We will show, when dealing with the problem of violation of the principle "nullum crimen sine lege", that all those laws with which the Indictment is concerned and which had been made retroactive do not furnish a basis for punishment. The punishable offense itself, to which they referred, had already been made punishable by laws in force at the time the deed was committed.
The rules of Penal Law were not only part and parcel of the general body of Law, but had also been fixed long before by virtue of positive law at the time the appropriate supplementary laws went into effect. In every instance revisions were applied only to the evaluation of a crime in relation to the amount of punishment. Since the prescribed rules of the German Penal Code, generally speaking, did not allow a judge much leeway in awarding punishment, it was found necessary to provide for changes with regard to the fixing of penalties.
We will show that conditions of public distress in Germany were in each instance responsible for the changes, and, furthermore, that these legislative measures were, above all, inspired by criminological propositions that had played an important part in scientific discussions long before 1933. We will also show that the drafting of such legislative measures was strongly influenced by the knowledge and experience of other countries.
We shall have to proceed from the assumption that a retroactive measure, characterized only by an increase in severity of punishment, does not constitute a violation of the principle "nullum crimen sine lege", according to common German and continental legal conceptions.
If the Prosecution should construe the substance of various laws as crimes against humanity, we will have to enter into an investigation of the actual living conditions which gave rise to the necessity for the legislation of strict measures. One of the cardinal determinants of any system of Penal Law is the principle of the deterrent influence Court No. III, Case No. 3.of punishment.
Variations in the forms and uses of deterrents are at all times dictated by circumstances. Thus, when living conditions everywhere are at high tension, deterrents, if they are to be effective at all, must be accompanied by a corresponding increase in severity of legislative measures.
Some of the legal terms found in German Court decisions that are to be examined by the Courts will require explanation. Such terms as "dangerous habitual criminal", "perpetrators of crimes of violence, juvenile major criminals", "public enemies", "asocials", and "criminal type" (Taetertyp). In defining these terms it will become apparent that they were used as necessary aids in the quest for laws and that they represented, by no means, a one-sided attempt at increasing the harshness of measures in the administration of justice. These terms were established for the purpose of setting up clear-cut, definable boundary lines encompassing a definite group of major criminals. Such a move paved the way for pronouncements of restricted judgments, i.e. less severe ones upon those who did not fall within that group.
In answer to the question of sterilization, we shall outline its historical development in Germany and other countries both in theory and practice. We will find that sterilization, as a program, was advocated long before 1933 in Germany and even found champions in socialist and church groups. Closer examination of the law under consideration will reveal the great care and caution exercised in hedgingin its specific provisions. Should the law itself, however, lie beyond the pale of any possible extensive explanation, we shall then furnish proof that it has never been misapplied for political or race-political purposes.
The subject of euthanasia will be dealt with at length and judged with fairness and justice. We will show that the measures originated with HITLER, himself, and in the Chancellery of the Fuehrer. We will also show, - and this is symptomatic of the position held by the judiciary in the Administration - that the judiciary did not receive Court No. III, Case No. 3.word of the existence of those measures directly but in trailing states from outside sources.
We will bring out how the Ministry of Justice attempted thereafter to thwart the execution of those measures, and then disclose how those same attempts led to a premature discontinuance of the program.
In order to decide the question of whether the judiciary is responsible for these measures, which they neither caused to be put in effect nor carried out, we again must consider the actual existing facts.
A trial which concerns verdicts rendered by various courts calls for a study of the organization of these courts as well as their manner of functioning. We will deal with the structure of the Special Courts and of the People's Courts as well as the courts before them. We shall consider whether the Special Courts are extraordinary courts in the sense of the indictment, which were prohibited by the constitution. We will also define the term "extraordinary court" and we shall see that a court which has not been established for the purpose of bringing certain persons to trial but for the purpose of passing judgment on certain punishable acts cannot be considered an extraordinary court. The legal regulations which are prescribed for proceedings in Special Courts and which deviate from regulations prescribed for regular proceedings will be scrutinized with regard to extent and purpose. We will deal with the structure of the People's Court in like manner.
In order to discuss these questions, it will also be necessary to give the Tribunal a clear-cut, plastic picture of German criminal procedure. We hope to be able to achieve this by examining an expert on the characteristic features of German criminal procedure. Thus, we will be able to show the fundamental differences between the German and Anglo-American criminal procedure. We will become acquainted with the preliminary proceedings as well as with the actual main proceedings. Preliminary proceedings are in the hands of the prosecutor. The necessary investigations to ascertain the facts of the case must be carried out with the aid of the police and through its own or judicial interrogations. The public prosecution is bound by law to an objective consideration of the matter. The prosecution in so doing of course represents the instance which later on submits the indictment in court; yet it is under obligation to draw up the indictment not as an agent of an interested party, which he will represent later on in the main proceed ings, but as a purely objective agent engaged in clearing up the facts of the case.
He is also obligated with procuring and submitting facts which serve the purpose of the defense. After the facts of the case have now been established in this manner and the transcript of the interrogations of the defendant, the witnesses and the experts as well as the record on any inspection, seizures, or searches have been recorded to the court, then the public prosecutor draws up a written indictment and submits to the court the documents which contain the entire material collected by him with the request that a date be set for the trial. In considering the question whether action should be brought or whether proceedings should be quashed beforehand, he must take into consideration whether the findings are sufficient to justify the suspicion that a punishable act has been committed. This question will then be examined by the court, which has to decide about the opening date of the trial. If, in the opinion of the court, the findings as laid down in the documents are not sufficient to warrant a conviction of the accused, then the court may decide against instituting proceedings, or it may request the public prosecutor to collect further material, which will be of an exonerating nature also. After the trial has been ordered, the proceedings are entirely in the hands of the judge, and in the case of the courts attended by several judges, in the hands of the presiding judge. By studying the documents, the court finds out how the preliminary proceedings were conducted as well as the results. However, except in a few instances, the court may make use of the preliminary proceedings for informational purposes only, so to speak, as a jumping-off point for the main proceedings, which alone are decisive for the final decision. In these proceedings the oral principle alone applies. Only that which is presented at these proceedings by the defendant himself, by witnesses, experts and documents can be considered by the court in passing judgment, but not the interrogation transcript of the police or the public prosecutor. The presiding judge guides the proceedings. He examines the defendant, who can make statements pertaining to the case in question, but who may not take the stand as a witness as is the case in American proceedings and who can also not be sworn in.
Should the public prosecutor or the counsel for the defense desire to ask questions of the defendant, they may do so only through the presiding judge. The examination of the defendant is followed by the hearing of the witnesses and of the experts. This is also carried on by the judge. The public prosecutor and the defense counsel have the right to put pertinent questions to the witnesses and to the experts, which the judge may permit in accordance with the code regulations of the Code of Criminal Procedure.
The role played by the counsel for the defense must be described in detail. In comparison with his role in the Anglo-American procedure he is not as important here. Whereas in Anglo-American procedures the prosecution as well as the defense, so to speak as two parties, submit their case for the decision of the court, in German procedures the investigation of the facts of the case in the trial, the rules concerning the extent of evidence to be collected, the serving of summons to witnesses for the prosecution end defense, without the prosecution or the defense filing any requests, are in the hands of the court. According to that, the public prosecutor and the defense counsel in reality only support the court in investigating the facts of the case, which is the duty of the court itself. Because of this role played by the defense counsel, it follows that in German criminal proceedings the defendant is represented by a counsel only in a comparatively small percentage of cases, and in all the other cases the defendant just does not employ a defense counsel.
The question regarding the appealing of a verdict rendered by a court of first instance demands thorough clarification. In this connection we will demonstrate the meaning and the purpose of the nullification plea and of the extraordinary objection. We will prove that it was not National Socialistic thinking in terms of violence which gave rise and impulse to their introduction, but rather considerations regarding the technique of procedure.
By extending the competency of such courts, which had to decide only in one instance, the necessity arose for a higher instance to be able to take care of reviewing decision. To be sure, considerably eased regulations regarding the review of verdicts rendered by Special Courts had already been introduced when these courts were first established; however, these regulations proved by providing a "resumption of proceedings" (Wiederaufnahme des Verfahrens) insufficient in practice, particularly after it became evident that economic offences called for uniform laws throughout Germany. Considerable divergence insofar as the legal interpretation of the new laws was concerned and with regard to the meting out of punishment became apparent in the procedure of the different courts, through a constant surveillance, which became especially necessary in view of the changing economic conditions. To obtain uniformity in this respect, new opportunities for additional legal redresses were created. We shall demonstrate that the nullification plea is a method of procedure which has been taken over from the former Austrian law. The diversity in legal conceptions concerning the principle of "ne bis in idem" (double jeopardy) with regard to legal remedies will be treated in this respect.
The indictment also makes it necessary for us to decide how far a state may and can consider itself competent to extend its power to punish to acts committed abroad. Is it consistent with international law to prosecute foreigners for punishable acts committed abroad? The extent to which a state may take it upon itself to take action for acts committed abroad depends on whether such state inclines toward the principle of personality (Personalitaetsprinzip), the principle of territoriality (Territorialitaetsprinzip), the principle of protective law (Schutzrechtsgrundsatz), or the principle of universal law (Weltrechtsgrundsatz). As can be seen from a study of comparative law and from the history of law, diverse and variable opinions are held about this in the different countries, and the science of international law after the first World War shows this in particular.
We shall point out the basic principles which are contained in Section 3 and 4 of the Penal Code of 1870, and we shall find again in the Supplementary Law (Novelle) of 6 May 1940, which extends the sphere of authority of the Penal Law and which is now being assailed by the prosecution, ideas drafted for the reform of the Penal Law conceived long before 1933. Article 153 a of the Code of Criminal Procedure is, to a certain degree, intended to act as a safety valve against a too exaggerated application, and has in fact greatly reduced prosecutions, and it shall be dealt with in this context.
The discussion on the introduction of German law and the establishment of German courts in the Protectorate will cover the three decrees of the Ministry of Justice, which were also issued as a result of a decree published by Hitler in the form of a law, and an ordinance supplementing this decree, both of which were not countersigned by the Reich Ministry of Justice. In this connection it is necessary to clarify the international relations existing between the so-called Protectorate and the German Reich. Are we concerned with a bilateral international treaty negotiated between Hacha and Hitler, an intervention, an annexation, or an occupation? From the subjective point of view, what the German public and what the defendants actually knew about conditions then prevailing will be decisive in each case. We shall have to discuss here and at other occasions - and this is not dependent on the above whether, within the scope of the indictment concerning a crime against humanity, the actually selected form of legislation and administration of justice is not also justified in its scope under different international conditions. Can one, to give an example, consider it inhuman if members of the Protectorate were subjected to the provisions of the German Penal Code regarding treason and high treason, if the provisions of the Law Governing Occupied Territories would also have justified the same penalties for aiding and abetting a hostile army?
With regard to the Introduction of German Law in the Eastern Territories we must first of all consider that they were essentially divided into the following three groups, namely:
1) territories which were part of the Union of Soviet Republics after September 1939;
2) the so-called Congress Poland, the principal part of the Polish Republic, which was administered under the designation of Government General, and finally
3) the western parts of Poland, which before 1918 were made up mainly of the German provinces of Posen, Upper Silesia, and other small parts of provinces. German Jurisdiction was introduced only in areas mentioned under 3) and they were designated as "Incorporated Eastern Territories". The former Russian territories mentioned under 1) were subordinate to the military and civilian governors, and the Government General mentioned under 2) was subordinated to Governor General Dr. Frank. Both these groups were completely outside the administrative competence, or even the sphere of influence of the Reich Ministry of Justice.
If, therefore, we have to concern ourselves with the question of the introduction of German jurisprudence only in the so-called incorporated Eastern territories, then we shall call attention to a point of view widespread in science and actual application, whereby a declaration of war renders municipal treaties between the parties at war meaningless. Not only was this point of view especially advocated in a detailed justification by the Reichsgericht, as the German Supreme Court, already after 1918, but it was also championed in French works on international law, as for instance in Foignet's "Droit International Public". It will be shown that other states have in fact also accepted this point of view.
The recognition that this viewpoint concerning international relations was actually followed in practice will be shown by an agreement concluded between Germany and the Soviet Union, which pertains to judicial procedure in civilian matters in Polish territories incorporated into the Soviet Union in 1940.
The answer to the question - which has already come up many times during the examination of witnesses by the court - namely the question whether it was permissible to apply the crime ordinance for Poles also to those Poles who did not come to Germany of their own volition, will depend on whether we consider the introduction of German jurisdiction in the above mentioned extent admissible. I don't believe that the evidence presented by the prosecution covers a case which proves that a Pole who did not come to Germany voluntarily was sentenced. Generally speaking however, we will have to take into consideration the fact that the pole who came to Germany was subject to that law which then applied in his former place of residence.
So that the jurisdiction in so-called "Night and Fog" cases (Nacht und Nebelsachen) can be judged, we shall put in evidence that, in the main, the military courts alone were competent. Section 3, subparagraph 2, of the Decree concerning Military jurisdiction during War (Kriegsstrafverfahrensordnung) formed the legal basis for handing over those cases to the general courts. This "decree concerning military jurisdiction during war and special operations" was issued on 17 August 1938, and published in the Reich Law Gazette 1939, part I, page 1457. It was only signed by the "Fuehrer and Reichschancellor" and by the Chief of the Supreme Command of the Wehrmacht.
This decree fixes the scope of military jurisdiction and subordinates all foreigners and Germans to this military jurisdiction for all criminal offenses committed by them in the area of operations. According to section 3, sub-paragraph 2, of this decree, military courts however, are to prosecute such crimes only if it is judged necessary for military reasons. It is within their discretion to turn over the prosecution of criminal cases to the general courts.
On the basis of this legal foundation, and in accordance with an agreement between the Chief of Military Justice, Dr. Lehmann -who has appeared here before the Tribunal as witness - and the former State Secretary Dr. Freisler, prisoners held in "night and fog" cases were placed before a German Court in the sense of paragraph 30 of the Hague Regulations on Land Warfare.
The obligation to keep the procedure in all its phases secret was justified for military reasons. According to sub-paragraph 6 of the basic treaty of the Hague Regulations on Land Warfare, military interests come first and then cones the protection of the civilian population. The administrators of justice could not decide about the scope of the military interests. It could never be the task of the civilian judicial authorities to judge whether the military commanders correctly interpreted the conception of military necessity in the sense of sub-paragraph 8 of the introduction to the basic treaty of the Hague Regulations on Land Warfare.
Within the framework of these military necessities we will also clarify the motive of intimidation which follows from this. A deterrent could, according to the views of the parties concerned, be achieved only by the severest punishment, with a judgment in the enemy country. The legal basis for this was given without more ado in accordance with those existing provisions of Military Law which correspond to International Law. It concerned cases throughout which can be punished with death, according to general Military Law, such as espionage, sabotage, aid and comfort to the enemy, and illegal possession of arms. Is it then a violation of humane law, if allowance was made for the principle of deterrent in another manner, and standards were introduced into the proceedings before the Courts in Germany which, regarded absolutely, are contested by the Public Prosecution, but which have been introduced here to avoid an administration of justice which would pronounce the death sentence excessively.
We shall prove that in the proceedings before the "night and fog" courts sentences of imprisonment were pronounced in an overwhelming proportion, and that the quota of death sentences was very small. It will be clearly shown that the deviations from the normal proceedings which were shown by the "night and fog" proceedings were all conditioned by the principle of secrecy. A full consideration of German Criminal Procedure will show that many limitations in the leading principles of German criminal procedure mean either no disadvantage at all, or at any rate merely a far lower degree of disadvantage than it may appear to a person accustomed to thinking only along American principles of procedure.
Article 3, paragraph 2 of the Rules of Military Criminal Procedure will also prove that the "night and fog" prisoners had been handed over to the civil authorities only for the purpose of the execution of the criminal proceedings, and that moreover the power of disposal over these prisoners was reserved for the offices of the Wehrmacht.
When we see that the "night and fog" proceedings had been taken over by the judicial administration by virtue of an order of the Fuehrer and by virtue of the delegation of the military authorities competent therefore, the question of the relationship of international law to the German State Law will also be submitted for consideration. The German science of Political and International Law has always unanimously advocated the view that State Law takes precedence over International Law. This would be of significance in each case for the question of a consciousness of injustice on the part of the Defendants.
The Prosecution has also concerned itself with "lynch justice" (Lynchjustiz). The Defense will present documents proving that the judicial authorities criminally prosecuted, in spite of the violent opposition of the Gauleiter concerned, Germans who had mistreated or shot Allied fliers forced to abandon their planes, and that they protected Germans who treated such Allied fliers in a humane manner.
This positive attitude of the judicial offices will constitute an illustration of the relations of the powers at that time. The Party and the Police were in their attitude opposed to each other. The leader of the Party Chancellery had ordered all State and Party offices not to interfere with the execution of "lynch justice" on Allied fliers. The Minister of Justice could not ignore this order. He applied it in a manner that could be interpreted as quashing the proceedings. This weakening of an order instigated by the Party and the cases in practice mentioned show here too the basic tendency in the consideration of the actual relation of the powers.
Arguments from the aspect of reprisal will also be made, which are supplementary to the question of "lynch justice".
The German Law of Pardons needs also to be presented and dealt with in detail, since it represents the basis, after all, for the proper evaluation of numerous documents presented by the Prosecution, including the report lists of the Reich Ministry of Justice in matters of death sentence. It has been fully codified, and we will refer to the numerous legal provisions. The entire system of pardon will justify the statement that it was most painstakingly built up with every safety measure and must withstand any criticism as a system. The law of pardon was incumbent upon the head of the State. Hitler transferred his executive power to Reich Minister Thierack, even for death sentences, whereas the letter's predecessor in office, Reich Minister Guertner, and after his death, Under-Secretary Schlegelberger, were restricted in the execution of the law of pardon, in that they could recommend to Hitler to pardon a person sentenced to death, but they themselves could not pardon a person. What resulted is necessarily an orientation toward the utmost which could be obtained from Hitler. The manner they used, and how the whole tendency on the part of the participating offices was to exhaust fully the possibilities for pardon which were offered, will he shown in the evidence.
THE PRESIDENT: Dr. Kubuschok, I suggest that we recess now for fifteen minutes in order that you may rest yourself, and we will then reconvene in fifteen minutes.
(A recess was taken.)
THE MARSHAL: All persons in the courtroom will please take their seats. The guards will close the door. The Tribunal is again in session.
DR. KUBOSCHOK: From the individual provisions we will see that in matters of the death sentence, for example, the Chief Public Prosecutor, regardless of whether the condemned person had personally submitted a petition for pardon, had to make a thorough report on the question of pardon, after he first gathered the attitude of the court, the presiding judge, the prison authorities, the police, and still other offices prescribed in special cases. This report goes to the Chief General Public Prosecutor, who then on his part must state in detail his attitude about the pardon report. In the Reich Ministry of Justice special "Referents" had been appointed for dealing with pardon questions. These Referents were supported by numerous co-workers. The co-worker had to present an opinion with an exact report of the facts, an opinion on the legal question of the individual case, a criticism of the judgment with regard to the actual and legal aspects, and a detailed statement on the question of pardon. The Referent, on his part, as well as the division chief, had to add their attitude to this opinion. Only if all reporting offices, the co-worker, the Referent, and the division chief unanimously recommended that the sentence be carried out was the matter designated as a so-called "smooth affair" (glatte Sache). In this case the Referent-in-charge-of-death-sentences reported personally to the minister, calling special attention to all the circumstances of the case worth remarking on. On the other hand, if even one of all those participants recommended commuting the death sentence to a prison sentence, then the co-worker had to present his detailed opinion in person to the minister, and the Referent, the division chief, and the Under Secretary stated their attitude at the request of the minister.
The same procedure was also used in principle in cases of socalled "Immediate Execution" (Blitzvollstreckung). This concerned cases from the last years of the war, in which the facts of the case and the legal question to be decided on were straightforward; moreover, it concerned cases in which - on account of the fact that the deed had caused considerable stir among the public - a special deterrent effect should be obtained by carrying out the sentence as soon as possible after the deed had been committed and judged.
The only difference in dealing with these "immediate executions" and the usual procedure was that all reports and opinions were given by telephone, telegraph, teletype, or verbally that on account of it being a straightforward case, no files were submitted.
The indictment also contains the charge that the amnesty laws were administered according to political view. The provisions in question will be discussed in detail when the evidence is presented.
Hitler's constitutional right to quash pending criminal proceedings (right of abolition) will be shown in its practical meaning.
Regarding the carrying out of sentences we will deal with the legal provisions and the regulations applicable in penal institutions. The defense will prove that no crimes against humanity were committed in penal institutions of justice by its officials with the exception of occasional violations which are unavoidable even under the best directions. The rules of the strict legal provisions of the German Penal Law against the ill-treatment of prisoners will emphasize this point. The cases mentioned which date from the last days before the collapse offer, as a singular sign of that moment, no basis for a general judgment of the German execution of punishment, and will be referred to as each individual case comes up.
The action of the judges (Spruchrichter) dealt with in the indictment and the charges raised in this connection will bring the legal position of the German judge up for discussion. We shall see the judge as an independent official who is not bound to directives but only to the law. We will discuss the positivism of the German interpretation of law. He will deal with the prosecution's charges arising from the directing regulations. We will show that they are merely a reference to the motive and aims of the law in question, and that they - to some ex tent - give a clear conception of the policy of the legislator regarding crime.
They are a clue to the wary in which the legislator imagines punishment should be awarded by the judge. They are in no case a generaldirective or a directive pertaining to an individual case.
In dealing with the position of the Public Prosecutors we will refer to the principle of legality which is laid down by law, and according to which the Public Prosecutor was bound to prefer a charge as soon as there was sufficient suspicion that the criminal facts as laid down in a legal provision existed.
In conclusion the defense will also deal with the legal questions arising from Control Council Law No. 10 itself. We know that the Tribunal has been called together in order to pass judgment on the basis of this law.
On the basis of this actual fact, and in compliance therewith, we will for practical reasons refrain from repeating the relevant objections already raised in the proceedings before the IMT and other proceedings before similar tribunals in session. On account of these considerations we will restrict ourselves to the real legal questions as to whether an indictment is permissible from the point of view of conspiracy in war crimes and crimes against humanity of Control Council Law No. 10. In this respect my colleague Dr. Haensel will provide detailed statements hereon in due course.
At the beginning of the evidence for the defense and in connection with the opening statements on behalf of the individual defendants, the defense intends to call in two experts for the legal questions of general interest, namely:
1. Dr. JAHRREISS, Professor of Public and International Law at the University of Cologne, 2. Dr. NIETHAMMER of Tuebingen, formerly Reich Public Prosecutor, now honorary professor of Criminal Law and Criminal Procedure.
As far as documents are being introduced with regard to the general questions discussed--
We will not be able to produce Dr. Jahrreiss at this time, Profes sor Jahrreiss cannot get away; he will only be available later on in July, and perhaps a suitable moment will come then when he can be examined when we have dealt with the cases of the officials of the Ministry of Justice.
As far as documents are being introduced with regard to general questions discussed, they will be handed over during the defense of the individual defendants. For the purpose of survey we will at the conclusion hand over the documents relative to a particular subject compiled in a special document book.
The defense has distributed the subjects which have arisen as a result of my survey among the individual counsels for the defense. Counsels in question will go into these cases during the proceedings and in particular at the time of the closing statement.
The subjects are classified in the following manner:
1. General questions on Public Law and International Penal Law; Dr. Schilf 2. Legislative - Machinery and Technique:
Myself 3. Relationship between Judicial Authorities and Police:
Myself 4. Relationship between Judicial Authorities and the Ministry of Propaganda and the News Service in the Nazi State:
Dr. Schilf 5. System and Structure of Reich Administration of Justice, also:
Dr. Schilf 6. Introduction of German Law and German Jurisdiction in the Protectorate and the occupied Eastern Territories:
Myself 7. Sovereignty of Justice in the incorporated and occupied territories:
Myself 8. German Court Organization - Special Courts and Brieger People's Court:
Grube 9. German Criminal Procedure:
Doetzer 10.
Extraordinary Objection: Grube 11.
Nullity Plea: Schilf 12.
Retrospectiveness of Penal Laws and Legal Analogy: Aschenauer Schilf 13.
Types of Perpetrator: Schubert 14.
Military Penal Law: Koessel 15.
Independence of Judges and Directive Measures: Aschenauer, Schilf 16.
Law of Pardon: Myself 17.
Execution of Sentence: Marx 18.
Lynch Laws: Orth 19.
Sterilization and Euthanasia: Orth and myself 20.
Conspiracy and Control Council Law No. 10: Haensel, Doetzer, Wandschneider.
May I now begin making my statement for the defendant Schlegelberger?
THE PRESIDENT: Do you have that in the translated form for us? We have it, thank you.
Court No. III, Case No. 3.
DR. KOBOSCHOK: If, in my statement concerning the defense in general, I have just pointed out that the administration of Justice in the National Socialist State cannot be judged separately but must be judged in the light of the whole administration of the Reich and its head, the dictatorship, thus, I shall have to refer, in defending the defendant Schlegelberger, again and again to his personality, quite apart from dealing with the objective facts as propounded by the prosecution, in order to judge and interpret actions in their proper light.
Franz Schlegelberger was, after many years of service to both the administration of justice and the jurisprudence, already UnderSecretary when Hitler came to power. He kept this position until August 1942, when Hitler, according to his pronouncements, wanted to build up a National Socialist administration of justice. Schlegelberger had always been dealing with civil law. We will outline this, his activity, in general. When in January 1941, after the death of the Minister of Justice Guertner, he took over the administration of the Ministry of Justice as the then oldest Under-Secretary according to rank, so to speak, only then did he, in this position, and to the extent of that position, have to deal with criminal cases.
If the prosecution on account of this, his position, has indicted him on these individual counts and included him in the common legal framework of conspiracy, the defense will first of all show that Control Council law No. 10 does not provide a legal basis for an indictment of conspiracy to war crimes and crimes against humanity. My colleague, Dr. Haensel, responsible for the entire defense, has taken over this subject and will make the necessary statements and put forward motions. In addition, I myself will submit sufficient evidence to prove that with a person of Schlegelberger's calibre, conspiracy and violent thinking are incompatible. I shall submit proof as to his basic attitude during the whole of his tenure of office, that he could never have either favored or promoted principles of violent thinking;