Transcript for NMT 3: Justice Case

Court No. III, Case No. 3.

THE PRESIDENT: It is received.

DR. GRUBE: Document 268 on pages 60 to 62 is also an excerpt from the ordinances regarding the execution of penalties of January 1944 and contains the provision to what extent the inmates in the prisons of the administration of justice were allowed to receive visitors and letters and allowed to write letters themselves. It is furthermore evident from this document that the supervision in that respect was up to the directors of the institutions. I offer this document as Exhibit 134.

DR. GRUBE: The following documents within the frame-work of the general defense states the position in regard to the extraordinary objections. The first document in regard to this complex or group of questions is document 7 on pages 63 and the following pages. The decisive regulations regarding the extraordinary objections are enumerated in article 2 of this document. From Article 3 it is apparent that the Chief Reich Public Prosecutor at the People's Court merely could raise an extraordinary objection on the decisions made by the People's Court and in those cases, which as such, belonged to the competency of the People's Court, but the so-called less serious cases were handed over to the district courts of appeal. The competency for making extraordinary objections regarding the various courts were not with the Chief Reich Prosecutor of the People's Court, but with the Chief Reich Prosecutor of the Supreme Court.

I offer this document as Exhibit 135.

THE PRESIDENT: Received.

DR. GRUBE: Document 8 on page 68 contains an executive order for the provisions contained in Exhibit 135 regarding the extraordinary objection. I offer this document as Exhibit 136.

DR. GRUBE: Document No. 27 on page 69 and the following pages is an excerpt from the commentary by Grau-Krug-Rietzsch in regard to the regulations issued during the course of the war. May I direct the atten Court No. III, Case No. 3.tion of the Tribunal to this statement made on pages 70 and 71 regarding the constitutional basis of the extraordinary objection, especially in the status where on the basis of Hitler's authority as the highest legal authority and the supreme legislator in the application of the extraordinary objection Hitler alone was competent for making an extraordinary objection.

Furthermore it is stated on page 71 in particular that the Chief Reich Public Prosecutor could not make an extraordinary objection independently but only on special instructions from Hitler.

Here it seems especially important to me the statement on page 71, under No. 4. It begins on about the eighth line from the bottom, the indication that Where paragraph 1 states that the extraordinary objection may be entered by the Reich Chief Public Prosecutor. This does not mean that the Reich Chief Public Prosecutor may decide himself independently whether he should avail himself of the opportunity. As the Tribunal can see the word "may" is that an extraordinary objection is permitted to be entered upon the superior authority but in the final analysis that is Hitler, who must give the order for it.

On Page 72 it states especially that the Chief Public Prosecutor at the People's Court can make an extraordinary objection only on instructions directed by Hitler, which have been given to him by the Reich Ministry of Justice.

DR. GRUBE: Document 42 on page 72 is an excerpt from the commentary by Niethammer, regarding the extraordinary objection. Here, too, the constitutional basis of the extraordinary objection is discussed and it is established that the authority to order the extraordinary objection to be made rested alone with Hitler and not with the Minister of Justice or a prosecutor who was subordinate to the Administration of Justice.

DR. GRUBE: Document 72 on page 75 is an excerpt from an article Court No. III, Case No. 3.by Freisler, which was published in the journal "Deutsche Justiz". Here, too, it goes into the discussion that the constitutional basis for the extraordinary objection was mainly vested in Hitler as the highest legal authority and supreme judge.

THE PRESIDENT: The exhibit is received.

DR. GRUBE: Document 47 also discusses the same subject. It is an excerpt from an article by Dr. Tegtmeyer in the journal German law "Deutsches Recht". I offer this document as exhibit No. 140.

DR. GRUBE: Document 128 also discusses the same subject. May I again direct the attention of the Tribunal to the fact that here again it is pointed out that the Chief Reich Public Prosecutor was merely authorized formally to raise an extraordinary objection. The competency for an extraordinary objection was bound to be a directive from Hitler. Here again it is expressed that as such the extraordinary objection could be considered only in cases which were of importance for the general public. I offer this document as Exhibit No. 141.

DR. GRUBE: Document No. 44 is again an excerpt from Niethammer's commentary and also discusses the legal basis of the extraordinary objection and especially relates to the question as to what extent the extraordinary objection is related to the prosecutor and the reopening of the case. In that document again it is expressed that the extraordinary objection can only be raised on order from Hitler.

I offer this document as Exhibit No. 142.

THE PRESIDENT: That is document 44?

DR. GRUBE: That was document Mr.

DR. GRUBE: Document 43 on page 82 also deals with the question which we already discussed before, namely, to what extent article 3 of sub-article 2 can be misunderstood, as it says the Chief Reich Public Court No. III, Case No. 3.Prosecutor can raise an extraordinary objection.

I offer this document as Exhibit No. 143.

DR. GRUBE: Document 45 is again an excerpt from Niethammer's commentary on the same subject. Here it states that in every individual case the express order is necessary and general authorization cannot be given. I offer this document as Exhibit 144.

THE PRESIDENT: Exhibit 144 is received.

DR. GRUBE: Document 48 is an excerpt from the article by Dr. Tegtmeyer already mentioned before, which also states that the individual. Chief Reich Public Prosecutor could not raise an extraordinary objection on their own, but only on order of their superior offices. I offer this document as Exhibit 145.

DR. GRUBE: Document 46 is an excerpt from the commentary by Niethammer mentioned before and refers specifically to the Chief Reich Public Prosecutor of the People's Court. This document states: "The Chief Reich Public Prosecutor of the People's Court could not raise an extraordinary objection on its own, except on authority and must have a directive from the Reich Ministry of Justice." I offer this document as Exhibit 146.

THE PRESIDENT: At the appropriate time we might be interested in your comment on the Prosecution Exhibit 136 to the effect that the court is not entitled to demand proof whether the Hitler order has been given or not." That may be a matter for argument later.

DR. GRUBE: Document No. 48- I beg your pardon -- Document 125, on page 88, is also an excerpt from an article, this time by Schickert, from the journal "German Law" ("Deutscher Recht"). Here, too, it says that the Chief Reich Public Prosecutor can raise an extraordinary objection only on a directive by the Reich Minister of Justice . I offer this document as Exhibit 147.

DR. GRUBE: Document 49 discusses the same subject. I offer it as Exhibit 148.

DR. GRUBE: Document No. 83 is an excerpt of expert opinion by Professor Niethammer who worked on the regulations, on the provisions, for the extraordinary objection in the official penal commission, and here states his opinion on the constitutional basis as well as on the fact that the Chief Reich Public Prosecutors are not authorized on their own to make the extraordinary objection. I offer this document as Exhibit 149.

DR. GRUBE: The last document in this volume is Document 108, and this is also from Niethammer's commentary, and states an opinion under question as to what relationship the nullity plea, which is known, that the Chief Reich Public Prosecutor at the People's Court could not make and in what relation it is to the extraordinary objection. I offer this document as Exhibit 150.

MR. KING: The Prosecution's lack of objection to Exhibit 149 is not intended to suggest that we find that document is agreement -- in actual agreement with Rule 21. However, we are not objecting to it, but we don't waive our right to object in the future to documents that we may not wish to have admitted.

DR. GRUBE: I did not quite understand before whether the Prosecution agreed to it that I can submit Document Book III-B now.

May I ask the Secretary General whether Document Book III-B is ready for distribution? It is. Document Book III-B also belongs to the general defense insofar as the public prosecutors are concerned who are indicted in this trial. Document Book III-B is an opinion regarding the fact which has been mentioned here repeatedly that the prosecutor in Germany was bound by directives and instructions. The first document which I offer is Document 206. I offer it as Exhibit 151. It is from Hippel's text book, and contains descriptions of the historical development of the public prosecution. In that connection it seems important to me in footnote 3, on page 2 of the document, where it is pointed out that although the German prosecution is historically based upon the French system -- it is distinguished from it; that the legality principle was applied in German law and still is applicable whereas in French law, it is not. I offer this document as Exhibit 151.

DR. GRUBE: Document 236, on page 3, contains Article 146 of the Judicature Act. This provision gives the legal basis for the so-called obligation to being bound by instructions of the German public prosecutor. I offer this document as Exhibit 152.

DR. GRUBE: Document 30 on pages 4 and 5 is an excerpt from the commentary by Loewe-Rosenberg regarding Article 146, which I have just introduced as an exhibit, and explains that general instructions as well as instructions regarding the individual case can be given to the public prosecutor. I offer this document as Exhibit 153.

THE PRESIDENT: Just a moment. I am not quite clear on that. Your document is 30?

DR. GRUBE: Yes, Document 30. Exhibit 153.

DR. GRUBE: Document No. 10, on page 6 and the following pages, is an excerpt from the ordinance for the uniform regulations of the Judicature Act of 20 March, 1935. Article 13 also discusses briefly the right to issue instructions by the superior authorities. However, it seems important to me to call the attention of the Tribunal to Article 14. There it is laid down who has official supervision over the individual prosecuting offices. May I first direct the attention of the Tribunal to No. 1 where it says that the Reich Minister of Justice as the highest authority exercises official supervision; and No. 5 then states that the Chief Reich Public Prosecutor has official supervision over the Reich Prosecuting authority; and No. 6 says that the general public prosecutors and the senior public prosecutors have official supervision over the prosecutors of their own districts. In explanation may I perhaps say that this ordinance dates from 1935. At that time , as is know here, there was only one Chief Reich Public Prosecutor, namely, the one from the Reich Supreme Court, and that is why in No. 5 they say only the Chief Reich Public Prosecutor. It is also important, I think, that in No. 6 it is stated that the General Public Prosecutors have official supervision over the penal institutions of their district. This is in agreement with the document that was submitted before which showed that the Chief Reich Public Prosecutor had no supervision over the penal institutions. In Article 16 of this (document it is stated that the person who exercises official supervision is also the official superior, and in the last analysis this indicates that the Chief Reich Public Prosecutor at the People's Court was merely the official superior of the official Reich Prosecution. Thereby this refutes the remarks the prosecution made about German prosecuting authorities. I offer this document as Exhibit 154.

THE PRESIDENT: The document is received.

DR. GRUBE: Document 102, on page 9, is an excerpt from the commentary by Loewe-Rosenberg, and deals first with the right to issue instructions of the Minister of Justice, and then it says that the Chief Reich Public Prosecutor has no supervisory or guiding authority over the other prosecuting offices. I offer this document as Exhibit 155.

DR. GRUBE: Document 12, on page 10 of the document book, is an excerpt from the text book by Hippel which has been repeatedly mentioned and also states a view regarding the prosecutors being bound by instructions. It is noticeable, or it should be noted, that footnote 2, on page 11 of the document book, were from the point of view of National Socialism the point of views it stated regarding the prosecutors being bound by instructions. I offer this document as Exhibit 156.

DR. GRUBE: Document 261 is an excerpt from the third general ordinance of the Minister of Justice regarding the uniformity of the Public Prosecution. It regards the reports of the Prosecutors to the Reich Ministry of Justice. During the examination of the witnesses here it was repeatedly stated that the Public Prosecution was obligated to report to the Minister of Justice. This was the actual basis for the instruction of the Minister of Justice. I offer this document as Exhibit 157.

DR. GRUBE: Document 270 on page 55 deals with a special case regarding the duty to report of the Public Prosecutor. It deals with cases to what extent reports had to be made in cases dealing with criminal proceedings against clergymen. I offer this document as Exhibit 158.

DR. GRUBE: Document 258 on pages 16 and 17 also are an excerpt from the ordinance about making more uniform the public prosecuting office, which was mentioned before. In this regulation it is set down that in the case of the larger prosecuting offices, as for instance the Reich Public Prosecution, divisions are to be created, and in this connection it seems to be important to me on page 17 where it says in the beginning of the next to the last paragraph, there it says that the Chief of the Department basically has to carry on the business himself. I offer this document as Exhibit 159.

DR. GRUBE: Document 259 S 18, is also an excerpt from the general ordinance for the Minister of Justice which I have just mentioned regarding the uniformity of the Prosecution and also deals with the unification of the Public Prosecuting authorities and also deals with instructions of The Minister of Justice. I offer this document as Exhibit 160.

DR. GRUBE: Document 183 on page 20 is an excerpt from the decision by the Reich Supreme Court on criminal matters of 1910, who held it is explicitly laid down by the Reich Supreme Court that the Prosecutor, contrary to the Judges, are bound to the official directives by their superiors, and not only instructions of a general nature, but also instructions in regard to criminal cases. I offer this document as Exhibit 161.

DR. GRUBE: Document 97 on page 21 and the following pages is an excerpt from an article by Reichsgerichtsrat Dr. Schwarz from the German Legal Journal, "Deutsche Juristen Zeitung" of 1928, and also discusses the question of being bound by directives. I offer this document as Exhibit 162.

DR. GRUBE: Document 257 is a copy of sub-article 89 of the Bavarian constitution which was promulgated by the American occupying authorities and I ask for permission that in view of the importance of the matter I point out it is expressly stated in 89 that the Public Prosecutor before the penal courts are bound by the directives of their superior authorities. I offer this document as Exhibit 163.

DR. GRUBE: Document 254 is a copy, or rather it is an excerpt from an article by Dr. Radbruch, which appeared only a few months ago in the newspaper "Rhein Neckar Presse". This article is of interest because it states an opinion on the question as to what extent an abortion is admissible for social reasons. According to the present German penal regulation it is admissible for social reasons. Radbruch suggests in this article that the directive should be issued to the Public Prosecutors as far as possible in cases where for a social reason abortion should take place to describe these cases as abortion for medical reasons so that these cases would not fall under the law.

THE PRESIDENT: Received in evidence.

DR. GREBE: Document No. 55 is an excerpt from the extensive book "Comparative Description of German Penal Law with the Foreign Penal Law" , which at the time was suggested by the Reich Office of Justice, to discuss the question of officials ' rights and duties. Especially it lays down that according to the French law in agreement with German law, the subordinate is not authorized to examine the legality of the directives issued to him by his superior and that such orders by his superior are to be regarded as general reasons for not prosecuting. May I also point out that on page 32 of the document book the question is also discussed to what extent this English law and the subordinate has a right of review. According to English law the subordinate official does not have this right. I offer this document as Exhibit 165.

DR. GRUBE: The last document in this volume is the judgment of the French Military Tribunal at Strasbourg of the 3rd of May 1946 in the trial against the former chief of the civil administration of Alsace, Wagner and other officials. In this trial the Public Prosecutor competent for the civil administration in Alsace was indicted. May I point out that on page 36 under No. 6, Lueger is mentioned. In explanation I may remark that the subject of this trial against Wagner was above all a penal case which had been tried before the special court in Alsace against the Frenchmen in Alsace who had refused to join the German Wehrmacht. At that time the Special Court in Alsace had condemned these Alsatians to death and these cases were also discussed in the trial against Wagner and that is why the Public Prosecutor Lueger was indicted also. May I call the attention of the court to page 66 to 68 of this document book.

There under thumbers 154 through 179, the questions are listed which were put to the jury of the French Military Tribunal to what extent Lueger is responsible under criminal law for the sentences of the special court in Strasbourg. May I further direct the attention of the Tribunal to the answer of these questions which are printed on pages 73 and 74 of the German and English document books under numbers 154 to 179.

THE PRESIDENT: We will take our afternoon recess of fifteen minutes.

(A short recess was taken.)

Court No. III, Case No. III.

THE MARSHALL: The Tribunal is again is session.

DR. GRUBE: I pointed out earlier that in Document 293, in the judgement of the Military Court at Strassbourg, the French military court had to decide to what extent the public prosecutor at the special court in Alsace, Lueger, was responsible under penal law for the sentences passed by the German special court at Strassbourg, death sentences on Alsatians who refused to join the German armed forces. For that purpose I have referred to Questions 154 to 179 on Pages 66 through 68. My last remark referred to the answers which the jurors had given concerning the question as to what extent the public prosecutor was responsible for penal law for his applications for sentences. These answers are contained on Pages 73 and 74 of the German Document Book.

May I point out now, for example, concerning Question 155 as to whether Public Prosecutor Lueger had acted according to the instructions of his superior within the scope of the fact that he was bound to the instructions, that in reply to that the jurors stated that Lueger had acted according to instructions. That is shown on Pages 73 and 74. The final judgment is on Page 75 and it shows that the military court, the French military court, that is, acquitted the public prosecutor.

THE PRESIDENT: What law is the indictment in that trial brought under?

DR. GRUBE: The indictment of Lueger had been filed by a French military court.

THE PRESIDENT: I say, under what law was the indictment brought?

DR. GRUBE: The indictment against Lueger was filed under French law as is evident, for example, the provisions are stated here repeatedly and can been seen on Page 36 and also on Page 37. Reference is made there to the French regulations.

THE PRESIDENT: The next book.

DR. BRUBE: The document is of importance also because, as we know, in the IMT trial the question had great importance, or, rather, the fact was of great importance that against Frenchmen from Alsace.

sentences had been passed by German courts because they had refused to join the German armed forces. Document 293 shows that the special court had passed such sentences, that is to say, that the special court had been competent and not the People's Court. I offer this document as Exhibit 166.

DR. GRUBE: I now come to Document Book IV-B. May I say by way of introduction that this book is somewhat out of context as I am not yet able to introduce Book IV-A. Document 14 on Page 1 of this document Book contains Article 136 from the Judicature Act which shows that originally the Reich Supreme Court was competent for treason and high treason cases and - which is of importance here - it was competent in the first and in the last instance. That is, of importance in so far as we know the People's Court was changed with not allowing legal recourse against its decisions. Document 14 proves that the same state of affairs existed with the Reich Supreme Court. I offer this document as Exhibit 167.

DR. GRUBE: Document 71 is a copy of a decision by the District Court of Appeals Dresden of 11 February 1934. It states its position concerning the question of double jeopardy. I offer this document as Exhibit 168.

DR. GRUBE: Document 202, on Pages 5 and 6, is an excerpt from the competency decree of 1940. It deals with speedy proceedings which has also been the subject of the trial here. Paragraph 13 shows that these speedy proceedings before the local court judges were admitted, but not before the People's Court. I offer this document as Exhibit 169.

DR. GRUBE: A further topic of this trial is the so-called transfer of prisoners after they have served their sentence to the Gestapo.

Document 167 on Pages 7 and 8 shows that the notification of the Gestapo had to be made by the prisons and not by the prosecutors. I offer this document as Exhibit 169.

THE PRESIDENT: 170 you mean.

DR. GRUBE: I beg your pardon; 170, yes.

DR. GRUBE: Document 175 is also concerned with this question; This Document too - and I am referring to Page 12 of the Document Book reveals that the notifications had to be made by the prisons and not by the Prosecutors. I offer this document as Exhibit 171.

THE PRESIDENT: Receive.

DR. GRUBE: Document 295 on Pages 15 and 16 I am not submitting as Hecker already testifies on the same matter here. Document 180 on Page 17 and the following pages is an affidavit by the former General Public Prosecutor Bems. This affidavit under Figure 1 gives the affiant's position to the question of prosecutors being bound by instructions. I attach particular importance to a reference on Page 18 where Bems states that in all important cases already before the indictment was filed the prosecutors had to consult the Ministry of Justice. Figure 2 on Pages 19 and 20 of the Document Book gives the affiant's position concerning the clemency problem. I offer this document as Exhibit 172.

Court No. III, Case No. III.

MR. KING: Your Honor, we object to the admission of this affidavit in evidence for the reasons: (1) that Bems is in jail, and (2) that he will be called, as we understand, in connection with the Rothaug Case.

THE PRESIDENT: He's here in Nurnberg?

MR. KING: In Nurnberg Jail.

DR. GRUBE: May I say something on this subject? I know from Dr. Koessl, Rothaug's Defense Counsel, that Bems is at liberty and is no longer in Nurnberg. He is no longer in jail here.

MR. KING: Dr. Grube's information may be more recent than mine. In that case........

THE PRESIDENT: We'll reserve our ruling until we've received further information.

DR. GRUBE: May I offer this document as an exhibit or is it to be put back?

THE PRESIDENT: You may offer it. We'll reserve out ruling.

DR. GRUBE: Document 22 on page 21 and following is a copy of a circular decree by the Ministry of Justice concerning the question of associations hostile to the state.

DR. GRUBE: Document 98 contains a decision by the Reich Supreme Court concerning the question of associations hostile to the state. It refers in particular to the activities of the Communist Party and to the situation under penal law of confinned connections between the members of the Communist Party.

DR. GRUBE: The next document is Document 138. It is a decision of the Reich Military Court. It also concerns the question of the continuation of Communist activities. What appears of importance to me is the reference to the fact that the Reich Military Court also took the view that since the beginning of the war with Russia working for Communist aims inside Germany was work within the meaning of aiding the enemy within the meaning of Article IX, 1 b.I offer this document as Exhibit 175.

DR. GRUBE: Document 21 on page 30 also is a circular decree or ordinance by the Ministry of Justice concerning the question of continued existence of organizations of the Communist and Social Democratic Parties.

DR. GRUBE: Document 140 on page 32 and following is an excerpt from a verdict by the Reich Military Court passed on a German citizen who tried to join the Czech legion.

DR. GRUBE: Document 267 on Pages 34 to 37 contains circular decrees of the Reich Ministry of Justice concerning the ordinance amending the penal provisions for the protection of the fighting morale of the German people. These circular decrees reveal in particular that the OKW had to be contacted before a trial could be conducted before the courts.

DR. GRUBE: Document 24 contains circular decrees by the Ministry of Justice concerning penal proceedings in cases of sabotage of the German economy. It is show Here that the Reich Ministry of Economics had to be contacted before an indictment could be filed.

DR. GRUBE: The following documents refer to criminal proceedings in cases of undermining military morale. May I refer to my Exhibit 33 which has already been submitted by which I have show that the people's court, in cases of undermining military morale, only became competent in February, 1943.

Document 205 is an excerpt of the Seventh Ordinance on the execution and the amendment of the decree concerning military penal proceedings in war time and in special employment, of 18 May, 1940. May I direct the attention of the Tribunal to paragraph 1? By this provision of the competence of the military courts, which originally had been the sale competency and that also in the case of civilians, was rescinded as far as civilians were concerned. In 1940, the competence of the military courts vis-a-vis civilians was abandoned in the case of undermining military morale.

THE PRESIDENT: It's received.

DR. GRUBE: The next document, 143, is a copy of the official reasons concerning the ordinance which I have just submitted in Exhibit 180. What appears of importance to me is the reference to the fact that in these official reasons it is stated that now on the civilian courts would have to come into play since the Reich Supreme Military Court had laid the foundations for a jurisdiction which would be in accordance with military interests. That is shown on page 44.

DR. GRUBE: In the same year, that is, in 1940, the next document, 144, originated. It is a general ordinance dated 27th of May, 1940, by the Reich Ministry of Justice. It orders that, in the case of undermining military morale in public, in future the special courts are to come into play.

DR. GRUBE: In the course of this trial there has been repeated mention of the fact that before, in 1943, the people's court became competent for cases of undermining military morale there had already existed a general jurisdiction in regard to making such statements in public, in particular on the basis of three decisions made by the Reich Supreme Military Court.

Those three decisions of the Reich Supreme Military Court concerning the question of undermining military morale, in particular when such remarks were made in public, are printed in Document 25.

DR. GRUBE: Document 187 is a copy of a circular decree by the Reich Ministry of Justice concerning the question of publicity withing the meaning of that ordinance.

THE PRESIDENT: Received. What's the date of that last document? I don't have it. 11 July 1941? It's a little blurred in my copy.

DR. GRUBE: 11 July 1941.

THE PRESIDENT: All right. Received.

DR. GRUBE: The next document, 129, is a decision by the Supreme Reich Court in criminal cases of the 16th of April, 1942. That is to say, it dates from a time before the people's court became competent. This decision also states the position regarding the question of whether a statement undermining the fighting morale had been made in public. It appears of importance, as far as the sentence is concerned, that this sentence by the Reich Supreme Court on page 1 at the bottom expressly refers to the jurisdiction which had been developed up to that time by the Reich Supreme Military Court, and that the Reich Supreme Court also expressly stated that the Reich Ministry of Justice in stating the official reasons in 1940 had approved the jurisdiction of the Reich Supreme Military Court. On page 53, the Reich Supreme Court gives its position to the question as to when one has to assume that a statement was made deliberately with the intention of undermining military morale.

THE PRESIDENT: received.

DR GRUBE: Document 288. This is a copy of a circular decree by the Reich Ministry of Justice of the 13th of August, 1943. It concerns the combatting of attempts to undermine military morale.

DR. GRUBE: The next document is an affidavit by Count Gottfried von Bismarck. I do not know whether the prosecutor intends to object to this, since this affidavit is not in the form which has been prescribed. In case an objection is raised, I shall withdraw this affidavit and shall try to procure an affidavit in the prescribed from.

THE PRESIDENT: There being no objection, the exhibit is received.

Transcript for NMT 3: Justice Case

Defendants