Court No. III, Case No. 3.
A It is not easy for me to talk about that matter, because I am not a politician. I only approached all those questions in an emotional way. In my parents' home I was educated in a social manner because my father had a very difficult childhood. I was educated in the national sense on account of the times in which I lived. When the first World War broke out I was 11 years old. When it ended I was between 15 and 16 years of age. In the years from 1918 to 1933 when my personality developed, I witnessed a period with many political manifestations. For me it has therefore always been a painful experience to see how the Marxist parties in Germany always represented the international idea, first, and then only the national idea, while in other countries the members of those parties always were first French or British and next socialists. From the education I enjoyed in my parents' home it happened that I had little inclination and no understanding for the political aims of capitalism and the large lando-.vners, and I saw the failures of parliamentarism in Germany. The elections with 30 to 50 party proposals. I believe the record for an election for the Diet was 52 proposals for different parties. I witnessed the debates at the Reichstag, the formations of various governments which were anything but a policy for the whole of the people and only meant that the individual parties represented their own interests. I saw in the NSDAP the fortunate solution of being social and national at the same time. I saw that the simple workman again became enthusiatic and was again given a feeling for a concept of the fatherland at a time when millions of Germans characterized their political feeling and their political endeavor by the cry "Heil Moscow." That was how I saw the NSDAP, and that was also why I relied on Hitler's speeches. Never -and I can say that today with a good conscience -- would I have become a National Socialist if one could have guessed that those events would have taken place which today one can summarize by the words "Auschwitz, Belsen, or Einsatzkommandos (special detachments) in the east."
Q You were familiar with the Party program?
Court No. III, Case No. 3.
A Yes.
Q You were a jurist when you joined the Party. Did you believe as a jurist that the aims of the Party program were following the ideology of the constitutional state in the same way as would have corresponded to your own former views?
A I was firmly convinced of that. Above all, for the reason that no German government until 1933 possessed any authority. And I expected that a strong government at home would also strengthen the authority of the judiciary. The judiciary, in particular, in the years from 1918 to 1933 was a welcome object of battle among the various parties. Frequently the judiciary was attacked, not for itself, but was used and was soiled to produce disadvantages in the political field for some other party. And I also expected that all the disputes which existed between the various parties concerning problems of the judiciary would be reduced to a reasonable standard. Problems of the judiciary, until then, had constituted controversies between the various political parties and I hoped that the fact that high treason again was going to be considered as high treason and not just a crime committed by a gentleman, that debates whether abortion was punishable or not, whether homosexual crimes were punishable or not --- all those arguments were engaged in for political reasons and not for their own sakes.
Q Mr. Klemm, please tell the Tribunal whether in the course of time you heard anything of Hitler's intentions to make war or intentions of his entourage on that subject.
A I never heard anything about that. On the contrary, I entirely believed in Hitler's continuous protestations for peace, to which he gave expression in his speeches. Even events such as the occupation of the Rhineland, the introduction of conscription, the construction of the West Wall, which was purely defensive, all those things I interpreted as a powerful but peaceful policy. In all those questions I was dependent on what the press and the radio announced in Germany.
Court No. III, Case No. 3.
Q Until the outbreak of the war, as was shown particularly here in Nurenberg, crimes were committed. Please tell us what you knew about that at the time.
AAs an example I should like to refer to the Roehm Putsch in 1934. Of those matters and the inner events, I heard little except for what was announced. Except for what I heard within the framework of the SA group Saxony. I was a member of the disciplinary court for the SA group Saxony which dealt with the purge of the SA of elements which had taken part or had intended to take part in the Roehm Putsch. Thus I obtained a certain amount of insight as to how dangerous Roehm's plans had been and as to how far in part the preparation had gone. The measures which were taken at the time, I had to consider as legitimate defense in order to avoid more bloodshed, and for that reason as justified. That in the framework of these measures also incorrect steps were taken outside Saxony, of that I was not aware at the time. The law which was promulgated then which made the measures taken to overcome the Roehm Putsch legal, were to me proof for the fact that those necessary measures also were to be given a legal basis.
For the rest, I heard nothing of such crimes.
Q: What was the state of affairs after the outbreak of the war? Hitler's decree on the secrecy concerning civil servants in itself limited knowledge. I am now asking you whether, beyond that, in virtue of your positions in the Party Chancellery and later on as Under-Secretary, you had any information which exceeded information in general, such as the German people obtained it from radio and press?
As No. I adhered strictly to that order on secrecy by Hitler. I never attempted to bear of anything which I did not have to hear of in the course of my official duties, perhaps simply for curiosity. In accordance with the instructions, I did not listen once to a foreign radio station during the war merely for the reason that I as a jurist told myself, "You could not possess the inner justification to pass judgment in the case of a trial of one who had listened to an enemy radio station if you yourself did so." I heard nothing else than what the German people heard through the press and the radio. I believe I can say actually that I knew less, simply for the reason that rumors which were discussed among the people were not discussed with me because of the positions I held, and I did not meet people who had bad experiences in that respect.
Q: We are now coming to the first phase of your official activities. At the start you mentioned that your career in the Administration of Justice began in the service of the land of Saxony. Please give a brief description of your work until the time when you were appointed to the Reich Ministry of Justice.
A: As Personnel Referent and Adjutant to the Ministry of Justice for Saxony, I was not fully occupied. Saxony was not very big. After the centralization, there was only one oberlandesgerichts area. Therefore at the Ministry of Justice for Saxony, I was also occupied with special missions which dealt with penal matters and individual big trials. Thus for example I was responsible as an expert on behalf of the Ministry in the Hohenstein case which I believe played a big part in the IMT trial.
Q: Kindly give a brief account of the Hohenstein case to the Tribunal. Tell us what was the subject of that case.
A: In Hohenstein, a small town about 40 kilometers to the south of Dresden, there was a concentration camp. The guards of that concentration camp had engaged in very serious ill treatment of prisoners. Above all, sadistic acts had been committed. When that became known, the Administration of Justice Saxony interfered. It called for the storm of indignation as well with the SA as with the Gauleiter Mutschmann in Saxony who, without any exaggeration, was one of the most wild Gauleiters we had in Germany at all. At that time I succeeded in persuading the leader of the SA group Saxony that the SA man and the guards of Hohenstein had acted in a very despicable manner. The leader of the SA group Saxony dropped the men and forbade all enrollment in SA organizations on the part of these men. The Gauleiter Mutschmann, on the other hand, made every effort to support these people, but Thierack stopped all opposition on the part of Mutschmann and saw to it that a prosecution was started and a trial was fixed. Attempts on the part of Mutschmann to matters were rejected.
In the meantime, the centralization of the Administration of Justice proceeded and the case in that phase, that is to say while it was being dealt with at the Ministry, was transferred to the Reich Ministry of Justice in Berlin. On first April 1935 the centralization was completed. The trial in the Hohenstein case was held at the middle of May 1935 and led to the conviction of almost all the defendants.
Q: May it please the Court, when I refer to a document, I will submit the document concerned. I am concerned with letters written in the years '35 and '36 which the prosecution in the IMT trial introduced against the SA.
THE PRESIDENT: Would you give me the name of that case that you were speaking of? What was the town where this occurred?
THE WITNESS: The name of that town is Hohenstein in Saxony: H-O-H-E-N-S-T-E-I-N.
BY DR. SCHILF:
Q: I shall now ask you to describe to the Tribunal the work you performed at the Reich Ministry of Justice. First of all, how was it that you got into the Reich Ministry of Justice?
A: That happened in the course of the centralization scheme when the Minister of Justice, Dr. Guertner, appeared to have the desire concerning the Reich Ministry of Justice which comprised the administration of Justice of 16 states (Laender) to have the Laender represented at the agencies of the Ministry approximately according to their size and their importance. That is how it happened that on the first April 1935, from I believe every former Lander Ministry of Justice at that time, officials were transferred to Berlin.
From the Ministry of Justice for Saxony, four officials were transferred to Berlin. I never expressed the wish to be transferred to Berlin. The fact that I too was transferred to Berlin is probably due to the fact that negotiations had been held between Thierack and Guertner. I don't know though. About my being transferred to Berlin, I heard at the middle of March 1935. A fortnight later, I was due to start work in Berlin.
Court No. III, Case No. 3.
Q What was this sphere of work which was transferred to you at the Ministry in Berlin?
A Because from 1929 I had worked for the prosecution, and also because at the Ministry of Justice for Saxony, I had dealt with special measures concerning penal law, I was at the Ministry of Justice given a position in Division III at that time, which later became Division IV. I was appointed auxiliary advisor on high treason cases, and as district referent (Bezirks Referent) for several districts of Oberlandesgerichte, District Courts of Appeal, both in political and non-political cases.
Q And of what did your work consist concerning high treason matters?
A The District Courts of Appeals, Oberlandesgerichte, which were competent for high treason cases, and the People's Court, had to report on the indictments and on the sentences. These indictments and sentences were examined for their legal correctness. Statistical charts were made out concerning the type of high treason, the locality where it was committed, the legal provisions on which the sentences were based, and then the auxiliary advisor, Hilfsarbeiter, referred those indictments and sentences to the referent, who took care of the legal and statistical evaluation. At that time no directives were given. That is to say as long as I was the auxiliary advisor on those matters. I only held that position for six or nine months. Nor can I remember that any death sentence at all was among the sentences. A report in "Deutsche Justiz" stated that in 1938, that is to say at a time when I no longer dealt with those matters, the People's Court in the whole of the year 1938 passed one death sentence for high treason and 16 death sentences for treason.
Q Your work as a so-called district referent, Bezirks Referent, that is to say, the work you did in supervising various districts of Oberlandesgerichte, would you give us a description of that, please?
A My work as a district referent for Oberlandesgerichte con Court No. III, Case No. 3.cerning political matters was restricted almost exclusively to dealing with penal matters, which came under the Malicious Acts Law.
Under the Malicious Acts Law, assertions of incorrect facts or the spreading of malicious rumors were punished, which were designed to undermine the confidence in the institutions of the State or the Party, or which were aimed at loading personalities of the State and Party. Furthermore, but that played a secondary party it also settled the punishment for the unauthorized wearing of the Party uniform. The prosecution of such crimes was only possible if the prosecution had been ordered by the Minister of Justice, with the exception of a small few minor points, and nearly all the orders by the Reich Minister of Justice were only possible if the Deputy of the Fuehrer, that was Reichminister Hess, had consented to giving an order for the prosecution. That was the legal provision. That ruling made necessary a tremendous bureaucratic machinery. For every such penal case had to be reported on by every prosecutor throughout in the Reich, to the Reich Ministry of Justice. The Ministry had to contact the Staff of the Fuehrer's Deputy, and next a report had to go to the various prosecution authorities as to whether there was to be a prosecution of not. The task of the Ministry of Justice was above all to find ways which would shorten that lengthy procedure and make it possible for cases to be dealt with speedily. But their task was also to see to it that the rulings were uniform. That is to say, that remarks of that kind were prosecuted in one part of Germany and were not prosecuted in another part of Germany. Some standard, too, had to be established, so that not every remark was considered punishable.
The various referats at the various districts dealt with these matters. The reports which arrived in the form of extracts, in order to be sent in that form to the Fuehrer's Deputy, were afterwards summarized and sent to Munich. That centralized way of dealing with the reports was the main task of the political general referent, of which I was in charge at the time. Just as the district referats -- I will Court No. III, Case No. 3.revert later to the general referat -- these political district referats were, however, considerably restricted by Special Referate (Sonder Referate). Thus, for example, there was a special referat (section) for high treason, and a special referat (section) for treason.
There was a central prosecution agency which dealt with particularly important and sensational political cases. All those cases were not dealt with by the political district referat, the district sections. That meant that it was mainly the Malicious Acts crimes which were being dealt with at the political district referat.
Q As District Referent did you over deal with so-called race protection matters, or with penal matters that concerned church affairs?
MR. LAFOLLETTE: I would like to have the time stated in the question. I object to it at this time, as we don't know what time you are talking about.
THE PRESIDENT: It is a general question, whether he ever had anything to do with it.
MR. LAFOLLETTE: I thought virile in this particular capacity there was a particular time. I thought while at this office.
THE PRESIDENT: Counsel, bring out the time.
A I am now talking about the time when in 1935 I entered the Reich Ministry of Justice for some months as auxiliary advisor on high treason cases, and was also the expert and district referent for political criminal matters of some districts of Oberlandesgerichte. This refers roughly to the time from 1935, April of that year, to the end of 1936. Concerning the so-called race protection cases, that is penal cases under the Nurnberg laws, I, as the referent for political penal cases, did not deal with them. These cases were considered non-political. There was a special section, Sonder Referat, that dealt with the main questions; and I held the district referat for non-political cases only for a few weeks as relief. General cases concerning church criminal affairs were also dealt with by the Sonder Referat (a special section).
Court No. III, Case No. 3.
Q As an expert on political penal cases in those days, that is in 1935 and 1936, did you have close connections with the Gestapo?
A The referent for political penal cases in the district of the Oberlandesgerichte entertained no relations with the Gestapo. When general questions, questions of particular importance arose, they were dealt with by the General Referat (At the general section), or if there was just one question, it was handled by the one referent charges the SS Liaison officer to the police.
Q The prosecution submitted a document, which is Exhibit 31, NG 266, which is to be found in Document Book I-B. Unfortunately, I can only quote the pages of the German text. In the German document book, page 44, following; Mr. Klemm, I suppose you have Exhibit 31 before you?
A Yes, I have.
Q You know the contents?
A Yes, I know the contents.
Q A letter of 13 June 1936 from the Reich Minister of Justice to the Chief of the various agencies, particularly the Oberlandesgerichtspresidents, and general Public Prosecutors, informing them that in September or October of the same year, that is 1936, a discussion with experts of the Gestapo was to be held, I ask you now whether that document is suitable to confirm your personal statement that you had never had anything to do with the Gestapo?
A That conference was a conference of prosecutor generals and of the Presidents of Oberlandesgerichte, District Courts of Appeal. They were to be informed about stopping crimes, particularly concerning high treason and treason. For that reason Police experts discussed the subjects. I did not attend this conference, but the speeches made there dealt purely with technical matters. They were speeches by experts from the central organization of the police, which had the most comprehensive view of these matters. I know that it has been tried to find out a little more about this exhibit.
Court No. III, Case No. 3.
THE PRESIDENT: We have passed our time for the recess.
(Thereupon a recess was taken.)
THE PRESIDENT: You may proceed.
THE MARSHAL: The Tribunal is again in session.
BY DR. SCHILF:
Q: Mr. Klemm, in this connection the prosecution has submitted another exhibit that is Exhibit 32, NG-323; Document Book I-B, I can only give the German pages 52 to 55; 41 in English. The first part of the document is a a letter from the Reichsfuehrer SS -- that is, Himmler -of the 18 February 1937 to the Gestapo office in Berlin; and on that subject the Reich Ministry of Justice stated his opinion on the 10 March 1937, giving instructions to the General Public prosecutors concerning the collaboration between the office of the public prosecutor and the Gestapo.
I ask you whether what you have said before is to be changed by this exhibit 32?
A: No, I do not have to change it. That circular instruction by the Ministry of Justice, as one can see from the file note, was drafted in Department 2 -- not in Department 3, to which I belonged. Besides, this regulation is a purely technical one as to how the files are to be handled during the investigation made by the police.
DR. SCHILF: May it please the Tribunal to refer to the fact that the file note which the witness mentioned is to be found on the letter of 10 March 1937, left upper corner. It is IIA and then there are some arabic numerals. II designates Department 2 of the Reich Ministry of Justice. In this connection the prosecution has not submitted any further documents against you. Therefore, concerning your activity between 1935 and 1937 in the Ministry of Justice, I come to your work as a Referent in the so-called general political Referat.
I ask you first to tell the Tribunal what your tasks were there and what was the scope of your task compared with other general referats.
A: I mentioned before the penal cases of malicious intent which were to be dealt with in the individual district referats. The task of the political general referat was to take excerpts from these penal cases and to put them on lists according to whether prosecution had been ordered or not, and to send these lists to the party secretariat. That was almost the exclusive and only ask of the political general referat.
At the time when I took over that general referat there were about the end of 1946, the beginning of 1937 -about 65% orders that prosecution should be started. When I left and turned over that referat -- that was the beginning of 1939, about April -- the percentage of such orders was 33% to 40%.
In these matters there was no explicit guidance. There were no conferences, say with the Gestapo or the RSHA. The dissolution of that referat took place in April 1939.Without that I was heard on the matter and I became again a simple district referent.
The fact that the so-called general political referat was so limited in its scope is due to the much greater importance of the main general referat, where all general directives, circular directives, were drafted which concerned all penal matters. Therefore, as soon as a ruling had to be made in political penal cases which at the same time concerned general penal matters, these problems automatically were taken care of in the Main General Referat (Allgemeine General Referat); but, apart from that main general referat, there were various special referats which worked independently.
For instances of cases of high treason and treason. From that period I remember only one single disposition which emanated from the political general referat and was published in the periodical "Deutsche Justiz", (German Justice); that was the purely local limitation of the competency of certain districts of district court of appeals for trials and sentences on high treason and treason.
Q: At that time you had nothing to do with high treason and treason in your official capacity in the Reich Ministry of Justice?
A: No, I bad nothing to do with it.
Q: The Prosecution, however, connects you with a document, it is Exhibit 123, NG-178, Document Book III-B German pages 24 to 27; that is a notice in the press, an excerpt from the "Voelkischer Beobachter," and it contains two interviews which a reported of the "Voelkischer Beobachter had with the then president of the People's Court, that was Thierack, and with the defendant Engert. I want to ask you now whether in any way you have influenced Thierack's statements about the People's Courts or whether you were in a position at all to influence him.
A: No, Thierack was much too authoritative and too independent from the Ministry of Justice to ask at all whether he was permitted to grant interviews as president of the People's Court. I cannot even recall having read that interview when it appeared in the newspaper.
Q: Now, in describing your work as general referent, I ask you to tell us whether in that capacity also you had anything to do with matters concerning the protection of the race.
A: No, that was a special referat.
Q: The Prosecution has submitted a document; it is Exhibit 376, NG-767, in Document Book V-D, pages 342 through 368. That is a statement from the Reich Ministry of Justice, made to the chief of the prosecution at Leitmeritz, which at the time of that letter January 1939, was in the so-called Sudeten Gau, and on the basis of the Munich Agreement of the 30th September, 1938, was incorporated into the German Reich. In that letter a disposition is made to the effect that the so-called Nurnberg Laws, which were called officially laws for the protection of German blood and honor, should be introduced in these newly incorporated SudetenGerman territories. The prosecution pointed out that your name appears in that document at the end of the directive. I assume that you have that document before you, Herr Klemm. Will you please explain to the Tribunal the connections and background as to shy your name is mentioned there?
A: That directive to Leitmeritz was necessary since by the decree of the 27th December, 1938, which the Minister of the Interior and the deputy of the Fuehrer had signed -- it is to be found in the Reich Legal Gazette, the Reichsgezetzetzblatt of 1938, on page 1997. As I said, since that decree introduced the Nurnberg Laws in the Sudeten Gau, the Administration of Justice on its part had to make the necessary regulation. That regulation was not drafted by me; I assume that it was drafted in the main general referat, the Allgemeine Generalreferat; and that as can be seen from Figure 2 on page 4, it was sent to me only as a copy, or was supposed to be sent to me; per se, that was not necessary either, because for matters of protection of the race there was a special referat; and, therefore, under my name there appears the name Oberlandesgerichtsrat Dr. von Schroeder -- at that time the referent for such matters.
That it was sent to me is not significant, because this letter, directed to Leitmeritz, was circulated to all members of Department III for purpose of information; that can be seen from pages six and seven of the document I suppose. That I was sent a copy for the reason that - according to page 5 of this document I spoke to Landgerichtsdirector of District Court, Dr. Mitschke; I believe since Mitschke was the press referent of the Ministry of Justice, that the conversation was concerned with paragraph 3 of that letter which is entitled Informations to the Justice Press Office. Mitschke had approached me by mistake and I passed it on to the referent in question, the referent of the special referat, and as can be seen from page 5, Schroeder got in direct touch with Mitschke and Mitschke got in direct touch with Schroeder.
Q: Do I understand you correctly then that you wanted to say "although my name appears officially on that document, I still have nothing to do with matters of the protection of the race"?
A: Yes.
Q: I should like to draw your attention to pages six and seven of that document, that is the so-called distribution list. There are many names and the initials of each one of the gentlemen who in the course of the distribution received a copy of this directive. Now, I see that that directive is of January, 1939, and my attention is called to the fact that the initials were only put on in August and September. Can you explain that to us?
A: There are two possibilities -- either that these sheets do not belong to that letter at all, or that this letter to Leitmeritz was considered so insignificant that at first it was not distributed at all, and later that was done just for the sake of completion.
Q: That is sufficient, Mr. Klemm. Now, I come to another point that again concerns your task as general referant.
A: May I just supplement what I have said; I am just reminded of it. When submitting this exhibit the Prosecution has pointed out that the informations to the secret state police (the Gestapo), which are mentioned here under Roman numeral II, were made so that the people should be transferred to concentration camps; that that was the purpose we certainly did not take into consideration. We thought only that the police would have to exert some amount of supervision, and I should like to refer particularly to Roman numeral III of that letter concerning information to the press office where mention is made of the fact that in relations with the press one had to stress especially those cases of race defilers who committed repeated crimes of that nature. I cannot understand, however, if somebody has been sent to a concentration camp for race difilement that he can commit the same thing afterwards again.
Q. In this connection we want to mention Exhibit 507; that is NG-787, Volume I Supplement, no page given. Do you have that document before you?
THE PRESIDENT: Dr. Schilf, you are about to refer to Exhibit 507, and your list of documents which you kindly gave us this morning identifies that as document book I Supplement. We here on the Bench have that marked as III-B-Supplement.
THE WITNESS: Yes, III-B.
THE PRESIDENT: I will make that correction.
DR. SCHILF: I beg you to excuse that mistake.
BY DR. SCHILF:
Q. Mr. Klemm, do you have that document No. 507 before you?
A. I have picked out the passage which is connected with the subject you want to discuss, and I have copied it. In the case of Exhibit 507 we are confronted with Justice statistics of the year 1942. We can see therefrom that according to the Nurnberg laws 109 Jews had been punished, of whom 47 were punished for repeated delicts. Also, therefrom, one can see that the people were not brought automatically into the concentration camp if they had served a sentence for race defilement.
Q. At any rate, at the time of the circular of 20 January 1939 you did not think of that possibility at all, that the so-called race defilers, after serving their sentences, were to be transferred by the Gestapo to the concentration camp?
A. No.
Q. I come now to another subject which may have been dealt with by your general Referat. The Prosecution has submitted Exhibit 456. That is NG-326, and according to my notes it is in Volume V, on page 8 of the German.
A. V Supplement.
Q. Yes, V Supplement. It is a decree by Heydrich, as Chief of the RSHA (Reich Security Main Office) of 12/6/37, and concerns just that point, "protective custody for Jewish race defilers". That is the subject under which that letter was filed.
That decree was sent by Heydrich in June of 1937 to all offices of the Gestapo. Did you ever know anything about that?
A. I did not know anything about that. That decree is from 1937. The letter to Leitmeritz was sent in 1939. The Heydrich decree, as can be seen from the direction in the lower left-hand corner, is exclusively directed to offices of the police. And furthermore, that decree bears a file note on the side. I do not even know whether that is a file note of the Ministry of Justice. At any rate, the first figure is Roman numeral two; I, however, belonged to Department Roman numeral three.
Q. Therefore, you had no knowledge of it because it might have been possible that in 1939, at some time, you had found that decree of 1937 in the files.
DR. SCHILF: May I point out to the High Tribunal that that Exhibit 456, on the right side, under the date, 12/6/37, bears a note in German "Cancelled, 28-8-38". Then there are the initials "K.U." It seems, therefore, as if that decree was rescinded later by Heydrich himself.
Q. (Continuing) Mr. Klemm, as general Referent, you probably always had to deal with the question as to how far the Gestapo took defendants into protective custody, which defendants, after regular procedure, had been acquitted or released after serving their sentence.
First, I should like you to explain to us in general terms whether you knew about these measures of protective custody subsequent to regular procedure before courts, and whether, as general Referent, you officially had anything to do with it.
A. On the whole, as general Referent, I had nothing to do with these matters because the police did not only commit such perpetrations in political penal cases, but also in non-political penal penal cases.