AA report on those cases was made to me. I did not see the files, but the expert made an oral report on such cases to me.
Q Your approval was not an automatic approval, but it was based on a study of the record of the case as presented to you, wasn't it?
A The expert had studied the case and then reported to me on the contents of the files and told me what opinions had been expressed by the various authorities.
Q But you didn't depend solely on those opinions. You made up your own opinion, as I understand you?
A Yes, yes.
Q That is what I wanted to know. Reference is made in your direct examination to the fact that Department 5 was at least technically under your control with reference to penal administration.
A That it was under my direction formally, that is true, but in practice that was different.
Q But there was an order which formally put that department under your control?
A Yes.
Q Why did you visit the women's prison?
A I visited that prison because my family, on account of the air war, had been evacuated to that place. My wife lived in this prison with two children in one room and a half in the women officials' quarters, and when I went to see my family I used that opportunity to inspect the prison.
Q If you had carried out the formal and technical order which placed penal administration under your control, in other words, if the practice had been in accordance with the order, would it then have been your duty to investigate conditions in the prisons, either by yourself or by a subordinate?
A What orders are you referring to, Your Honor?
Q I understood the Department 5 with reference to penal administration was technically under your authority. You said it was.
A Formally, yes.
Q If the practice had been in accordance with the formal order, would it then have been your duty to investigate conditions in the prisons?
A My personal duty -
Q Either your own personal or your subordinates.
A. Department 5 existed for the purpose of, among other things, inspecting the prisons and to see to it that everything was in order.
Q Yes.
A The general public prosecutors were responsible for these matters above all. They in fact were the supervisors in every district of a district court of appeal.
Q I may not have a perfect recollection of that matter, and you can correct me if I am in error. I understood that the question was asked to you whether Division V could decide when prison authorities were authorized to turn over prisoners to the Gestapo, and your answer was that that was a matter which anyone who knew Thierack would know that he reserved for himself. Was that substantially your answer?
A Yes.
Q Would Thierack have acted upon a matter of that kind without first receiving some report from his subordinates?
A I cannot say. I can't answer about a hypothetical case. I only meant to say that Thierack reserved to himself the making of decisions of that kind.
Q I think the answer is quite obvious. Even though he did reserve to himself the decision of that kind? wasn't it a part of the duty of his subordinates to present to him reports concerning the matter? on the basis of which he made his decision?
A That varied. Department IV was in a position to submit such reports? but it could happen that somebody else, above all the police? submitted a report to him -- an immediate report. I do not know of such cases.
Q Our time is running out. Do you know whether the question of clemency was ever submitted to the Ministry of Justice in the Montgelas case?
A No. I know that for certain because contact between Nurnberg and Berlin had been disrupted.
Q We will recess until tomorrow morning at nine-thirty.
(The Tribunal recessed until 13 July 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Altstoetter, et al., defendants, sitting at Nurnberg, Germany, on 15 July, 1947, 0930-1630, Justice Brand presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please, Your Honors, ell the defendants are present in the courtroom with the exception of defendant Engert, who is absent due to illness.
THE PRESIDENT: Let the record show that the defendant Engert has been excused.
I understand the cross-examination has been concluded.
MR. LA FOLLETTE: Yes.
THE PRESIDENT: Is there any redirect examination?
DR. SCHILF: May it please the Court, I have only a few questions to ask in my redirect examination.
HERBERT KLEMM - Resumed REDIRECT EXAMINATION BY DR. SCHILF:
Q Mr. Klemm, the Prosecution during the cross-examination submitted Exhibit 528, that is NG-584. The Prosecution put it to you that it was the Ministry of Interior that sent you to the Netherlands. I assume that you have had an opportunity to examine the entire document, and that you are in a position to make a statement as to why you were called to the Netherlands and by what authority.
A I examined Exhibit 528, and in connection with what I was told after I had been in Holland, the Minister of the Interior as Plenipotentiary General for the Reich Administration and as the General Minister for Civil Servants had received instructions to organize a staff of officials for Seyss-Inquart in the Netherlands, because officials from all sectors of the State could be considered, from the Ministry of Economics, from the Ministry of Finance, the Ministry of the Interior, the Ministry of Justice, and so forth.
Q Furthermore, Mr. LaFollette put it to you from the same document the last page is a letter from the Reich Commissar for the occupied Netherlands territories, that is Seyss Inquart, dated 9 July 1940, to Dr. Guertner, the Minister of Justice of those days. The letter says that the Reich Commissar, that is to say Seyss-Inquart, did not intend to organize a new jurisdiction in the Netherlands , but merely had to supervise the existing administration of justice from a supervision angle. Only in penal cases a new jurisdiction was to be organized, and the ordinance concerning that organization was already completed. Mr. La Follette asked you whether that statement was in accordance with the Hague Convenant on Land Warfare, that is Article 43. It was read out to you. I only want to point out to you that Article 43 contains the regulation that public order was to be restored or to be maintained, that is, as far as there was no serious obstacle, while preserving the laws of the country. Were those regulations adhered to at the time as far as you can judge matters?
A Yes, the laws of the country were observed. The Netherlands jurisdiction itself continued to work quite independently, nor did we demand to exercise penal jurisdiction over the Dutch, but only to the extent to which a Dutchman infringed German interests and rendered himself liable to punishment.
THE PRESIDENT: Dr. Schilf, will you pardon an interruption which has has nothing to do with your redirect examination? I think before you started the redirect examination we should have inquired concerning your document books and also concerning what the prosecution proposed to do with the exhibits which were marked for identification as a part of the cross-examination. May we dispose of those questions before you proceed further? First, as to your document books.
DR. SCHILF: May it please the Court, I regret it very much, but my document books still have not been translated.
I went to inquire again yesterday, and I was told that there were arrears in the translation department because there had been three days of public holidays two weeks ago and because of that my document books are not available yet. I can only express the hope that they will arrive any moment now, but until now that hope has not been fulfilled. Therefore I am confronted with the problem that I am not able to submit my documents until a later time.
THE PRESIDENT: Then let me ask the Prosecution what its intentions have been with reference to the introduction of exhibits which were marked for identification and which, according to the practice with which the Prosecution is no doubt familiar, would be introduced as a part of the cross-examination.
MR. LA FOLLETTE: If Your Honor please, the Prosecution had originally contemplated introducing these documents, both the Schlegelberger documents and these which were marked. Apparently a practice developed in Tribunal I, for reasons that I do not know, in which that Tribunal apparently desired that documents be merely identified and then introduced as part of the rebuttal testimony. I do not care to follow that, except that it apparently was for some reason and a custom. If this Tribunal desires to have these documents offered - I think the reason in Tribunal I was that they did not want argument on the probative value at the same time during the cross examination, as has been told to me. If this Tribunal desires that they shall be offered after being marked, of course the Prosecution will do so, and we will try to bring in all that we have so far which are in the possession of the Prosecution.
THE PRESIDENT: The Tribunal is of the opinion, notwithstanding the practice of Tribunal I, which is certainly not binding upon us, that fairness to the defense requires that these exhibits which have been used in cross examination in accordance with the practice with which we are familiar, to the end that the defense may treat them as being exhibits in connection with their redirect examination.
MR. LA FOLLETTE: If Your Honor please, of course, I think the best -- I think that that is a more satisfactory way. I realize that what Tribunal I did is not binding. It is merely that that is what apparently was being done here.
THE PRESIDENT: The record will be more understandable if the exhibits which have been identified and discussed are also first received or rejected in connection with - or in close connection, at least, with the cross examination.
MR. LA FOLLETTE: Those which are prepared for distribution, Your Honor, we will bring in and offer when the Court desires.
THE PRESIDENT: I think this would be a proper time to do so.
MR. LA FOLLETTE: It would be a proper time, except that I believe that they are not physically in the courtroom, are they?
THE SECRETARY GENERAL: No, they are not. They are in the archives.
THE PRESIDENT: They can be brought into the courtroom.
MR. LA FOLLETTE: The Schlegelberger documents also, Your Honor? They were also marked.
THE PRESIDENT: Yes. Can you make your offers now, and the mechanical features can be attended to between now and the recess time.
MR LA FOLLETTE: The Prosecution offers to introduce into evidence Prosecution's Exhibit 528, Document No. NG-584.
THE PRESIDENT: What about 526 and 527?
MR. LA FOLLETTE: If Your Honor please, those are two Schlegelberger documents.
THE PRESIDENT: Yes?
MR. LA FOLLETTE: I don't see in the courtroom any of the defendant Schlegelberger's counsel, and I hesitate to offer those in their absence.
THE PRESIDENT; 528 is received.
MR. LA FOLLETTE: The Prosecution offers to introduce into evidence Prosecution's Exhibit 529. I find that at my table they do not have the identification of the NG numbers here.
THE PRESIDENT: 1580.
MR. LA FOLLETTE: 1580?
THE PRESIDENT: That's right, The exhibit is received.
MR. LA FOLLETTE: The Prosecution offers to introduce into evidence Prosecution's Exhibit No. 530, NG-746.
THE PRESIDENT: The exhibit is received.
MR. LA FOLLETTE: Now if Your Honor please, Exhibits 531 and 532 have been described and given no NG numbers, but I ask that 531 be admitted into evidence and prepared for distribution later.
THE PRESIDENT: It will be received in evidence.
MR. LA FOLLETTE: The prosecution offers to introduce into evidence Prosecution's Exhibit 532 which was described yesterday subject to being prepared for distribution as a document.
THE PRESIDENT: It will be received in evidence.
MR. LA FOLLETTE: When at any time during these proceedings today or tomorrow when any of the defendant Schlegelberger's counsel are present, the prosecution will then make an offer of those exhibits.
THE PRESIDENT: Now let us hear your views as to the proper procedure with reference to the Klemm documents which should be but are not available for offering at this time, and in making that statement we imply no criticism of defense counsel. We understand the delays which were unavoidable as far as you are concerned.
MR. LA FOLLETTE: So far as possible, the prosecution under these circumstances will not require a 34-hour notice. There may be individual documents which we might want to check, which when offered we may ask the court to permit us to rely upon the 24-hour rule. However, we can't very well introduce these documents, at least until there has been an English translation, under any circumstances that I see.
THE PRESIDENT: The interest which the Tribunal has is in seeing that the examination of this witness, whether in general or in relation to exhibits, shall be concluded at one time, if possible. We may have to somewhat relax that rule in view of this difficulty with the documents, but it must be avoided so far as possible.
MR. LA FOLLETTE: Again I relieve the Tribunal will agree with me the that I must ask the right to reserve some right of cross examination after seeing these documents because I never had an opportunity to see them at all.
THE PRESIDENT: You have already reserved thy right.
MR. LA FOLLETTE: Subject to that reservation and the other statements I have made, as soon as the documents are translated, we have no objection to them being brought in and offered as exhibits.
THE PRESIDENT: Thank you, gentlemen. Now Dr. Schilf you may proceed with what you were doing.
REDIRECT EXAMINATION --Continued
BY DR. SCHILF:
Q. I referred to article 43 of the Hague Convention, and you have already given your answer. Yesterday under cross examination you mentioned an example to the effect that the competency of the German court existed when, for example, a Dutchman became involved in a brawl with a German. Do you know what the present regulations are in the territory under American occupation regarding the competency in similar cases?
A. It is the same, with this one restriction! In the Netherlands* territory, at that time, such cases did not come before a military court but before a civilian penal court of the civilian administration in the Netherlands.
Q. Mr. Klemm, Mr. La Follette put several passages to you from the IMT sentence referring to Seyss-Inquart. They concerned, above all, the question that Seyss-Inquart was responsible for the transfer of Jews from the Netherlands to Auschwitz, for example. I ask you until March '41 when you left Holland, did you hear of anything indicating that already at that time Jews were being transferred from Holland?
A . No. That problem was never discussed. It was never under discussion at all.
Measures such as evacuation of Jews from the Netherlands were during the time when I was in the Netherlands, never discussed.
Q. I, too, have to revert to Theresienstadt once again. I believe it is necessary for you to tell the Court with particular clarity when and how long you were in Leitmeritz, that is to say, in the proximity of Theresienstadt.
A. I went twice to Leitmeritz during the time I was Undersecretary, and each time I stayed one day. I went there to avoid that 10 to 12 Referents had to go to Berlin to make reports. In order to avoid that, I alone or I and my personal Referent went to Leitmeritz. That caused less difficulty. On one of those trips, by mistake, we came to that barrier where we had to turn back. That barrier was so far away from the town of Theresienstadt that I did not see the town itself. That was still the open road and there was a house by the side of it.
THE PRESIDENT: You have covered that matter. You have fully explained that.
BY DR. SCHILF:
Q. Mr. La Follette, interpreted your testimony in the direct examination about the so-called "model ghettos" in Theresienstadt. That is how they were called as if particularly on the basis of the photographs that appeared in illustrated papers, you had had the impression that things were very nice there (Wunderschuen). I believe that was the expression that Mr. La Follette used yesterday. Will you tell us something about that?
A. That I said that or that I had that impression, I did not say. I only stressed that there, though isolated, the Jews had their own administration. They had their own Mayor. They had their own Municipal Council and their own police, as was evident from those pictures.
Q. The next point is Exhibit 437. Exhibit 437 was put to you in great detail. It concerns the measures for simplification in penal cases, during the war, which were discussed in great detail at the Party Chancellery. Mr. La Follette put it to you that you, during those detailed discussions, among other things suggested that the police were to get an independent penal law, and it was to be avoided that in the case of sentences passed by the police the courts participated at all. Will you explain to the Tribunal whether the police had its own penal law already before 1933 in the case of people who had transgressed against the traffic laws that is minor cases such as you mentioned.
A. That right of the police to deal with trifles in that way, so to speak--in a summary way--that right existed for a long time before 1933. I also stated that by far in the majority of cases, these people had been speeding on the road, had passed the red light had overtaken people on the wrong side, etc. Usually fines of 10 to 20 marks were imposed.
THE PRESIDENT: Herr Klemm, I recollect that same testimony with reference to these minor transgressions which were handled by the police. He has already given that and we recollect it.
BY DR. SCHILF:
Q. I only wanted to know whether these provisions existed already before 1933 and you have already told us that they did.
A. Yes.
Q. The next question refers to Exhibit 529. The prosecution introduced that cross examination as NG--1580. Do you have that letter before you?
A. No, but I have read it through.
Q. That letter is dated 16 August '44. The place where that so-called preliminary note was entered in Munich.
Can you tell us where that note was made and who wrote it?
A. According to the copy which was given to me yesterday, that note is signed "Helm". Helm was the General Prosecutor at the District Court of Appeal, Munich, at that time. Ministerial Councillor Mietschke from the Reich Ministry of Justice at that time probably was the District Referent for the area of the District Court of Appeal, Munich. In that capacity, he had a discussion with Helm, the General Public Prosecutor. In the course of that discussion, several problems were dealt with. Helm made a note of than, and as it says "zwv"--that is to say, for further discussion--("Zur weitevern Verfuegung")--he passed than on to the Senior Public Prosecutor Keitel.
Q. We must now refer to Exhibit 252, only with one question, though. That document Book 111-L. Have you got your copy before you? The question as to what constitutes a clear case and what constitutes a doubtful case had been discussed in great detail. I would like to ask you to tell us a little more about the doubtful cases. Would you tell us whether those doubtful cases were reported on by only one Referent or whether there was a secone or Co-Referent, too?
A. The name "Doubtful and Clear Cases" are purely technical sub-divisions for that report list. These terms were in use only for those lists within the Ministry. The courts and the prosecution offices outside the Ministry did not know at all that division for the list and use of the Ministry. That division into clear and doubtful cases was made, above all, because the doubtful cases, within the meaning of the report lists, were reported on by the collaborartor---the Mitarbeiter--and not by the Referent. That is evident, too, from these lists which I have before me, for with the doubtful cases the collaborator's name who reported on them is always entered on the list.
The name of the referent always appears in the heading of the various groups of the death sentences listed. That did not prevent, and in the case of reports made to me, the clear cases too were examined very carefully by myself. It is evident from the list on page 2, which lists reports made to me, that in the Lindner Case where the sentence had already been passed, but the written opinion had not yet been submitted, I, although the case was reported to me as clear, refused to cake a decision about refusing the decency plea. Likewise, on page 92 where the Mattel Case appears, No. 24 on the list, a report was made to no about an immediate ("Blitz") execution. I refused to cake a decision at that moment and demanded do see a written report first.
Q. Will you turn to page 47, please; that is page 47 in the German text; in the English text it is pages 52 to 53. In the heading it says: 12 October, 1944, capital "A"; death sentences in high trearson and treason cases; that is followed by the name of the Referent Landgerichtsdirector Jaeger. You just said that name appeared in the heading.
A. That is the referent; the referent then reported on the socalled clear cases - clear in the technical sense.
Q. That is followed by a small "a", doubtful; then, the name Havemann comes; obviously that is the witness Professor Havemann who was heard by this Tribunal here.
A. Yes.
Q. On the right hand of the page it says collaborator Teyden.
A. That is the collaborator who made the report on the case to the Minister of Justice on that day.
Q. Thank you. Yesterday, in great detail it was discussed as to how far you had been connected with police interrogations. You told us in great detail that between the years of 1936 to 1937 you dealt with such matters; that you did not do so after 1939 because a special jurisdiction had been established for the SS and police. For 1936 and 1937 you were asked -
THE PRESIDENT: 1936 and 1939.
Q. Yes; you were asked whether the Administration of Justice, in general, did not possess the authority to institute prosecutions against the police, not only in individual cases, but, so to speak, as inspecting authority, that is to say that the police as a whole was controlled and investigated by the Ministry of Justice. And, when you were asked about that matter, by Judge Harding, as far as I know, you did not give a clear reply.
A. The Administration of Justice neither possessed the actual means of authority, nor the legal possibilities to supervise the police or to institute general investigations of it. The supervising authority of the police was the Minister of the Interior, and not the Ministry of Justice. Even inside the Ministry of Interior, Himmler had become more and more independent. The Administration of Justice did not have ah independent police to control or supervise Himmler's police -if I may put it that way. We were dependent merely upon the one police which was subdivided in ordinary police, criminal police, Gestapo, health police, etc. Before 1939 we merely had the possibility to investigate one or the other case which became known to us. After 1939, however, punishable acts committed by individual policemen, too, were taken over by the independent jurisdiction of the police, that is to say the SS and police jurisdiction.
Q. My last question: Mr. Lafollette read out a list to you, a list of matters of which you knew; and a list of matters which you said you had known nothing about. It was road out very fast and I could not follow every point, but concerning the list of matters where you said that allegedly you knew nothing about them, he said that you had known nothing of the fact that Jewish property had been confiscated. Would you toll us something about that? Evidently that is a legal provision which was published in the Reich Law Gazette. Will you tell whether you knew nothing about that?
A. That question was connected with my statements on Exhibit 204. That concerned the regulations which appeared at the time at the Reich Party Chancellery under the heading, curtailment of legal remedies for Jews. In respect to that I said that for the legal group III-C, that work was concluded with draft 2 which was made in August 1942; but the Legal Group III-C and I knew nothing further because we no longer participated in drafts 3, 4 and there is, I believe, even a draft 5. As for the confiscation of Jewish property, naturally I heard about that; and, after all, that was mentioned in the Reich Law Gazette; the 13th Amendment to the Reich Citizen Law was published in the Reich Law Gazette, but I knew nothing about the way that Reich Citizen Law had originated. This catalogue which the prosecutor has compiled contains other points, and I was charged with remembering them well. I have already pointed out that most of the things I was able to reconstruct only with the aid of the documents which the prosecution itself submitted. To name merely one example, if I still remember that in 1938 one sentence in a case of high treason and 16 in cases of treason were passed by the People's Court, the reason is that I know that from the official periodical "Deutsche Justiz". During the six months that I have been in prison hero I have looked through all the volumes of "Deutsche Justiz".
DR. SCHILF: I have no further questions, Your Honor.
THE PRESIDENT: Is there any further re-direct examination of this witness? There being no further re-direct, the witness is excused subject to the possible necessity of recalling him in connection with documents to be offered by both parties.
DR. SCHILF: May it please the Court, I would now like to call the witness Hans Fritsche, and I wish to call him for the Defense as a whole. I also have a few questions to ask the witness on behalf of the defendant Klemm.
THE PRESIDENT: All right.
HANS FRITSCHE, a witness, took the stand and testified as follows:
BY JUDGE BLAIR:
Hold up your right hand and be sworn. Repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated.
DIRECT EXAMINATION BY DR. SCHILF: (Attorney for the Defendant Klemm):
Q. Witness, will you tell please the Tribunal your name, the place and the date of your birth?
A. Hans Fritsche. I was born on 21 April 1900, at Bochum.
Q. Herr Fritsche, before the IMT you were indicted as a major war criminal.
A. Yes.
Q. What was the sentence?
A. I was acquitted on all counts under which I was indicted.
Q. Herr Fritsche, would you please describe to the Tribunal what official positions you held in the period from 1933 until 1945?
A. From 1933 until approximately 1938 I was the editor-in-chief of the news service of the German radio, the so-called wireless service; from 1938 until March or April, 1942, I was the head of the department for the German Press, in the Press Department of the Reich Government, in the Ministry of Propaganda. From 1942, in December until 1945 I was the head of the radio department in the same Ministry.
Q. What do you know about information which was available to the various Reich Ministers on matters of public life and foreign countries?
A. I cannot judge what information the individual Reich Ministers and individual Reich Ministries obtained from their own spheres of work, but I believe that I can judge as to what took place in the way of exchange of information between the various ministries.
Furthermore, I believe I can give an opinion as to the extent of information which the various ministries received regarding events abroad.
First as to information on domestic affairs, cabinet meetings, I believe since the year 1937, no longer took place. The representatives of the various Ministries tried very hard to obtain information from other departments; therefore, they sent representatives to the press conferences which from 1938 to 1942 were under my directions. They sent representatives for the purpose of giving information about their own sphere of work, but also for the purpose of receiving information. That happened especially at the small conferences which took place after the main conferences, the so-called "Nach-Boerse." Foreign news which the individual Ministries received were especially limited. With the exception of such an office as the Foreign Office, the other Ministries did not even receive the information which the leading German journalists received, and by that, I am referring to a group of about 1,000 people.
Q You spoke of a press conference and of a conference which was held after the main conference. Do you know whether representatives of the Ministry of Justice, for example, attended those conferences?
A They regularly attended the main news conferences; the socalled subsequent conferences they only attended occasionally.
Q Do you know whether representatives, again, for example, representatives of the Ministry of Justice attended the conferences with Goebbels?
A I do not know what conferences of Goebbels you are referring to.
Q I am referring to the conferences which I believe were held every day, the conferences at which Goebbels laid down the directives for the newspapers end for the journalistic work of that day.
A I do not remember ever having seen a representative of the Ministry of Justice at such a conference with Dr. Goebbels.
Q Was there also written news material which was sent to the various Ministries, and I am particularly interested in the Ministry of Justice?
A There was such written news material, but as far as it being dispatched to the various Ministries the practice varied.
Q Can you tell us what was the technical expression for that material which was sent out in that way?
A The so-called DNB. that is Deutsche Nechrichten Buero Dienst, the German News Agency, the red or blue service, was sent out to the various Ministries. That material was completely uncensored; it was not selected at all; it was the so-called raw material service. It contained all reports from the various news agencies like Havas, Reuters, Associated Press, United Press and-so-forth. It also contained material from the Russian News Agency, Tass. Secondly, it was a socalled monitoring service, that is a service which listed chronologically all reports from foreign radio stations, and that material was passed on without having been censored at all or having been edited or embellished.
Q Those were the written sources for news material. I now want to ask you were the Ministries, during the war, allowed to monitor foreign radio stations?
A No, they were prohibited to do so, with the exception of the Foreign Office, as far as I know, that is.
Q Did the Ministry of Justice also come under this prohibition from listening?
A I assume so because various justice authorities, in individual cases, asked the Monitoring Service for news material.
Q Can you tell us something about these individual cases. Was it a case of obtaining news material or was it connected with the Prosecution of a case?
A It was exclusively connected with the Prosecution of cases.
Q You mentioned the written sources for news material. Can you tell us where those monitoring reports came from; was that material compiled at your Ministry or did it come from other quarters?