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.
It is the contention of the defendant that Hansen was an unreliable person who falsely used the name of the State Secretary. It is to be noted, however, that the testimony does not show that Hansen was undertaking to obtain from Eggensberger authority for some contemplated action under alleged authority from the State Secretary. Hansen called Eggensberger who was the official on duty at the Ministry of Justice to make an official report of an action which was already under way and when questioned as to his authority, he cited the approval of the State Secretary. His report was embodied in an official note as he could assume it would be. This note stated that the action taken was based upon the approval of the State Secretary. Surely Hanson, an official under the Minister of Justice, whatever his character might have been, would never have dared to use falsely an alleged authority by the State Secretary to account for the liquidation of some 800 people and then make an official report that, according to all normal procedure, would come directly into the hands of the State Secretary.
This Tribunal is asked to believe that in the middle of January, Himmler took over the operations of the penitentiary at Sonnenburg and that the first time that the State Secretary, the defendant Klemm, heard of the liquidation of those who were not evacuated, was in this trial. That Himmler controlled evacuations within the area of his command was shown by evidence in this case and can be assumed from the nature of the evacuation. An evacuation is a matter of military concern since it involves interference on the roads with military operations and transport. The operational control of a penal institution is an entirely different matter. In the middle of January, Himmler was in command of an army which was having considerable difficulty and he was scarcely in a position to assume the functions and responsibilities in the Ministry of Justice as regards the opera tions of a penal institution.
Certainly if he did so it is strange that Eggensberger, a Referent in Department V dealing with penal institutions, or Hecker, also in Department V and in charge of evacuations of penal institutions, or the director of the institution at Sonnenburg, knew nothing about this transfer of authority some two weeks after it is alleged to have been made. It was also strange that Hansen, who is alleged to have known of this transfer of authority, would call the Ministry of Justice and made an official report as to the transaction on the night when it was under way and cite as his authority for his connection therewith the State Secretary. That the defendant Klemm knew nothing about the liquidation of some 800 people in this institution until he learned it in this trial, over-taxes the credulity of this Tribunal. Even in Nazi Germany the evacuation of a penal institution and the liquidation of 300 people could hardly have escaped the attention of the Minister of Justice himself or his State Secretary charged with supervision of Department V, which was competent for penal institutions. Exhibit 290, herein extensively quoted, shows that the operations of penal institutions and the disposition of the inmates remained a function of the Ministry of Justice, and it is the opinion of this Tribunal that the Ministry of Justice was, at the time of the evacuation of Sonnenburg, responsible for the turning over of the inmates to the Gestapo for liquidation, and that the defendant Klemm approved in substance, if not in detail, this transaction.
When Rothenberger was ousted as State Secretary because he was not brutal enough, it was Klemm who was chosen to carry on the Thierack program in closest cooperation with the heads of the Nazi conspiracy. Klemm was in the inner circle of the Nazi war criminals. He must share with his dead friend, Thierack, (with whom he had lived), and his missing friend, Bormann, the responsibility, at a high policy level, for the crimes committed in the name of justice which fill the pages of this record.
We find no evidence warranting mitigation of his punishment.
Upon the evidence in this case it is the judgment of this Tribunal that the defendant, Klemm, is guilty under Counts Two and Three of the Indictment.
THE PRESIDENT: The Tribunal will take fifteen minutes' recess at this point.
Court No. III, Case No. III.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Judge Brand will continue with the reading of the opinion:
The Defendant Rothenberger From his own sworn statements we derive the following information concerning the defendant Rothenberger.
He joined the NSDAP on 1 May 1933 "for reasons of full conviction". From 1937 until 1942 he held the position of Gau Rechtsamtsleiter. He states: "As such I also belonged to the Leadership Corps." Parenthetically, it should be stated that the organization within the Leadership Corps to which he belonged has been declared criminal by the Judgment of the first International Military Tribunal, and that membership therein with knowledge of its illegal activities is a punishable crime under C.C. Law 10. We consider the interesting fact of his membership in the Leadership Corps no further, solely because defendant Rothenberger was not charged in the indictment with membership in a criminal organization. He was a Dienstleiter in the NSDAP during 1942 and 1943. From 1934 to 1942 he was Gaufuehrer in the National Socialist Jurists' League. In 1931 he became Landgerichtsdirektor, and in 1933 Justiz Senator in Hamburg. From 1935 to 1942 he was President of the District Court of Appeals in Hamburg. In 1942 he was appointed Undersecretary in the Ministry of Justice under Thierack. He remained in that office until he left the Ministry in December 1943, after which he served as a notary in Hamburg. Thus it is established by his own evidence that while serving as President of the District Court of Appeals he was also actively engaged as a Party official. Other evidence discloses the wide extent to which the interests and demands of the Ministry of Justice, the Party, the Gau Leadership, the SS, the SD, and the Gestapo affected his conduct in matters pertaining to the administration of justice. Rothenberger took over the Gau Leadership of the National Socialist Lawyers' League at the request of Gauleiter Kauffmann, who was the representative of German sovereignty in the Gau and who was, for all intents and purposes, a local Court No. III, Case No. III.
dictator. As Gaufuehrer during the period following the seizure of power, Rothenberger had ample opportunity to learn of the corruption which permeated the administration of justice. He testified:
"It has been emphasized here time and again how during the first period, after the revolution of 1933, every Kreisleiter attempted to interfere in court proceedings; the Gestapo tried to revise sentences, and it is known how the NSRB, the National Socialist Jurists' League, tried to gain influence with the Gauleiter or the Reichsstatthalter in order to act against the administration of justice."
Concerning the dual capacity in which he served, he said:
"On account of the identity, of course, between President of the District Court of Appeals and Gaufuehrer, I was envied by all other district courts of appeal because they continually had to struggle against the Party while I was saved this struggle."
In August, on the eve of war, Rothenberger was in conference with officials of the SS and expressed to them the wish to be able to fall back on the information apparatus of the SD, and offered to furnish to the SD copies of "such sentences as are significant on account of their importance for the carrying out of the National Socialist ideas in the field of the administration of justice." Rothenberger testified that during the first few years after the seizure of power, there was the usual system of SD informers in Hamburg. The unsatisfactory personnel in the SD was removed by Reichstatthalter Kaufmann, and the defendant Rothenberger nominated in their place individuals who, he said, "were judges and who I knew would never submit reports which were against the administration of justice." He sates also:
"In the meantime, the directive had been sent dorn Court No. III, Case No. III.
the Reich Ministry of Justice to the effect that the SD should be considered and used as a source of information of the State by agencies of the administration of justice."
While he was President of the District Court of Appeals at Hamburg, and during the war, this ardent advocate of judicial independence was not adverse to acting as the agent of Gauleiter Kauffmann. On 19 September 1939 Kauffmann, as Reichsstatthalter and Defense Commissioner, issued an order as follows:
"The President of the Hanseatic Court of Appeals, Senator Dr. Rothenberger, is acting on my order and is entitled to demand information in matters concerning the special courts and to inspect documents of every kind.
All administrative offices as well as the offices of the NSDAP are requested to assist him in his work."
On 26 September 1939 Rothenberger, as President of the Hanseatic Court of Appeals, notified the Prosecutor-General of Kauffmann's order and requested that a copy of the indictment "in all politically important cases or cases which are of special interest to the public should be sent to him". In a report to Schlegelberger of 11 May 1942 he spoke of the "crushing effect" of the Fuehrer's speech of 26 April 1942 and of the feeling of consequent insecurity on the part of the judges, and said:
"I have therefore assumed responsibility for each verdict which the judges discuss with me before passing it."
In the same report he states that on 6 May 1942 he made arrangements with all senior police officers, senior SS, senior officers of the Criminal Police, of the Secret State Police, and of the SD "to the effect that every complaint about juridical measures taken by judges was to be referred to me before the police would take action (especially regarding execution of sentence)."
In June 1942 Rothenberger reported to the defendant Schlegelberger that he had made similar arrangements in Bremen with the Kreisleiter, President of the Police, Leader of the Secret State Police (Gestapo), and the leader of the SD. He reported to Schlegelberger:
"In view of the present situation, I am intensifying the internal direction and control of jurisdiction which I have considered to be my main task since 1933."
On 7 May 1942 Rothenberger issued an order in which he stated his intention to inform himself prior to the proceedings on cases which are of political significance "or which involve the possibility of a certain conflict between formal law and the instinctive reactions of the people or National Socialist ideology."
He directed that reports be submitted to him which must be in sufficient detail in order, as he said, "to enable my deputy to judge the necessity of my intervention."
By reference to his own words we have already set forth Rothenberger's expressed convictions as to the duty of a judge as the "vassal" of the Fuehrer to decide cases as the Fuehrer would decide. The conclusion which we are compelled to draw from a great mass of evidence is not that Rothenberger objected to the exertion of influence upon the courts by Hitler, the Party leaders, or the Gestapo, but that he wished that influence to be channeled through him personally rather than directed in a more public way at each individual judge. On the one hand he established liaison with the Party officials and the police, and on the ether he organized the system of guidance of the judges who were his subordinates in the Hamburg area. He testifies that he considered the system cf conferences between judges and prosecutors before trial, during trial and sometimes after trial, but before the consultation of the judges, to be wrong, and states that he considered it more correct, in view of the situation, that such a discussion should take place a long time before the trial and not between individual judges and the prosecutor "but on a higher level, namely, between the chiefs of the offices, so that there would be no possibility to exert an influence on the individual judge in any way." Concerning his dictatorial attitude toward the other judges, Rothenberger testified: "Of course, guidance is guidance and absolute and complete independence of the judge is possible only in normal conditions of peace, and we did not have these conditions after the Hitler speech."
The guidance system instituted by the defendant Rothenberger was not limited to conferences concerning pending cases of political importance before trial. We are convinced from the evidence that he used his influence with the subordinate judges in his district to protect Party members who had been charged or convicted of crime; that on occasions he severely criticized judges for decisions rendered against Party officials, and on at least one occasion was instrumental in having a judge removed from his position because he had insisted upon proceeding with a criminal case against a Party official.
As further illustration of the character of control which was exercised by Rothenberger over the other judges in his district, reference is made to his letter of 7 May 1942 addressed to the judges in Hamburg and Bremen in which he announced that a conference would be held for the discussion of cases fixed for the following week. We quote:
"A few cues to matters which are under discussion will be given, file numbers provided, and key words given."
He especially required of the judges that they report to him concerning penal cases against Poles, Jews, and other foreigners and "penal and civil cases in which persons are involved who are Party or State officials, or NSDAP functionaries, or hold some other eminent position in public life".
One will seek in vain for any simple , frank , or direct statement by Rothenberger relative to any of the abuses of the Nazi system. His real attitude can only be extracted from the ambiguities of his evasive language. We quote from the record of the report made by Rothenberger to the judges on 27 January 1942:
"With regard to the matter it had to be considered whether or not any material claims made by the Jews could still be answered in the affirmative. Concerning this question, it might, however, be practical to maintain a certain reserve."
In an early report to the Hamburg judges, Rothenberger discussed the opinion of the Ministry concerning the legal treatment of Jews.
He stated that the fact that a debtor in a civil case is a Jew should as a rule be a reason for arresting him; that Jews may be heard as witnesses but extreme caution is to be exercised in weighing their testimony. He requested that no verdict should b e passed in Hamburg when a condemnation was exclusively based on the testimony of a Jew, and that the judges be advised accordingly.
On 21 April 1943, as the result of a long period of interdepartmental discussions, a conference of the State Secretaries was held. Rothenberger was at the time State Secretary in the Ministry of Justice and participated in the conference concerning the limitation of legal rights of Jews. Kaltenbrunner also participated. At this meeting consideration was given to drafts of a decree which had long been under discussion. Modifications were agreed upon and the result was the promulgation of the infamous 13th Regulation under the Reich Citizenship Law which provided that criminal actions committed by Jews shall be punished by the police and that after the death of a Jew his property shall be confiscated.
We next consider Rothenberger's activity concerning the deprivation of the rights of Jews in civil litigation. In the report of 5 January 1942 the defendant wrote:
"The lower courts do not grant to Jews the right to participate in court proceedings in forma pauperis. The district court suspended such a decision in one case. The refusal to grant this right of participation in court proceedings in forma pauperis is in accordance with today's legal thinking. But since a direct legal basis is missing, the refusal is unsuitable. We therefore think it urgently necessary that a legal regulation or order is given on the basis of which the rights of a pauper can be denied to a Jew." (Ex. 373, NG 392, Document Book 5-D, page 333).
Notwithstanding his statement of 5 January to the effect that it would be unsuitable to deprive Jews of this right without a legal regulation, we find that on 27 January 1942 the report of a conference shows the following: