Among the fourteen documents enumerated above is a report from the defendant von Ammon, initialed by Klemm, relative to a trip concerning NN matters. This report states:
"The Military Commander-in-Chief, France, is grateful for the evidence which the military courts in occupied French territory receive as a result of the activity of the general legal authorities concerned with the prosecution and trial of NN cases in occupied French territory."
Klemm explains this document by stating that he merely approved the trip. With the above explanations, Klemm's counsel stated:
"These are the only documents which the prosecution has submitted against you as far as NN cases are concerned."
In view of the fact that Klemm was State Secretary when these matters were disposed of and, nominally at least, charged with supervision of Department IV where they were handled, this conclusion is not one which this Tribunal accepts.
With regard to clemency during the time the defendant was State Secretary, Klemm shown to have dealt with clemency matters as the advisor of Thierack when he was present and as his deputy in his absence. He states that personally he dealt only with clear cases and, further, that in clear cases clemency had been disapproved by by seven agencies before it became a clear case. He states that clear cases were legally incontestable.
His testimony that in clear cases seven agencies disapproved clemency during the period when he was State Secretary, does not conform to the testimony of the defendant Lautz or with Exhibit 279 which Lautz cites. Lautz's testimony on this part is as follows:
"The examination of these clemency pleas for their correctness was no longer possible for the prosecutions in the majority of cases. The prosecutors now had to restrict themselves to adding the pleas to their reports without changing them. The time limit laid down in the decree was, as a rule, not adhered to because the offices as the People's Court and the Reich prosecution were so overburdened that it was impossible for them to submit the files within the time limit set. Owing to that, occasionally there was sufficient time to make further investigations in the matter of the clemency plea. However, the opinion of the court, the prison, and all other agencies was no longer heard. They had been of importance before * * *."
Moreover, what may constitute a legally incontestable case is subject to considerable speculation. Presumably a case based upon a case based upon a confession would be legally incontestable. Certainly it can hardly be assumed that the defendant Klemm was unaware of the practice of the Gestapo with regard to obtaining confessions. He had dealt with this matter during his early period with the Department of Justice. It is hardly credible that he believed that the police methods which at an earlier time were subject so some scrutiny by the Ministry of Justice, had become less harsh because the Gestapo, in October of 1940, was placed beyond the jurisdiction of law. He must have been aware that a prolific source of clean cases based on confessions and, therefore, legally incontestable, came to him from the obscurity of the torture chamber.
During the time Klemm was State Secretary, the plan of the leaders of the Nazi State to inspire the lynching of Allied flyers by the people of Germany was inaugurated, and during this period the matter of execution of approximately 800 political prisoners, prior to evacuation of the penitentiary at Sonnenburg, took place. These matters will be dealt with more fully hereafter.
As heretofore pointed out in this opinion, the essential elements to prove a defendant guilty under the indictment in this case are that a defendant had knowledge of an offense charged in the indictment and established by the evidence, and that he was connected with the commission of that offense.
As to the matter of knowledge of the defendant Klemm, aside from the sources of knowledge heretofore pointed out in this opinion in regard to all of the defendant's sources of information were of a wide scope. He had been the liaison officer between the Administration of Justice and the SA in Saxony and the legal advisor of the Chief of the SA for Saxony.
On transfer to Berlin, he acted in the same capacity with the SA main office for the Third Reich and was the liaison officer between the Ministry of Justice and the SA main office. In Holland he was head of the department of legal matters under Seyss-Inquart. He served with the office of the Deputy of the Fuehrer and Party Chancellery from March 1941 to January 1944. There he was in charge of Group III-C. He was the friend of Klopfer in charge of Group III and, from the evidence, a trusted lieutenant of Bormann. Finally, he was State Secretary under Thierack, whom he had known since he was his adjutant and personal referent in Saxony. In Berlin he lived with Thierack for the period in which he was State Secretary.
Klemm's career under the Third Reich moved smoothly from comparative insignificance to the position of State Secretary in the Ministry of Justice. His ascent was marked by no serious differences as to Party policies. He was close to both Bormann and Thierack and ascended by their favor. Under the circumstances it is not credible that he was ignorant of the policies and methods of these ruthless figures.
The defendant lays great stress on an order of Hitler as to secrecy and states that in connection with this order he adhered strictly to it; that be did not attempt to hear anything outside of his official duties. Such orders as to secrecy were not confined to Germany during the war; they were standard procedure in other countries and by no means excluded knowledge of secret matters derived from normal human contacts, particularly friends and acquaintances in the higher levels of State affairs. Further, the confidential position held by the defendant gave him a wide scope as to secret matters within the sphere of his official duties. As State Secretary of the Ministry of Justice and Deputy of the Minister in his absence, the defendant's official duties required knowledge of the higher spheres of State policy.
More specifically, Klemm knew of abuses in concentration camps. He knew of the practice of severe interrogations. He knew of the persecution and oppression of the Jews and Poles and gypsies.
He must be assumed to have known, from the evidence, the general basis of Nacht und Nebel procedure under the Department of Justice. Therefore, it becomes important to consider his connection with the carrying out of these crimes alleged in the indictment and established by the evidence in this case.
It is clear from the evidence, heretofore outlined in part, that when the defendant Klemm was in Holland he knew of the persecution of Jews and he was connected to some extent with that persecution.
While he was in the Party Chancellery he wrote the letter, heretofore pointed out, denying the application of the German Juvenile Law to Poles, Jews, and gypsies. This Tribunal does not construe that letter as a legal opinion but as an expression of Party policy submitted through the Party Chancellery to the Ministry of Justice to the effect that minors of the proscribed races must be subject to the merciless provisions of the decree against Poles and Jews. The argument that they were necessarily excluded because they were foreigners and that the German Juvenile Act contemplated entrance into the Hitler Youth and similar provisions applicable only to Germans, has little significance when the letter itself expressly states that there were no objections to applying the German Criminal Code for juveniles to foreign juveniles, unless they were Poles, Jews, or gypsies. Further, it can hardly be construed as a legal opinion as to gypsies in view of the statement therein made that a special regulation will come into effect which will prevent the German Criminal Code for juveniles from applying to gypsies and those of gypsy descent merely because a definite regulation is lacking.
While in the Party Chancellery, Klemm took part in drafting the law to make treason retroactive and applying it to annexed territories, and this draft bears his signature.
As State Secretary he knew of the NN procedure and was connected therewith, particularly as to the approximately 123 NN prisoners sentenced to death who were denied clemency while he sat in conference with Thierack, and in the eight cases where he denied clemency as Deputy for Thierack.
As State Secretary in the Ministry of Justice, he necessarily exercised supervision over the enforcement of the decree against Poles and Jews and dealt with clemency matters pertaining to cases tried under that decree.
In connection with the defendant Klemm, two other transactions constituting crimes charged in the indictment are of particular significance. The first of these is charged under the second count of the indictment as a war crime against all the defendants and, particularly under paragraph 18 of the indictment, charging the defendant Klemm with special responsibility and participation. This pertains to the inciting of the German population to murder Allied airmen forced down within the Reich.
Evidence of this plan of the leaders of the German State is found as follows: First in the correspondence relative to the treatment of so-called "enemy terrorist airmen". As part of this correspondence from the Deputy Chief of the Operation Staff of the Armed Forces, entitled "Secret matter", dated 6 June 1944, and signed by General Warlimont, the following sentence is significant:
"Lynch justice should be considered as being the rule." Further, a draft of a letter, dated Salzburg, 20 June 1944, to the Chief of the High Command of the Armed Forces, apparently drawn by the Foreign Office, contains this paragraph:
"The above considerations warrant the general conclusion that the cases of lynching ought to be stressed in the course of this action. If the action is carried out to such an extent * * * * * * * * * * the deterring of enemy airmen is actually achieved."
In furtherance of this plan, Goebbels' speech of 27 May 1944 is cited and the letter from the Chief of the Party Chancellery, Fuehrer's Headquarters, 30 May 1944, marked "Secret--not for publication"--and bearing the initials of Thierack, concerning "The People's Judgment of Anglo-American Murders", signed by Bormann, is significant, particularly the following paragraph:
"No police or criminal proceedings have been taken against the citizens who have taken part herein."
The distribution of this circular was as follows: "Reichsleiter, Gauleiter, Verbaendefuehrer, Kreisleiter", and contains the following note to all Gauleiters and Kreisleiters, initialed by Thierack and signed by Friedrichs:
"The Chief of the Party Chancellory requests that the Kreisleiters inform the Ortsgruppenleiters only verbally of the contents of this circular."
Exhibit 109 is of even greater significance. This is a letter from the Reich Minister and Chief of the Reich Chancellery, dated 4 June 1944, to the Reich Minister of Justice, Dr. Thierack, headed: "Regards People's Justice Against Anglo-American Murders". This letter is quoted in its entirety:
"The Chief of the Party Chancellery informed me about the enclosed transcript of a secret circular letter and requested me likewise to inform you.
"I herewith comply with this and beg you to consider how far you want to instruct the courts and district attorneys with it.
"The Reich Leader and Chief of the German Police has, as I was further told by executive leader Bormann, so instructed his police leaders."
It contains a handwritten note, initialed by Thierack as a signature and also initialed by Klemm, which reads as follows:
"Return note with the addition that such cases are to be submitted to me for the purpose of their examination for quashing in case proceedings are pending."
In this adroit plan to encourage the murder of Allied airmen and escape the responsibility therefor, under the recognized rules of warfare, the procedures adopted by the Ministry of Justice were unique and worthy of the legal minds of those who dealt with the matter. As shown in the affidavit of Pejlovec, a secret directive was sent out by the Ministry of Justice calling for reports in cases of the lynching of Allied airmen. This directive was interpreted by Pejlovek to the effect that no prosecutions were contemplated.
The witness Dr. Gustav Mitzschke, Referent in the Legislative Department, testified that he was instructed to call upon the State Secretary, which he did, and received the following instructions:
"When you talk to General Public Prosecutor Helm at Munich, please tell him that in cases where Allied flyers have been killed or ill-treated, the police and any other agencies concerned are to pass on the files to the prosecution office, and that the prosecution as quickly as possible must make a report to the Minister and also forward the files."
Helm issued a directive to the prosecutors under him. This directive called for reports and files in such cases and stated they were necessary because sometimes other factors, such as robbery or the use of Allied uniforms to cover the murder of Germans, had to be considered.
Klemm stated that Mitzschke was directed to inform Helm that reports were to be given in all cases.
The witness Helm stated that the note in conformity with Mitzschke's instructions as to the reports to be made was written and sent out, he thinks, on the same day of Mitzschke's visit and, in his cross-examination he states that he is sure it was not later than the day after Mitzschko's visit.
The witness Hans Hagemann, General Public Prosecutor at Dusseldorf, testified that he was directed that in such cases a report had to be made to the Ministry of Justice. He also verified the secret decree sent out by the Minister of Justice.
The nature of the reports called for, in itself, is not considered by this Tribunal of particular importance. Thierack had directed Klemm, as shown above, to submit to him reports as to cases pending "for quashing". The procedure followed by the Ministry went beyond this in that it required reports and the transmittal of files of cases where no indictment had as yet been issued. The Ministry of Justice thus took over, in substance, the disposition of these cases and the prosecution throughout Germany was thereby restricted in its normal duty of filing indictments against those who had murdered Allied airmen and were criminals under German law.
From the evidence in this case and from sources of judicial information, this Tribunal knows of many instances of the lynching of Allied airmen by the German population. No case has been brought to the attention of this Tribunal where an indictment was actually filed for such offenses. What reports and files were submitted to the Ministry of Justice we do not know, but it is obvious that such reports as were made were allowed to die in the archives of the Ministry.
There is evidence as to one case pertaining to this matter. The defendant Klemm in his testimony refers to it. Around the turn of the year 1944-1945 in Krannenburg, in the District of the Court of Appeals, Dusseldorf, an SA leader had shot two captured paratroopers in cold blood. Regarding this, Klemm stated:
"We prosecuted that case and even though the police, as well as the Party offices, offered considerable resistance, these discussions were advanced energetically. I do not know of the final outcome."
The evidence in this case, as shown by the testimony of Hagemann, indicates that during September of 1944, at the time of the Allied parachute attack on Arnheim, two captured Canadian paratroopers were shot by one Kluetgen while a Kreisleiter stood by and either permitted or encouraged the shooting.
The witness Hagemann undertook to investigate the matter but was unable to do so fully because a Kreisleiter could not be so examined if he refused to testify. It was necessary if the Kreisleiter was to be examined to have the approval of the Party Chancellery. An application was made for such consent but it was never given. Hagemann stated that he made a report over the telephone to the Ministry about the case.
He believed he spoke with the defendant Mettgenberg. Afterwards he made a written report to the Ministry of Justice. He told the Ministry that he needed their support to obtain permission for the Kreisleiter to testify.
He received written instructions to clear up the case completely but, since no approval was received to interrogate the Kreisleiter, he could not continue the proceedings. He stated that again and again he requested the Ministry to obtain permission for him to examine the Kreisleiter. When asked whether he heard from the Ministry regarding this authority, he stated that he had not.
Permission to examine the Kreisleiter not having been obtained, he was never examined. Up to the time of the capitualation of Germany, no indictment had been filed against Kluetgen. This apparently was the prosecution and energetic action on the part of the Ministry of Justice to which Klemm referred in his testimony. In many cases discussed before this Tribunal, indictment, trial, and final execution were certainly more expeditiously handled.
In this plan to incite the population to murder Allied airmen, the part of the Ministry of Justice was, to some extent, a negative one. However, neither its action in calling for a report on pending cases for quashing, nor its action in calling for reports end files pertaining to all such incidents, was negative. Certainly the net effect of the procedure followed by the Ministry of Justice resulted in the suppression of effective action in such cases, as was contemplated in the letter from the Reich Ministry and Chief of the Reich Chancellery to the Ministry of Justice.
The defendant Klemm was familiar with the entire correspondence on this matter. He specifically directed the witness Mitzschke to obtain reports. His own testimony shows that he knew of the failure to take effective action in the case cited, and it is the judgment of this Tribunal that he knowingly was connected with the part of the Ministry of Justice in the suppression of the punishment of those persons who participated in the murder of Allied airmen.
The second transaction of particular importance with regard to the defendant Klemm is connected with the penitentiary at Sonnenburg. The record in this case shows that in the latter part of January 1945 this great penal institution under the Ministry of Justice was evacuated and that prior thereto, between seven and eight hundred political prisoners therein were shot by the Gestapo.
Klemm denies knowledge of this matter and states:
"From the documents in this case only, particularly from the affidavit of Lepin, I found out that over 800 persons were shot at Sonnenburg."
He testified further that about the middle of January, Thierack had told him that Himmler had subordinated the prisoners at Sonnenburg to his own command and that as Minister of Justice of the Reich he, Thierack, could no longer do anything in regard to this institution. He testified further;
"It is not only my opinion but it was absolutely clear that at that time that penal institution was exclusively under the order of Himmler."
He stated that he spoke to Hansen about the subject of Sonnenburg after this conversation with Thierack as to the change in authority, and that Hansen knew about such change. He testified further "that the prisoners were turned over to the Gestapo I only found out here in this courtroom."
As to what occurred in the ministry of Justice with regard to the evacuation of Sonnenburg, the testimony of Robert Hecker is important. Hecker was the Referent in the Department of Justice in Department V of Berlin. Hecker testified in substance as follows: that in discussions with Hansen, the General Public Prosecutor for the Kammergericht in Berlin and the official under the Ministry of Justice responsible for certain matters in penal institutions, Hansen told him it might be necessary to evacuate Sonnenburg and that preliminary discussions had been carried on; that he, Hansen, had discussed the matter with the State Secretary with regard to the measures to be taken, and he had misgivings and suggested to Hecker that Hecker discuss the matter with the State Secretary. Hecker further stated that when he was the official on duty one night for the Minister of Justice, he received a telephone call from the Director at Sonnenburg to the effect that a Russian break-through had taken place and asking for instructions; that he thereupon called Thierack at his home and asked for instructions and Thierack stated that the institution would be defended, and that the authorities at the institution would be defended, and that the authorities at the institution were so informed.
As the break-through did not then threaten the penitentiary, this order was not carried out. Hecker testified that later the director of the prison asked what measures he should take if the occasion should arise and that thereupon he called the General Public Prosecutor at the Kammergericht as to what instructions had been issued. The General Public Prosecutor was away at that time but the Referent who was present informed him that according to the instructions issued, the police were supposed to be informed in the case of evacuations. He testified further that Eggensberger, a Referent in Department V of the Ministry of Justice, who was on duty the night of the evacuation of Sonnenburg, had informed him the next morning that the prison had been evacuated; that Eggensberger told him that Hansen had called the night before, stating that the action of turning the prisoners not to be evacuated over to the Gestapo was under way and, when questioned as to whether it had been authorized by the Ministry of Justice, Hansen had named Klemm as the person in the Ministry who knew of and approved the transaction. He stated further that Eggensberger had made a typewritten note reporting his telephone conversation with Hansen and that he had received a copy of the note.
On cross examination the witness Hecker testified in substance that he was himself in charge of the problem of the evacuation of prisons. When asked if he had heard that Himmler, in the middle of January, had issued an order concerning Sonnenburg, he answered that he had not and repeatedly denied any knowledge to the effect that Himmler had taken charge at Sonnenburg, and stated that he had not heard any rumor in the Ministry of Justice to the effect that Thierack had given up authority to issue orders concerning Sonnenburg.
He stated that the conversation with Thierack over the telephone was at night and that Thierack had merely answered briefly his inquiry, stating that the institution would be defended. He testified that during the course of that night he repeatedly spoke to the authorities in Sonnenburg penitentiary and that he tried to contact the competent person in the Kammergericht, namely Hansen, in regard to the matter. Hecker stated that the director of the penitentiary knew that some kind of an agreement with the Gestapo existed and what he should do in the case of an evacuation, and that there were secret directives for evacuating penitentiaries and prisons. As to the note made by Eggensberger, he stated that it included a statement to the effect that the matter had been discussed between the General Public Prosecutor and the State Secretary, Klemm. When asked about what happened to prisoners not evacuated, he replied that "as far as I was informed, the prisoners were shot by the Gestapo."
The testimony of Eggensberger in connection with the evacuation of Sonnenburg is also significant. Eggensberger testified that he was an official in the Penal Execution Department of the Ministry of Justice; that he was the official on duty for the entire Ministry of Justice to whom telephone calls were channeled on the night that Hansen reported the evacuation of Sonnenburg. Hansen called him during the night and informed him that during that night the prisoners of Sonnenburg penitentiary would be handed over to the Gestapo; that a detachment of the Gestapo had already arrived at Sonnenburg; and that the action was under way. "Hansen told me that this evacuation, or rather this transfer of the prisoners being carried out, was because the enemy constituted an immediate danger to the prison." When asked whether this directive had been approved by anyone in the Ministry of Justice, Hansen answered, "Yes, this matter has been discussed with the State Secretary Klemm."
He testified as to the note which he made reporting the transaction, and that Hecker received a copy of this note. He stated that he had been deeply impressed by the information which he had received and asked Hecker if it was true that the State Secretary knew anything about the matter and approved it, and when asked what Hecker said, he answered:
"Hecker shrugged his shoulders. He looked at me and Said, 'Well, Hansen has . . .' Well, I can only give you the sense of what he says, that Hansen has fooled this Under-Secretary of State and he has got around him or he impressed him. I think he said, 'Hansen has convinced the Under-Secretary of State to approve it'." He further stated that when he asked Hansen whether the Minister or the Ministry were familiar with the matter, he answered in the affirmative and told him that the State Secretary knew about it and that he had put this down in his file note.
On cross examination when asked if, as a liaison officer in Berlin in Department V, he reported repeatedly to the defendant Klemm in his capacity as State Secretary, he answered, "Yes." When asked with what matters he was concerned, he answered, "Again and again there were current matters which had to be discussed with the State Secretary who wanted some information and some information I gave him myself. In some complicated cases I asked the officials in charge to come in." The witness also testified that because of Klemm's personality he, Eggensberger, was quite surprised at the action of Klemm and that was why he discussed the matter with Hecker in the morning. He testified further that it was his duty to make the file note as to the telephone conversation which he had received; that that file note was, he would say, about a. half of a typewritten page. When asked if the file note included the name Klemm in connection with the fact that Hansen had referred to him, he answered, "Yes." When asked whether Hansen spoke about an agreement, whether he used the word "agreement", the witness answered that while he could not state the exact word used, that Hansen informed him that the matter had been discussed and approved, and stated that Hansen "reported to me the execution of a directive which had been issued."
He further stated:
"If you ask me concerning the execution, it was the report of a General Public Prosecutor concerning an important occurrence in a penitentiary. I would formulate it like that. It was his duty to report this matter."
Then asked if the name Klemm was mentioned by Hansen because Hansen had noticed that the witness had some doubts, witness answered:
"I certainly didn't ask him whether the State Secretary had a report on that matter. I certainly asked him that the Minister knew about it, and therefore it was striking that he did not refer to the Minister himself but rather to Klemm."
He further testified:
"I was the only official, apart from Becker, in Division V, who had remained in Berlin, and in that capacity I maintained contact between the Ministry--that is, the RMJ--and the evacuated divisions. If Hansen was given any instructions, then it was I who passed them on to him. That brought about the fact that I had frequent contact with him, Particularly over the telephone."
He stated further that he never heard of anybody being called to account for the action taken in connection with the massacre at Sonnenburg.
Pertaining to the question as to who had the authority to determine what prisoners were to be evacuated in case of evacuation and what prisoners were to be evacuated in case of evacuation and what prisoners were to be turned over to the Gestapo for liquidation, Exhibit 290 is important.
This exhibit includes the directive from the Reich Ministry of Justice, dated 5 February 1946, which is designated "Secret", to the Public Prosecutor in Linz re preparation for an evacuation of the penal institution within the district of Oberlandsgericht Graz.
This letter shows enclosures. It states as follows:
"In view of the proximity of the front line I have advised the Public Prosecutor in Graz to make the necessary preparations for possible evacuation of the penal institutions within his jurisdiction, and I have decided that your district shall be the reception center for these institutions.
You are requested to take any steps which may be necessary for their reception, as it night with the Public Prosecution in Graz and exchange all necessary particulars with him for the settlement of Questions concerning you both. "For details I refer to the enclosed directives. You are requested to keep me informed of whatever steps you take."
It also includes a directive from the Reich Ministry of Justice with the file mark "IV a 56/45 g", dated Berlin, 12 February 1945, marked "Secret" and also containing the stamp of the Oberlandesgericht President at Linz, "Received 9 March 1945". It is designated "Relieving of the Penitentiaries". It shows enclosures as follows: "Additional copies for the Public Prosecutor and All Independent Penal Institutions." This directive states, among other things:
"Foreigners can only be set free in full agreement with the police authorities; otherwise they must be transferred to the police".
This directive is signed "Thierack".
The exhibit contains further a directive to the Public Prosecutors, Linz, and is in part as follows:
"To the: Public Prosecutors, Linz The authorities in charge of the independent administrative offices Judges in charge of the juvenile prisons in Ottenheim for their knowledge and consideration.
The circulars given in the Reich Ordinance of the Reich Minister of Justice, dated 12 February, have been communicated as follows: * * *".
This directive also contains a form to be used in connection with the discharge of prisoners, designated: "Supplement to: Reich Ordinance of Reich Minister of Justice, dated 12 February 1945", with the file mark "IV a 56/45 g", and has the seal of Linz showing receipt.
The exhibit also includes a directive of "Evacuation of the Judicial Executive Institutions Within the General Plan for the Evaluation of Threatened Territories in the Reich." This is marked "Secret" and has no heading, no date, and no signature.
This states, in paragraph one, however:
"The evacuation of penal institutions lying within territories threatened by enemy attack is a matter of concern for the public prosecutors of the territories to be evacuated as well as for those within the territories appointed for reception in transit. This does not apply if the evacuation can be confined to a change of locality within the Landesgericht itself. The carrying out without friction of all measures of evacuation therefore depends upon the close cooperation of the public prosecutors concerned who must get in touch with each other on all the particulars which are necessary for those measures. The individual measures for evacuation must be left as far as possible to the personal initiative of the public prosecutors concerned, as only they possess the necessary knowledge of local conditions and are able to bring about the required cooperation with local administrative and Party offices. These directives can only give an indication of what is to be done."
From its import, a fair inference is that it was an enclosure to the original letter of Thierack.
Further along, the document states:
"NN prisoners are not to be released under any circumstances. They are to be rapidly transferred to territories which are not in danger of enemy attack according to special orders.
"Foreigners are to be released only if they had their residence in the Reich for many years, if they are especially reliable and fulfill all the requirements under h.
"Jews, Jewish persons of mixed race of the first degree, and Gypsies are not to be released.
"For Polish subjects, who are protected personnel, a release may be considered only if the requirements made under (h) apply to them after the strictest investigation. The same applies to people living in the Protectorate of Bohemia and Moravia. Poles who have been sentenced to at least one year internment in a disciplinary camp, may also be turned over to the police, with an interruption, if necessary, in the execution of their sentence.
This can only be done if an agreement is reached with the Commander of the Security Police and the SD."
Under the heading of "Carrying Out the Evacuation" is stated:
"As soon as orders for evacuation are issued, the evacuation has to be carried out in full accordance with the plans agreed upon. In many cases, it is true, prevailing conditions will necessitate deviations and improvisations. Should it become impossible, for any reasons, to bring the prisoners back to the extent agreed upon, these prisoners who are not outspokenly a-social or hostile to the State, are to be released in good time so that they will not fall into the hands of the enemy. The elements mentioned before, however, must be turned over to the police for their removal, and if this is not possible they must be rendered harmless by shooting. All traces of the extermination are to be carefully removed."
Further documents in this exhibit, issued at Linz, show that by agreement and orders of the Defense Commissioner orders were issued by the Prosecutor at Linz which appear to implement the preceding document. On 14 April 1945 the Chief Public Prosecutor at Linz made an official report to the Reich Ministry of Justice showing steps which had been taken.
The significant directives of the Ministry of Justice above quoted were issued shortly after the incident at Sonnenburg and concerned the disposition of prisoners in the penitentiaries of the Reich in areas threatened by the Allied advance. It is also significant that the defendant Klemm who denies all connection with, or authority over, the penitentiary at Sonnenburg in late January 1945, subsequently on 11 February 1945 ordered the evacuation of the prison at Bautzen including the discharge of certain prisoners and. the transfer of those not so discharged to Waldheim, and that around Easter 1945 he ordered the evacuation of the prison at Rodenfeld and instructed the matron as to the disposition of the prisoners.