I offer this document as Exhibit 164.
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.
THE PRESIDENT: The exhibit is received.
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.
THE PRESIDENT: The exhibit is received.
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.
THE PRESIDENT: Received.
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.
THE PRESIDENT: Received.
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.
THE PRESIDENT: Received.
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.
THE PRESIDENT: Received.
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.
I offer this document as Exhibit 173.
THE PRESIDENT: Received.
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.
I offer this document as Exhibit 174.
THE PRESIDENT: Received.
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.
THE PRESIDENT: Received.
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.
I offer this document as Exhibit 176.
THE PRESIDENT: Received.
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.
I offer this document as Exhibit 177.
THE PRESIDENT: Received.
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.
I offer this document as Exhibit 178.
THE PRESIDENT: Received.
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.
I offer this document as Exhibit 179.
THE PRESIDENT: Received.
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.
I offer this document as Exhibit 180.
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.
I offer this document as Exhibit 181.
THE PRESIDENT: Received.
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.
I offer this document as Exhibit 182.
THE PRESIDENT: Received.
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.
I offer this document as Exhibit 183.
THE PRESIDENT: Received.
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.
I offer this document as Exhibit 184.
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.
I offer this document as Exhibit 185.
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.
I offer this document as Exhibit 186.
THE PRESIDENT: Received.
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.
I offer this document as Exhibit 187.
THE PRESIDENT: There being no objection, the exhibit is received.
DR. GRUBE: The next document is an affidavit by the wife of Dr. Sack; whose name was mentioned frequently here. He was the chief of the legal department of the army. He was a close friend of the defendant Lautz. He played a part in the events of 20 July 1944 and was later murdered. Frau Dr. Sack describes the close relations which connected Dr. Lautz with Dr. Sack. She says that the defendant Lautz after Sack had been arrested did not interrupt his relationship with the family of Dr. Sack.
I offer this document as exhibit No. 188.
THE PRESIDENT: Received.
DR. GRUBE: Document 94 is an affidavit by under secretary Koerner. In this affidavit Koerner describes how the defendant Lautz made efforts on behalf of Professor Woermann. Professor Woermann was also involved in connection with the events of 20 July. I offer this document as exhibit No. 189.
MR. KING: All the information indicates that this affiant is in Nurnberg jail. I would like to have the Court withhold on that until we can have another check made.
THE PRESIDENT: Very well.
DR. GRUBE: May I say that I refrained from calling Koerner as a witness as he was only to testify on a small matter and I wanted to avoid; in the interest of speeding up this trial; so call him here as a witness. It is known to me from the IMT trial that in such cases we had to be content with an affidavit. That was prescribed at the time.
THE PRESIDENT: If you can persuade the prosecution not to object, we may consider the matter. An objection has been made. If he is in the jail our rule requires that you call him.
DR. GRUBE: If this objection is to be sustained, may I be permitted to call Koerner as a witness?
THE PRESIDENT: Yes.
DR. GRUBE: In the case of the next document, I assume the same thing will happen. This is an affidavit by Reinecke, he describes in this affidavit the attitude of the defendant Lautz in the proceedings against the members of the conspiracy of 20 July 1944. If the prosecution docs not make any objections, I will offer it as Exhibit No. 189.
MR. KING: We would like to have this affiant here as a witness, because there are some questions we ourselves would like to ask him.
THE PRESIDENT: Very well.
DR. GRUBE: In that case, may I call Reinecke as a witness?
THE PRESIDENT: Yes, you may.
DR. GRUBE: Document 182 on page 66 is an affidavit by Dr. Hugo Suchomel. I offer this document as Exhibit 189.
MR. KING: I am under the impression that Dr. Suchomel is going to be recalled here as a witness. Several counsel for defendants have indicated that.
DR. GRUBE: I don't know whether it will be possible to bring Suchomel to Nurnberg. May I just ask the Prosecution before being permitted to introduce the document for the moment, because it is not an established fact whether Suchomel will come or not.
THE PRESIDENT: Where is he?
DR. GRUBE: He is in Vienna.
THE PRESIDENT: How many times has he teen here now?
DR. GRUBE: As far as I know he has been here once.
THE PRESIDENT: And who called him at that time, did the prosecution call him?
DR. GRUBE: At that time I wanted to have Suchomel as my own witness, but at that time the Tribunal made a ruling that that was inadmissible. Document 133 ....
THE PRESIDENT: Please, just a moment, Counsel has been striving to get rid of Exhibit 189, so we will assign this number to it. It will be received and disregarded if the witness is brought back, otherwise we will consider it Exhibit 189.
DR. GRUBE: Thank you. The next document contains an affidavit by Count Stuergkh, whose name has been mentioned several times in this trial. Stuergkh and his sister, Countess Stuergkh, inform here that Stuergkh owes his life to the defendant Lautz. It is noteworthy that Stuergkh, as is evident from his letter of 24 February 1947, is at present on the Board of the Association of Political Prisoners at Vienna. I offer this document as exhibit No. 190.
THE PRESIDENT: It is received.
DR. GRUBE: Document 196 is an excerpt from the wartime regulations for penal procedure and deals with the question to what extent penal proceedings can be transferred from the military courts to the ordinary courts. I offer this document as exhibit No. 191.
THE PRESIDENT: Received.
DR. GRUBE: Document 164 is an excerpt from the commentary by Count Gleispach on criminal law in war time. It also deals with the question as to That extent the competency can be transferred from a military court to a civil court. Article 3 is important, that states an opinion on the extent to which foreigners are subjected to wartime procedure. I offer this document as exhibit No. 192.
THE PRESIDENT: Received.
DR. GRUBE: Document 171 is a commentary by Ebermayer, concerning the Reich Criminal Law. I am introducing this document because it shows, according to the opinion of German legal minds as to what territory the provisions of high treason apply and territories were considered part of the Reich, In the vies of German legal minds. I might point out that the protectorate of Bohemia and Moravia and the incorporated eastern territory were regarded as Reich territories within the German provisions concerning high treason and that view was held by German legal experts. May I offer this document as exhibit No. 193?
THE PRESIDENT: Received.
DR. GRUBE: Document 135 is an excerpt from the decision by the Reich Military court. The court states its opinion regarding the question an to what is German Reich territory and as to what the legal situation is concerning the occupied territory. I offer this document as exhibit 194.
THE PRESIDENT: I did not understand. Did you say the court expressed the opinion?
DR. GRUBE: The Reich Military court. This sentence was passed by the 3rd senate of the Reich Military court.
THE PRESIDENT: Page 181?
DR. GRUBE: On 6 May 1941.
THE PRESIDENT: Proceed.
DR. GRUBE: Document 137 is also a decision by the Reich Supreme Military court and the opinions of the court are stated concerning jurisdiction in espionage cases. It especially gives an opinion concerning the question what has to be considered as sphere of espionage operations. I offer this as exhibit 195.
THE PRESIDENT: Received.
DR. GRUBE: Document 141 states an opinion on the same question. It also concerns decisions from the Reich Supreme Military Court in the years of 1940 to 1942. I offer this document as exhibit No. 196.
THE PRESIDENT: Just a moment, just a moment. That is 141 on the document.
DR. GRUBE: Document 141 and I suggest that 196 be given as the exhibit number.
THE PRESIDENT: On page 88?
JUDGE BLAIR: Page 86.
DR. GRUBE: On the German book on page 86.
THE PRESIDENT: My book ms from pages 85 to 88 without pages 86 or 87 being present, page 88 appears to be page 3 of the original. Pages 1 and 2 are not here.
DR. GRUBE: Your honor ...
THE PRESIDENT: In my document book it appears after page 88, and I have now discovered it, and I will mark it properly. The page is transposed improperly.
MR. KING: Your Honor, in my book No, 141 seems to run over and include page 91. According to the indications at the top of the page -
THE PRESIDENT: That is right. There are several pages duplicated in my book. Page 88 appears twice.
DR. GRUBE: Your Honor.
THE PRESIDENT: Is page 91 intended to be a part of your document 141?
DR. GRUBE: No. With me on page 91 Document 136 starts.
THE PRESIDENT: I guess the book had better be corrected so that we may have it in proper form.
DR. GRUBE: I shall see to it that that is done, Your Honor. The next document could be Document 136. In my copy it begins at page 89. It is also an excerpt from a decision by the Supreme Reich Military Court.
THE PRESIDENT: I suggest you withdraw these English documents books and correct them.
DR. GRUBE: Yes, I will. May I ask whether Document 139 is contained? It should start on page 91.
THE PRESIDENT: Page 91 is marked Document 141.
DR. GRUBE: Apparently the translation department has given that the wrong number too. May I refrain them from submitting any documents that are contained in this volume so that I can sec to it that this document book is put into proper order.
THE PRESIDENT: Exhibit 195 is received. You can correct from that point on.
MR. KING: We have just checked with the prison and we learn that our information is incorrect; that the prisoner Bems has been transferred and is not at the present time in Nurnberg.
THE PRESIDENT: To what exhibit does this refer to?
MR. KING: 172.
THE PRESIDENT: You withdraw your objection to 172.
MR. KING: It is my understanding that he will be called, but so far as our objections, based upon his being here in prison , are concerned, we do withdraw that.
THE PRESIDENT: Exhibit 172 -
MR. KING: Yes.
THE PRESIDENT: Is received in evidence.
DR. GRUBE: May I now submit the documents from Volume IV-C.
MR. KING: We have not received Volume IV-C, Your Honor. It may have been a mistake in the messenger service, but it has not come into our hands yet.
DR. GRUBE: Mr. LaFollette said this morning here at the stand that Volume IV-C had reached him.
THE PRESIDENT: IV-C has been delivered according to our notes.
DR. GRUBE: The first document from Volume IV-C which I offer is Document 70, as Exhibit 196. It deals with the Polish illegal behavior toward the German population. The next document -
THE PRESIDENT: Exhibit 196 is received.
DR. GRUBE: The next document which I offer is Document No. 80, as Exhibit 197. This document contains references to the attitude of the Reich Supreme Court concerning jurisdiction over poles. I offer this document as exhibit number 197.
THE PRESIDENT: Just a moment, please. It is document No.80.
DR. GRUBE: Document 80, yes.
THE PRESIDENT: It is received.
DR. GRUBE: Document 79 is an excerpt from an article by Ministerialrat Grau about doubtful questions of the penal code concerning Poles. He deals with the well known difficulties which arose because it was doubtful whether the law concerning Poles could be applied by the German courts inside the Reich only as to its formal provisions or also as to the substance. I offer this document as Exhibit 198.
THE PRESIDENT: Received.
DR. GRUBE: Document 292 is a supplement to exhibit 129 submitted by the prosecution. This document originates from the working files of the Reich Public Prosecution, which the Prosecution here has allowed me to have in my possession. This document, from various points of view, must be regarded as having probative relevancy. First of all, I would like to point out that the Prosecution in the session of 24th March, 1947, German transcript page 868 following, stated that the indictment concerning Prosecution Exhibit 129 did not exist. For that reason the Prosecutor read from Exhibit 126, that is to say the affidavit by the defendant Lautz, a passage in which the defendant Lautz had stated that in general he had signed the indictments, and in referring to the Lautz' affidavit the prosecution here drew the conclusion that in this case, too the indictment had been signed by Lautz. I have established since, by looking through the files which the Prosecution has handed to me, these contain an indictment and it is signed by Patisius. That can be seen on page 21 of the document book. Furthermore, this document appears to me to have a relevancy as evidence material because on page 15 of this book, under numeral II, there is a note by the expert of the Reich Prosecution.
He says that concerning the question of the Polish Legion, there is an inquiry pending with the Public Prosecution at Stuttgart -
THE PRESIDENT: The Polish Legion in Switzerland,
DR. GRUBE: The Polish Legion in Switzerland, yes. That the result of that inquiry has to be awaited. The document shows that the case was dealt with further when evidently a reply had been received.
Generally speaking this document is also an example for the manner in which the Reich Minister of Justice in all proceedings from the very beginning to the end had to be kept informed by the Prosecutor. May I refer you to page 9 of the document book here where the indictment had to be sent to the Reich Minister of Justice and was sent to the Reich Minister of Justice. On page 10 you will see that the sentences had to be sent to the Reich Minister of Justice also. On page 13 one sees that the investigating Judge too had to send a copy of his reports to the Chief Reich Prosecutor, to the Reich Minister of Justice as well, and more relevant material of this kind is contained in this document. I offer this document as Exhibit 199.
THE PRESIDENT: Received.
DR. GRUBE: Document 290 on page 23 and following is also a supplement to an exhibit by the Prosecution. It is Prosecution Exhibit 132. This document too originates from files which the Prosecution has passed on to me. It seems important to me to refer to page 25, that is the transcript taken down by the investigating Judge, where the defendant Stefanowicz told the investigating Judge he had reported voluntarily for work in Germany and the other defendant Lenczewski stated the same before the investigating judge, on page 26 of this document book. I offer this document as Exhibit 200.
THE PRESIDENT: Received.
DR. GRUBE: The next document 78, I am leaving out as it is contained in the document book of my colleague, Dr. Schilf.
Document 77 on page 29 is an affidavit by Frind. I do not wish to read any long passages from this affidavit. I would merely like to point out that Frind on page 30 and 31 states that he had ascertained that the defendant Lautz was evidently under Gestapo supervision. I do not want here to go into other statements contained in this affidavit. I offer this document as Exhibit -