Transcript for NMT 3: Justice Case

I quote from Paragraph 38, III. Paragraph 3 to 5 of the lav for the alteration of penal law provisions and procedure in penal law dated 24 April 1934. This is replaced by the following:

"Art. 3. As far as nothing different has been decreed the regulations of the Law concerning the constitution of courts and the code of criminal procedure will have to be applied in first proceedings carried on before the People's Court and before the Appellate Court. The People's Court and the Appellate Court will also make the decisions mentioned in Art. 73. paragraph 1 of the law concerning the constitution of courts."

I will now quote from Article 41, Authorization.

"The Reich Minister of Justice will be authorized to issue all. legal and administrative regulations necessary for carrying out or supplementing this ordinance. He also will be authorized to decide any arising doubts and problems through channels of administrative procedure."

I am offering this document as Exhibit 35.

THE PRESIDENT: Let it be marked for identification.

DR. GRUBE: I have now finished with Volume 1. May I ask the Tribunal now to turn to Volume 2-A. Document 215 on page 1 contains Article 157 of the Reich Code for Criminal Procedure. I am introducing this document for the reason that the German Penal Code and the German Law for Criminal Procedure uses technical expressions in reference to t he person against whom proceedings are pending of a nature which may possibly be unknown to an outsider. I am quoting from Article 157.

"According to this law an arraigned person against whom a trial has been resolved."

I am offering this document as Exhibit 36 for the purpose of identification.

THE PRESIDENT: It will be marked for identification.

DR. GRUBE: Document 243 on Page 2 of the Document Book is also offered for the purpose of explaining technical expressions which are of importance in the German penal law. There is a difference in German substantive law and law of procedure between crime, offense, and transgression. Document 243 contains Paragraph 1 of the Penal Code:

"An act punishable by death, penitentiary or military confinement exceeding 5 years is a crime.

"An act punishable by military confinement up to five years, imprisonment or fine exceeding 150 Reichsmark, or by unrestricted fine is an offense.

"An act punishable by detention or fine up to 150 Reichsmark is a petty offense."

I am offering this document as Exhibit 37 for identification.

THE PRESIDENT: Let it be marked.

DR. GRUBE: The next document, 237. is an excerpt from the Judicature Act of 1847 and explains the position of the Public Prosecutor towards the Court. I am quoting Paragraph 150 and 151:

"The Public Prosecution in carrying out its functions is independent of all Courts."

"Article 151: Public Prosecutors may not perform the duties of a Judge. Neither must disciplinary authority over the Judges be relegated to them."

DR. GRUBE: The next document, 145, is an excerpt from the commentary on the German Code of Criminal Procedure by Loewe-Rosenberg. May I draw your attention to the introductory sentences which I quote:

"The structure of the Public Prosecution is adapted to that of the regular Courts, and the rules of factual and regional jurisdiction apply likewise to the officials of the Public Prosecution (Article 142 and Article 143 respectively). Therefore the Prosecution is divided into a number of independent authorities approximately corresponding to the number of Courts.

The standards governing the factual jurisdiction of the trial courts also apply to the factual jurisdiction of the officials of the Prosecution."

Document 146 on Page 5 of the German Document Book also refers to the question of the factual competency of the Public Prosecution. It is in accordance with the contents of the previous document. I am offering this document as Exhibit 40 for identification.

DR. GRUBE: Document 147 on Page 6 of the German Document Book is an excerpt from the text book by Hippel on German Criminal Procedure. May I draw the attention of the Tribunal to the following passages:

"The Public Prosecution and the Court:

"1. They face each other as independent authorities, each one legally organized in itself and neither one subordinate to the other. This is clearly expressed by the law: compare on the one hand the Law Concerning Organization of the Judiciary, Article 150, 'The Public Prosecution is, in the performance of its official duties, independent of the courts', and on the other hand, Article 151, 'The Public Prosecutors may not perform the duties of a Judge, nor may they be charged with any disciplinary authority (Dienstaufsicht) over the Judges'".

May I now draw the attention of the Tribunal to the comments in Note 1 concerning this quotation where it says:

"The above Article 151 is expressly directed against the French system of disciplinary authority."

THE PRESIDENT: Let it be marked. Dr. Grube, a question for information. These treatises, do they show the dates at which they were written in your exhibits?

DR. GRUBE: Yes.

THE PRESIDENT: They do.

DR. GRUBE: Yes, Your Honor. That shows from the headline of the document. It shows there when the book concerned was published and where it was published.

THE PRESIDENT: Thank you very much.

DR. GRUBE: The following document mainly gives excepts from the Reich Penal Code of Procedure. May I say that in Document Book II of the Prosecution, no single provision of the Reich Penal Code of Procedure is contained. However, I consider it important to introduce the most important provisions in my document book since problems concerning procedure have been under discussion here. Document 213 contains the provisions concerning the Legality Principle; in particular, Article 152. I quote: (We begin with Paragraph 151.)

"Legal investigations may start only if an indictment has been filed.

"Article 152: The Public Prosecutor is authorized to file an indictment. He must, if the law does not state otherwise, intervene in all acts punishable by Criminal Courts which have to be prosecuted under the law, provided that adequate factual reasons are evident.

"In the Case of those punishable offenses, which will only be prosecuted upon formal request by one of those concerned, the Prosecutor can, even though the formal request has been filed, refrain from prosecution if there is no public interest in the prosecution."

MR. KING: May I inquire of the Court if Document 213 appears in the Court's Document Book II-A?

THE PRESIDENT: Not at the page where it's supposed to appear.

MR. KING: It's supposed to appear on Pages 8 and 9, according to the Index, but I fail to find it in my book at all.

DR. GRUBE: May I explain? I have now found that evidently in mimeographing the document which appears here on Page 8, and which is identical with my Document 213, it has erroneously been marked as 147. This document which begins on Page 8 should have the number 213.

THE PRESIDENT: We have made the correction.

DR. GRUBE: I am offering this document for identification as Exhibit 42.

DR. GRUBE: The next document is 216. This too is an excerpt from the Reich Criminal Procedure Code.

May I draw the attention of the Tribunal to Paragraph 160. I quote:

"As soon as the Prosecution, through a report or otherwise, receives information about a suspected punishable offense, it has to investigate the facts in order to decide whether an indictment should be filed.

"The Prosecution has to investigate not only the incriminating, but also the exonerating circumstances, and is responsible for the recording or other means of preservation of evidence which might otherwise not be available at the time of the trial."

I am now going to quote from Article 161:

"For the purposes described in the previous article, the Prosecution can demand information from all public authorities, and can either itself, or through the authorities and officials of the police and security service, make investigations of every nature, with the exception of examinations of witnesses under oath. The authorities and officials of the police and security service have to comply with the demands or orders of the Prosecution.

"Article 162: If the Prosecution deems it necessary that a certain investigation is to be made to which a Judge only is entitled, it makes the appropriate request to the Judge of the local Court of the District in which this investigation is to take place. The Judge of the local Court has to determine whether the requested investigation is permitted by the law in view of the circumstances of the case."

I am now quoting from Article 166:

"If the local Court Judge examines the indicted person and finds certain facts, the local Court Judge has to start investigations, if the evidence which has come to light may provide reasons for releasing the indicted person."

This document, as I said before, refers to the preliminary proceed ings.

DR. GRUBE: Document 238 on Page 13 of the German Document Book contains Article 152 of the Judicatory Act, and says:

"The officials of the Police and Security Service are assistants of the Public Prosecution."

MR. KING: In the Prosecution's Document Book II-A for the defendant Lautz, on Page 13, the document number appears to be 216. Dr. Grube informs me that that should be instead of 216, on Page 13, the Document No. 238.

THE PRESIDENT: We will make the correction.

DR.GRUBE: Document 238 bears the Exhibit No. 44. Document 210 contains the provisions concerning arrest and preliminary detention during the preliminary proceedings. I am quoting from Paragraph 114, Section 1:

"The arrest takes place following a written warrant of arrest issued by the Judge."

I am quoting from Article 114-C:

"Should the warrant of arrest be withdrawn as a. result of the interrogation or should the person in custody not be the person described in the warrant of arrest, the person in custody is to be released."

I am now quoting from Article 115-A:

"While the accused is in presumptive arrest, the authorities have to keep in view at all times whether the continuance of the custody is permissible and necessary."

I am now quoting from Paragraph 124:

"Decisions concerning the presumptive arrest including bail will be made by the trial court."

THE PRESIDENT: Let it he marked.

DR. GRUBE: Document 211, on page 21 of the German document book, contains the provisions concerning the interrogation of the accused on the part of the judge during the preliminary proceedings.

DR. GRUBE: Document 172 contains regulations for the judge in charge of the preliminary proceedings on the interrogation of the accused person during preliminary proceedings.

I am offering this document as Exhibit 46, for identification.

THE PRESIDENT: Document 172?

DR. GRUBE: Yes, this is Document 172.

THE PRESIDENT: It should be Exhibit 47.

DR. GRUBE: I beg your pardon; it should be Exhibit 47.

DR. GRUBE: The following document refers to the question as to whether in German criminal law of procedure the accused himself can be a witness in his own case. Document 105, on page 27 of the German document book is an excerpt from the book by Dr. Robert von Hippel "The Criminal Procedure." I quote: "Witnesses or third persons, in contrast to the court and the parties, who are to give evidence at the trial on their material perception based on legally relevant facts."

I now quote from the next paragraph: "Neither can the parties be witnesses: The Public Prosecutor who is questioned as a witness is excluded from the further execution of his office. The plaintiff in a civil action cannot be heard as a witness.

The testimony of the defendant is voluntary, and is not subject to the rules of evidence which govern witnesses."

I offer this document as Exhibit 48, for identification.

DR. GRUBE: The next document is No. 103, on page 28 of the German book. It is an excerpt from the commentary on criminal procedure by Lowe -- Rosenberg. I quote: "No one can be both defendant and witness in the same trial. Therefore, a co-defendant cannot be heard as a witness against another co-defendant."

DR. GRUBE: Document 208, on page 29 of the German document book, contains provisions about witnesses, in particular about the oath. May I draw the attention of the Tribunal, first of all, to Article 55. I quote: "Every witness can refuse to testify on such questions, the answer to which would expose him, or one of his relatives as designated in Article 52, No. 1 to 3, to the danger of criminal prosecution."

I would further draw the attention of the Tribunal to Article 61. I quote: "The swearing in of witnesses can be omitted if the court so desires. 4. In the case of each witness in reference to answers to questions about such facts which would expose him, his fiancee, his lawful spouse, or any person who is his relative according to Article 52, paragraph 1 No. 3, to the danger of criminal prosecution, or which could be considered as detrimental to his honor. 5. If all members of the court consider the testimony irrelevant and evidently unbelievable, and if, according to their opinion even under oath a relevant and true testimony cannot be expected."

THE PRESIDENT: Let the exhibit be marked.

DR. GRUBE: The next document, No. 242, on page 31 of the German document book, is an excerpt from the order on the execution order for the adaptation of the criminal law of the Reich proper and the Alpine and Danube-Reich Gaue, dated 29 May, 1943. This ordinance made things a great deal easier in reference to the question as to whether a witness was to be asked to swear an oath. I quote from paragraph 4 -- paragraph 59: "The court decides whether a witness must be sworn in after proper deliberation. He will be made to swear to an oath unless other decisions have been made at the trial. The witnesses are to be asked to take their oath singly."

DR GRUBE: Document 209 refers to witnesses and the swearing or taking of an oath during the preliminary proceedings and outside the trial.

DR. GRUBE.: The next document, 217, is paragraph 170 of the Reich Code of Criminal Procedure. It states as to how the prosecution should proceed after investigations have been made. I quote: "If the investigations made offer sufficient reason for a formal accusation, the public prosecution shall file it either in the form of a request for a pre-trial examination or by filing an indictment with the court.

Otherwise, the public prosecution orders the proceedings to be dropped; the arraigned person is to be notified of this if he was interrogated by a judge or a warrant for his arrest was issued."

DR. GRUBE: Document 13 is an excerpt from von Hippel's text book on German Criminal Procedure. It states when the prosecution has to file an indictment. I quote: "The final result, therefore, is this: the public prosecution makes formal accusation at the court if, in its opinion, there exists either after conclusion of the pre-trial examination or -- as a rule -- after conclusion of police investigation sufficient proof for making a formal accusation, Article 170. 'Sufficient proof' exists if the possibility, based on the facts ascertained and the applicable laws, is so great that a ruling of the court is warranted; see above page 244. The public prosecution is obligated by the principle of legality (subject to legal exceptions) to take action in all criminal and punishable offenses, provided sufficient facts are established. See Article 152, paragraph 52. It is a question of conscientious consideration to decide when this will be applicable in individual cases."

DR. GRUBE: The next document, No. 265, on page 37, an excerpt of the German document book, concerns regulations for the Administration of Penal Law, Directives for Criminal Procedure, and Preparatory Proceedings; and Acceleration of Proceedings.

May I draw your attention to one sentence under Figure 7. I quote; "It is part of a speedy and purposeful examination that the investigations be not extended farther than is necessary for arriving at an indisputable decision on whether an indictment should be filed or the case dropped. See Article 190, Reich Code of Criminal Procedure."

DR. GRUBE: Document 218 refers to preliminary investigations. May I draw the attention of the Tribunal to paragraph 1, Article 178. "In all cases falling within the jurisdiction of the People's Court or the Provincial High Courts, a pre-trial investigation will take place upon request of the Public Prosecution, if it deems it necessary after careful consideration."

Article 184 Says -- I quote: "The pre-trial investigation is ordered and conducted by the examining judge."

Article 186: "In the People's Court the examining judge for each case is selected by the President from among the members. The presiding judge may also select any member of another German Court and any local judge to act as examining judge."

Article 188, I quote: "A record must be made of each phase of investigation and signed by the examining judge and the recorder."

I am leaving out one paragraph and am continuing with paragraph 3: "As far as it concerns them, the record must be read to the persons taking part in the hearing, for their approval, or handed to them for their own perusal.

The approval must be put on record, and the record must wither be signed by the party concerned or the reasons why the signature was omitted must be stated."

Article 190: "The investigation should not be carried further than is necessary to determine whether there should be a trial or whether the proceedings are to be dropped."

On the last page of the document may I quote from Article 197: "As soon as the examining magistrate considers the purpose of the pre-trial investigation attained, he forwards the records to the public prosecution so that it may file its requests.

"Should the public prosecution request the continuation of the pre-trial investigation, (Voruntersuchung) the examining magistrate has to submit the case to the court for decision, if he does not want to comply with the request.

"The accused must be informed of the conclusion of the pretrial investigation."

I offer this document as Exhibit 56 for identification.

THE PRESIDENT: Let the document be marked.

MR. KING: May I understand the exhibit number of the last document? Was that 56 or 58?

THE PRESIDENT: 56.

DR. GRUBE: Document 219 refers to the ordering of a trial. May I draw the attention of the Tribunal first of all to Article 198? I quote:

"The Public Prosecutor makes the formal accusation by filing an indictment with the president of the appropriate court. This contains the request to fix a date for the trial.

"Article 199.

"If a pre-trial investigation has taken place, the Public Prosecutor submits the case to the court for decision an whether the trial is to be ordered, whether the prosecution of the accused is to be discontinued or the proceedings are to be suspended for the time being. The request for fixing the date of the trial is made by filing an indictment.

In bases within the jurisdiction of the People's Courts or the District Courts of Appeals, the decisions are made by these courts, otherwise by the Criminal Court. If the Public Prosecutor has requested to discontinue the prosecution of the accused, the court however, decides to have a trial, then the Public Prosecutor has to file an indictment according to that decision.

May I now draw attention to Article 202? These provisions refer to the so-called interim proceedings. Article 202:

"If the president has no objections against the ordering of the trial, he determines place and date of the trial. At the same time, he decides on the ordering or continuance of the pre-trial detention, or the provisional placement in an institution. If in the opinion of the president the trial should not or not now take place, he submits the case to the court for decision."

Article 203: The court refuses to order a trial if, in its conviction, for factual or legal reasons it is to be expected with certainty that the accused person will not be sentenced at the trial. It refuses to order a trial for reasons of not being competent, (1), if there is no court of competency in its own district; (2) if the case does not fall within the factual competence of the court.

I now quote the final two paragraphs:

"The decision to refuse will be passed on to the accused person and to the prosecutor. If the court has no misgivings about ordering a trial the presiding judge fixes time and date of the trial."

MR. KING: May I inquire from Dr. Grube which translation he would prefer us to have, the one which appears in the Document Book or the one which has just come over the headphones? Certainly the two translations are in no respect similar.

DR. GRUBE: As far as I can see these, paragraphs are contained in the Document Book.

THE PRESIDENT: I suggest that during the recess counsel confer with each other and ascertain if there is any discrepancy in the translation. Proceed with the next document.

DR. GRUBE: The next document is Document 36. It gives an excerpt from the commentary on the Criminal Code of Procedure by Rosenberg. May I draw attention to Note 2 referring to Article 203? I quote: "on rules for the forming of an opinion on the value of evidence question it is stated in Motive (official publication stating the reasons for the draft of the law) page 174: 'Specific rules cannot be given on the extent of evidence required for the opening of the main proceeding. The significance of article 203 consists only in the rule, that: main proceedings are not to be started, if the arraigned person does not appear to be sufficiently incriminated and if it is therefore not even probable that he will be convicted."

DR. GRUBE: Document 130 is an excerpt from a decision of the Supreme Court in Penal Cases, 19 November 1942. This decision by the Penal Senate of the Supreme Reich Court expresses an opinion as to when, in accordance with 203 of the Penal Code of Procedure, an indictment is to be filed.

I quote: "Pursuant to Article 203, paragraph 1, Code of Criminal Procedure, as amended, - paragraph 2 does not apply here - the court can refuse to set trial only if it is convinced that for reasons of fact or law, it is to be expected with certainty that the accused will not be found guilty in the trial. This prerequisite does not exist here. The refusal, pursuant to Art. 203, paragraph 1, Code of Penal Procedure, as amended, is admissible, not as the Criminal Court assumed, because a conviction is not possible on the basis of penal statutes cited in the indictment, but only if it is to be expected with certainty that the accused, for reasons of fact or laws, will not be found guilty at all of the act which forms the basis of the indictment. The court, however, must examine the circumstances of the case submitted, to it in the indictment, giving consideration to all applicable legal aspects. In this it is not bound by the legal interpretation of the prosecution."

I offer this document as Exhibit 59.

THE PRESIDENT: The document will be marked.

DR. GRUBE: The next document is No. 96 on Page 51 of the German Document Book. This is an excerpt from an article by Reichsgerichtsrat Dr. Schwarz. It discusses the question of the significance of circumstantial evidence in German penal procedure. May I draw attention to the Tribunal the following passages? First of all, I quote from the opening of the Article:

"It is not necessary to dwell on the fact that the administration of criminal law cannot do without circumstantial evidence, since, in numerous cases, there exists neither a credible confession of the defendant, nor are there any eye-witnesses to the act."

I am leaving out five lines and continue:

"An effective corrective for the undeniable shortcomings of circumstantial evidence is the discretionary evaluation of evidence which today forms the basis of our procedure. The only question is, how much circumstantial evidence must be available to justify the carrying out to its conclusion of a perhaps long drawn-out and costly trial in court."

DR. GRUBE: I offer document 203. It deals with the question of appointing a defense counsel and as to when a defense counsel is to be appointed.

THE PRESIDENT: Just a minute. Exhibit 60 is the last exhibit. That is to be marked for identification. Now what is the next number you are offering, the next one?

DR. GRUBE: The next one is document 203.

THE PRESIDENT: The Tribunal calls once more to your attention what we have previously said. Much of what you are reading is so elementary, it is wholly unnecessary to even introduce it in evidence, and we further say that if the matters are of some importance and difficulty the Tribunal cannot make up a considered opinion by hearing it read over the car phones. We will examine the instruments and we beseech you once more to restrain yourself in reading those elementary matters in open court. You are wasting time. If you do not exorcise your own discretion we will have to impose a limitation upon it.

DR. GRUBE: I will be brief. Document 203 is Exhibit 61. I am offering it for identification.

DR. GRUBE: Document No. 212 deals with the question as to whether and to what extent the accused person may have available and retrain contact with a defense counsel. The document reveals that the Judge has to make a decision on that subject. I offer this document as Exhibit No. 62.

DR. GRUBE: In the course of this trial the question as to whether the defense counsel before an indictment has been filed is entitled to look at the files has played a part and document 123 deals with this problem. It contains article 147 of the criminal procedure and also excerpts from the directives on criminal procedure and shows that the accused person before the indictment has been filed, has no such legal claim nor has defense counsel any such legal claim to look at the files.

Transcript for NMT 3: Justice Case

Defendants