AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 18 September 1947)
THE MARSHAL: The Tribunal is again in session.
WILHEIM OEHLCKER - Resumed DIRECT EXAMINATION - Continued BY MR. KING:Q.- Doctor, just prior to the luncheon recess you were discussing the facts of the Korutz case.
Can you take up where you left off, please?
A.- Yes. Meanwhile, I have looked through this file copy. This is a file from the Administration of the District Court of Appeal. Of course, I was not familiar with it at the time and I am seeing it for the first time today. From this document I gather that at a time when my second decision had not yet been made, contact had taken place between the presiding counsel of the District Court of Appeal and the presiding judge of the Penal Chamber of the second instance; that the file had already been unofficially submitted to the presiding judge of the Penal Chamber while the case was still pending with me, at the court of the first instance; and that, furthermore, the presiding judge of that Chamber had given assurance, with almost complete certainty, that he would stop the. proceedings. At the time I did not know anything about these negotiations which took place, and I do not consider them quite legal. I then again refused the proceedings, as it was a trifling matter, and then it was concluded.
Q.- From what you knew of the Korutz case, without having of course seen the document NG-2283 which you are seeing for the first time today, is the information contained in it, to the best of your knowledge, in accord with what you knew to be the facts at the time?
A.- Yes, that it is. However, I did not know, of course, of the negotiations which took place in the interium between the District Court of Appeals and the Penal Chamber. President Letz, in the discussion which I had with him afterwards, and which I have already described, told me that influence had been exerted.
Of course, I thought this influence was exerted after my decision had already been made, but something that I did not know was that while the case was still pending before me, influence was being exerted.
Q.- Yes, The net result of the case was that the proceedings against the individual Korutz were quashed, is that correct?
A.- Yes.
Q.- Now, doctor, I wonder if you recall the facts of a case which I shall never hope to pronounce, but I will spell it, t-s-v-a-t-g-h-e which I believe came up in Hamburg in 1941, and, if I am not mistaken you dealt with it in your capacity as a judge at that time. Could you give us the facts briefly in that case?
A.- Yes. Tsvatghe was one of the editors of the National Socialist paper, the Hamburger Tageblatt. During peace-time he had caused an automobile accident, but after this accident occurred he had escaped. This was a matter of drunken driving. The first time, this case did not come before a court, it was handled by the police. Then, around the turn of 1940-1941, Tsvatghe was again brought before a court for the same offense. During the war, he had been driving his car during a blackout while he was in a drunken condition, he hit a pole, and then escaped. Again, it was a case of hit and run driving, which at that time, was considered a very serious offense, and it was especially serious since it was during a blackout and a human being was almost killed at the time; a human being was in great danger.
The case was tried by my division. I had planned to punish this man very strictly because that seemed necessary for purposes of public security. As far as I remember, I sentenced him to five months' imprisonment, and I immediately had him arrested in the courtroom because it was surprising to me that he had not been placed under arrest. I knew that if I did not arrest him the Party would again take some steps in order to avoid having the penalty executed, and I wanted to prevent that under all circumstances.
Therefore, subsequent to the pronouncing of the sentence, I had him arrested. He had been under arrest for just one week, at which time I went on leave. During the time while I was away on leave, he was released. That is, he served his term for one week. In my conviction, he did not merit this release from custody and in the case of another person that would never have been considered at all.
That was the course that the Tsvatghe case took.
Q.- Now, did Dr. Rothenberger, at any time during the course of this case, during its pendency before you, get in touch with you?
A.- Yes, but not before the sentence. While the case was pending before my chamber he did not exert any influence upon me. He only told me that the sentence did not have legal force and that Tsvatghe was no longer under arrest or in prison.
Q.- And did you get the impression from Dr. Rothenberger that he personally had released the man whom you had sentenced?
A.- I had the impression that there was some cooperation between a representative of the Party, and later I found out that it was Undersecretary Arentz of the Prosecution, and Dr. Rothenberger, and that on the basis of these discussions Tsvatghe was pardoned. That was something which I had desired to prevent, but I could no longer prevent it. Officially my opinion was not asked for on the clemency question, which was the proper procedure; I should have been asked.
Q.- Rothenberger got in touch with you how many times in connection with the case?
A.- Twice.
Q.- The net result of which was that the man whom you had sentenced was pardoned without serving his sentence, except for one week in detention; is that correct?
A.- Yes, one week only, he was in detention.
Q.- Now, doctor, do you recall the case Reimer?
A.- Yes.
Q.- Would you explain very briefly the facts of that case and who the principles were?
A.- Reimer was the owner of a restaurant in the area of Hamburg, or in the district of Hamburg. During the closed season he had gone hunting and had shot a dog with an illegal gun. That was a hunting offense of the most serious nature. He was indicted before my chamber and was sentenced by me to six months in prison because of poaching. I had not thought that this case would have serious consequences because Reimer was not a Party member, so I had supposed that no objections would be made from any side, because I considered the man to be an insignificant person and didn't think that anything of any consequences would result. The man was sentenced and was supposed to servo his term.
Then, suddenly, personal efforts were made by the Gauleiter and Reichstatthalter Kauffmann in order to prevent the man having to servo his sentence. At first I wondered why Kauffmann happened to have interest in this particular man, and later on I heard that Kauffmann frequently was a guest in the restaurant of this man, and that was the explanation for me.
I refused to approve the clemency plea. Then, first of all, Reimer was drafted into the Army, where he stayed for some time, and then he was released from the Army and returned and, as far as I remember ho was pardoned. This happened on the basis of the personal intervention of Reichstatthalter Kauffmann, for, in the clemency file which was made available to me, I saw a letter written by Gauleiter Kauffmann to the Senior Public Prosecutor, in which the Gauleiter recommended to the Senior Public Prosecutor that he pardon this man and excuse the man for his deed.
That is what I think was the reason why Reimer did hot have to serve his sentence. However, I have to say that in this case, contrary to the previous case -- that is, the previously mentioned case, Korutz -- I had the impression that Dr. Rothenberger had no personal knowledge of this later case, but this was a case in which Reichstatthalter Kauffmann addressed the senior public prosecutor immediately, directly. I cannot say that with certainty, but, from the files, I have to assume that Dr. Rothenberger was not asked in advance.
It probably was like this, the restaurant owner, as I said, was not a prominent Party member, and the matter was altogether too insignificant to be of concern to Dr. Rothenberger. It was the personal wish of the Reichstatthalter, but the man concerned was not a prominent person.
THE PRESIDENT: May I ask you a question in connection with that case? You said the defendant was pardoned. Well, what authority was it who pardoned him? You mean that the prosecutor was able to pardon him?
THE WITNESS: Yes.
BY MR. KING:
Q. One further question in that connection, Doctor. Did the prosecutor have the authority, without the approval of the presiding judge, in the normal case, to effect a pardon?
A. Yes; the prosecutor had to ask for the judge's opinion, but he was not bound by the opinion of the judge.
THE PRESIDENT: Did that relate only to minor crimes?
THE WITNESS: Yes. It was regulated like this. In the more serious cases the Ministry of Justice had to decide, and in the minor cases--I don't know exactly what the limit was, one year in prison, or six months. I don't remember for certain--the Ministry of Justice had delegated the clemency right to the prosecutor in those cases.
BY MR. KING:
Q. Doctor, I show you now an exhibit identified as NG-2279. This exhibit, as you will note from observing the copy before you, consists of three letters, one written on September 8, 1938, from Rothenberger to the Presiding Judge of the District Court, Korn, another letter from Letz to Korn, and the third a reply to Rothenberger from Korn. I should like to distribute copies in both English and German at this time.
Doctor, I should like to have you follow me while I read from the third and last paragraphs of Rothenberger's letter. The third paragraph reads as follows:
"Regarding the problem of the relationship of political decisions of officials of the Party and judgments by the courts, one can say, in my opinion, that although it is difficult to solve in principle, one can find a solution in a single case nearly always with the necessary tact."
Now, the last paragraph of Dr. Rothenberger's letter reads as follows:
"The Gau leadership Hamburg has declared its willingness to cooperate in this method for its own field of activities as well as also for the fields of activities of other Gau leaderships. Therefore, it would be advisable that the correspondence in such cases would be conducted via my office so that I am able to take up direct contact with the competent department of the Gau leadership Hamburg."
Now may I ask you to turn to the last letter, the letter from Dr. Korn. I misidentified that letter a moment ago, I said it was from Korn to Rothenberger; it is not from Korn to Rothenberger, it is from Korn to his subordinate judges. This is what Korn says to his judges:
"The Gau Leader will issue an instruction to the Kreis Leaders according to which they have to turn in principle and exclusively to the presiding judge of the Hanseatic Appellate Court whenever they are of the opinion that they have to come in contact with the court in any question whatsoever. By this regulation every possibility of friction should be avoided and most of all the impression of an attempt to influence vis-a-vis the Court should be prevented. The suggestions made by the officials of the NSDAP will be made known by the presiding judge of the Hanseatic Appellate Court to the Court, from case to case."
Now, when you have had time to examine other paragraphs of the letter, I should like to ask you, Doctor, one question, or perhaps several questions, based on these series of letters.
I shall ask my question now, Doctor, and you may answer when you feel you are ready. My question is this. Is it conceivable to you that the quashings you experienced as a judge in the Hamburg Judicial District were arranged for and directed by Rothenberger in conferences with the interested. Gau officials, as suggested by this correspondence?
A. Well, in the Vatje case I had reason to assume that discussions took place between the Gau leadership and Dr. Rothenberger. For the rest, I have to say that the contact between the Gauleitung and the President of the District Courts of Appeal was something that I never could quite make head or tails of. I noticed that something like that did take place, but of what nature this contact was and for what purpose it was established in each case I didn't quite understand. I always had suspicions and felt distrust, but I never really could quite find out what purpose this all served, because after all the court proceedings could go on in a proper manner. If Party offices were inclined to always address not the judges directly but the President of the District Court of Appeal, I have to say that in any case the Party offices did not always comply with these agreements. The. longer the war proceeded, in my opinion, the more and more they tried to interfere with the courts and influence the courts directly.
Q. Now, of course, this letter is dated 1938. One of the cases which you described, the first one, in fact, was prior to 1938. Is it your feeling that there was attempted influence and in fact successful influence prior to 1938?
A. In the Korutz case, certainly.
MR. KING: I should like to offer this exhibit as 594.
THE PRESIDENT: The exhibit is received.
BY MR. KING:
Q. Doctor, in your experience as a judge in Hamburg have you come across the term "protective custody"?
A. Yes, I have.
Q. How was a person taken into protective custody?
A. By the Gestapo.
Q. And did you hear of mistreatments, abuses of prisoners while they were in the custody of the Gestapo, while they were in "protective custody"?
A. Yes.
Q. Were those things common knowledge in and around Hamburg?
A. Yes, in some cases I could even make the positive finding that the Gestapo ill-treated people in protective custody. I recall that in 1933--it must have been November or December, for those were the two months when I was working at the local court in 1933--it was my task as a judge, at that time, among other things, to participate in post mortems. At that time a file was submitted to me by the prosecution which concerned a man who had died in the concentration camp, Fuhlsbuettel. As I stated, I was in charge of this post mortem, but through some official hindrance, purely by coincidence I didn't get around to it. However, I read the report of the post mortem that was made out for the official files, and in this record the sentence was contained that traces of serious mistreatment were found during the post mortem. A later on, when I was judge at the District Court as well as at the local court, in some cases--I estimate them to have been four or five, or even six cases--I made the observation that in regard to the testimony that defendants had given to officials of the Gestapo while they were in protective custody, that they later rescinded it before the Court. And then, partly, I believe, because they were afraid of the Gestapo the defendants did not explain why they rescinded their previous statements. There may have been one or two cases in which the defendants stated directly, "I made these statements that incriminated me, in the concentration camp, only because the officials of the Gestapo beat me up."
That was known to me, and that was the reason for a decision which I made later on during the war.
During the war--it was about in 1942--a political prisoner was brought before me because he broke the peace in 1933, and he was arrested. It was explained that in the interim, after 1940, the Gestapo had arrested this man in Paris--he had fled to France. This man was brought to the investigating prison at Hamburg City and he was safe in this investigating prison because nothing illegal happened in this particular prison.
Then the Gestapo came to me and requested via the prosecution and also directly by telephone that I should transfer this man for about four to six weeks from the prison and give him a furlough from the prison and leave him to the Gestapo in a concentration camp.
At that time I remembered the cases that I had experienced in the past and I told myself, if you give this man up to the Gestapo if only for a few weeks he will certainly be mistreated. And then, from the point of view of criminal law, you are co-responsible for such acts. Therefore, I made a decision in which I refused to hand this man over to the Gestapo, and then in my office issued the directive that in all future cases such applications should be submitted to me so that under the pressure of business I would not overlook them; and it was called to my attention and those applications were always refused by me and I still recall that in these cases the Gestapo gave in very meekly.
In all these cases political prisoners from France were actually saved from being handed over to the Gestapo so if in questions of principle, the basic questions, if in these questions one once in a while didn't go along with the Gestapo's wishes one could achieve it with energy that no mishap occurred.
Q Doctor, did you ever hear of any action being taken by any high officials in the Hamburg judicial administration against perpetrators of tortures and ill-treatments against people who were being hold in protective custody?
A I never saw an indictment against an official who had become guilty of mistreatments. As far as I know, such cases never occurred.
Q In your opinion, doctor, whose responsibility was it at that time to see that such action was taken against perpetrators of ill-treatments, beatings and murders in these camps?
A In my opinion it was the task of the general public prosecutor because he was the chief of the prosecution and as such he had to file indictments against every criminal act, against every punishable act and thus also against punishable acts committed in a concentration camp. In practice however, he would not have succeeded.
Q And the public prosecutor was Drescher at that time?
A Yes, that was Drescher.
Q And who was Drescher's superior?
A Until 1935, until the Administration of Justice was centralized, Senator Rothenberger; and after the Administration of Justice was centralized, the Reich Minister of Justice.
MR. KING: The Prosecution has no more Questions at this time to ask the witness.
THE PRESIDENT: You may cross examine.
DR. WANDSCHNEIDER: May I begin the cross examination?
CROSS EXAMINATION
BY DR. WANDSCHNEIDER:
Q Witness, you told the Prosecutor in answer to his questions, first, about the case from 1936-37 and you stated that you received a telephone call at the instigation of Gauleiter Kauffmann regarding the quashing of the proceeding. First, a technical, legal question: Was this technically a permissable quashing during the pending proceeding? Is that a legal method of the quashing of the proceeding?
A It was a quashing by way of pardon which can also take place before but certainly this happened very seldom.
Q Your misgivings, therefore, referred not to the formal manner in which the matter was handled but they were purely of a substantive nature?
A They were of a purely substantive nature because it was outrageous that these people were not punished.
Q Yes. Was there a telephone call made in any way by Dr. Rothenberger himself or by his deputy or was this a purely official office call by the district court of appeal which was done on order of the Reichsstatthalter?
A The telephone call was made by the secretary in the ante-room of the president of the District Court of Appeal.
Q Can you approximately remember what this lady told you at the time?
A The lady told me that the file had immediately to be sent to the District Court of Appeal to the president's office section since the Reichsstatthalter intended to make an application for quashing to the Reich Minister of Justice.
I know that for certain that she mentioned the Reichsstatthalter because my train of thought was something like this: How come this is any business of the Reichsstatthalter's?
Q Did Dr. Rothenberger technically have anything to do with the quashing?
A I assume that he had to state his opinion, but I don't know how the procedure was regulated between the Ministry of Justice and the District Court of Appeal and the Reichsstatthalter. I had no insight into that and I don't know either how and whether he stated his opinion.
Q Did you get any positive knowledge as to whether a quashing did take place?
A I remained in the penal chamber five for some time after that and the presiding judge told me this file we shall never see again. Then I left Penal Chamber 5 a few moments later and during those months the file was not returned and some time later I met the presiding judge, Dr. Schmeier, in the building and I asked him: "What became of this and that case?" And he answered , "So far I have not heard anything about it." And later on I did not concern myself with that matter any more because I lost interest in it.
Q In regard to the Carotz Case, witness, I would like to address two questions to you. First, is it correct that Letz, with whom you probably discussed this case -
A Yes, I did.
Q -- as such was also of your opinion and said that Rothenberger as well as he, himself, were inclining more toward your opinion? Did Letz tell you that?
A Yes. That is true, but I didn't believe him.
Q To what extent didn't yon believe him?
A Because I was suspicious.
Q I can understand that. Now a question in that connection: In that case were elements lacking which would have justified a different judgment of the case technically? In particular was it correct that Karotz had so far no previous conviction and that, secondly, it was a purely alcoholic affair, as we say? I do not want to doubt the basis of your opinion, bat I only want to ask whether such mitigating points of view played any role in these discussions.
A I consider that impossible. It is true that Karotz had no previous convictions but that it was an alcoholic affair, that was certainly no mitigating reason and if an ordinary citizen hits a police official who takes stops against him with full rights and tries to prevent him from driving, if he hits him to such an extent that he falls on the street, then no judge and no prosecutor in Hamburg in normal times would have ever conceived the idea to let this man get away without punishment.
Q In that connection may I also ask you, Dr. Oehlkers, is it correct that Karotz excused himself expressly because of his behavior that he agreed to pay a fine and that these perhaps might have been elements which in other cases too perhaps sometimes might have caused that the case was settled in that way?
A It was like this: The excuse which Karotz expressed was, in my opinion, not quite voluntary, but the police president said: "Well, that's the least that you have to do and this fine was something which I, as well as other judges, always fought against because I and others were of the opinion either the deed is one that has to be punished or is is of such little importance that a mere warning is enough; that only because it is trifling; but this atonement with money to the National Socialist Welfare is something that happened quite frequently; but that for mo and to others it seemed like bargaining for the punishment and I always rejected it.
Q I come to the Vatje case. In this case you testified that during the proceeding, that is, before the sentence was pronounced, Dr. Rothenberger did not discuss the case with you.
A No, he didn't.
Q When, later on, you discussed this case, did he first act properly and correctly towards you, first of all quite informally?
A Yes, he did.
Q. During these discussions did he in any way try to influence you?
A He couldn't do that any more because my activity with that case was completed.
Q Did he subsequently make any reproaches to you or give you any hints because of your completed activity which led you to conclude that he disliked it?
A No, no.
Q Did he ever let you recognize his own attitude during those two conversations you had?
AActually not?
Q In the Reimer Case which you also described to the Prosecutor is it correct that in this case, I didn't quite understand you, in your opinion Dr. Rothenberger had no personal knowledge?
A That is my opinion. My opinion is that this case was not submitted to him.
Q. You then mentioned that General Public Prosecutor Drescher would have bad to interfere in one of the cases and to this testimony you added that in practice he would not have succeeded. Why did you think so?
A. Because the power relationships were of such a nature that where there was a conflict between the Party or the Gestapo on the one side and the Administration of Justice on the other side, which is a conflict of a very serious nature, the Administration of Justice in Hamburg in my opinion was always the weaker party.
Q. Witness, you furthermore described the situation which existed in the relationship between the Administration of Justice and the Gestapo and you elucidated it with your own experience and you said that you were surprised that nothing had happened to you.
A. Yes, I can only say I am still wondering about it. I am still surprised about it today.
Q. Do you know of any cases or can you imagine why and to what extent the behavior of your superiors, especially of Dr. Rothenberger, toward the Gestapo on such interference by the Gestapo against officials was prevented?
A. No, I don't know that. Those were matters which were not within the sphere of my knowledge and my judgment. Only once -I have to correct myself here -- I have to come back to the Vatje Case. This was after the Vatje Case when my dealing with the case was completed. There was a personal complaint by Police President Kaehl about me personally: official supervisory complaint because I had attacked Police President Kaehl very severely in the opinion to the sentence and this official complaint was forwarded to me for explanation by the local court president and then Dr. Rothenberger took this matter into his hands and nothing happened to me. So apparently Senator Rothenberger covered up for me toward the police president in this case.
Q. Is it known to you that your colleague, Dr. Buhl, was also protected by Dr. Rothenberger against attacks of radical Party circles who were asking that Dr. Buhl be moved from the job of a judge and asked him to move from his apartment; that he protected him too?
A. No. I know that a certain judge at that time, who was a National Socialist, attempted to remove Dr. Buhl from his position, but I did not hear what he accomplished and what Dr. Rothenberger's attitude was I don't know. I don't know the case. I know that Dr. Buhl, who was well known for not being a National Socialist, had a very different position in the time after 1933, but the details which existed I don't know anything about.
Q. Thank you. But you know in any case that Dr. Buhl remained a judge in Hamburg until 1945?
A. Yes, I do.
Q. Thank you. A final question, witness, You stated that you entered the civil service as an assessor because there is no other choice open to you than to enter the Party?
A. Yes.
Q. And that was the result of your fear. Did you mean to express that only a forced condition existed or was it really fear?
A. Extraordinary pressure was exerted not only on me but on all assessors in Hamburg in 1933. Pressure was not exerted directly by Rothenberger on the assessors. Normally they did not have any contact with him, but each office chief exerted this pressure and, of course, they differed too, these office chiefs, and in my case this pressure, I can say without exaggeration, was exercised by the general public prosecutor Drescher to an extraordinary extent. It went so far that he yelled at me when he met me on the suburban train why I wasn't a member of the SA.
Q. Witness, may I ask you for once to not think of your personal experience and to think over whether there wasn't a large number, yes even an overwhelming number of young jurists who liked to join the party or one of its affiliated organizations without any pressure and who wanted to do so. Please do not refer to your own fate in answering this question.
A. There certainly were such jurists, assessors, but they belonged, if I may say so, in my opinion more to those age groups who were younger. The age groups who graduated around the late twenties and. early thirties to which I belonged, the majority of them had either a strong negative attitude toward National Socialism or at least they rejected it strongly or at least they were very skeptical toward it and some considerable influence was necessary in order to have all them join the Party.
DR. WANDSCHNEIDER: Thank you. I have no further questions.
MR. KING: No redirect, Your Honor.
THE PRESIDENT: The witness is excused.
MR. KING: Hay the record show that I am now handing to the Secretary-General Exhibit No. 590 which has previously been offered and accepted in evidence? I have now ready for distribution and offer into evidence the Document NG-2251 for which the Exhibit No.591 was reserved yesterday.
THE PRESIDENT: Exhibit 591 is received.
MR. KING: We also have Document NG-2221 for which the Exhibit No. 592 was reserved yesterday. We offer that document into evidence at this time.
THE PRESIDENT: 592 is received.
MR. KING: We also have available the Document NG-22247 for which the Exhibit No. $93 was reserved yesterday. We offer that document into evidence at this time.
THE PRESIDENT: The Exhibit is received.
MR. KING: The Prosecution calls at this time Judge Edmund Wentzensen.
THE PRESIDENT: We have not received 593, have we? You offered it, did you not?
MR. KING: Yes, I offered it, Your Honor.
THE PRESIDENT: We would like to receive the document so that we don't get behind. 593 is received.
MR. KING: The Prosecution at this time calls Judge Edmund Wentzensen of Hamburg. I am informed by the Marshal that the witness is not in the immediate vicinity of the courtroom and it will probably be a matter of two or three minutes before he is brought up. May I say that the delay in producing the witness must not in any way be attributed to the Marshal.
Rather, it is the result of a misunderstanding apparently between the witness and the Prosecution. The Marshal was told that we assumed the responsibility of having the witness here. So we would not like to have it reflect on him.