b) The Prosecution submitted against ALTSTOETTER the following documents:
as Exh. 457 the document NG-666 in the supplementary volume V as exh. 451 the document NG-636 in the supplementary volume VIII " " 453 " " NG-900 " " " " VIII All these documents refer to matters which are connected in some way or other with the so-called origin-controversy concerning Jews and persons partly Jewish.
ALTSTOETTER's interrogation (see transcript page 8896 and following) shows clearly that the measures which he laid down in this order - submitted to the court - can in no way be called criminal or offences against humanity. At the same time it has been established that the law suits concerning questions of origin are not an invention of the Third Reich, but originate in the provisions of the German Civil Code and the Code of Civil Procedure of 1900 and that, since that time, lawsuits to establish legitimate of illegitimate origin have always been brought. Naturally, Jews also could make use of this facitlty to establish their actual origin. Al. exhibit 4, Al. document 91, page 21 (affidavit HINRICHS).
Ministerialdirigent Dr. STAGEL, who heldped to shape the orders submitted, has commented on this question:
Al. Exhibit 3, Al. document 75, page 34 - paragraph 2, 3 and 4 and above all in Al. exhibit 4, Al. document 89; page 8, and proved that these regulations whenever Jews were involved in suits concerning questions of origin, benefited the latter.
In this connection it should be noted that there was no need for a Jew to be present as witness when the blood test was taken because this test could also be made elsewhere or the blood of the person in question could be taken on the spot and send up for the test as happened in the case of soldiers serving at the front.
It is well known that the blood group test can only give "negative" evidence, in other words difference in the blood groups prove that there exist no relationship.
If, in this manner, it was established that the plaintiff could not possibly be a descendant of the defendant there was no longer any need for a hereditary-biological examination by comparative witnesses. They were needed only in those cases where parity of the blood groups seemed to indicate a relationship (that means Jewish origin). If such a hereditary-biological examination did not take place, this evidence of the "possible origin" to be introduced officially - had to be dropped and the proceedings could only be carried on on the basis of other evidence produced by the plaintiff (testimony in particular of the mother etc.). These are, of course, always in favor of the plaintiff. For this reason the decree of the Reich Ministry of Justice exhibit 453 of 3 June 1944, paragraph 2 - rules as follows:
"Even if the hearing of the Jews may in many cases help to frustrate the intentions to conceal their descent, reasons of the security police demand to desist therefrom."
From this it is quite obvious that the fact that Jewish witnesses could not be neard was actually of advantage to the Jewish plaintiff.
It is therefore established:
aa) There have been controversies about the question of the origin, and plaintiffs in this matter ever since 1900.
bb) This legal step was always open to Jewish descendants, but not intended as a means for carrying out anti-Jewish legislation.
cc) ALTSTOETTER can in no reasonable way be made responsible for the Jewish legislation (Nuernberg Laws) of the Third Reich. He was in no way associated with it.
FINAL PLEA ALTSTOETTER A dd) The same applies to any security measures taken by the Reich Ministry of the Interior, that is, by another authority.
ee) The fact that the calling of witnesses was made difficult was actually of advantage to persons of Jewish origin in aryanization proceedings.
c) The Bureau of Racial Policy (Prosecution document exhibit 142 NG-410 Document Book VIII A and Prosecution document exhibit 432 NG-789, supplementary volume I), which had been esatablished in Department VI of the Reich Ministry of Justice, had nothing to do with the Jewish legislation. This legislation for Jews was on principle in the hands of, the Reich Ministry of the Interior.
MEINHOF's so-called Bureau of Racial Policy was an independent institution in as rar as it had been created, for the whole ministry. In this respect MEINHOF was subordinate to Department II of the ministry. Apart from questions relating to hereditary-biological science MEINHOF concerned himself in Department VI with legal questions relating to marriages between nationals of different states. (Removal of obstacles to marriage).
The correctness of the statements made by the defendant with regard to this problem (interrogation of 15 September 1947, English transcript page 8859 and following) is apparent from:
Al. exhibit 1, Al document 10, page 89 (departmental disposition dated 12 June 1943) Al. exhibit 1, Al. Document 23, page 60 (affidavit Dr. STAGEL) Al. Exhibit 1, Al.document 7, page 74- paragraph 12 -(affidavit FECHNER) Al. exhibit 1, Al.document 9, page 91 -paragraph 4 -(affidavit v.d. OSTEN) Al. exhibit 3, Al.document 75, page 33 -paragraph 5(affidavit STAGEL) Al. exhibit 4, Al.document 94, page 32 (affidavit HINRICHS)
d) That ALTSTOETTER personally was in no way prejudiced against Jews, that in fact he refused to accept the National Socialist racial ideology, is among others proved by:
Al.exhibit 2, Al, document 49, page 57 and following (affidavit GEALACH) Al.exhibit 1, Al, document 2, page 22 and following (affidavit GENANDT) Al.exhibit 3, Al. document 68, page 1 (affidavit BUSOLD) A1.exhibit 3, Al.document 79, page 49 -paragraph II/1 - affidavit, RUEHL) This is further proved by the testimony of the defendant KLEMM of 11 July 1947 (English transcript page 5090):"Question:
Do you remember that THIERACK once required Department VI should issue a special regulation in regard to divorces between Jews and Aryans which were to the disadvantage of the Jews, and what was ALTSTOETTER's attitude in regard to this request?
Answer : This too was one of these plans of THIERACK which was foiled only by the resistance offered by ALTSTOETTER and also to delay in the treatment."
4. ALTSTOETTER rejected on principle and in each individual case with the utmost determination all demands made by the Party to reorganize the law in terms of National Socialist ideology as well as all attempts at interference with the application of the law or all attacks on the independence of the judges. ALTSTOETTER's primary aim, as chief of the "Office" for the preparation of the reorganization of court procedure, was to protect the application of the law and to guarantee the independence of the judges, enlisting the help of science in this struggle between the Administration of Justice and the Police.
Al.exhibit 1, Al. document 23, page 61 (affidavit Dr. STAGEL) Al. exhibit 1, Al. document 24, page 83 (affidavit Dr. KERN)
a) The draft of the Law concerning the Treatment of Asocial Elements was absolutely unjust, ALTSTOETTER attacked it and, behind the back of the Minister and acting against the latter's instructions, he prevented it from being enacted, as he condemned it for moral reasons. This Law concern ing the Treatment of Asocial Elements had been requested by HIMMLER, and THIERACK had given his consent. (Prosecution doc. PS-654, exh.39, Document Book I b paragraph 7 - ).
The counter-effects which ALTSTOETTER's actions had, are proved by affidavits and testimonies, for instance, these of the witness SUCHOMEL in his testimony of 27 August 1947 (English transcript page 7774 and following). Al. exh.
1, Al. doc. 23, page 60 (affidavit STAGEL) Al. exh. 2, Al. doc. 31, page 8 (affidavit GRAU).
Al. Exh.2, Al. Doc. 32, page 10 (Affidavit FICKER) Al. Exh.
2, Al. Doc. 33, page 12 (Affidavit LEHMANN) and the statement of ALTSTOETTER when in the witness box on 15 September 1947 (English transcript page 8863).
b) ALTSTOETTER maintained the same attitude in regard to the ordinance governing Party responsibility because it favored the position of the Party as compared with that of other authorities and other organizations and because it tied the courts to party-political certificates of conduct. It was due to his efforts that this ordinance governing Party liability did not become law. (See prosecution document NG-889, exhibit 435 supplementary volume I).
In this connection the following is also relevant:
Al. Exh. 1, Al. Doc. 6, page 70 (Affidavit DERMIETZEL) and, in particular, Al. exhibit 3, Al. doc.
81, page 56 (Affidavit Dr. BERGMANN) and the statement of ALTSTOETTER in the witness box on 15 September 1947 (English transcript page 8866).
c) ALTSTOETTER never allowed any interference in the application of the law.
Al. Exh. 1, Al. Doc. 3, page 46 (Affidavit HORNIG) Al. Exh.
1, Al. Doc. 23, page 56 (Affidavit STAGEL) Al. Exh.
1, Al. Doc. 5, page 67 ( Affidavit STEPP) Al. Exh.
1, Al. Doc. 6, page 69 (Affidavit DERMITTZEL) Al. Exh.
3, Al. Doc. 79, page 49 (Affidavit RUEHL) Al. Exh.
2, Al. Doc. 30, page 4 (Affidavit ENKE) Al. Exh.
3, Al. Doc. 73, page 20 (Affidavit PRITSCH) Al. Exh.
3, Al. Doc. 71, page 14 (Affidavit BESTA) Al. Exh.
3, Al. Doc. 74, page 30 (Affidavit VOGEL) In the case Friedrich the defendant ALTSTOETTER even prevented Hitler's intervention in a pending affair.
By doing so ALTSTOETTER ignored a Fuehrer order which he considered to constitute a violation of the law.
In this connection see ALTSTOETTER's statement of 15 September 1947 (English transcript page 8872) and KLEMM'S statement of 11 July 1947 (English transcript page 5088).
Al. Exh. 4, Al. Doc. 93, page 28 (Affidavit EBERSBERG)
d) In the same way as he did not tolerate any interference with the application of the law, he also vigorously advocated the independence of the judges:
See:
Al. Exh. 1, Al. Doc. 27, page 96 (Affidavit FRIEDRICH) Al. Exh.
1, Al. Doc. 7, page 74 (Affidavit FECHNER) Al. Exh.
3, Al. Doc. 75, page 42 (Affidavit BERGMANN) Al. Exh.
3, Al. Doc. 73, page 20 (Affidavit PRITSCH) Al. Exh.
3, Al. Doc. 74, page 30 (Affidavit VOGEL) The defendant KLEMM also, when in the witness box, confirmed that ALTSTOETTER's attitude was entirely in favor of the rule of law.
(English transcript page 5088):
"Q. Witness, what attitude did the defendant ALTSTOETTER have principally on legal questions, in reports to you or to Minister THIERACK:
A: I already indicated that before that it was Herr ALTSTOETTER in particular who most energetically represented his point of view against THIERACK and he was constantly interested especially in having the law abiding idea preserved and that no interference into the competency of the adminitistration of Justice was to be taken or that we even gave it up voluntarily."
VI.
In order to properly characterize ALTSTOETTER's position tho following should be added:
1. Although the Third Reich's legislation regarding hereditary health was in itself controversial, ALTSTOETTER, for ideological reasons, did not approve of the extent it had assumed in the actual law and soon after he had entered the Ministry of Justice he effectively worked for the number of proceedings to be reduced with the intention of donsiderably restricting the scope of this legislation after the war.
There is no particular need to stress the fact that he had no knowledge of any misuse of this legislation to promote Nazi-Socialist tyranny and that he likewise never heard of individual cases where the law had not been applied properly.
In this connection reference is made to:
Al, Exh. 2, Al. Doc. 37, page 23 (excerpt from Reich Ministry Gazette No. 37 of 15 September 1944) Al. Exh.
2, Al. Doc. 38, page 25 (Affidavit KRIEGER) Al. Exh.
2, Al. Doc. 39, pago 30 (Affidavit REINHARDT) Al. Exh.
2, Al. Doc. 40, page 34 (Affidavit BUFF) Al. Exh.
3, Al. Doc. 68, page 1 (Affidavit BUSOLD) Al. Exh.
3, Al. Doc. 73, page 30 (Affidavit STAGEL) 2. In the case of the "Statute Frenchmen" ALTSTOETTER, against the sentence pronounced by a court and against the original view of the Minister, succeeded in saving these Frenchmen, who were under death sentence, from being executed because he most energetically insisted on the observance of international law.
ALTSTCETTER had just taken over Department VII which was competent for these matters. This can be seen from: Al. Exh. 1, Al. Doc. 7, page 74 - paragraph 9 - (Affidavit FECHNER) and Al. Exh. 3, Al. Doc. 78, page 46 (Affidavit WOLFF).
3. It was often usual in the Third Reich that whenever vacancies were filled Party membership and Party merits were considered in the first place, and professional skill and experience were of secondary importance Party merits and attitude towards National Socialism were of little consequence in ALTSTOETTER's personnel policy. It was only knowledge and experience which he considered. The following affidavits give convincing proof of this:
Al. Exh. 1, Al. Doc. 18, page 31 (Affidavit MILLERS) Court, III, Case III Al. Exh.
1, Al. Doc. 23, page 56(Affidavit STAGEL) Al. Exh.
1, Al. Doc. 6, page 69 (Affidavit DERMIETZEL) Al. Exh.
1, 1. Doc. 9, page 91 (Affidavit von der OSTEN) Al. Exh.
1, 1. Doc. 34, page 14 (Affidavit v. BRUENNECK) How he assisted officials in difficulty for political reasons, is proved by Al. Exhibit 2, Al. Document 36, page 20 (Affidavit Baptist Lentz).The former Ministerialrat LENTZ, at present employed as Director of the Central Administration of Justice in the Soviet Zone of Occupation, declares:
"One day I...was transferred from the Personnel Department to the Civil Law Department as I was considered politically unreliable. When I reported to Herr ALTSTOETTER, I fully informed him of this state of affairs, and as far as I know I also pointed out to him, that I had to expect further measures. ... Herr ALT STOETTER replied, that he was prepared to take me over completely into his Department, he would know, how to protect me against further political attacks."
The present Bavarian. Prime Minister Dr. Hans EHARDstates (Al. Exhibit 2, Al. Document 25, page 16):
"In autumn of 1944 Herr ALTSTOETTER therefore asked me, whether I was prepared to accept this post of Presiding Judge of a Senate. I was all the more surprised at this inquiry, because Herr ALTSTOETTER knew, that I was no Party member and had no intention to become one and that the NSDAP considered me politically unreliable owing to the part played by me as Public Prosecutor at the hitler trial."
This incident is particularly confirmed by the evidence of witness MIETHSAM, dated 8 July 1947, English transcript, page 4883:
"The problem was, that at that time the position of a Senate President at the Reich Hereditary Farm Court had to be filled and the right for nomination or appointment was with the Reich Ministry of Food and Agriculture.
ALTSTOETTER, who was in charge of the Department where among other things the law concerning hereditary estates was to be dealt with, intervened at that time concerning the appointment for that position. Although he had nothing to do with personnel matters as such, he suggested, and supported the idea, that the then Sanat President with the District Court of Appeals at Munich, EHARD, who is now Prime Minister of Bavaria, should be nominated for that position . . . .
However, it was pointed out to me that there might be difficulties because EHARD had been assistant prosecutor in the Hitler trial of 1924 - and was in disfavor since that time with the National Socialists, Apart from that, he had been, a member of the Bavarian Pooole's Party before 1933, and was still not a member of the Party."
Court, III, Case III Page 4890:
"Q .... Did ALTSTOETTER himself iniciate that recommendation?
"A. I believe that it was on his initiative.
Q Did he push the support for EHARD with great energy, even after he started to encounter difficulties?
A I was frequently informed by our chief director LEETZ that ALTSTOETTER time and again brought up the suggestion concerning EHARD and did not tire of doing so."
In this connection further reference is made to:
Al. Exh. 3, Al. Document 73, page 20 - figure 4 and 5 - (Affidavit PRITSCH) Al. Exh.
3, Al. Documnet 74, page 30 (Affidavit VOGEL).
V II.
1. In investigating the question whether ALTSTOETTER is builty on count IV of the indictment, having been honorary leader of the SS "Ehrenfuehrer), it must first be stated that Ehrenfuehrer were not "official members" of the SS.
It is of importance for the interpretation of this question, that Major FARR representing the prosecution against the SS before the International Military Tribunal in answer to Judge BIDDLES question declared that as members of the SS are considered persons who had taken the oath and whose names appeared in the lists of membership as members of the General SS of the SS Death's Head Units or the WaffenSS.
Compare ALTSTOETTER Exhibit 2, Al. Document 57, Page 83 (German only) The prosecution at the time therefore considered the taking of the SS oath, was a condition for membership, Thus it follows that, "official members" in the sense of verdict of the International Military Tribunal are only such members who had taken the SS-oath.
This interpretation is also in agreement with an order published in the news-sheet of the Bavarian State Ministry for Special Tasks, dated 8 August 1946, where it is stated also that Honorary Leaders. (Ehrenfuehrer) were not leaders(Fuehrer) or sub-leaders (Unterfuehrer) of affiliated organization of the NSDAP (which includes the SS). Al. Exhibit 2, Al.Document 55, page 80 - figure 2 16 0ct-M-TB-12-8-A-Sampson(Int.
Sauer) Court, III, Case III Al. Exhibit 2, Al. Document 52, page 67 (Affidavit WUNDER) contains information on the conception of an Honorary Leader.
This concerns a document introduced during the IMT trial and setting forth the position of Honorary Leaders. From it can be deducted that the Honorary Leaders did not take part in the SS-service, that they were not trained as SS-members, that, as a rule, it was not even necessary for them to prove their aryan descent and that in 1938 Honorary Leader were requested for the first time to assist at the swearing-in of the SS -recruits and, to take the oath themselves; but no control was exercised, however, with regard to the administrationof the oath.
Affidavit Gottlob BERGER (Al. Exhibit 2, Al. Document 53; page 74) runs along the same lines.
A shorter definition of Honorary Leader is provided by the collective decision, of the permanent legal council with reference to the uniform interpretation and application of the Denazification Law in the U.S.Zone. dated 20 August 1946 which reads:
"Honorary Leader are persons who although authorizes to have this title and to wear the appropriate uniform had no official authority and also carried out no activity corresponding to their rank."
Compare Al. Exhibit 2, Al. Document 56, page 82 ALTSTOETTER who never served in the SS, not even for one minute, who minut never had taken the SS oath, who never was present at a roll-call or , SS-rally, and, as will be shown later on, wore no SS-uniform, not even when visiting HIMMLER by order of the Minister, who had no official authority and had never been active within the SS in any way, can, therefore, not be classed among the "official members" who must be considered part of a criminal organization according to the verdict of the International Military Tribunal.
2. When examined the defendant ALTSTOETTER explained in detail how he became an Honorary Leader of the SS, not out of sympathy for the SS or on his own initiative but merely by accident, Landshut being the home town of both, HIMMLER AND ALTSTOETTER.
Compare ALTSTOETTER's examination of 16 September 1947, English transcript page 8914 aid following:
The correctness of the statements made by the defendant in the witness stand is confirmed by a number of affidavits.
I refer to:
Al. Exhibit 2, Al. Document 45, page 47 (Affidavit MAYR) Al. Exhibit 2, Al. Document 46, page 49 (Affidavit HOFBUER) Al. Exhibit 2, Al. Document 47, page 52 (Affidavit GAGG) Al. Exhibit 2, Al. Document 48, page 55 (Affidavit KOLLER) further more to:
Al. Exhibit 2, Al. Document 49, page 57 (Affidavit GERLACH).
Frau GERLACH, who is a Jewess, as proved by her affidavit, states:
"I know chat in 1937 HIMMLER asked Herr ALTSTOETTER to come to see him in Dresden and that he asked him to join the SS. ALTSTOETTER explained to us at that time that HIMMLER only wanted to have him in the SS, since he knew him at Landshut in earlier times. He told us furthermore that he naturally had declineed to join the active service of the SS and that HIMMLER then had offered him admission as a so-called honorary leader with the express assurance that he would never have to do any active SS service and that by no means would he have to leave the Catholic church."
Moreover, after his admission to the SS, ALTSTOETTER did not show any SS spriti. As mentioned before, he did not perform any duty with the SS. This has also been certified by Dr. KLEEBINDER in Al. Exhibit 2, Al. Document 51, page 65, when he says:
"I know definitely that ALTSTOETTER never performed any duty with the SS as such, and that moreover, as a so-called Ehrenfuehrer, he was not even, obliged to do so."
3. In his views ALSTOETTER has never been an adherent of SS-ideology. He is a man who loves his country and still loves it to-day, and nothing else. In this connection KLEEBINDER states in the above mentioned affidavit:
"From my knowledge from ALTSTOETTER's personality and his views, however, I also know that even where principles were concerned, he was no follower of the SS ideology. .... I bear witness to the fact that ALTSTOETTER had no connections at all with the National Socialist or SS ideas of extermination, which have now been revealed by the trials in Nuernberg ect."
In this connection, moreover, reference must be made to:
Al. Exhibit 1, Al. Document 1, page 12 - figure 5 - (Affidavit HAGEMANN) Al. Exhibit 1, Al. Document 6, page 71 (Affidavit DERMIETZEL) Al. Exhibit 3, Al. Document 68, page 1 - figure 4 - ( Affidavit BUSOLD) Also in later years, especially since the outbreak of war, and above all, during his activity in the Reich Ministry of Justice, ALTSTOETTER' s adherence to the SS-membership has never been manifested in any way.
This is shown by quite a number of affidavits, in particular the following ones:
Al. Exhibit 1, Al. Document 6, page 70 ( Affidavit DERMIETZEL) Al. Exhibit 1, Al. Document 27, page 96, figure 4 (Affidavit FRIEDRICH) Al. Exhibit 1, Al. Document 9, page 91, Figure 2 (Affidavit v.d.OSTEN) Al. Exhibit 2, Al. Document 29, page 1, figure 4 (Affidavit Dr. POHL) Al. Exhibit 3, Al. Document 77, page 42, figure 1 ( Affidavit BERGMANN) Al. Exhibit 3, Al. Document 84, Page 72 (Affidavit VOGEL) Above all, ALTSTOETTER was opposed to the racial ideology of the SS.
This follows from:
Al. Exhibit 1, Al. Document 2, page 22 (Affidavit GENANDT) Al. Exhibit 2, Al. Document 49, page 57 (Affidavit GERLACH) Al. Exhibit 3, Al. Document 68, page 1 (Affidavit Dr. BUSOLD) Al. Exhibit 3, Al. Document 73, page 20, figure 8-10 (Affidavit PRITSCH) 4. In the course of the trial it has been repeatedly pointed out by the defense that ALTSTOETTER never promoted the SS, but has always rejected unjustified demands by the SS or their offices.
This, undoubtedly, could not have happened, if he had been an active member of the SS, if, in any way, he had intended to support the SS or if he had been a mere tool of the SS. The correctness of this statement follows from:
Al.Exhibit 1, Al.Document 9, page 91, figure 3 (Affidavit v.d. OSTEN) Al.Exhibit 2, Al.Document 60, page 89, (Affidavit v. BRUENECK) Al. Exhibit 2, Al.Document 61, page 91, (Affidavit HORNIG) Al.Exhibit 2, Al.Document 62, page 93, (Affidavit GEBHARDT) Al.Exhibit 1, Al.Document 5, page 68,(Affidavit PRITSCH) Al.Exhibit 3, Al.Document 84,page 72 (Affidavit VOGEL) Al.Exhibit 3, Al.Document 79, page 49, particularly page 51 (Affidavit RUEHL) Al.Exhibit 4, Al.Document 90, page 16 ( Affidavit NOELTE) The Party opponent and former referent of Section VI, Karl DERMIETZEL, declares in his affidavit:
Al.Exhibit 1, Al.Document 6, page 70, the following:
"Ministerial Director ALTSTOETTER was a member of the NSDAP and also - according to general believe - held a higher position in the SS. Since Reichsfuehrer-SS HIMMLER was simultaneously also the Reich Minister of the Interior, one would think that Ministerial Director ALTSTOETTER would have been especially willing to oblige that Minister. That, however, was not the case at all. I havebeen told by my co-workers in Department VI, that Ministerial Director ALTSTOETTER had more difficulties in dealing with the Reich Ministry of the Interior than with any other Ministry, The following is known to me from my own observations:
The Reich Minister of the Interior sought to assume as much jurisdiction as possible, and therefore asked the courts to surrender a number of their spheres of work to the administrative authorities, subordinated to him. In this connection, he had in mind the activity of the local courts in the sphere of non-contentious jurisdiction. In this, the Reich Ministry of the Interior met an absolute refusal by Ministerial Director ALTSTOETTER. He ordered an extensive memorandum prepared, which .....explained, that an independent judge could carry out these tasks much better, than an administrative official, who is dependent on orders by his superior office."
5. Neither was ALTSTOETTER one of HIMMLER's favorites or was given any commission by HIMMLER.
a) ALTSTOETTER did not enjoy any special privileges in his capacity as Honorary Leader of the SS. It must particularly be pointed out that he was not made Ministerial Director on account of his honorary rank, quite apart from the fact, that this nomination does not represent a preferential promotion. This can be proved by the following documents: Al. Exhibit 1, Al.Document 1, page 15, figure 4, (Affidavit HAGEMANN) Al. Exhibit 1, Al.Document 18, page 31, figure 7, (Affidavit WILLERS) Further reference:
Al.Exhibit 2, Al.Document 29, page 1,(Affidavit POHLE), Al.Exhibit 2, Al.Document 59, page 87, (Affidavit KREUTZMANN), Al.Exhibit 2, Al.Document 62, page 93, (Affidavit GEBHARDT) Al.Exhibit 3, Al.Document 69, page 8, (Affidavit SCRIBA).
b) In no case has it been proved by the prosecution that ALTSTOETTER had received an order from the SS or a special commission from HIMMLER. ALTSTOETTER's activity does not furnish the least proof that he had received such an order or that he ever carried it out. The contrary has been proved not only by ALTSTOETTER's examination as witness but also by a number of affidavits.
Above all, reference is made to:
Al.Exhibit 1, Al.Document 18, page 31, figure 6 (Affidavit WILLERS) Al.Exhibit 2, Al.Document 53, page 74, figure II,4 (Affidavit BERGER) Al.Exhibit 4, Al.Document 90, page 16 (Affidavit NOELTE.)
6. Letters from ALTSTOETTER to SS leaders, submitted by the prosecution, cannot be considered as proof for his views favoring the SS or an activity in favor of the SS. They are either purely formal letters of courtesy or letters necessitated by some occasion in connection with ALTSTOETTER's position as Ministerial Director. I refer in this connection to:
Al.Exhibit 2, Al.Document 62, page 93 (Affidavit GEBHARDT) and, above all, to ALTSTOETTER's examination as witness.
The award of the death's head ring to ALTSTOETTER was in no way a special distinction, as the death's head ring was awarded automatically to all SS leaders, also to Honorary Leaders after 3 years' service as Fuehrer. This follows from:
Al. Exhibit 2, Al. Document 53, page 84, (Affidavit OLFF).
7. I have repe atedly pointed out that as a pre-requisite for ALTSTOETTER to be sentenced as a member of the SS it is not only necessary to establish, that he was an official member - and this cannot be assumed in the case of an honorary Fuehrer - but above all, also his knowledge of the crimes committed by the SS since 1939, and the proof for this knowledge must be furnished by the Prosecution. This has not been accomplished in the case of ALTSTOETTER. However, the Defense proved the contrary by a series of affidavits.
The number of documents submitted to this effect is so large, that quotations are not necessary, because all these documents agree on this point. I refer to:
Al.Exh. 1, Al.Doc. 1, page 12, No. 1 and 5 (Affidavit HAGEMANN), Al.Exh.
1, Al.Doc. 16, page 26 (Affidavit SIEGLITZ), Al.Exh.
1, Al.Doc. 17, page 28 (Affidavit v. GLASENAPP) Al.Exh.
1, Al.Doc. 18, page 31, No. 1 and 4 (Affidavit WILLERS), Al.Exh.
1, Al.Doc. 19, page 40, No. II (Affidavit SCHOETTENS CK), Al.Exh.
1, Al.Doc. 23, page 56, especially page 61 (Affidavit STAGEL), Al.Exh.
1, Al.Doc. 4, page 65 (Affidavit KRITZINGER), Al.Exh.
1, Al.Doc. 7, page 74, No. 11 and 13 (Affidavit FECHNER), Al.Exh.
2, Al.Doc. 53, page 74, No. 1 (Affidavit BERGER I), Al.Exh.
2, Al.Doc. 54, page 78 (Affidavit BERGER II), Al.Exh.
2, Al.Doc. 58, page 84 (Affidavit WOLFF), Al.Exh.
3, Al.Doc. 81. page 56 (Affidavit BERGMANN), Al.Exh.
3, Al.Doc. 73, page 20, No. 12 (Affidavit PRITSCH), Al.Exh.
3, Al.Doc. 75, page 42, No. III (Affidavit BERGMANN), Al.Exh.
3, Al.Doc. 80 page 53, No. 3 (Affidavit SEGELKEN), Al. Exh.
3, Al.Doc. 68, page 1, No. 4 (Affidavit BUSOLD).
The Prosecution pointed out in their speech that the knowledge of the SS crimes may be concluded from the fact that the defendants were directly connected with criminal problems, and that therefore they collaborated with the SS very closely.
There is no need for investigation here, whether this opinion is correct; in any case, KLEMM Exh. 14, KLEMM Document Vol II, page 22, is well fitted to prove the contrary. At no events had the defendant ALTSTOETTTER anything to do with criminal problems and therefore he also had no knowledge of SS crimes on account of such a "Collaboration".
The Prosecution witnesses also confirmed beyond any doubt, that certain crimes which they reported that they had been committed in concentration camps in the district of Hamburg, as well as the evacuation of Jews, had been ordered and carried out solely by the Gestapo.
Compare transcript of 19 and 20 September 1947.
These proofs therefore are irrelevant in ALTSTOETTER's case as ALTSTOETTER was not a member of the Gestapo, apart from the fact, that ALTSTOETTER had no knowledge of these crimes and could not have any knowledge of the evacuation of Jews, because at the time of these events he was a soldier on the Eastern front, more than 2000 Kilometers way from his home country.
On the other hand, it is Frau GERLACH, who states in her affidavit, Al. Exh. 2, Al, Doc. 49, page 57, No. 5, page 59:
".... I know with certainty that Herr ALTSTOEETER never approved now knew of the crimes of the SS which have become known now. I also declare that not even I as a Jewess, although I was most interested in the foreign news (radio), and although relatives of mine were in the the concentration camps, did not know anything about them."
Furthermore, the contention that HIMMLER had tried at Kochem to inform the German legal administration in detail about the ideoloby of the SS and their criminal aims, is also based on on error. Very rarely did a man know, as HIMMLER knew, how to keep these criminal aims a secret.
Especially in his Kochem speech he did not mention crimes or criminal aims.
In this connection compare:
Al. Exh, 2, Al. Doc. 64, page 98 (Affidavit WINDHAUSEN), Al. Exh.
2, Al. Doc. 64, page 101 (Affidavit HAGEMANN), Al. Exh.
2. Al. Doc. 65, page 103 (Affidavit DUERIG), Al. Exh.
2, Al. Doc. 67, page 108 (Affidavit BEMS).
In foregoing statements it has already been explained that not only any more communication of the crimes justifies the knowledge, which is a pre-requisite for the infliction of punishment, but that moreover it must be ascertained that whoever received this communication must believe in the truth of such communications. I have already explained that ALTSTOETTER would not have believed these crimes ascertained after the collapse of the Third Reich, even if he had learned of them before. His flawless character and has devotion to law and justice bear witness to the above statement. The affidavit given by his colleague, Dr, PRITSCH, runs along the same lines; he stated;
"No one in Department VI, as I assume with certainty, had any idea that crimes were perpetrated to the extent that has now been ascertained. At the tine, I myself would have net a report of these facts with great suspicion, because I would not have considered it possible for Germans to commit such atrocities."
Al. Exh. 3, Al. Doc, 73, page 20, No. 12 (Affidavit PRITSCH), 8. VIII.
ALTSTOETTER is not only an excellent jurist, but he also excels through an exceptional humaneness.
. A series of affidavits emphasize that as judge he particularly supported the social rights of employees. This is in particular shown by:
Al. Exh. 4, Al. Doc. 86, page 1 (Affidavit SCHRADER), Al. Exh.
1, Al, Doc. 1, page 12 (Affidavit HAGEMANN), As soldier ALSTOETTER not only took care of his own subordinates, but also of prisoners and inhab itants of the occupied territrey, In this connection I point to the previous statements and quotations under figure II, and in particular to Al. Exh.
3, Al. Doc, 69, page 6 (Affidavit SCRIBA), which states, that a Frenchman was so impressed by the conduct of the troops under ALTSTOETTER's command, that he said he wished that in later years the French troops would behave in Germany, as well as the German troops, did in France. This same document also shows that ALTSTOETTER saved seriously wounded Russians who had almost bled to death, and cared for them despite the needs of his own troops, 2. ALTSTOETTER acted towards his subordinates not only as their superior, but he also took a humane interest in them.
Many affidavits also bring out this point, Almost all of his former colleagues and subordinates confirm this fact. It will suffice in this connection to refer to the affidavit of his secretary, who was employed by him during the entire period he hold office in the ministry of Justice (though ALTSTOETTER know that she was not a member of the Party, but that moreover she was opposed to National Socialism). This Secretary, Miss Elfriede SPLINTER, states that she got to know Herr ALTSTOETTER as a man of straight and noble character who in a fair manner always endeavored to further the interests of his colleagues and employees, regardless of their political attitude or whether the individual concerned was a Party member of not.
Compare Al. Exh. 4, Al. Dec. 95, page 36 (Affidavit SPLINTER) and also Al. Exh. 1, Al. Doc. 9, page 93 (Affidavit v.d. OSTEN).
3. To the best of his ability Herr ALTSTOETTER also helped, above all, those persons who applied to him in their distress. This is shown again by many affidavits of which I mention the following:
Al. Exh. 2, Al. Doc. 41, page 38 (Affidavit BAETKE), Al. Exh.
Al. Doc. 42, page 40 (Affidavit ROHDEN), Al. Exh.
2, Al. Doc. 43, page 42 (Affidavit Curtius H.), Al. Exh.
2, Al. Doc. 44, page 44 (Affidavit CURTIUS A.)
Al. Exh. 2, Al. Doc. 49, page 57 (Affidavit GERLACH).
In conclusion of this point, I wish to refer in particular to the statement of Frau PAETZOLD who affirms, that she could state only the very best with regard to the character of Herr ALTSTOETTER. After her husband had been killed in the East, ALTSTOETTER had looked after her children with great devotion. To mention only one example, he had refused during countless air-raids, to seek refuge in the safe surface air-raid shelter together with other tenants of the house, but kept guard on his house to save it from being damaged by fire, and thereby frequently risked his life. At every air-raid he untiringly carried a little relative, a refugge from Silesia, who had broken his leg, to the air-raid shelter.
Frau PAETZOLD stated he was the most modest person one could imagine.
4. In the opening speech of the ALTSTOETTER case it was stated:
"ALTSTOETTER is a man, in his inmost being, characterized by genuine piety. This feeling is the center of his understanding life and world-outlook.
He acknowledged it without fear and timidity even during the anti-religious period of National Socialism. It was from this central standpoint - sub-specie deternitatis - that he regarded matters, including political matters.
This way of thinking determined his activities and dealings; it was the basis for the work on behalf of this people whom he was capable and desirous of serving at a difficult time. ALTSTOETTER's religiously determined ethical views were however the source, also, for the very high appreciation of human cultural values, human dignity and human rights, which he indeed always uphold and represented." This attitude of his is proven by many affidavits which affirm, that ALTSTOETTER remained true to his religious conviction, and by the fact that when accepting honorary leadership in the SS offered him by HIMMLER, he emphasized as conditio sine qua non his membership of his Church in spite of the frequently anti-religious attitude of the SS.
Apart from the number of affidavits relating to the religious attitude of Herr ALTSTOETTER, the following documents are of special importance:
Al.Exh. 4, Al.Doc. 69, page 6 (Affidavit SCHRIBA), Al.Exh.
4, Al.Doc. 87, page 4 (Affidavit HOPPE).