Court NO. III, Case No. 3.
Although I am convinced by virtue of this legal question that defendant Lautz cannot be made responsible under criminal law for the sentences pronounced by the People's Court, I shall nevertheless help to prove by my submission of evidence that the People's Court was an unobjectionable institution, that any trial before it gave the defendants every guarantee of justice and that the sentences of the People's Court and their execution did not constitute any violation of International Law, of the general principles of penal law or of Article II of Control Council Law No. 10.
I furthermore shall prove that the defendant Lautz had nothing to do with penal administration. It will be proven that the prisons were not subordinated to him and that he had no possibility of influencing them or the execution of penalties in any way. As has already been stated it will be proven in the course of the general defense that already for legal reasons a condemnation of those arraigned here for conspiracy is not possible. I shall moreover take the precaution of proving that defendant Lautz did indeed not participate in any conspiracy. Lautz is a specialist official in particular. He owes his advancement to higher Government positions exclusively to his specialist achievements. This is already proven by the fact that he was promoted to Chief Reich Public Prosecutor of the District Court I in Berlin on 13 May 1932, i.e. before Hitler seized power. At that time only such men were appointed to this important office who were destined, should they prove their efficiency, to be appointed General Public Prosecutor after a short time or to be called to some other equally important office. This is already clear proof of the specialist qualities of defendant Lautz. Taking into consideration the fact that Lautz at that time was appointed to the office of Chief Reich Public Prosecutor by the Prussian Republican Government, although he had no connections whatsoever with the authoritative political parties, renders this proof even more unmistakably clear. The course of his career was not so extraordinary therefore when Lautz in 1336 was entrusted with the direction Court No. III, Case No. 3.of the Public Prosecution in Berlin and in 1937 was appointed General Public Prosecutor in Karlsruhe.
Ont of the witnesses of the Prosecuting Authority, Pfarrer (Vicar) Wein, had stated during the course of his interrogation before the Court: "Under Guertner conditions were human. He was like a rock amidst surging waves". As will be proven by the evidence to be taken, Lautz was appointed in 1939 to the office of Chief Reich Public Prosecutor at the People's Court by this Reich Minister of Justice, Guertner, for the very reason that Guertner and the circles supporting him, who advocated a clean, moderate and fair justice wished to prevent that this office should be assigned to some unscrupulous member of the party. I shall prove by several witnesses and numerous affidavits that Lautz, as a lawyer of the old school, was guided solely by the ideal of the constitutional State, previous to 1939 as well as after 1939, and that he never disabused the trust bestowed on him by Guertner and his circles."
DR. SCHILF (Attorney for Defendant Mettgenberg):
May it please the tribunal:
1.) The presentation of my evidence concerning my client, Dr. Wolfgang METTGENBERG, will be limited. This results particularly from the fact that although the indictment of 4 January 1947 has raised numerous charges against him to be the same, but the prosecution in its presentation of its evidence was unable to produce anything at all against my client on several counts.
Regarding count I of the indictment, the charge referring to the common design and conspiracy, I shall, as a matter of fact only have to discuss the position of my client in the organizational structure of the Ministry of Justice. In accordance with the statements made by the defense as a whole, especially with regard to the so-called "Fuehrerstaat" and the concept of "conspiracy". I shall show that Dr. METTGENBERG within the Ministry, in which hundreds of legal expects were active, can in no case be accused of any influence whatsoever on Court No. III, Case No. 3.the illegal interpretations of law or on actions contrary to law.
Dr. METTGENBERG was appointed to the Reich Ministry of Justice already in 1920. At that time, he was already well known as an expert in matters pertaining to international criminal law, especially pertaining to extradition law. Already from the year 1905 onwards he distinguished himself by publications in this field. Within the Ministry, he conducted in an official capacity numerous negotiations with foreign governments. His name appears on several treaties between states concerning international law, in this way it appears on the treaty of 12 July 1930, which was concluded between the government of the United States of America and the German Reich. He always considered the problems and tasks of International Criminal Law as his life's work and the goal of his scientific endeavors. Up till 1944 he also continually wrote about these questions. I shall be able to submit a list of these works, papers, of my client to the Tribunal and shall be able to refer to the fact that he too helped in laying the foundations for the reputation which the German jurisprudence enjoyed abroad - and not the least in the USA - in the sense of the statements made by General Taylor himself in his opening statement of 5 March 1947 in whose opinion, however, this reputation existed only up to 1933 in foreign countries.
Dr. METTGENBERG was never a member of the Party and his views were not close to the National Socialist ideology. Consequently, he was purposely excluded from some tasks in the Ministry. Only after 16 years of recognized scientific activity in the Reich Ministry of Justice did he attain the position of a director, of a director of a subdivision, with the title of Ministerial dirigent. As such, he was subject to the orders of his superior offices in all the fields of his activity.
The position of a director of a director of a subdivision in the Reich Ministry of Justice is difficult to describe, and in the structure of the Ministerial bureaucracy, it showed such a position cannot be un Court No. III, Case No. 3.equivocally established.
In the presentation of my evidence I shall attempt, to give a picture of this situation in order to make clear what a shifting and hybrid position that of a sub-division chief was Inasmuch as the prosecution, contrary to the statements in the indictment, has produced neither documents nor evidence nor witnesses relative to the majority of counts in the course of its presentation of evidence, I shall, in the presentation of my evidence, be able to indicate that the prosecution in its accusations has gone far beyond its self appointed goals.
This will make possible conclusions of importance to the remaining charges, which the prosecution believes to have substantiated through the evidence produced.
The indictment declares under Count II (the assertion of procedures contrary to international law) and in Count III (assertion of inhumane procedures) that Dr. Mettgenberg too was responsible for the exceptional legislation against foreign peoples. (Point 10 and 22 of the indictment). I can already state at the opening of my defense that the prosecution has produced no evidence whatsoever in support of this assertion.
The same applies to the statement that Dr. Mettgenberg had acted contrary to law by extending and distorting such criminal laws when passing judgment and in the execution of sentences passed. (Points 11 and 23 of the indictment). That, too, remained a mere assertion. Merely from the position held by my client in the Ministry it can be seen, that this charge was unfounded from the very beginning. My client participated neither in the passing of judgment nor in the meting out of such punishment, as has been defined by the prosecution as illegal extension of the concept of "high treason".
The same result appears for the Prosecution with reference to points 12 and 24 of the indictment. No evidence has been introduced against Dr. Mettgenberg on the basis of which it might be assumed, that he was too instrumental in establishing emergency legislation for illegal annexation of non-German countries. This survey of the evidence presented by the prosecution enables me to limit my evidence.
The prosecution has presented only very few documents relative to points 14 and 26 of the indictment. In all cases it is a question of the "proceedings which were handled in Department IV of the Reich Ministry of Justice.
The Tribunal will recall that this Main Department IV has been described as the division for the Administration of Criminal Law. Thus it was the section of the Ministry which dealt with the administration of matters of criminal law. This Division treated above all general questions of criminal law and, in contrast to the Main Department III, which was in charge of the legislation in criminal cases, the laws were formulated, insofar as basic problems of criminal law(substantial law) and penal procedure, that is, law of procedure, were concerned. For this purpose Department IV issued directives which served to explain the legal provisions. Further it had to supervise courts, prosecution authorities and other judicial offices in reference to the uniform observance of legal provisions.
Within this Main Department IV, gradually five subdivisions were created. In his capacity as the director of merely one such subdivision, Dr. Mettgenberg consequently handled only a very limited section of the large organization of a central judicial body. In my presentation of evidence, I shall have to go into details regarding the sphere of duties of this subdivision. I believe I am right in presenting already now to the Tribunal a brief description of the field of activity of this subdivision thereby putting a guide at the disposal of the Tribunal, when I shall begin to expound my case with respect to the complicated structure of this section which is difficult to survey:
My client was occupied essentially with the following questions although organizational changes within Department IV took place and although the matters to be handled, varied continuously.
a) with all questions of international criminal law, that is particularly, with the law which pertained to extradition to foreign governments;
b) with the co-examination of general directives, which had to be issued continually relative to procedure to be followed in criminal cases according to the German Code of Criminal Procedure.
c) with the co-examination of directives, in which cases the subdivisions of the Central Judicial Authority had to report on the activities relating to their geographically limited area of competence.
d) with the co-examination of general directives which concerned the formulation of the statute law pertaining to the infliction of punishment.
In this respect too directives for procedure are concerned. The sphere of activity was therefore completely separated from the problems of the practical execution of punishment, which were handled by a special Main Division, namely the Division V of the Ministry.
I will submit documents in order to give some idea of the field of activities and of my client's method of work. This will prove that the few documents submitted by the prosecution concerned only an infinitesimal part of the activities of Dr. Mettgenberg and that from that incoherent evidence, moreover, nothing contrary to International Law and no violation of human rights appears.
Besides this sphere of activity concerning criminal cases, defined according to factual points of view, the supervision of some of the "District Experts" (Bezirksreferenten) was assigned to my client from time to time. As far as general criminal matters were concerned, these referenten of the Ministry supervised local districts, namely different districts of Courts of Appeal. In this respect, the practice of the courts was to be followed to heed interference of other authorities in pending court procedures and to thwart them; attention had to be paid also to the securing and observance of the law, and to its correct administration and interpretation.
"As far as this supervision was excercized by the subdivision of my client, it was limited to the general criminality, too: it therefore corresponded to the above-mentioned sphere of activity as a subdivision chief.
These "District Departments" (Bezirksreferate) were not competent for fields in which the prosecution seems to be especially interested according to the indictment; namely cases of high treason and treason, of undermining of the fighting morale, of criminal cases concerning the war economy, of the practice of pardoning in cases of death sentences and the like. For these cases Special Departments (Sonderreferate) were created and assumed to other subdivisions. My client was not active in such a Special Department.
THE PRESIDENT: Doctor, we will take our recess now for fifteen minutes. You may then resume.
(A recess was taken.)
THE MARSHAL: All persons in the courtroom will please find their seats. The guards will please close the door.
Military Tribunal No. III is again in session.
THE PRESIDENT: You may proceed.
DR. SCHILF: Before the recess I spoke of matters which are of interest to the Sub-Division Head, and I am now continuing.
"When presenting the evidence, which will be supported in the first place by calling the defendant himself to the witness box, it will be shown that my client in his work was chiefly concerned with problems of general criminality and that everything else remained in the background. In doing so, he experienced an activity in a way similar to the manner in which any control authority of the Administration of Justice in the world would have to act.
"Many problems which were to be handled by Division IV, did not concern a sub-division chief at all but were decided upon by the Division-Chief - a Ministerial Director - alone together with his specialists and without the cooperation of the sub-division chief. These cases directly subordinated to the Division Chief did therefore not belong to the sphere of activities of Dr. Mettgenberg. In exceptional cases only, if the Division Chief was prevented from doing so, my client could accept reports or make decisions in less important cases.
"I am sorry to have to expound this complicated organizational structure, but this is essential, because in every case I must make clear to the Tribunal, in what capacity Dr. Mettgenberg had become active from case to case.
"The prosecution submitted no evidence to the fact that my client as an expert of International Penal Law was chiefly handling problems of International Penal Law, especially matters of extradition law. As such he belonged to the Main Division III of the Ministry as a special expert (Referent).
"While the prosecution submitted only very little evidence dealing with the fields of activities outlined above, considerable evidence was submitted against my client as far as the charge of violation of international law and principles of humanity in handling the socalled Nacht- u. Nebelsachen (Night and Fog cases) (Counts 14 and 25 of the indictment) were concerned.
"In the presentation of my evidence I shall attempt to attach weight to the fact, that my client was well aware of the principles of international law. From 1905 on as already stated he distinguished himself publicly in such questions and had to handle them already since 1920 as a ministerial official. He, therefore, had the prerequisites to recognize, where approximately a law issued by Hitler disregarded the limits of recognized International Law. When he had to deal with these NN-matters for the first time in fall 1942 in the Ministry, the basic problems of international law were already clarified. It was especially made clear, that the transfer of foreign civilians, who in themselves were subject to the jurisdiction of Court Martials, to Courts in Germany proper, only required a decision of the military commanders in the occupied enemy territories. The general defense has already pointed out, that the legal basis for such a transfer was art. 3, paragraph 2, sentence 2 of the decree concerning Court Martial procedure during the war and concerning special military actions (Code covering criminal proceedings in wartime) - KSTVO. The general defense already pointed to the fact, that this law was decreed by Hitler himself together with the Chief of the Supreme Command of the Wehrmacht without consultation of the Ministry of Justice. The above mentioned legal provisions only conceded to the OKW (Supreme Command of the Wehrmacht) or the competent offices supervising justice administration the right to decide in which cases these foreign civilians were not to be subjected to Court Martial proceedings in the occupied Western areas of Europe. By the "transfer" (Abgabe) of these perpetrators who committed any punishable act against German troops or against the Reich, their cases became subject to the judicial power of the courts in Germany proper.
At the time when my client was familiarized with these matters - the NN-cases were assigned to his sub-division in view of their pertinence to international penal matters - there existed already the agreement made between the OKW (Supreme Command of the Wehrmacht) and the Reich Minister of Justice guaranteeing that foreign civilians could be brought before a court at all. This was just in accordance with the International Law and the individual provisions of the Hague Convention, regardless what Hitler and Keitel originally may have intended by their notorious "NachtNebel-Decree". The civilian prisoners were not anymore merely left in the hands of the police but both, the Wehrmacht and the genera, justice had created the practical prerequisites enabling the military commanders in the light of Art. 3, paragraph 2 of the KSTVO (Criminal Proceedings in wartime) to dispense with a criminal procedure of their own and yet to make a verdict against the defendant possible.
"In presenting my evidence it will also be possible to make clear that the decree issued by Keitel, put military interests in the foreground. It was the duty of the justice of the Wehrmacht to find a procedure, which considered this interest on the one hand but respected the international law on the other. Only by considering the later development of these NN-matters, it will be possible to recognize that the Administration of Justice succeeded in directing again back into channels corresponding to generally recognized rules of law the policy of disregarding International Law, intended by other authorities.
"In elaborating my case, in connection with the NN-matters, it will be unavoidable to discuss also the reasons of the duty of secrecy, which was imposed to such considerable extent to judicial authorities in Germany proper. Most of the charges made by the prosecution are concerned with details of the formulation of this secrecy of procedure.
The reasons given by the military authorities for this secrecy were sufficient in the sense of international law as being in the interest of military operations in the meaning of the Hague Convention, and furthermore the officials of the Ministry of Justice - such as my client - were not in a position to verify these reasons. My client, too, as will be clearly shown by my evidence, could never be in a position to determine, whether these military interests were or were not determined by arbitrary judgments of the military commanders.
"For him as an expert in international law it was an established fact that according to the Hague Convention the military interests had no priority over the rights of the civilian population with regard to the protection of their elementary vital interests.
"This point of view is already clearly indicated in the documents submitted by the prosecution which I shall discuss further in my demonstration of evidence. It seems to me that it is advisable to give the Tribunal already now, in my introductory statement some hints where these indications can be found in the documents of the prosecution. By doing so I believe to be in the position to assist the Tribunal in its task of arranging the material which is difficult to survey.
"In Section V of the basic decree of Keitel of 12 December 1941 i.e. exh. 305 - NO 669-PS - and in par. 3 of the basic decree of the Reich Minister of Justice of 28 October 1942 - i.e. exh. 313 NG 226 - the term "military interests" is used explicitly. From these two documents we can clearly recognize the legal foundation for the activities of the officials of the Ministry of Justice. Above all they show that the "transfer" (Abgabe) of the NN prisoners who were in se subjected to the proceedings in wartime were put under the jurisdiction of the Justice authorities only for the duration of those proceedings in Germany and for the period during which they were subjected to the general exeutory administration of the inland.
This is important for the fact that - I believe to be able to make this clear when I present my case - the justice authorities and, therefore, also my client did not have the possibility to prevent in September 1944 the withdrawal of all NN prisoners remained under the jurisdiction of the military offices from the time of the first charge raised against them in the occupied territories until the end. The military authorities could therefore ask for the return of these prisoners at any time, during their "transfer" to the German justice authorities of the inland. They could do so not only during the criminal proceedings themselves but also during the serving of the sentence or after the termination of the prison term. Also in this connection I think it advisable, to direct your attention to the decree of the Reich Minister of Justice of 6 February 1942 - exh. 308 - NG 232 - and exh. 326 - that is NG 203.
"If I should succeed in clarifying through the evidence which I shall submit, the legal foundation and its unanimous interpretation by all authorities which have to handle this matter, then the court will see that the Military Authorities which were alone responsible for the handling of these affairs were, in September 1944, without further ado in the position to change the "transfer proceedings" without even consulting the offices of the Ministry of Justice.
From this time a declaration in accordance with art. 3 subpar. 3 sentence 2 of the decree concerning criminal proceedings in war-time was not given anymore and therefore the German Courts of the inland were not competent any more. As far as NN-prisoners were at that time in the custody of the justice authorities, the military offices could ask for their return no matter how far the legal proceedings had progressed, since these prisoners were always at the disposal and under the jurisdiction of the military offices.
But as long as the military offices, in accordance with justmentioned legal provision, made use of their right of "transfer" in the western territories of Europe during the time of the occupation by German troops, the justice authorities of the inland considered it as very important that all NN-prisoners be tried before a court. It will be possible to prove by the exh. 342 -- that is, NG 216 -- that the Ministry of Justice referred with success to the observation of the legal previsions and that it did so first of all in opposition to the different intentions of the police. This will be an example to prove how far the justice authorities had success with their conception that law has to prevail.
Objections with regard to international law can also not be raised against the execution of penalties, pronounced by German Courts of the inland against NN-prisoners, in German penal institutions. I will be able to demonstrate during the submission of evidence that it was in accordance with the accepted rules of international law that foreign civilians, who were sentenced by civilian authorities, were subjected to the same conditions as the nationals of the occupying power. No objection can be made to the fact that NN-prisoners worked in so-called "armament plants" although the division V of the Ministry was competent and responsible for this matter, and my client had therefore personally nothing to do with it.
Proof will be submitted to this Tribunal from which it may recognize the vast extent given to the term of "armament work" in Germany. During the last years of the war there was in Germany simply no other possibility of work, the only work was "armament" work.
During the submission of evidence it will also be my task to discuss the subjective side of all measures of my client.
It was clear to all justice officials who had to deal with this matter that from a military point of view one had to fight the new methods of the underground forces with new countermeasures. According to international law a resistance movement against the occupational power necessarily lead to reprisals. It was clear that it was the task of the military commanders to prevent any communication between the scattered individual groups of the resistance movements. The absolute secrecy was therefore not only imperative in order to protect the security of the state but it had also a special purpose in these cases. When submitting the evidence I will refer, if possible, to all the legal previsions with regard to the obligation to keep these matters secret. I will be able to point to analogous cases in the German law of the past, and also to the fact that other occupying powers used to exercise similar rights. Thus it will be demonstrated that in the final result the provisions with regard to the obligation to keep these matters secret were justified and that the criminal intention of Hitler's order of 12 December 1941 to start these proceedings exclusively for deterring purposes practically lost its significance completely. Besides, it is a debatable point whether in view of the extraordinary conditions during the second World War such deterring purposes (prevention of crimes in general) cannot be justified from the point of view of the policy of penal legislation. At any rate the practice of the German Courts of the inland has shown that as a result of the strict observation of the rules which order to keep these matters secret, indicted NN-prisoners were acquitted in many cases for lack of proofs, or received for the same reason a much milder sentence than they would have had to expect from a Military Court in the occupied territories.
This was, so to say, the price which the military authorities had to pay for keeping these matters secret in accordance with their orders.
This trial will therefore offer an opportunity to acquire a more detailed knowledge of the real circumstances of the "Nacht und Nebel" matters. Thus we will see that corrections have to be made in matters which provided the basis for the verdict of the IMT.
I have now concluded my opening statement.
DR. KUBUSCHOK (Counsel for the defendant Wilhelm von Ammon): May it please the Court, the prosecution has submitted no evidence connecting the defendant von Ammon with counts 10, 16, 22 and 28 of the indictment. The defense will therefore deal only with the count concerning the NN matters while disputing the legal admissibility of the accusation of conspiracy. The defense will explain the origin and the legal basis of the NN regulations. It will be shown that the legal authorities participated in the work on the NN matters only to such an extent and as long as they were delegated to do so by the competent Wehrmacht authorities.
As regards the participation of the defendant von Ammon in this department which had been allocated to him in the course of the allocation of duties in the ministry, the following will be dealt with: von Ammon's position as an expert, who was subordinated to the subdivisional chief Ministerialdirektor Mettgenberg, divisional chief at first Ministerialdirektor Crohne, later Ministerialdirektor Vollmer, Under-Secretary, at first Freisler and later Klemm, and lastly the minister himself. If, therefore, von Ammon only ranked fifth in seniority, then this fact determines also his authority to sign and his actual responsibility. All important matters required the signature of at least the sub-divisional chief, in most cases that of the divisional chief.
We therefore find that none of the letters from the Reich Ministry to another office, which have been submitted by the prosecution, were signed by von Ammon.
I shall prove that von Ammon did not participate in drawing up the basic legal regulations. Thus the legal argument arises whether a person who has merely to carry out administrative tasks without thereby causing a wrong to be done in the sense of sufficient causality by this activity itself, bears a criminal responsibility for this.
I shall describe how the NN proceedings were carried out and shall show that no special regulations were issued, restricting the proper trial beyond the secrecy decreed by law. As can be seen from the Circular of 6 March 1943 -- NG 269 -- submitted by the prosecution, care was taken that the prisoners did not forego their otherwise customary rights, as long as the purpose of this secrecy was not endangered. I shall disprove the view of the prosecution that persons who had obviously not committed any act of resistance were treated in the same way as guilty NN prisoners. I shall explain that on principle the Wehrmacht authorities in the occupied territories handedover only such cases to the legal authorities in Germany where the evidence was materially complete, as the witness Lehmann testified earlier. It will be proved that even where the innocence of the prisoner was established only in Germany, there was the possibility of being released to the occupied territories.
Evidence will be produced from the proceedings of the courts that the NN trials were in no way conducted differently from other trials, except for the restrictions for reasons of secrecy. It will particularly be shown Court No. III, Case No. 3.that the difficulties in procuring evidence from the occupied territories in so far favored the defendant as he was protected by the principle employed in German criminal procedure:
in dubio pro reo, i.e., the defendant had to be acquitted in case of doubt where the evidence in support of the indictment was incomplete. I shall endeavor to give a summary of the sentences given in actual practice.
In regard to the handing over of NN prisoners to the police, no responsibility can be attached to the defendant von Ammon for participation.
Documents will prove that the defendant von Ammon always showed a tendency towards leniency, considering the prevailing circumstances and the extent of his competence. This will also be clearly in keeping with the whole personality of the defendant. We shall find him an official who entered the ministerial career solely on the strength of his expert knowledge immediately after he passed his legal examination with special distinction, the type of man with a sense of duty who lives only for his work. Von Ammon was not an active National Socialist, this is confirmed by his entering the Party only in 1937, comparatively late for a ministerial official. I shall produce testimonials, characterizing the defendant as a deeply humane and strictly religious man. I feel also that the trial will enable the Tribunal to form their own impression in this respect. In these circumstances it will have to be examined all the more carefully whether the evidence shows that this man is guilty of a crime against humanity irreconcilable with his character.
DR. FREDERSDORF (Assistant to Dr. Haensel, Defense Counsel for the Defendant Joel): May it please the Court, owing to some difficulties which occurred either during the translation or duplicating of the opening statement for the defendant Joel, this translation has not yet been completed as I heard during the recess. Therefore I would ask the Tribunal to permit me that the defense counsel who should follow Joel's defense counsel should read his opening statement before the opening Court No. III, Case No. 3.speech for the defendant Joel is read and to permit me to read the opening statement for the defendant Joel out of chronological order at a later time.
I should like to say that we for our part did submit the opening statement at the proper time. I was assured that in the course of this afternoon of evening the mimeographing of the opening statement would be completed.
THE PRESIDENT: You would be prepared, then, to make your opening statement sometime tomorrow?
DR. FREDERSDORF: Yes, of course.
THE PRESIDENT: You may postpone your opening statement until tomorrow. We will hear the next.
DR. KOESSL (For the defendant Rothaug):
May it please the Tribunal.
If I correctly understand the unuttered yet cogent logic of the charges listed in the indictment, the effect and example of that legal system, to which the Prosecution tries to attach the stigma of a criminal government institution, begins with the Rothaug case. The evidence against him, out of proportion considering the entire framework of the indictment is in contrast to his mere functional position, based on his activities as judge and prosecutor.
Although I am aware of the fact that such purely external disproportion between the importance of the matter on the one hand and the deployment of means on the other hand, as seen from a higher point of view, may cause a shifting of the focus in the eyes of a superficial observer, I am however certain that the desire for a true and just sentence will prevent the overlooking of the limitations and degrees of responsibility.
Yet the direction of the main thrust of the Prosecution has become rather clearly discernible by the few submitted documents, out of thousands of files. We face it with a clear conscience, calm and courageously, for documents do not lie.
What distresses us, is the evidence submitted in order to impress Court NO.
III, Case No. 3.
and otherwise help the main thrust, evidence which has been available in accessible localities and without difficulties, with incriminating tendencies, sometimes even eager to incriminate and which has offered in hundreds of variations and superlatives an almost unfathomable jungle of assertions, estimates and opinions.
The mobilization of this evidence compels us to handle the most enervating and tedious detail for truth's sake.
I expect to relieve us of much of this wearisome detail by first treating and solving problems touched upon by coarsening efforts, misrepresentations, distortions and half-truths, in their entirety and from the broadest view-points possible.
At this point in the proceedings, I do not wish to put to the fore legal questions within the framework of the defense, such as the concept of conspiracy or the subjective fact and the confines of the crimes against humanity.
On the other hand, it will be unavoidable within the frame of the producing of evidence to convince the Court that the entirely individual, biased power position between the state on the one hand and the individual judge or prosecutor on the other hand, in accordance with the regulations governing German Civil Servants allows no scope in the field of the application of the law for a simultaneously existing intellectual alliance in the sense of a conspiracy, but that a connection of this power position, in full knowledge of its legal nature, with a simultaneous assumption of a conspiracy would mean a contradiction in itself. Here it becomes necessary to prove that the activity of a judge at the Special Court or a Reich Public Prosecutor is limited to the application of the law which is based on the official Reich legislation in the field of criminal law. I shall demonstrate that this Reich legislation in all its harshness has, in its purpose, neither lost nor limited its character of purely criminal law and that, on this point, it has not been misinterpreted as clearly proved by the literature on the subject and the jurisdiction by the supreme judicial Court No. III, Case No. 3.authorities and others.