This document is significent from Fritsche's testimony to which it is a supplement, because it indicates how the Eastern territory appeared to the German public. I have already referred to the date.
I offer this document as Exhibit 16.
THE PRESIDENT: The Exhibit is received.
DR. SCHILF: May it please the Tribunal, in order not to disturb the logical structure, I ask to reserve for me as Exhibit 16-A, an affidavit by Dr. Heinz Kuemmerlein of the 3 of July 1947. Unfortunately, this affidavit has not been translated, but I would like to have it reserved as 16-A, and would like to submit it that way to the Tribunal and would like to have a decision about it, whether it will be reserved after it has been translated as Exhibit 16-A.
THE PRESIDENT: We will reserve that number for your affidavit.
DR. SCHILF: May it please the Tribunal may I point out to you that Mr. Lafollette has just called to my attention that the English copy of this affidavit of the 3rd of July 1947 has already been submitted as a document and could actually be received now. I have not received it in the German document book yet.
THE PRESIDENT: What book is it?
MR. LAFOLLETTE: It is supplement 2, your Honor, and when I was constructing my book I put it in the back of the book 2. I think that is the same one Dr. Schilf refers to.
THE PRESIDENT: We have not received it yet, have we?
MR. LAFOLLETTE: I think you have. I received yesterday supplement Klemm 2.
THE PRESIDENT: We have before us document books 1 and 2. You are not referring to either of them?
MR. LAFOLLETTE: This appears in supplement 2, which I received yesterday afternoon.
THE PRESIDENT: When we receive it we will mark it 16-A.
DR. SHILF: The Dr. Kuemmerlein affidavit ........
THE PRESIDENT: That is the affidavit to which you refer to be received in evidence?
DR. SCHILF: May I only say in order to describe it that this affidavit is concerned with the question of a liaison office of the ministry to the affiliated organizations of the Party, that is also to the SA.
This is a subject which was already discussed when the witness Klemm described it here.
May it please the Tribunal, I now come to document book No. 3. The first document is a purely theoretical matter. It concerns the general subject of the defense and that has been indicated in the document book. The document beings on page 4. It is rather extensive and it ends on page 12.
THE PRESIDENT: Just a moment, I did not understand. This is document book 3.
DR. SCHILF: Document book 3, page 4.
THE PRESIDENT: Well, the book itself has pages 1 to 5 only.
MR. LAFOLLETTE: That is the supplement.
DR. SCHILF: These are three articles from a legal journal, the first article begins -
THE PRESIDENT: Just a moment. You are going into book 3, not 3 supplement. We haven't it yet, book 3.
DR. SCHILF: No, the main book No. 3.
MR. LAFOLLETTE: Your Honors, perhaps you might have it. That book has been distributed to the Tribunal. I have had it for ten days, I wonder if it is not in your room. I have had book 3 for ten days.
THE PRESIDENT: I inquired of Dr. Schilf and he said he had not introduced any documents. Here they are.
MR. LAFOLLETTE: I meant the book, Your Honor.
THE PRESIDENT: We have them now. You may proceed with book 3. Start over again please.
DR. SCHILF: If I may ask the Tribunal to look at the index of Book #3 first. First of all there are reprinted three articles from a legal journal. On the left side I wrote down the subject of the general defense that they refer to. They are articles from 1933 which concern themselves with a number of legal dogmatic questions. These three articles may be a rebuttal against the expert witness of the Prosecution, Dr. Behl.
Dr. Behl had discussed theoretical questions and bad claimed the fact that typically Nazi institutions in the course of the years from 1933 had formed even in the administration of justice, and these three articles are supposed, the first one, of which is "Crisis in Criminal Law and it's overcoming in the Concept of the State", it is page 4, document book 3 and appeared in 1933 and they are supposed to establish that already a long time before 1933, the questions which were clarified by means of law only after 1933 were problems for decades. The statistical description which is contained in this article is very interesting. The second article is interesting in regard to the question of the so-called nullity plea. This article begins on page 6. Perhaps the Tribunal will direct it's particular attention to it because it concerns the problem of ne bis in idem, as it is represented in the American Federal and State legislation and jurisdiction from the German point of view. This article also is from 1933. May I remind the Tribunal that the principle of ne bis in idem was discussed by the expert of the Prosecution, Behl, as well as by several other witnesses as for example Dr. Escher. The third article from this journal concerns - in my book it is on page 10-a, an article by Professor Exner on the bottom of page 10 of the English document. Professor Exner was mentioned here when the expert Dr. Jareis pointed out that Exner as early as 1925, about that time with the aid of his students had made a criminological study about professional criminals and similar subjects. It is an article by Exner which is given here in a summary form and this article demonstrates that already long before 1933 the problem of the right against habitual and professional criminals was a pertinent problem already at that time. This is also a rebuttal of Behl who said that the habitual criminal is a typical Nazi discovery and this proves the contrary.
Your Honor, I offer these three articles as Exhibit No. 17.
THE PRESIDENT: The Exhibit is received.
DR. SCHILF: Since the question of ne bis in idem was of great significance here, I permitted myself to include a completely new judgment in ay document book.
It is a judgment of the 24 of January 1947 of the District Court of Appeals of Dresden. That is in the Rusian zone, and this judgment is re-printed from a journal which is now called "Neue Justiz". It is published by the German Central Administration of the Soviet Occupation Zone. I consider this judgment so interesting regarding also the question of the problem of ne bis in idem, that I here want to submit it as Document No. 18, to the Tribunal. I am offering it as No. 18.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document, or rather, the next three documents, Your Honor, again concern the Hohenstein case. I may remind you of the fact that in 1934-1935 my client Klemm--and these documents concern him only -- was working in the Saxon Ministry of Justice. Hohenstein is in Saxony, near Dresden.
These three documents were submitted to the IMT: and were there given the numbers 383-PS, 784-PS, and 787-PS.
THE PRESIDENT: We will recess for 15 minutes.
(A recess was taken)
THE MARSHAL: Persons in the courtroom will please find their seats.
The Tribunal is again in session.
DR. SCHILF: May it please the Court, Document Book III, Page 15 and 16 contain the first document about the Hohenstein Case. This document was introduced before the IMT December 8, 1943, designated as 783-PS. The original was sent to the Secretary-General of the IMT. At that time Guertner, as the Reich Minister of Justice, in January, 1935 wrote to Tothman telling him that he was not entitled to interfere with the proceedings. On page 15 of the Document Book a law is quoted. It is dated the 20 March 1934, according to which the clemency right, since the Administration of Justice had been transferred to the Reich now was exercised by Hitler, the head of the State. I shall introduce that law later on in a later document book. For the rest, this document speaks for itself. I offer it as Exhibit 19.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next, on Page 17 up to Page 20, is a letter again from the Reich Minister of Justice -- it was Guertner at that time -- dated 5 June 193-5, addressed to Reich Minister Hess, the Fuehrer's deputy. That too was introduced before the IMT and I quote the number at the top of the page. It is again concerned with the Hohenstein case and Guertner is against granting clemency to the persons who are listed in this document, some of whom had been sentenced to long prison term.
The second part of this document on Page 20-A of the Document Book is a letter to Chief of Staff of the SA. It begins on Page 20-A and ends on Page 21-A, Again it is a letter from Dr. Guertner to Chief of the SA-
THE PRESIDENT: We don't have it. Our document book runs from Page 20 to 21.
This, unfortunately, is in German.
DR. SCHILF: May it please the Court, in the English Document Book it is at the bottom of Page 20.
THE PRESIDENT: We have no Page 20-A
DR. SCHILF: Would you forgive me, please? 20-A was the paging in the German Document. I see now that in the English document there is no subdivision of the pages. This is the second part of the document. May I repeat, it is a letter to the Chief of Staff of the SA in which Dr. Guertner again points out that clemency could not be exercised in the case of these persons. May I point out to the Tribunal that Klemm at the time was the liaison man with the SA and that it was he who granted to have those SA men punished. This document I offer as Exhibit 20.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The third document in this series concerning the Hohenstein case is on Page 22 of this document book and it continues through to Page 25. Again it is allettor from Guertner, dated 18 June 1935. It is addressed to the Fuehrer and Reich Chancellor, that is to say, to the final clemency authority, the head of the state. Again Guertner states that the people who had committed brutalities at Hohenstein were not to have clemency granted in their cases.
Details are evident from the document itself. I offer this exhibit as Exhibit 21.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: I am now coming to a document where I suspect difficulties will arise an affidavit by Hecker. This affidavit appears on Pages 26 to 29 of this document book. Hecker, in this affidavit, recounts how he together with Klemm, on account of at Papenburg camp, went into action. Hecker told the essential details here on the witness stand.
His affidavit goes into further details and on account of these details I am asking the Tribunal to receive this affidavit. Hecker wrote it on the 5 June 1947, that is to say, before he was examined on the witness stand here.
MR. LAFOLLETTE: I am forced to object to this, your Honor, for the reason that I did not have the affidavit when Hecker took the stand. Had I had it I would not object. I think that under these circumstances I had no right to cross examine Hecker on the basis of his affidavit, which was the policy adopted when the Prosecution presented affidavits and witnesses.
THE PRESIDENT: The rule of the Tribunal was announced. Hecker has been examined in open court and the offer of Exhibit 22 is rejected. Counsel has had full opportunity to examine him here.
DR. SCHILF: The next document is on page 30 of this document book, It is the law which has often been mentioned here and it is known under the name "lex van der Lubbe." It is dated 29 March 1933. In contrast to the former state of affairs where that type of execution had not yet been law. This law introduced the execution of the death sentence by hanging. Here again I have quoted from the Ministerial Commentary. In a note there appears an index of the various forms of execution; also in comparison with other countries I offer this exhibit as No. 23.
THE PRESIDENT: The exhibit is received.
MR. LAFOLLETTE: If your Honors please, unless the Court desires to have a break in its exhibits, it just struck me that it might be more appropriate to offer this as Exhibit 22. 21 was the last one accepted.
THE PRESIDENT: I think we will leave 21 in as offered and reject 22.
MR. LAFOLLETTE: Exhibit 22 is in.
THE PRESIDENT: 22 as offered and rejected because counsel has not adopted any document numbers and i apparently using his exhibit numbers also as document numbers. This will be Exhibit 23 and we will bear in mind the fact.
DR. SCHILF: The next document is a summary. It is on Page 32 of this document book. It is summary and it continues through to Page 50. It is summary of all laws of the control counsel in Germany and of the Military government in Germany since the surrender of the German troops. This compilation I am offering in order to give the Tribunal a summary of the cases the occupying power in Germany, that is to say, the governing authority of the military government and the power here in the American Zone deemed it necessary to threaten the death sentence.
This document is supposed to be a counterpart to Exhibit 251 of the prosecution. That Exhibit 251 of the prosecution contained a summary of the cases, where before 1933 and after 1933, the death sentence was threatened. The document which I am introducing now lists the number of cases where death sentences may be passed and shows that this number is greater than that contained in Exhibit 251.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: I am offering it as Exhibit 24.
The next document is an excerpt from the official legal periodical, Deutsche Justiz. This periodical has frequently been mentioned in this trial. This document is an article by Dr. Crohne. His name, too, has been mentioned here frequently. He was department chief of department IV, the department which dealt with penal law. It is of importance for my client Klemm that Crohne explains here what work his department had to do in cases concerning the malicious acts law. I offer it as Exhibit 25.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: As my next document, which belongs to the former in its logical sequence, will be found in Document Book3 Supplement.
May I ask the Secretary General to hand to the Tribunal Book 3 Supplement?
It is only one document and it consists of two pages. It is another article by Dr. Crohne. It is designated as Exhibit 25-A. This article is entitled "Administration of Penal Law- 1938". This article too is concerned with the fact that, at the time when Klemm was at the Reich Ministry of Justice he dealt with the so-called cases concerning the malicious acts law. This shows that, at the time, a decline in such cases occurred. The last sentence is of particular importance. May I attract the attention of the Tribunal to that last sentence?
I offer this document as Supplement to Volume 3 and I would ask you to give it the number 25-A because it is part of 25.
Exhibit 25-A, part of Exhibit 25.
THE PRESIDENT: It will be received.
DR. SCHILF: My next document reprints two passages from the law, Articles 340 and 341 of the penal Code. It is on page 53 of the document book. Article 341 concerns those penal provisions which were to be applied in the case of so-called more severe interrogations or interrogations under duress. The Tribunal will recall that Klemm, when from 1936 to 1938 he was on the staff of the Reich Ministry of Justice had to deal with that section, that is to say, proceedings against police officials who had infringed on the provisions which are quoted here. By way of explanation, I may say that Article 239 is quoted first. It is only introduced into this document because reference is made to that regulation in Article 341.
I offer this exhibit as # 26.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next, on page 56 of Document Book 3, is an excerpt from the regulations for the administration of criminal law, in the version of 1941. That is evident from Figure 1 of the introduction. Very many figures are mentioned there. The last figure is 22nd of April, 1941. These were the directives which had been issued by the Ministry for judges and public prosecutors, and concerned the interpreteration of the existing laws. Of particular importance, on page 58, is the note under 2, below the line. It refers to the socalled circular decree, by the Reich Minister of Justice of the 27th of May, 1939. There are only a few lines. It is said that that circular decree of 1939 contained indications concerning cooperation between the prosecution and the courts, cooperation in order to avoid any striking discrepancies between the prosecutions and the courts. The prosecution has always emphasized the so-called guidance and this is primarily concerned with the removal of the striking differences of opinion.
I offer this document as Exhibit 27 to the Tribunal.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document is on page 61 of the book and it continues to 62. This is an ordinance from the year 1934. It is by the Prussian Ministry of Justice and concerns the Gestapo. The subject is "Order for Protective Custody". This document shows that the police reserved to itself the sole right to impose protective custody. The administration of justice was right outside this problem.
I offer this document as Exhibit 28.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The following document isn't connected with the one I have just offered. It is the decree of the 17th of October, 1939, and so it was issued soon after the outbreak of war, According to this decree the entire SS was removed from the general administration of justice. The Tribunal will recall that when Klemm was examined as a witness, in particular in connection with interrogations under duress, it was discussed why the administration of justice could not get at the police in cases where the SS and the police had ill treated prisoners or persons who had been convicted. That is to say, concerning the provisions for the more interrogations under duress. By this law, a special jurisdication was set up. The police wanted to clarify these matters itself in a legal way. The administration of justice had nothing to say about this.
I am now offering this as Exhibit # 29.
THE PRESIDENT: It is received. It is received. The same matter is in one of the prosecution's documents, I believe. The exhibit is received.
DR. SCHILF: I would now ask the Tribunal to turn to Document Book 4. Document Book 4 begins on page 3. May I say briefly, by way of explanation, Document Book 4 deals with Klemm's activities in the Netherlands and at the Party Chancellery. It starts on page 3, with an affid avit by Dr. Wimmer.
Dr. Wimmer was Klemm's superior at the time when Klemm worked in the Netherlands. This is shown under Figure 2 of the affidavit on page 3 of the document book. Figures 3 to 7 give details about Klemm's work, and under Figure 7, the Secretary General Temkin is mentioned. Secretary General Temkin has given a very extensive affidavit for the defendant Klemm. I have only just received this affidavit and I shall introduce it later.
Now, I would ask you to receive Dr. Wimmer's affidavit as Exhibit 30. I think, from a formal point of view, it is in order.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document is again an law. I am introducing it here in reference to Klemm's position at the Party Chancellory and with the view of clarifying that position. Page 7 of the document book, dated 24 September 1945, contains the provision that the Deputy of the Fuehrer -- later on a different designation was given to that office, it was later on called "Chief of the Party Chancellory" --- that this office had to play a part in the appointment of officers. I offer that law as Exhibit 31.
THE PRESIDENT: The exhibit is received.
MR. LAFOLLETTE: Your Honors, please, it has just been called to my attention with reference to Exhibit 30 that the affiant was here on July 2nd in Nurnberg. I realize there are difficulties in presenting the defendants' cases, but I think at least I would have the court suspend its ruling until we hear why the affiant was not called as a witness and permitted to leave.
DR. SCHILF: May I give an explanation? Since Dr. Temkin, the Dutch Minister of Justice, has now given an affidavit, I no longer think Dr. Wimmer's testimony as an affidavit is important enough so that we should waste time, by personal examination. Wimmer says the same thing as has been reported by the Dutch Minister of Justice.
MR. LAFOLLETTE: If Your Honors please, I want to say in connection with the Temkin matter, I wrote for the affidavit and we received an affidavit from Temkin, which was to be delivered both to Dr. Klemm and myself. I will join with him in introducing that. There was also an affidavit from another man, whose name I forgot. They were sent on the condition that they would be submitted to both the prosecution and the defense. On the basis of this, I must ask the Tribunal to reverse its ruling on Exhibit 30.
I will join Dr. Schilf in submitting the Temkin affidavit and the other one also.
THE PRESIDENT: In view of the statement by counsel for both sides, the Tribunal will reverse its ruling on Exhibit 30. The exhibit will be rejected.
DR. SCHILF: May I add the following in regard to submitting the Temkin affidavit, so far I have not been able to read it myself as it is written in Dutch. I should like to reserve the right then to have Dr. Wimmer here as a witness.
THE PRESIDENT: There is no ruling that you may not call Dr. Wimmer as a witness. In fact the only objection to the Affidavit is that he is available as a witness. You may reserve that right.
DR. SCHILF: The next document is connected with Exhibit 31. It is an excerpt from the publication by the Ministry of Justice. It is on page 8 and it concerns promotions of members of the Nazi Party. It is a brief document and it speaks for itself. I offer it as exhibit 32.
THE PRESIDENT: Exhibit 32 is received.
DR. SCHILF: On page 10 there is an excerpt from a volume which was published by the Party Chancellery. The heading is Ordnances, Regulations and Publications. From that big volume I have quoted a few pages which show the attitude of Group 3, the Justice Group at the Party Chancellery. These ordnances were published at the time - and all three pages which I quote here show and in some cases very definitely - that the local party offices such as the Kreisleiter, the Gauleiter, etc., were not to interfere with the Administration of Justice.
The document speaks for itself and I offer it as Exhibit 33.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: Would you now turn to supplement book 4. It is a supplement belonging to book 4. This supplement volume contains six documents, which logically in its context belong to the main book 4. If you don't have that book ...
MR. LAFOLLETTE: Your Honors, please. I do not have book 4 supplement nor do I have exhibits 34, 35, 36 and 37 which are contained in the index to book 4, nor do I have a supplement to supplement that.
THE PRESIDENT: Exhibit 33 is the last one in book 4. It is not in the book. Do you have the supplement? We are not in possession of the supplement.
DR. SCHILF: May I ask the Tribunal concerning Nos. 34 to 37 to reserve those numbers 34 to 37-B; that is six documents.
THE PRESIDENT: 37, 37-A- and 37-B?
DR. SCHILF: Yes.
THE PRESIDENT: You may proceed then, we will reserve those numbers.
DR. SCHILF: May I ask now, Your Honors, to turn to document book 5. Document book 5 begins on page 3 with a law. The law which is here quoted is a decree concerning the exercising of the clemency right as far as it was transferred from the Laender to the Reich President. In 1934 Hindenburg was then president of the Reich. The law refers to the transfer of the Administration of Justice to the Reich and it also refers to clemency decisions. This is the law which was mentioned in the Hohenstein Case, that is to say in Guertner's letter, when he said that he no longer had the clemency right.
May I ask you to receive this as Exhibit 38?
THE PRESIDENT: The exhibit is received.
DR. SCHILF: I offer as 38 - a the administrative legal provisions as a supplement. That is a supplement from a book by Wolfgang Menschell, who dealt with clemency matters at the Chancellery of the leader of the NSDAP. This passage has repeatedly been mentioned in this trial. He quotes the various legal provisions and administrative ordinances. From these excerpts the Tribunal will recognize in detail how the regulations on the clemency procedure. The Tribunal will see here the chain of people who were necessarily involved in clemency plea cases and the decision on the matter of clemency pleas. This exhibit also in detail mentions the other legal institutions named in the course of these proceedings. I refer to page 9 of the right to quash proceedings. I have tried to present my extracts in as brief a form as possible. This excerpt will show the general development and the general regulations concerning clemency pleas. It also shows the position of the supreme SA leadership. I refer to page 16 of the document book.
May I ask the Tribunal to receive this collection of various ordinances as exhibit 38-A?
THE PRESIDENT: The Exhibit is received.
DR. SCHILF: Exhibit 39 also deals with the problem of clemency decisions. It is an internal circular decree. 38-A is a book which was available in all public libraries. This next document is a circular decree from the year of 1935. This decree was not generally know. Exhibit 38-A-no Exhibit 39.
THE PRESIDENT: Exhibit 39 is received.
DR. SCHILF: The next document is an affidavit by Baldur von Schirach. Baldur von Schirach was mentioned at this trial in connection with the Graf Stuergkh case. This affidavit refers to prosecution exhibit 359 and it contains a correspondence between Lammers, Meissner and the Minister of Justice at the time, that was Thierack. According to that correspondence, the Gauleiters were to gain a function and to play a part in clemency decisions. The affidavit by Schirach is introduced by me to refute the Altmeyer affidavit, Exhibit 441 as Altmeyer asserted in his affidavit that the Party Chancellery, the office where Klemm worked, had been against this.
MR. LAFOLLETTE: If Your Honors please, I must object to the introduction of this affidavit. This affidavit shows that the affiant was here in Nurnberg on the 3rd of July; at that time he was a prisoner in the Nurnberg Jail. I think now he has been sent some place to serve his sentence. I believe upon proper application the Tribunal would have heard him. For that reason I must object to the introduction of this affidavit.
DR. SCHILF: May it please the Court, may I say the following: When I took the affidavit, as far as I remember, the ruling of the Court had hot yet been passed to the effect that witnesses who are at the prison here in Nurnberg should as soon as possible appear on the witness stand. When that affidavit was taken, I based myself on the previous regulations -- the previous ruling. Therefore, I submitted the affidavit assuming it could be received just as the affidavits taken by the Prosecution, even if the people are here in Nurnberg. Baldur von Schirach is no longer in Nurnberg. As far as I know, as a main criminal the IMT has sentenced von Schirach to a prison term and according to the announcements in the press, he was, with the other Prisoners who were sentenced by the IMT, transferred to Spandau prison.
MR. LAFOLLETTE: If the Court please, I realize that early in the trial Dr. Schilf was very often absent in working in the interest of his client, and I don't charge that he in any way made an incorrect statement, but the ruling of the Court about this matter was made about the 26th of June in connection with these affiants and had to do with the affiants Hecker and Muenzmeyer; and that was before the 3rd of July. It is entirely possible that Dr. Schilf was not here, but the ruling of the Court was made before then -- before the 3rd of July.
THE PRESIDENT: We shall be glad to have the reference to the page of the transcript which shows the exact date of our ruling. Of course we cannot recollect the date of the ruling. You can give it to us later.