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.
Consequently, it was a task of the Allgemeine Generalreferat, the main general Referat. It was the endeavor of the Ministry of Justice--and frequently complaints were received in Berlin from all over the country against such perpetrations and interference-that such matters which were definitely bad for the reputation of the Administration of Justice should be stopped. We in the Ministry of Justice at that time tried as much as possible to prevent such arrests after release or acquittal. However, I personally had nothing to do with these matters.
Q. The Prosecution has submitted a document--Exhibit 256, NG 366, Document Book IV-A; in the German book it is on page 12 and following pages. Apparently these are notes or remarks which are personally initialed by you. On page 2 of that document your name with the date 25 January 1939 appears, and on page 5 again there is your name with the same date beside it. Therefore, will you elucidate to the Tribunal what the purpose was of these notations in your handwriting? And, in order to make that quite clear, I ask you to also discuss the reason for these notations.
A. As to these meetings of the Chief Presidents and General Prosecutors with the Minister of Justice, I know that a transcript of the minutes was kept. I never kept the official minutes. As for the notations which are compiled in Exhibit 256, these are notations which I made for my Department Chief, Dr. Krohne. These were the facts: Dr. Krohne, too, considered it unbearable that the Police were criticizing the Administration of Justice in every manner, and charged me with the mission of putting down the statements which the Chief Presidents and General Prosecutors would make concerning this matter. On the basis of that material, he wanted a letter to be composed, or, on the basis of that material, he wanted to have the Minister intervene with Himmler or Hitler. I still recall that he was very downcast because the material, at that time, could not be used for that purpose because of the final remarks made by the Minister, which can also be seen from that transcript.
That is the way I recall that whole matter.
Court No. III, Case No. 3.
Q For further elucidation, who was the minister in January 1939?
A Dr. Guertnert.
Q The Prosecution has raised a charge against you that you were in charge of a special Referat that dealt with regulations and directives concerning more severe methods of interrogation. The Prosecution has submitted Exhibit 33 in that connection. That is NG 310, Document Book 1-B, German page 56 and following pages. That is a socalled "Hausverfuegung" (Internal Directive) of the ministry which was circulated bearing the date of 18 October 1937. I ask you to explain to the Tribunal the meaning and the purpose of this short directive of 18 October 1937 and also to explain the background.
A That directive in point one does not mean that I was to handle those penal cases where the Administration of Justice asked the police to carry out more severe interrogations. Just the opposite was the case. In the few cases where we found out about more severe interrogations (verschaerfte Vernehmung) by the police and had the possibilities at all to initiate proceedings against the police officials who had carried out such more severe interrogations, these were the proceedings in question here, and those were the proceedings I was supposed to deal with. I should like to elucidate. A file was received in the Ministry of Justice which contained material on the criminal procedure against homosexuals, and in these files it was revealed that one of the accused had stated before the judge, "I withdraw my confession which I have made before the police. I was under duress and I was beaten." In a case of that kind that file was submitted to me. That was the meaning of that internal directive. I had a copy made of those parts of the file from which the act of the police official could be clearly seen and returned the file itself to the district referent, and in his referat then the original procedure, that is the proceedings against the homosexuals, was further dealt with. This is the meaning of figure one of this internal directive. That figure one also influenced the business distribution Court No. III, Case No. 3.plan of Department III.
When I was questioned by the Prosecution I was shown a business distribution plan of that period, and there one can see that under my name there is listed as a special point criminal procedures according to Paragraphs 340 and 341 of the Penal Code. Both of these paragraphs, however, are concerned with mistreatments by an official.
DR. SCHILF. May I inform the Tribunal here that I have made an application to the Prosecution, to be given that business distribution plan, which dates from the years 1937/38. As soon as that is done I will be in a position to submit it as a document to the Tribunal, together with a copy from the German Penal Code of Paragraphs 3340 and 3341, which will show quite obviously that it must have been somewhat different than what the Prosecution believed to be able to affirm when Exhibit 33 was introduced.
BY DR. SCHILF:
Q Mr. Klemm, I should like to ask you, however, you dealt with that special referat. Did you have any actual cases where procedures were initiated against police officials for mistreatment of the accused?
A I did that work about ten years ago. Just the same, I believe I can remember one case against two or three police officials in Dusseldorf who mistreated prisoners under investigation who were charged with homosexual offenses. The procedure against the police officials was carried out, and they were sentenced and had to serve their sentence.
Q Exhibit 33 contains two points. You discussed the first. We come now to the second. Here in 1937 you are put in charge of a special Referat. You are to handle cases on the basis of reports concerning so-called executions when escaping from concentration camps and suicides in concentration camps. What was the purpose of that task which is also contained in this directive?
A That also was based on a wish by Dr. Krohne, who purely statistically wanted to have all that material compiled in order to be in a position to gain an insight in such matters seen as it occurred in the Court No. III, Case No. 3.territory of the entire Reich.
THE PRESIDENT: What department was he in, did you ask him, Krohne?
THE WITNESS: In the department at that time that was called three at that time and later was called four. He was my department chief. We had no materials against the police otherwise and in order to point out irregularities in that connection, to have something to go by, we had to collect material and to draw attention to the frequency of such occurrences which would give us the right to inquire about what was going on there. And that information should be given by this statistical compilation of material.
BY DR. SCHILF:
Q Mr. Klemm, when your department chief, Dr. Krohne, charged you with that task also, could you tell the Tribunal what his motives were in assigning that task just to you?
A Dr. Krohne complained to me frequently about the interference and the perpetrations of the police into the field of the Administration of Justice. He knew my basic attitude in these matters, and that may have been the first motive why he gave me that assignment. Another reason may have been that I was not an SS leader. I was an SA leader, and that on that basis I was more unbiased with respect to the police, which was conformed(gleichgeschaltet) to a great extent, by being taken into the SS.
Q You have just mentioned the business distribution plan of 1937-1938. I hope to be in a position later on to submit that plan to the Tribunal. I only want to ask you whether from that plan one can see anything else about your work during that period which would be of importance for the information of the Tribunal.
A There would be less about my work as such, but about the fact that that business distribution plan shows all the other special referats which were in the hands of other referents. It can be seen then that high treason was a special referat, treason was a special Court No. III, Case No. 3.referat, treason was a special referat, and that they had nothing to do with the political referat.
Q Therefore that would be a further confirmation of the facts that you have already stated?
A Yes.
Q. Concerning that period of your activity in the Ministry of Justice, the prosecution has not submitted any further documents -that is as far as your actual work is concerned -- but it has submitted documents about your activity as a so-called liaison fuehrer of the Ministry of Justice with the supreme SA leadership. Therefore, I should like to ask you first in general what were the tasks of a Verindungsfuehrer -- a liaison man?
MR. LA FOLLETTE: If Your Honor please, I only wish to take this opportunity to say this, then I will be through. We would like to have the witness Miethsam and the witness Hecker called, if we may, as soon as we convene after lunch. we have called in Miethsam and Hecker and they are here. I understand from what we said on Thursday that those men might be examined and dismissed if we could have them here and interrupt the defendant Klemm's testimony for a few moments. They will both be available right after lunch and the court can hear them at that time.
THE PRESIDENT: They are being called by the defense.
MR. LA FOLLETTE: Yes, but they are available for cross-examination so that those affidavits may be cleared up, Your Honor.
THE PRESIDENT: Is that agreeable to the defense?
DR. SCHILF: Yes.
THE PRESIDENT: You may interrupt the direct examination of the defendant Klemm and put these two witnesses on the stand, commencing at one-thirty.
MR. LA FOLLETTE: Yes. thank you, Your Honor. I shall advise the witnesses.
BY DR. SCHILF:
Q.- I don't think I have to repeat my question. Would you please answer it now?
A.- The position of the Verbindungsfuehrer -- the liaison fuehrer -
had two sides. On the one hand, on the part of the Ministry of Justice to remove difficulties which may arise or may have arisen locally between the SA and the Administration of Justice, or to make suggestions on the part of the Administration of Justice to the Chief of Staff of the SA. On the other hand, on the part of the SA, to function as a legal consultant and to assist the SA in case it had to discuss some legal matters with the Ministry of Justice, or wanted to address itself to the Ministry of Justice in writing.
Q.- What gave cause to your becoming a liaison fuehrer?
A.- I have mentioned briefly that in 1935 when I was transferred to Berlin into the Reich Ministry of Justice, I also had to be transferred by the way of the SA. At that time, the Gruppenfuehrer of the SA of Saxony wrote to the Chief of Staff Lutze in Berlin and recommended me for a position of that kind as a liaison man. The SA Gruppenfuehrer in Saxony knew me well from the time when I was in the Ministry of Justice in Saxony and from the case of Hohenstein.
Q.- Therefore the case Hohenstein was one of the reasons that one thought one could trust you, both on the part of the SA and on the part of the Administration of Justice, if that should become necessary to be quite sufficiently unbiased.
MR. LA FOLLETTE: I object to the question.
THE PRESIDENT: The objection is sustained. The question is purely leading.
BY DR. SCHILF:
Q.- I still want to ask you whether that appointment as liaison fuehrer was made with the agreement of Dr. Guertner, the then Minister of Justice?
A.- First Lutze, Chief of Staff, asked me informally to take over that assignment as liaison man, If I remember correctly, a letter was subsequently written by Chief of Staff Lutze to the Reich Minister of Justice. At any rate, I was then officially listed as SA liaison fuehrer between the SA and the Ministry of Justice in the Ministry of Justice.
I can no longer remember what the official negotiations were that led to it, but I remember that I was listed as such also in the telephone directory.
Q.- All right. The Prosecution has submitted 438, that is NG-938.
THE PRESIDENT: May I interrupt you, please? Would you ask the witness when he became liaison fuehrer? I haven't that date in mind.
THE WITNESS: In 1935, when I was transferred from Dresden to Berlin, Your Honor.
BY DR. SCHILF:
Q.- Exhibit 438 was submitted by the prosecution; that is NG-938. It is in Volume I Supplement, German text pages 71 to 74. There are suggestions for the appointments of members of the SA to honorary associate judges of the People's Court. The document begins with a letter of 4 December 1936; that is after your appointment as liaison fuehrer. The Supreme SA Leadership writes to the Ministry of Justice. I want to ask you now in what way did you contribute to these appointments of SA Leaders to associate judges in the People's Court in 1936?
A.- As to the honorary associate judges of the People's Court, they were established by law. That has frequently been discussed here. These associate judges were selected from the ranks of the Armed Forces, the Party, and the Labor Service -- and I don't know what other organizations may have participated. One day the Personnel Referent dealing with these matters in the Reich Ministry of Justice, Department I, called me in my capacity as SA Liaison fuehrer and explained to me that associate judges were required for the people's Court. He wanted me to tell him whether the SA could nominate some. The way it was handled in the People's Court was that each Senate was assigned a certain number of judges and a certain number of honorary associate judges, and from these groups five people were chosen who had to attend on the days of sessions. I im mediately wrote from the Adjutant's Office of the Chief of Staff of the SA to the Personnel Office of the SA, which was in Munich -- or maybe I made a telephone call -- I can no longer recall that.
The Personnel Office of the SA gave me a list of names and a selection was also made right there in the Personnel Office, and I forwarded these names, as can be seen from the exhibit, to the Ministry of Justice.
THE PRESIDENT: Dr. Schilf, it will be necessary to postpone the further examination until he is recalled to the witness stand. We have two minutes before the time for recess. Dr. Schilf, will you refresh our memory as to what you said about the proposed cross-examination of Dr. Miethsam. On what affidavit was that to be based?
MR. LA FOLLETTE: That is a Kubuschok matter, if Your Honor please. If you recall, on Thursday, that was an affidavit which Your Honors ruled you would receive and on which we could cross examine. As I recall Your Honors said we could try to arrange to get him in. On the Hecker affidavit, you wouldn't receive them unless he was cross-examined.
THE PRESIDENT: Possibly I have the wrong affidavit in mind. It's my recollection that one of the defense counsel referred to the proposed cross examination of a witness and said that it would be necessary to examine him page by page for 120 pages of a certain document book. Who was that?
MR. LA FOLLETTE: That was Dr. Schilf, if Your Honor please, referring to the witness Altmeyer.
THE PRESIDENT: That issue is not involved this afternoon?
MR. LA FOLLETTE: We are not going to go through 200 pages this afternoon.
THE PRESIDENT: If it were involved this afternoon, the Court would have had something to say about it in advance.
MR. LA FOLLETTE: No, Your Honor.
THE PRESIDENT: We will recess until one-thirty.
(A recess was taken until 1330 hours.)