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).
Court No. III, Case No. III.
AFTERNOON SESSION The hearing reconvened at 1330 hours.
THE MARSHAL: The Tribunal is again in session.
DR. SCHUBERT: (Attorney for the Defendant Oeschey) Your Honors:
If, in this court room, there has been much talk about the fight of justice against National Socialism, this may perhaps appear as a cheap excuse for the outsider in view of the course justice took in National Socialist Germany. But there is, in spite of it, some truth in this statement. For National Socialism was inevitably opposed to a firm legal order and an independent administration of justice in view of the extreme conduct of its circle of leaders. This, however, was never said, on the contrary, the principles of the constitutional state based on the law, were always outwardly emphasized. But today it is evident, and it became clear to all people occupied in judicial service, at least during the war, that National Socialism and independent justice are irreconcilable enemies. In this conflict, it was clear to every judicial official, which position he had to take, even if he had, earlier, by conviction been a member of the NSDAP or Party official, and this applies, in my opinion, also to the defendants in this case. They all received their juridical education and training, which is fundamental for the inner attitude in exercising the office of the lawyer, before 1933, partly long before this time, they have worked at a time when justice exercised its functions, highly respected, and with few exceptions, receiving understood recognition from the other state sections. They could never entirely lose this inner attitude which they had acquired at that time, And they would have deprived themselves of their proper professional basis, if they would have capitulated unconditionally before the National Socialistic standards of leadership.
Of the many persons entrusted with the most varied tasks in the judicial service the judge usually reacts most sensitively if he believes that his judicial independence is interfered with. This holds good for the German judge as well as for his foreign colleagues and perhaps it holds good for him in special measure as with him it was not all just honey otherwise in his profession. The State did not grant him the dignity and prestige which he deserved and which many of his foreign colleagues were enjoying as an understood privilege. He was badly paid and only very seldom did he have an opportunity for casual earnings, he was burdened with heavy work, on the other hand just as all other officials he was subjected to rigorous supervision relating to the orderly and punctual accomplishment of his official business. These were other reasons why he valued much the independence of his judicial activity whereby he distinguished himself from the majority of his colleagues in office.
For this privilege the German judges struggled during the time of National Socialism, some of them did not survive this struggle. These are however really exceptions and it has to be stated that the judges in general remained unmolested in their administration. For the inroads on justice were made in another way. First spheres of tasks which until now belonged to justice were withdrawn from it stage by stage. This happened through general decrees as for instance exclusion of or restriction on the taking of legal steps for certain civil claims, creation of the police - and SS-jurisdiction, transfer of the jurisdiction on Poles and Jews to the police, taking out of the prisons the asocial prisoners; or it happened by interfering in an isolated case, for example prevention of the punishment or pardon of National Socialist perpetrators, belated correction of sentences, prevention of entering of actions, etc.
Besides it was easy to the National Socialist potentates to enforce their will by legislation and they made abundant use of this possibility. In comparison with this the so-called directing of jurisdiction was of little significance. This expression is misleading altogether; for real directing could only take place and has taken place only with regard to the Director of Public Prosecution bound to directives. With regard to the judge, directing necessarily had to restrict itself to general instructions on specific lines which he could take into consideration when deciding an isolated case but without any obligation.
The jurisdiction of the Supreme Court of the Reich by way of the petition for nullification had a much greater influence on the judicial activity. Impossible as it was to give directives for the isolated case to the judge whose decision could always result only from the vivid picture of the trial itwas just as possible on the contrary to examine afterwards the decisions taken and to submit them to the highest court within the space of a year provided for that purpose. In this way the most essential contribution was made to the standardisation, or, as it was called in the NS - language the coordination of jurisdiction of the lower courts.
The preceding general explanations hold good to their entire extent also for the defendant Oeschey. He too was jealously alive to the preservation of his judicial independence and he found sharp words against the attack on this independence, which he saw in the speech of the Fuehrer of 26 April 1942 (my exh. 9). When examined under oath by the prosecution (exh. 580) he also stated emphatically:
"I have not felt myself an arbitrary tool of the policy of Hitler". To this statement I attribute special significance because it was delivered in December 1946 at a time when Oeschey neither knew nor could know if he should be defendant or at a probable trial against leading jurists of the Third Reich. The Party-Office with which Oeschey was charged since 1940 made it possible for him in a special degree to keep clear of the influence of Party Offices and other organizations of the State or Party and - I want to emphasize this specially in this connection - it was definitely not so that he was appointed to the office of presiding judge of the special court only for the reason that one thought one could expect from him a National Socialist jurisdiction as a Party follower for many years and holder of a Party Office but also just for the reason that he in his position could keep clear of Party-political and other influences alien to justice more easily. That he has done this for that I have mentioned significant examples of Oeschey's jurisdiction. I refer here especially to the acquittals which he has returned in political cases contrary to the tendencies of the local Party leaders, for instance in the case of Pezold (my exhibit 24), Simmermann (my exh. 25) and Schadewitz (my exh. 26). He could afford at the summary court (Standgericht) to pass sentence of death on the Party-officeholder Rupp and some days later on to acquit the obvious adversary of the NSDAP and former member of the Reichstag of a democratic party Dirscherl. That he did this is a convincing proof of the fact that he felt himself not only as an independent judge but that he was one really. At any rate Party-political views have not influenced either his jurisdiction or his relation to his collaborators as he also kept clear of any connexion with offices alien to justice as SS, SD, Gestapo, RSHA.
In all cases with which he was charged here Oeschey could show which real end judicial views were decisive for the judgment. These statements together with his explanations about the treatment of certain categories of criminals and the discharged-cases presented for erolanation in addition give a pretty clear picture of his jurisdiction: hard on serious offences especially if they were committed habitually or such which proved of a specific baseness of mentality, ease on and full of understanding for occasional offences especially if they arose from material or psychological distress, and also readily inclingd to an acquittal in a joyful spirit of resolution in the probableness of the facts of the accusation stood on a weak foundation especially if these proofs were offered by witnesses whose credibility could rightly be doubted. But always his jurisdiction was in conformity with the laws and their interpretation by the jurisdiction of the Supreme Court of the Reich.
Now the prosecution in a trial-brief submitted to the Tribunal has attempted to show that the invocation of the law has to be denied the accused judges whereby it puts on an equal footing the law and order in the sence of Article II number 4 b of law No. 10 of the Control Council. Indeed during the discussions of Constitutional and International Law before a High Court the so-called FuehrerOrder was often spoken of. However it has to be strictly distinguished between an order in the sense of the law of the Control Council and a law. Really the law contains also orders and orders to the entire population or parts of it to do something or to abstain from something, It is quite obvious that the law of the Control-Council cannot have meant such a legal order in the regulation of II 4 b.
The fact that the cited regulation expressly mentions the order of the government or of the superior shows that here it is only a matter of the administrative order but not of the order included in every legislative act. If in the discussions relating to constitutional law of this trial the ideas "Fuehrer-Order" and "legislative act" have sometimes been associated with each other a clear distinction must be made in deciding the issue of this trial as to whether the defendant involved acted under an administrative instruction or under law, irrespective of whether the latter had been enacted in the form of a law, a decree or an ordinance. What had been enacted as legislative act in due order in the Reich Gazette by the competent authorities was law in a formal sense and had to be complied with as such by the judge, He could not know the foundation or cause of such a law, if the law in its published wording was directly given by the Fuehrer, if the law was based on a suggestion, which can be regarded as Fuehrer-Order and was then worded out by the Ministries concerned with it or if this law on the other hand was cased upon a suggestion of the Ministries and was approved of by the Fuehrer. What confronted the judge as formal law he was bound to take into consideration. This applies to every State as I have proved for instance by English legal literature (my exh. 33). If one would give to the judge the authority and burden him with the responsibility of being allowed or being obliged to examine a formally and duly enacted law as to whether it complies with the principles of higher justice, ethics and international standards and if so to reject its application, one would place him above the legislator and by this shake the foundations of public order. The judge must be assured that the deliberations on the pros and cons of Court No. III, Case No. III.
the law have already been made by the legislator and that solely on the legislator rests the responsibility that the obligations in the matter of Ethics and International Law associated with the authority of legislation are complied with. The law is therefore no order in the spirit of article II 4 b of the law of the Control Council and it scarcely needs a proof that it is a mistake to establish a comparison, say, between the judge and the former Fieldmarshal Keitel sentenced in the IMT - Trial (my exh. 31 and 32).
The prosecution will also deny the judge the appeal for the application of laws because the laws have mostly been war-laws, therefore had served order and security during the war, the war, however, had been established and branded by the IMT as a prohibited and criminal war of aggression. That is a cheap argumentation. The establishment of the IMT about the character of the past war is a belated-one and surely it would be a violation of the principle "nulla poena sine lege" if today from the application of the laws enacted during the war a crime would be construed to-day because the war was a war of aggression.
How wrong this opinion is, results already from that that many of these laws enacted during the war are still applied today with the consent of the Military Government as for instance the so-called War Economy Decree and many rules about criminal procedure which aimed at a simplification of the trial and a saving of personnel. Here, Once more, I want to refer to what I have said already in my openingplea Plaidoyer, namely, that the Military Government did not regard the Nazi-laws as void not even those which prescribed the unequal treatment of different sections of the population but has abolished them expressly by special legal provisions and isolated decrees and that measures of the Nazi-authorities on account of such laws as for instance expatriation of Jews and emigrants were always acknowledged by foreign countries and are still acknowledged even today with the practical result that the pitiable victims of such expatriations have first to become naturalized again today in order to become German citizens.
Therefore things are not so simple as the prosecution tries to represent them here.
Also the question of opinion in the matter of imposing the death penalty is discussed by. the prosecution in the trial-brief. With reference to the witness Doebig (Transcript page 1793) and the defendant Schlegelberger (Transcript of 30 June 47) who to a certain extent was also instrumental in issuing the hard laws but apparently wanted to have them applied mildly it regards it as a duty of the judge to evade the death penalty. Hereto Oeschey has stated in the witness box that if the law is hard the sentences must necessarily be hard also. This is a commonplace and it needs no special proof that the hard laws must lead to an inflation of the death penalty, as the prosecution expressed it once. Will the prosecution expect the accused judges to elude the laws? I cannot believe that there is a legislator in any country who issued laws with the aim that they will not be applied and who acquiesees if the judge sabotages the published laws. The National Socialist legislator did not permit that at any rate. The judge also in not applying the law in its true spirit defeats the ends of the law i.e. a criminal act and I do not believe that this High Court expects of a defendant that he would have had to commit act threatened with severe punishment in order to behave rightly in a higher sense, an expectation, to which the IMT has answered already in the negative.
Besides there was no law in Germany which has left the imposition of the death panalty solely to the opinion of the court.
I have repeatedly emphasized in my defense argumentations and Oeshey has stated it in the witness box that there was only anostensible scope for judgment at all in the selection from several kinds of punishment prescribed by law for in reality the death penalty had to be passed if certain suppositions prescribed by the law itself ware fulfilled. Substantially the question concentrates on whether a specially severe case was taken into consideration or a less severe case was not taken into consideration. If there were certain circumstances of the offence which could lie in the realization of exterior elements of the offence as well in a special kind or intensity of the criminal will the judge had to assume a specially severe offence or to reject a less severe offence and his decision on this was examined by the Supreme Court of the Reich by way of the nullity plea as is proved especially clearly in the case of Bosch represented by Oeschey (Transcript page 8597) or in the case of Theresa Mueller (exh. 247) submitted by the prosecution but little suited for its aims. Therefore it is a matter of a question of fact as well as a question of law as was shown during the examination of Oeschey. In the decision of this question of law jurisdiction of the Special Court under Oeschey showed surely not the exclusive tendency to rigour asserted by the prosecution, on the contrary in many cases in which the death penalty was partly prescribed as compulsory, was partly in question, Oeschey did not pronounce this punishment, because it seemed to him at that time it was not laid down according to the law, therefore for instance the assumption of a specially severe case could be avoided. Especially I point to the cases in which the defendants are apt to be exonerated Guenter (Transcript page 8602), looting - 2 girls(Transcript page 8602), looting - Czechs (Transcript page 8603), Leichtl (Transcript page 3596), Fleischmann (Transcript page 8598), Wirth (Transcript page 8598), Scherr (Transcript page 8599), Koelbl (Transcript page 8600) etc.
and to exh 29 already mentioned. These cases are of greater weight than the frivously advanced assertion of the witness Doebig (Transcript page 1781) that Oeschey could have abstained from the death penalty in the case of Therese Mueller, in which Doebig did not participate at all, although the decision of the Supreme Court of the Reich had practically robbed him of every possibility as further extenuating circumstances could not be brought to light in the second trial (Oeschey exh. 22).
III.
Application of the Substansive Criminal Law.
If one examines the death penalties passed under the presidency of Oeschey the following picture results:
The so-called habitual criminals have the predominant share in these death penalties. The problem of the habitual criminal has always been a criminal problem of highest significance in all countries. Many countries have introduced special measures against habitual criminals. So for instance a law against habitual criminals was promulgated in England already in the year 1908, according to which these criminals could be taken in to preventive custody in order to protect the public. Many countries have followed this example. Also the Penal Code of Switzerland which became effective on 1 January 1942 and is therefore probably the most recent includes measures against dangerous habitual criminals who can be taken into an unlimited custody. In Germany a law against habitual criminals was enacted in 1933 after such measures had been discussed already long before 1933 in the juridical literature and also in drafts of criminal laws of the Reich Ministry of Justice (1930). This provided for two measures: