MR. WOOLEYHAN: Now, turning the Book IV-C, on page two of the English book, which is page 3 of the German, is found NG--372. This is an exchange of correspondence between August and October, 1944, between a lawyer in Minden, Westphaliea and a lawyer in Berlin, repeating requests by the former as to the whereabouts of a client who had served his prison sentence of one year, but had not been released. These requests were finally answered by the Berlin lawyer, who stated that the client was transferred after completion of his sentence to the State Felice under a secret order. The Prosecution offers as Exhibit No. 270 the Document NG-372.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: Turning now to Book IV-B.
JUDGE BRAND: How many pages are there to Exhibit 270 in the English text -- NG -372.
MR. WOOLEYHAN: Two, your Honor. They are numbered pages two and three in my book.
JUDGE BRAND: I think it is my fault, but I don't find on page two the material to which you referred, and I want to identify it if I can.
MR. WOOLEYHAN: On your page two is there a letterhead at the upper left hand?
JUDGE BRAND: It simply states that the defendant had been sentenced to one year, -
MR. WOOLEYHAN: But on the next page you will see the first letter of the series, and I incorporated them all in my description of the document.
JUDGE BRAND: On page three there is another letter?
MR. WOOLEYHAN: Yes; there is another letter from Mr. Lohmann, lawyer, on page three.
JUDGE BRAND: Page three is the letter which says he was sentenced to one year.
MR WOOLEYHAN: Sentenced to one year, that is correct; then, on page 2 is another letter from Lohmann answered by Mr. Boden at the bottom.
JUDGE BRAND: I tried to put those in coherent order in my description.
Turning now to Book IV-B.
Book IV-B comprises only one document, NG--557. May I inquire if that has been distributed to the Defense? The original being here, they have no objections. This document is a series of excerpts from a bulky, official prison leger, taken from Ebrach Prison. The original contains entries on a total of 447 prisoners; of these, approximately 77 were transferred during 1942 to 1943 to the concentration camp at Mauthausen, Auschwitz and Flossenburg. Entries showing the case history of those inmates so transferred were the ones excerpted for this document. The Prosecution offers as Exhibit 271 the Document NG-557. That concludes Document Books IV-A and IV-B
THE PRESIDENT: Will you repeat which books are completed?
MR. WOOLEYHAN: Books IV-A and IV-B.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: Turning to Book IV-C, on page 8 of the English Book, which is page 12 of the German, is found NG-553. This is sworn affidavit by the warden of Ebrach Prison, from which the prison ledger, just offered, was taken. This warden, one Ludwig Schirmer, describes the deliberate starving of inmates, very poor medical attention, despite frequent disease outbreaks, over-crowding to nearly three times the prison's normal capacity caused, by numerous inmates from France and Belgium. He finally describes the transfer of those inmates, arbitrarily designated as asocial to concentration camps pursuant to secret decree of the Reich Ministry of Justice. The Prosecution offers as Exhibit 272 the Document NG-553.
THE PRESIDENT: The Document will be received in evidence.
MR. WOOLEYHAN: On the first page of the document book is found NO-556. This is a printed form used customarily by Ebrach Prison showing an actual case of the bookkeeping involved in transfering prisoner inmates. In this case one Michael Schlamminger was transferred to Mauthausen concentration camp. It is dated 23 June, 1943, and was received from the prison by the Public Prosecutor at the District Court in Number. The Prosecution offers as Exhibit 273 the Document NG-556.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: On page 4 of the English book -- I am sorry I haven't got the German page -- is found NG-566. This is a sworn affidavit by a Roman Catholic Chaplain at Amber Prison, from 1931 to 1945, one Benedict Wein. This prison chaplain describes the prison inmates at labor Prison as political prisoners, not only from Germany, but also from Austria, and a large proportion of Poles. Concerning the Poles he describes their picking over garbage for edible refuse, at whole wards of sick Poles, and the death of very many Poles from tuberculosis and starvation.
This was in the Reich Prison at Amberg. He states that in connection with designating certain prison inmates as asocial, that the defendant Engert personally visited the prison and looked over the files. Reading now from page 4a of the document book, "The people they picked out were all put on a list. The list was always marked: "To be removed." This was, I believe, mainly decided by Engert. The whole thing emanated from the Reich Security Office. Engert had formerly been a judge at Amberg and a fanatical Nazi. He was promoted for his National-Socialist activities and transferred to Berlin. We did not know on what principles Engert and his collaborator based their decisions. ....The asocial elements picked out were sent in batches to the Mauthausen concentration camp. There were always twenty to thirty people in one batch."
"As far as I have heard, Engert was always the driving force behind these removals. His name was always mentioned. Everything was kept quite dark. I think the batches were fetched from our prison. The whole of the first batch is said to have perished; The second batch were not all executed. Some came back."
"At first the whole business was hardly noticeable? they acted with great caution. They deceived us all. Only gradually did they show their claws."
Prosecution offers as Exhibit 274, Document NG-566.
THE PRESIDENT: Document will be received in evidence.
MR. WOOLEYHAN: On page 5 of the English book, which is page 9 in the German, is found NG 506. This is a sworn affidavit of a guard at Amberg penitentiary from 1921 to 1945, one Joseph Prey. He affirms that the inmates at Amberg penitentiary were mainly sent from the special courts of Regensburg, Munich, Weiden, and Nurnberg. Of these there were 800 to 900 Poles, and also a number of Frenchmen, Dutchmen and Belgians transported from those western countries to Germany under the Nacht and Nebel decree. The affiant confirms the personal visit of the defendant Engert to Amberg in connection with a secret decree of the Ministry of Justice, pursuant to which Engert inspected the prison records for asocial inmates for transfer to Mauthausen concentration camp.
Of an estimated 122 transfers to Mauthausen that the affiant knows about, the transportation to Mauthausen was handled by the Gestapo. All secret records concerning this Ministry of Justice decree of Department 15, to transfer these people, were destroyed before the arrival of the American troops. Reading now from page 6 of the document book:
"As I have heard, Engert went from one penitentiary to another to select these people. After the Gestapo of Regensburg had these people transferred to Mauthausen, I do not know what happened to them.
THE PRESIDENT: What page are you now reading from?
MR. WOOLEYHAN: Page 6, Your Honor.
Prosecution offers as Exhibit No. 275, Document NG-506.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: On page 53n of the English book, which is page 14 in the German, is found NG-471, which is the sworn affidavit of the defendant Engert wherein he first describes his negotiations with Himmler regarding the relations of the Gestapo to the People's Court. He also traces the creation of Division 15 in the Ministry of Justice on the first of November 1942, which he headed. The task of Division 15, he says, was the "solution of the problem of the asocials," by removing them from houses of correction and handing them over to the Gestapo, pursuant to an agreement with Himmler. In addition to undefined other categories of inmates, Engert states that he was asked by Thierack to look upon political prisoners as asocial. He denies that the transfers of Jews, Poles and Gypsies were under his superivision, but, rather, he says, "were under that of SenatePresident Hecker." Reading now from page 13 of the English book, which is 18 of the German --- in the German it is at time bottom of 17 and at the top of 18 -- "about twelve thousand inmates of the correction houses were assigned for transfer to the Gestapo.
That was the amount which Thierack mentioned to me during a conference also attended by Hecker. Out of the total 12,000, my division assigned 3,000 for transfer in 1942. How many Poles and Gypsies were assigned, I do not know. That must be in the statistics."
Prosecution offers Exhibit 400 as Exhibit 276, Document NG--471.
THE PRESIDENT: The document will be received in evidence.
We have passed the usual recess time. We will now recess for a period of 13 minutes.
THE MARSHAL: The Tribunal is now in recess for fifteen minutes.
(A recess was taken)
THE MARSHAL: All persons in the court room will take their seats.
This Tribunal is again in session.
THE PRESIDENT: We will not adjourn today until twelve-thirty, at which time we will recess until two o'clock.
MR. WOOLEYHAN: May I take this time to call to the Court's attention that after the conclusion of the witness we will call this morning -- and whatever cross-examination may transpire this afternoon -- the next document book to which the Prosecution will refer will be VII, Document Book VII. It might be advisable to have that in Court this afternoon.
JUDGE BRAND: We have not received it yet.
MR. WOOLEYHAN: I believe that the Secretary has it. He will give it to you.
Turning now to Document NG-1008; this document was distributed separately and is to be inserted at the end of Book IV-C. The first page of this document will become page 17, in the English book.
THE PRESIDENT: I don't see how that will work out. The last page in that book is page 7.
MR. WOOLEYHAN: The last page of Book IV-C is 16, I believe, Your Honor. At least, it is in my book.
JUDGE BRAND: This has already been inserted in the book.
MR. WOOLEYHAN: That is fine.
NG-1008 is the sworn affidavit of Senate-President Robert Hecker which we offer into evidence in its entirety -- but without reading. We offer it as Prosecution Exhibit 277.
THE PRESIDENT: The exhibit will be received in evidence.
MR. WOOLEYHAN: The prosecution calls as its witness one Robert Hecker. (The Marshal summoned the Witness.)
Robert Hecker, a witness, took the stand and testified as follows: BY JUDGE BLAIR:
Mill you hold up your right hand and repeat this oath after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
(The witness then took his seat.)
DIRECT EXAMINATION BY MR. WOOLEYHAN:
Q Witness, will you please tell the Court your name.
A Robert Hecker.
Q Would you please briefly describe your legal education, if any, and any official positions you may have held?
A I was Refrendar, legal expert and as such, at first, I worked at the public prosecutors office. After I completed this apprenticeship, Refrendar, I became an assessor, and an assistant at the public prosecutor at Kammergericht, and subsequently as public prosecutor in Berlin. Thereafter, I was assigned to the penal execution for education. In 1923, I was appointed expert for penal executions at the Oberlandesgericht in Stettin, the district court of appeals in Stettin. There I remained for ten years. In 1933, I was transferred to Berlin to the general public prosecutor at the Kammergericht, and then in the fall or winter of 1933, I was employed in the Ministry of Justice. In the Prussian Reich Ministry of Justice I was employed from 1933 until 1945. There I belonged to the division for penal executions. Originally I was first public prosecutor, then I became Kammergerichtsrat, judge, and in 1941 senate president.
Q Senate President Hecker, what was the number of the division in the Reich Ministry of Justice where you finally held your position?
A That was department five, the division for penal execution.
Q Senate President Hecker, at the present time you are detained in the Nurnberg jail, are you not?
A Yes.
Q At various times in the past the Prosecution has interrogated you; is that correct?
A Yes.
Q During these interrogations did you ever, at any time, feel that you were being placed under pressure?
A No, never.
Q Senate President Hecker, were you ever mistreated at any time?
A No.
Q Were you ever promised any reward?
A No
Q Did the Prosecution, through its interrogators ever ask you to say anything other than what you knew to be the truth?
A No, there was absolutely no influence exerted.
Q Now, Senate President Hecker, as part of your work in division five of the Ministry of Justice, did you know of a program transferring certain inmates of Reich prisons under the jurisdiction of the Justice Ministry; namely, Jews, Poles, Gypsies, and so-called associal prisoners to concentration camps?
A Yes, in 1942, there was such an order.
Q Before this order that you described cane into effect in 1942, before that, were there many attempts to effect such transfers?
A Yes, the RSHA had already repeatedly attempted to obtain prisoners into their own camps without any success, at that time.
Q You say that the RSHA attempted to transfer these prison inmates to their own camps without any success. What was the Ministry of Justice's attitude during these first, early, attempts to make these transfers?
A It was a negative attitude because at that time, the Ministry of Justice had a negative attitude toward them, the Minister at that time.
Q By "the Minister at that time", do you mean Hans Guertner?
A That was Minister Guertner.
Q You said he was opposed to these early attempts to transfer prison inmates to concentration camps. Do you know why he was opposed?
A The reason for that was the following: When the prisoners were transferred to concentration camps, then the penalty was interrupted, the sentence was interrupted, serving of the sentence. In that way the possibility of the Ministry of Justice to have any influence on the penalty and the prisoner could, therefore, be detained beyond the end of the penalty which the court had determined. Furthermore, there was no possibility for the Justice Ministry, as soon as the prisoner had been transferred to take care of them in the future. It was not possible to get any information about the fate of the prisoner, that is, the fate which befell them in the camps.
Q You speak of the fate which would befall prison inmates if they were transferred to concentration camps. To support his attitude of disapproving such transfers, did Guertner ever tell you, why he feared such a move?
A He did not tell me so himself, but during the lectures of after the trial, he said that he had misgivings because the treatment of the people in the camps was not in accordance with the conditions which we had in the penitentiaries, jails or the prisons. One had to act in accordance with the prison regulations whereas in the camps other principles were decisive, and which could not be influenced by the Ministry of Justice.
Q You speak of the fact that the treatment of prisoners in concentration camps did not conform to that of the treatment of prisoners in the Reich prisons, by that do you mean that the treatment in the concentration camps was more or less severe than that in the Reich prisons?
A The treatment was stricter and the personnel was not trained in the way which we trained them for the prisons in the Justice Department
Q Senate President Hecker, did you know, at that time, or later, that inmates of concentration camps were starved, beaten and murdered?
AAt that time such a thing was not generally known, that people were tortured to death and such, that did not happen during those years.
Q During what years do you speak?
A I am speaking about the years when the first attempts were made to take over the matter, when the concentration camps were instituted, in the year 1934 and the following years.
Q In later years do you know whether the death rate in the concentration camps was higher or lower than that in the prisons under the jurisdiction of the ministry of Justice?
AAt the beginning of the war in 1939, at that time, it appeared, as far as we could find out at all, that actually over in the concentration camps more people died than in our prisons.
Q. You state that this program of transferring inmates from your prisons to concentration camps officially began to operate at sometime in 1942. Was that before or after Thierack became minister?
A. This program of transfers to the police began after the resignation of Thierack.
THE PRESIDENT: Will you ask him that question again?
Q. This program of transferring inmates from prisons under the jurisdiction of the Ministry of Justice through the police to concentration camps, did that program officially begin to operate before or after Thierack became minister?
A. Only after Thierack became minister did it begin.
Q. It did not begin so long as Guertner was in office, is that correct?
A. Only afterwards it began.
Q. And you have said that Guertner feared and disapproved the program, is that true?
A. Yes, that's correct.
Q. And he refused to enter into it, is that true?
A. Yes.
Q. Now, Senate President Hecker, after the transfer program that we have just discussed officially commenced to operate under the ministry of Thierack. Describe, please, the division of labor with respect to that program in your Division 5.
A. This transfer program intended to transfer Jews, Russians, gypsies, Poles, people in security detention, and prisoners who had been sentenced for more than eight years who were regarded as incorrigible. In the basic decree it has been laid down what prerequisite had to exist for the transfer. These prerequisities were laid down in an unequivocable manner that Jews, Russians, and gypsies who had to be transferred to concentration camps as a general rule found Poles who had been transferred to the extent that they had received sentences more than three years and as regards those in security detention with the limitations and restric tions that those who probably might later be released should not be transferred.
These groups who thus, according to a definite regulation, had to be transferred now, Jews, Russians, Poles, and gypsies, as well as those in security detention, who probably could not be worked. These were dealt with in Division 5, Renal Execution.
Q. Could you describe from your knowledge of its operation the task and functions of the secret Division 15 that was founded in the Ministry of Justice in the Summer of 1943?
A. The Division 15 which was formed anew had the task to find out which prisoner who had been classified as those in security detention with the possibility of correction and which had been sentenced for more than eight years, which of them had to be classified to be sentenced over eight years, that is, it means Division 15, entered in contrast with Division 5, had to examine each individual and find out whether they should be transferred. Thus it ha.d to determine an individual case whereas Division 5 was concerned only to transfer those people who had been classified by the groups for transfer.
Q. Then, if I may recapitulate, what you have just said, the work of Division 5 was to transfer certain racial groups to concentration camps whereas the work of Division 15 was to transfer certain individual asocial persons to concentration camps, is that correct?
A. Yes.
Q Now, Senate President Hecker, can you briefly describe the mechanics of your work in Division 15 with regard to the transfer of these racial groups to concentration camps?
A. The method was as follows: In Division 5 the institution - the prison - handed over lists of the prisoners who came under this decree and they were divided into individual groups. This list was submitted with gypsies, Russians, columns of gypsies, Russians, and Poles. These lists were in Division 5, examined. Then the formal prerequisite, that is, the length of the sentence, belonging to the searching group, were met according to these lists. After these prerequisities had been deter mined, the lists were handed over to the RSHA so that the RSHA got the initiative in the transfer of the prisoner.
Q. If I may interrupt one moment, just to make it very clear, over what position and party formations did the RSHA have control?
A. It was an office of the Gestapo, Geheime Staatspolizei. We, ourselves, handed the list over to the RSHA, which was competent for the Gestapo.
Q. Aside from the Gestapo, in addition to that did the RSHA have control over the SS, a.s far as you know?
A. I can't tell you that; I don't know that.
Q. But you do know that the RSHA controlled the Gestapo?
A. Yes.
Q. Now, you speak of these lists by which these transfers were reported. Who else received copies of these lists within the Reich Ministry of Justice?
A. Copies of the lists were not handed on but compilations, that is, the figures, the number of prisoners, who had been selected for transfer, and those figures were handed on to the Gestapo. These figures were compiled and they were submitted to the division chief and by him to the Ministry, the Chief of Division 4, the Criminal Division, and to the Chief of Division 15. That is, those divisions who were interested in finding out how many prisoners were ea.ch time reported for transfer and later turned over by the police.
Q. You say, then, that compilations of the lists of those prison inmates who were transferred to concentration comes from Reich prisons were sent for the information of the Minister Thierack, Division 4 of the Ministry, Division 5 of the Ministry, and Division 15, is that correct?
A. Yes.
Q. Now, at this time you are speaking of, that is 1942 and 1943, who was head of Division 5 - your boss?
A. Ministerial Director Marx.
Q. I believe that word is M-a-r-x, is it not?
A. M-a-r-x.
Q. At the sane tine who was head of Division 15?
A. Ministerialrat Engert.
Q. Senate President Hecker, the sound control advises - will you please talk lower? Just pitch your voice lover; it's coning through much too loud.
A. Yes.
Q. Thank you. You say Engert was head of Division 15 at this tine?
A. Yes.
Q In later years, did he ever hold any other position in addition to being head of Division 15? Did Engert?
A Yes, in 1933 he took over simultaneously the Division 5 -became chief of it.
Q In other words, in the summer of 1943, Engert became your boss; is that true?
A Yes.
Q And from then on he was head of both Division 5 and Division 15; is that correct?
A Yes.
Q Did he remain so until the end of the war?
A Yes.
Q In your work in Division 5 did you receive any orders from Engert?
A Orders?
Q Let me clear that up. That wasn't very clear. Did you receive any orders in the course of your work in Division 5 concerning what you were officially charged with doing in carrying out this transfer program we have been discussing?
A The task which I had to execute according to the program here in the year 1942 given to me by my then division chief, and according to these directives I then continued to carry out the work.
Q Did you ever confer with Engert on this program?
A Yes, when at that time he took over the office, also to become chief of Division 5, at that time I explained to him the guiding principles according to which we acted, and he took this program which resulted from the duties. He approved it and ordered me to continue my work as I had done so far under the former leadership.
Q After Engert took control as your boss and head of Division 5 from that time until the end of the war from your personal know ledge of the records can you estimate how many Jews were transferred from Reich prisons to concentration camps?
AAltogether probably about 300 Jews were transferred. Of these, after 1943, that is, after Engert took over as chief of office of the division about 100 more must have been transferred during his time in office.
Q During the same period of time, that is, from the summer of 1943 when Engert took control of Division 5 until the end cf the war, how many Poles were transferred from Reich prisons to concentration camps?
A Poles -- I estimate that the total was about 300 and the division from 1942 until Engert took over the office about onethird of the total was transferred during the time. When Engert was chief of the division about two-thirds.
Q Now, Senate President Hecker, I am going to ask you a hypothetical question: If at any time after Enger took control of Division 5 if he had said to you that Minister Thierack did not officially charge him with supervising and directing the transfers of Jews and Poles to concentration camps because Engert would have opposed such a program. Would that be a correct statement by the defendant Engert?
A Towards me he never made such hints.
Q Witness, if he had said that to you would it have been the truth? Would it have been correct?
A I have no reason to think that.
DR. KOESSL: For a moment please. Dr. Koessl as Deputy for Dr. Marx, for the defendant Engert. I object to this question because the witness has already said that he does not know anything about this question. In addition, the witness cannot state an opinion to a hypothetical question which is assumed for a time which is long past.
THE PRESIDENT: We see no objection to the information, but it seems to be desired by the Prosecution but we think the question is so involved it should be partially reframed.
JUDGE BRAND: Mr. Prosecutor, doesn't your question merely relate directly to the question as to whether Engert approved or disapproved of this procedure? You can ask that without a hypothetical question, if the witness knows.
Q Senate President Hecker, from your personal observation during the course of your official duties in Division 5, so far as you observed did Engert approve or disapprove of the transfer of Jews and Poles to concentration camps?
A He never stated his opinion in regard to this question because this action was already going on and, therefore, was not open to discussion. That did not enter into the question any more.
Q You say that he didn't state his opinion at any time because the program was already in progress; is that so?
A Yes.
Q Did Engert, as your boss, within your knowledge or observation ever do any affirmative act itself or impede this progress?
A No.
MR. WOOLEYHAN: That concludes the direct examination.
THE PRESIDENT: Do any of the Defense Counsel desire to cross examine this witness?
DR. KUBOSCHOK: (Dr. Kuboschok for the defendant Schlegelberger):
Q Witness, you said Minister Guertner was opposed to the transfer of the group which we have discussed into the concentration camps. Under Minister Thierack the transfer has been ordered between the era of Guertner and Thierack and there was a term of office of Schlegelberger who was Minister of Justice, and thus for the time when Schlegelberger -
MR. WOOLEYHAN: May it please the Court, I object to the introduction and cross examination of an official who was not mentioned in the direct examination and who was in an entirely new field of testimony.
JUDGE BRAND: It was your position, was it not, that Schlegelberger came in as actual minister between Guertner and Thierack?
DR. KUBOSCHOK: Yes, your Honor.
MR. WOOLEYHAN: May I further point out, if the Court please -
THE PRESIDENT: On the theory that this procedure of transfer of prisoners did not start until Thierack came into office, it would seem that that question would net be proper. The objection, therefore, will be sustained. If we are wrong, about cur dates and about the time cf the succession, we should like to be advised.
DR. KUBOSCHOK: Guertner was until 1941 Minister of Justice. He died. The office of Minister of Justice was until August 1942 -there was no new minister appointed. During that time from the death of Guertner until August 1942 when Thierack was appointed Minister of Justice, Schlegelberger as Under Secretary, states secretary, was acting Minister of Justice, was in charge cf the Ministry of Justice. Since the witness mentioned that Guertner was opposed to the transfer of the group and that he resisted and then, since the witness immediately went over to the era of Thierack it is for the defense of the defendant Schlegelberger important to find out what happened during his time in office, and how he -what position he took towards the position of transfer during that time?
THE PRESIDENT: Is the Prosecution in a position to controvert those dates in that line cf succession?
MR. WOOLEYHAN: The dates are correct, your Honor.
THE PRESIDENT: In that event, it would seem he is entitled to have his client Schlegelberger to have it brought clearly whether this new plan -- this plan cf sending to concentration camps was in operation during his term cf office as Secretary.
MR. WOOLEYHAN: I believe his direct examination developed that the program to which we referred did not go into this official operation until the assumption of office of Thierack.
