The prosecution pointed out in the last sentence of my letter according to which in case I should he informed of such an individual case I had promised a sympathetic examination of cases of that kind.
Q The prosecution has submitted a notation which you made on the 30th of August, 1946, where you mention the Oberlandesgerichsprae sident Draeger in Koenigsberg as official of the first order.
The prosecution brought this statement on your part in connection with a letter by Draeger to the Ministry of Justice on the 23rd of January 1943. Will you please state your position concerning the charge of the prosecution.
A Draeger was the President of the District Court of Appeals at Koenigsberg, that is to say the District Court of Appeals of my home province. Therefore, as can be easily understood, I scrutinized his activity with specific interest, and was in a position to find out tine and again that Draeger was an extraordinary expert in his field but I saw furthermore that in connection with the brutal behavior of Gauleiter Koch he had a very difficult position and that he defended himself against Koch with courage and wisdom. Therefore, my good opinion of Draeger was based not only on matters of his professional field but also on his political attitude. The letter of January 23, 1943 was at a time when I was no longer in the Ministry.
Q I should like to refer to another complex of questions. Witness, in the course of this procedure you often heard that persons against whom prosecution was pending or who had already been sentenced were turned over to the police. How did it come to these transfers to the police?
A These transfers are a very sad chapter for anybody who ha.s a sense of justice. They came shortly after the beginning of the war* in 1939. From publications in the press, Guertner found out that the police had killed people. Guertner made notations about these notices in the press and they were filed and gave a compilation of these notices from Lammers to Hitler together with his compiled notes and he explained the situation in particular. The purpose was clear: Hitler should be made to discontinue these things. Lammers actually submitted these compilations to Hitler but told Guertner later Hitler had said that he had not given a general directive to carry out these shootings but in individual cases he could not do without these measures because the courts, that was military courts as will as civil courts, were not able to take care of the special conditions as created by the war.
And, Lammers at the same time announced that Hitler in a further case had already ordered the execution by shooting.
Q I refer to Exhibit 284.
A I am certainly not making a mistake in saying that that decision on the part of Hitler was probably the most serious thing which ever happened to this man Guertner whose main intention was to serve justice; that was an order which Hitler had given through administrative channels to the police and the execution of which was assured on the basis of means of power then prevailing. The attempt on the part of Guertner to re-instate the respect for court decisions, therefore, had failed, but he was not satisfied by that. He wanted to assure that the administration of justice should be given the authority to intervene in time and to make the attempt at least to thwart the execution of the order given to the police. That, of course, was only possible if the Administration of Justice in time was informed about the order that had been given to the police, and that request on the part of Guertner was actually granted. Subsequently the Administration of Justice as a rule was informed by Hitler's Adjutant, Schaub, wherever an order of that kind was given to the police.
The question, therefore, as to how after one has been informed one can make as attempt to prevent the execution of Hitler's order, brought with great difficulties, particularly because the police had a time limit of 34 hours after which it had to report to its superiors that the order had been executed. Guertner then was of the opinion that for these matters he had or assign the one official in his Ministry whom he could use as a capable man with the police --who shared Guertner's opinion in these matters -- end from whom one could expect, on the basis of previous experiences, that he would be clever enough. Guertner therefore charged the co-defendant Joel with that mission.
When that information -- the information of such an order -- was received, feverish work started. First one had to try to extend that time limit of the police; that is, to persuade the police to delay the report. That alone brought about great difficulties because the police official incurred great risk. But in some individual cases, it succeeded. At the same time, the files of the case were called to Berlin and all other bits of information which probably had caused Hitler to order the transfer of that person to the police. Then a detailed report was made of the act and the culprit which justified the sentence, and telephone calls took place with various agencies whenever that seemed to have chances for success. Some individual cases were successful. But if it could not be achieved that the order turning over the individual to the police was rescinded, although everything had been tried, then there was no other alternative than to issue a directive to the authority which was about to carry it out that they should no longer resist but turn over the man to the police.
THE PRESIDENT: We have past our time for the recess. A fifteen minute recess, gentlemen.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. KUBOSCHOK: (Attorney for Defendant Schlegelberger)
Q Before the recess you were explaining the attempt to intervene on the part of the Ministry of Justice in the matter of transferring cases to the police. Will you continue, please.
A I explained, with the permission of the Tribunal, that the attempts to intervene on tho part of tho Ministry of Justice were successful in some cases, but, if all possibilities had been exhausted, and if in spite of that, he had not succeeded in having the order issued by the police withdrawn, nothing was left but to issue the instructions to the executing authority not to offer any resistance but to hand the man over to the police when they requested him. If the Reich Ministry of Justice had failed to give the man up, the police would have broken the resistance by force; the condemned person could not be saved. During the war civil and military commando offices in numerous cases were charged seriously that through a defense which they had to consider as useless they had sacrificed the lives of many people. Such a useless sacrifice it would have been if the Reich Ministry of Justice had instructed the executing authorities, via the executive office, to resist against the police. The subject of this sacrifice would have been not only threats on officials or civil servants, but the entire Administration of Justice, which would have been eliminated and its opponents would have triumphed. The acting official in the Ministry would have been eliminated as saboteurs) and, already at that time he would have been replaced by a person who willingly and without exception would have put the Administration of Justice in tho service of the party. Under these points of view, the individual cases of transfer, which the prosecution has described, has to be evaluated. I, myself, after taking charge of the Ministry of Justice, immediately established contact with Minister Meissner in order to determine basically that no order for transfer made by the police was to be executed as long as the Administration of Justice did not have a report.
This intention of mine was again foiled by Bormann. A letter from Meissner to me makes this apparent. Hitler had me informed by Bormann that the asking of the opinion of the Ministry of Justice was not necessary. Meissner, who shared my opinion, asked me in spite of that, in those cases where the Ministry believed that Hitler was not properly informed, that they should sent a report to Meissner. I did that in all cases.
Q The letter of Meissner, of 22 April 1941, is Exhibit 200. What can you explain about the individual cases in Exhibit 261, the report of the General Prosecutor to the highest Prussian Court of Appeals, of the 27th January, 1942; and in a situation report of 31 March, 1942, the cases Skippel, Skimelinski, and Gomolinski are mentioned. What can you say about these individual cases?
A I merely recall the case Gomolinski, and in regard to this also only the main points. I know that in this case that we succeeded in having the execution of the transfer order postponed for a period of time of some length. In the meantime the utmost efforts were made to prevent the transfer to the police. However, I recall that we were unsuccessful in that case. I can say with certainty that in all other cases too, as I have described it, serious efforts were made to intervene.
Q What do you have to say about the Markus Luftglas case who was transferred to the Gestapo, Exhibit 88?
A This case, too, I mainly no longer remember even though the name recalls some certain memories. In my statements I have to refer to the documents that have been submitted, and by referring to them I would like to determine the following: The Fuehrer Order to the police was given to the Reich Ministry of Justice on the 24th of October, 1941, through the usual channels by the presidial chancellory. That nothing happened in this case is absolutely impossible. It would have been unexplainable why my letter to Lammers in which I informed him of the release was written only four days later on the 29th, for letters of that kind were as a matter of course in our office answered immediately. The fact that our letter is dated only 29th shows me rather that in the meantime unsuccessful interventions had taken place.
Now I notice that in this letter to Lammers I informed him that Luftglas had been transferred to the police for the purpose of execution. That is noticeable because the information about the orders given by the police never said anything about executions but merely had transfer as the subject of the order. If in this letter to Lammers I, therefore, informed him that Luftglas was transferred for the purpose of execution, this can only be based on the information we received from the police, and I am quite sure that I formulated the letter in that way in order to inform Lammers how the direct Fuehrer Order -- that is, the order to the police actually was worded -- and in order to point out to him what such transfer orders as we were given led to.
In conclusion in regard to this question of transfer I would like to say the Hitler Order went to the police by administrative channels. The police had legally and by authority the possibility to execute the order. The Ministry, on the other hand, had only one weapon, and that is the word. If this weapon remained without success, the Ministry was defenseless and had to submit to force.