Here I start from the point that further exonerating sentences and decisions to which we no longer have access on account of the peculiarities of the proceedings of the Party (Parteiprozess), do not exist. Therefore I must strongly appeal to the Tribunal to consider with regard to the pronouncing of sentences under the presidency of my client only those facts as proven, which are actually proven by original documents of the District Court of Appeal and the Special Court Stuttgart, and not those which are based on testimony given by witnesses who were not concerned with the cases as judges and therefore do not guarantee that their testimony excludes the possibility of error with regard to all important points.
One of the most important points in the administration of Criminal law at all times and in all countries is the rule: "in dubio pro reo" and the Military Tribunals here have also adopted this principle as the corner-stone for their work in connection with Criminal Law.
The following can be said to the various counts of the indictment individually:
Roman numeral I. To count 1 of the indictment:
The opposing party accuses my client of becoming guilty of a conspiracy with other persons, including also the defendants at this trial. This accusation has no lawful basis and is not actually proven and I only state in order to complete the facts, that my client saw the majority of the co-defendants for the first time in his life when the indictment was served here in this house. Neither did my Client try to contact leading personalities of the Party, the Gestapo, or the Security Service in connection with his activity as judge.
The calculation that my client is supposed to have acted against the independency of judges, against law and justice and therefore against ethics of law will be shown as a misjudgement of the actual conditions, in the course of my submitting of evidence.
2. and 3. Before commenting on counts 2 and 3 of the indictment let some basic facts be given with regard to the limits of the competencies of the Criminal Chamber (Strafsenat) and the Special Courts, in agreement with the rule laid down by the High Tribunal to the effect that the efficacy of my client as Presiding Judge of the Criminal Chamber is to be discussed only in as far as this is necessary in order to round off the judgment of his activity as judge. The District Court of A peal which had already existed for over a century remained even after 1933 and up to the capitulation along with the People's Court which was established later the competent court for a number of cases of treason and high treason. In cases of the seditious undermining of the military morale the District Court of Appeal was competent at least in a subsidiary capacity.
A simplification in the proceedings of Criminal cases was for the first time carried out with great energy as early as in the first years after the first world war, since then it was continually extended and in the individual special regulations for the Special Courts this simplification did not show its first, but only its pronounced results. The competency of the District Courts of Appeal for cases of treason and high treason was, with regard to the Special Courts, secured by the Legislator, in order to keep up the ancient rules for the proceedings for these political offenses with a farreaching threat of punishment.
With regard to the Special Courts I will prove in opposition to the statements of the prosecution that they never were illegal courts for exceptional cases, but that they, as chambers of the district Courts, had a competency for everybody which was abstractly defined in law.
To count two of the indictment the following may be said:
Neither of the two above-mentioned courts pronounced political death sentences on Jews or foreigners; this will be proved by us only in order to complete the facts.
To count 3 of the indictment:
With regard to the fact that for the most severe political criminal cases the Criminal Chamber alone was competent, my evidence will prove, that the First Criminal Chamber of the District Court of Appeal in Stuttgart pronounced on an average only one death sentence per year, and all these death sentences only against German citizens.
A broader space in my argument will be required for Count 21 of the indictment in which my client is accused of participating in a reign of terror, the quelling of political opposition, abuse of regulations for proceedings in cases of citizens and foreigners which are supposed to have resulted in murder, brutalities, cruelties, tortures, atrocities, plundering of private property and inhuman acts. For those accusations the prosecution did not submit any evidence, and the prosecution will also not be able to submit evidence with regard to these accusations.
Neither do the cases against Jews enter the picture, because such cases were never brought before my client for sentencing.
Under the presidency of my client the Special Court at Stuttgart did not pronounce a death sentence in any political case. This is especially to be remembered here. That the Special Court Stuttgart pronounced death sentences in isolated cases of most severe general criminality and among these especially in cases of dangerous blackmarketeers and profiteers does not need to be and is not being denied here. In as far as still available and not already submitted these sentences will be submitted or explained by the judges who were officially concerned with these cases.
These death sentences were a result of the hard necessity of war conditions. Among the population they were generally approved. It will be shown that the most serious crimes against the war economy are severely punished also by persons in the then opposing camp, and that even today in view of the unchanging distressed condition of the German people the parties and unions in Germany continually demand in public demonstrations the death sentence for cases of severe profiteering.
When judging general criminal offenses, no difference was made between citizens and foreigners. This of course means that when sentencing criminal offenders, especially arch and habitual criminals, among them in repeated cases, persons convicted of indecent assaults, arson, burglary and other crimes, foreigners could not be granted a privileged position. On the other hand Cuhorst could not be forced to take a stronger attitude in principle either in the case of citizens or of foreigners and this in full agreement with the judges attached to him, because this seemed neither necessary nor is this a characteristic of the Swabian people. This tendency towards a middle way is a characteristic of the Swabian and is again and again shown in the more than 1,000 years' history of his race.
Therefore, it is not only a mere chance that from the establishing of the Special Court in Stuttgart until the capitulation it kept up the reputation of being one of the most lenient in Germany. The statistic material which is to be submitted will justify this.
In the English translation here it says, "The statistic material which is to be submitted". I should like to have the words deleted " which is to be submitted".
"The nerve racking fights of my client to keep to this middle and moderate way will be clearly evident in the course of the submitting of evidence.
To summarize, the following is already now to be said with regard to count 1-3 of the indictment:
The fact that my client acted always only in his capacity as judge must remain the starting point for all deliberations. Therefore, the initiating of the prosecution, the serving of the indictment and the carrying out of sentence were always outside the sphere of his activity as judge. He was subject to the law and there was no space in his mind for deliberations with regard to natural law when pronouncing a sentence. Here it must be emphasized that the ties to the standard law are traditionally for stronger in Germany than in the United States, namely the initiative of the judge is restricted to interpreting the existing legal conceptions and marshalling the facts of the case under these headings. The sharp division made between conceptions in criminal law and their continuous struggle among them had their roots in Germanic law, influences of church law and most of all in the codifications in criminal law which became more numerous from century to century. Already in the course of the 19th century deliberations with regard to natural law were relegated to the background by the activity of German jurists of world fame, and this retrograde development was accentuated by the fundamental philosophy of State and Law of this epoch. The development of Criminal Law ran parallel with this development of the Civil and State Law.
By relaxing rigid law and by borrowing from English and American conditions, a small but very active group of scientists and experts tried in the past decades to gain ground. Here I ask for a change in the text. It should say here " practitioners" instead of " experts".
Their activity was terminated without result a long time prior to the National Socialist epoch and never affected German Criminal Law.
Tied to the legally appointed government as judge and official and in view of the international recognition of this government, my client could have no doubts as long as he remained inside the law, to the application of which he was bound.
He did not participate in any deportations of foreigners to Germany, he only sentenced the foreigners who were put to trial by the prosecution if these foreigners were liable to punishment according to German law, and the carrying out of the sentence was in other hands. Therefore connections to the counts of the indictment changing persons of murder, extermination, enslavement, torture, etc. can not be seen, misdeeds which could be charged to government officials, officials of the party, the army, perhaps also to private persons, but under the existing conditions never to judges who were active only within their own state territory. For them it was only important that they acted within their own laws and put foreigners not into a worse position than citizens. Therefore they could not have had any feeling of guilt in connection with the above-mentioned individual crimes.
By stating this, the unavoidable central problem of this first proceeding, namely the position of the judge to the law should at least be touched. I will discuss this problem which with all its heights and depths points to past and future, once more at a later date.
To Count 4 of the indictment:
My statements at the last point of the indictment will be short. Here I do not need to concern myself with the evidence submitted by the prosecution.
No evidence was submitted. Therefore I am not forced by the proceeding itself, if I state that the record of the indictment is definitely correct according to which my client was only a contributing member of the SS, that is to say, not an active member of the SS. Therefore I only state for the sake of completion that evidence according to which my client is supposed to belong to the leading political officials (Amtstraeger) mentioned in the sentence of October 1946, will not be submitted.
For the moment I want to summarize as follows:
The evidence will show that my client has followed a consistent line throughout the years, during which he was President of the Special Court in Stuttgart and of a Senate of the Stuttgart Court of Appeals: lenient verdicts for political offenses, especially in cases of malicious attacks and those involving the undermining of military morale, severety - if justified by criminalistic considerations - only for non-political crimes, which, particularly during the time of war, demanded deterrent punishment because of their public danger end, therefore, also for the most severe cases of crimes against war economy.
"The defense now considers as exonerating documents those decrees affecting my client which were issued by the Reich Ministry of Justice."
In the translation unfortunately the translator left out one passage We should include here "submitted into evidence by the Prosecution" ((those decrees affecting my client submitted into evidence by the Prosecution.") "The evidence will show that this lenient line within the framework as outlined above was followed by my client throughout the period in which he held office in full agreement with his associate judges and inspite of all obstacles until such time as he was sent off to the Vehrmacht as Reserve Officer and he was taken prisoner of war on 6 May 1945.
"A judge who acted along this line and who was at all times bound by the law can not be a criminal."
DR. SCHUBERT: Dr. Schubert for the Defendant Oeschey.
May it please the Tribunal, The defendant, Oeschey, is charged by the prosecution on four counts, namely of participating in a conspiracy (Count 1 of the indictment), of committing war crimes (Count 2 of the indictment), of crimes against humanity (Count 3 of the indictment), and of participating in criminal organizations (Count 4 of the indictment). In reply, I intend to present the following:
Re Count 1 of the Indictment As far as Oeschey's being charged with having participated in a conspiracy to commit war crimes and crimes against humanity is concerned, I do not wish to go into detail with regards to the questions arising from this fact in this brief opening statement, but should like to leave the necessary observations in this regard to that one of my colleagues who will discuss it within the scope of the general defense.
In accordance with the judgment of the IMT, I deny the existence of any stipulation in the Control Council Law and in the statute of 3 August, 1945, which renders punishable a conspirary to commit war crimes or crimes against humanity. The fact that only a conspiracy to commit crimes against peace is mentioned therein clearly indicates that other types of conspiracies are not punishable.
Re Counts II and III of the Indictment Counts 2 and 3 of the indictment (war crimes and crimes against humanity) are appropriately being handled jointly.
The facts of the case are essentially the same, only that the individuals in question are different; count 2 of the indictment makes reference to civilians of the occupied territories and Jews, whereas in count 3 of the indictment indictment German civilians are also named.
The defendant, Oeschey, in his capacity as judge, is charged with having subjected foreigners and natives to a criminal misuse of penal proceedings, with having extirpated foreigners and Jews for trivial offenses, and thus having oppressed the political opposition, also that of the German people. As far as the charge in cipher 11 of the indictment is also being raised against Oeschey, that he sentenced non-German citizens for "high treason" , I am assuming that the indication will suffice that the prosecution has not presented one single case of high treason judged by Oeschey, that the Special Court, of which Oeschey was the presiding judge, was not at all competent for cases of high treason - competent was, as a matter of fact, only the People's Court aid that no case of high treason ever arose during the time when martial law was in force. Therefore, this count of the indictment is not applicable to the defendant.
In regard to the other charges the prosecution has offered extracts from several files of the Special Court as a basis for the indictment against Oeschey. In the majority of cases, however, the prosecution has submitted the evidence of witnesses, partly obtained through direct questioning of the witnesses in court, but for the most part through the presentation of affidavits. These affidavits, which were not always obtained by methods above reproach, were drawn up generally in the identical manner; to begin with, they contained general opinions and impressions of the witness concerning the personality and the manner with which the defendant judged the criminal cases presented to him, thereafter individual cases are specified in which the witness was either a participant in the trial or which he described on the basis of the files presented to him. Inasmuch as these affidavits contain the general viewpoints and opinions of the witnesses, they possess, to my way of thinking, no value as evidence, or in any event no important value. During the direst questioning of the witnesses, the Court has, with complete justifica tion, made it a point not to sustain questions pertaining to the personal opinion of witnesses for the witness should express himself in regard to the facts and should not render any judgments.
This remains in the province of the Court and should be permitted the attorneys for the prosecution and the defense counsel in their pleas through which they make suggestions to the high court. Therefore, I consider it the chief purpose of my defense to object to certain charges which have been raised by witnesses and have been made in the affidavits with respect to individual penal cases handled by Oeschey, or regarding certain incidents insofar as this has not already been done during the cross examination of the witnesses, especially of those who had made affidavits; these witnesses have already provided important additions to their affidavits, which are of great importance for the decision of the Court. The original affidavits considered only the incriminating circumstances and thus gave necessarily for this reason alone, a distorted picture. In the presentation of my evidence, I intend to proceed along lines which are different from those of the prosecution. I consider the documents as the most valuable evidence. These documents, for the most part, are available in the court files. Only when the documents require a clarification I shall introduce witnesses, among them the defendant as well, for evidence. In this manner, I hope to be able to reconstruct the facts of the case, upon which the case is contingent, in such fashion that errors in the judging of the evidence may be precluded. As a result of its extensive practice, the Court is certainly aware of the value or lack of value of the testimonies of witnesses. Therefore, I need not enter into a long discussion in that regard. The problematic value of the testimony of the witnesses plays an important part in the case of my client where it is a question of revitalizing legal procedures in which many times one word, a formality, a particular motion, or the use or non-use of a provision of the law, are important.
Through this presentation of evidence, I shall furnish proof that in none of the cases under discussion here does there exist a defeating of the aims of the law, either in the procedure or in the passing of judgment.
However, in doing so, I am aware that the problems inherent in this trial are not exhausted. I do not wish to state, though, that they are only just beginning at this point; on the contrary, I an convinced that with this proof, the vindication of my client is assured.
Here I have to interrupt one moment in order to correct a mistake in the translation. In the English copy the word "essential" has been left out; it should really read " the essential vindication of my client is assured."
In spite of this fact, however, the treatment of the basic problem of the judicial responsibility can not be avoided, and here, in my opini opinion, arises one of the most difficult questions which must be decided by the Court, namely:
Can a judge in any way be held responsible when he correctly administers the laws as decreed by the recognized authorities? This question may always be answered in the negative. The theory of German Constitutional Law, as well as the legal interpretation of the highest German court, has always denied the German judge the right to submit any properly promulgated law to an examination of its moral content. The English Jurists are of the same opinion, as far as I have had the opportunity to inform myself in this connection (e.g. Salmond, Jurisprudence, 8th Edition, London 1930, p. 185/86.) Therefore, the judge must administer the law regardless, whether it pleases him or not. This may well apply to the German as well as the Anglo-Saxon interpretation.
Now is there a limit which even the legislator may not transgress, and must the judge heed this limit?
In post-war Germany much has been written on the subject as to whether a judge can be held criminally responsible for administering laws which transgress the moral law, which, therefore, represent injustice in the form of a law. Scholars of high standing have attempted to find a solution to this difficult problem, and, so far as I can ascertain, have always arrived at the conclusion that the judge is not punishable.
It will be the task of the general defense to deal with this problem and to decide whether the formulation of the problem is correct at all and whether it is relevant for this trial. I should like to point merely to two points of view, which are of more practical importance:
"To begin with, it is extremely difficult to set a limit where a law ceases to be a just law. Everyone questioned on this subject would probably answer in a different way, in a concrete case. Moreover, obviously even the Military Government itself did not consider the legislation of the so-called Third Reich as null and as non-existent on account of immorality. For the law No. 10, issued by the Military Government, orders expressly a 'nullification' of Nazi Laws and also during the following periods individual laws were always 'nullified' by the Control Council, a procedure which would not have been necessary or not in this form if the laws as such would have been void. Thus, the Military Government itself took the position of a positive, which was always also for the German judge , due to his training and education, the decisive point of view.
The second point of view is the following:
The evidence submitted by the prosecution up to now has already demonstrated that the extremely severe sentences passed by the Special Courts were based upon some laws decreed in wartime; this is certainly true in the case of the defendant Oeschey. These laws do not provide for penalties for actions which in normal times or according to the laws of other nations are not punishable. They merely provide for more severe punalties under certain conditions which are due to the extraordinary circumstances during the war. They thus led to an application of the death penalty to an extent which would have been formerly incomprehensible. But as far as the verdicts of the Special Courts are concerned, almost always heavy crimes committed mostly by habitual criminals were handled there. I do not want to speak in favor of the National Socialist Penal Laws, but I think it goes too far to designate these laws - I am speaking in this regard principally of laws which have to do with the general but not with the political criminality - as obviously immoral ones.
The reasons, which were given for these laws, - that nobody in the homeland is permitted to enrich himself or to commit crimes which show an especially base attitude or are committed in an especially base way while at the same time the soldier in the frontline sacrifices his life without any reservation - do not lack a moral basis. Crimes which are committed by taking advantage of the conditions created by the war (which conditions were endured patiently by the people in spite of all sufferings) must be punished with extraordinary severeness. The plunderer in a war-area - and also the hinterland became a war-area due to the air-raids - deserves death according to the law of all civilized nations. The crimes which were handled by the Special Courts were in themselves serious violations of the law. In addition, criminality was on one hand favored by the war, on the other hand it had to he suppressed with special energy during the war, should the war effort and its success not be endangered. These considerations led, in other countries too, to more severe criminal laws and to more severe sentences. It is therefore not possible to simply condemn the Military Penal Legislation of the Third Reich and to regard it, absolutely and without any reservation, as immoral.
Here I should like to explain one mistake: Kriegsstrafgesetzgebung was translated as Military Penal Legislation, the correct translation would be Penal Legislation during Wartime; it being not a Military Legislation but a Legislation that came out during the war.
The Penal Lavs, especially those decreed in wartime, gave the judge a large margin for the just award of punishment. This margin very often ranged from imprisonment to the most severe penalty, capital punishment. As far as the legislator authorizes the judge, to determine the penalty within a certain range, it is at the discretion of the judge, which kind of punishment he wishes to choose.
But even in this decision he is not free wish to finish that paragraph?
THE PRESIDENT: Do you wish to finish that paragraph?
By fixing the range of punishment - even if this range is a wide one - the legislator somehow evaluated the crime in general in advance and the judge is bound to this evaluation; he therefore can not pursue a criminal policy which deviates from the intentions of the legislator. In meting out the punishment in the individual case within the range prescribed by the law he has to observe this point of view and its more detailed interpretation through the highest courts. The punishment has to be in relation to the criminal character of the act and to the kind of the crime. Under certain conditions he has, therefore also to pronounce the capital punishment. When awarding punishment, the defendant Oeschey did not deviate from these points of view and I shall prove that in no case he can be charged with having misused his discretion as a judge.
THE PRESIDENT: We will resume at 2:30 hours. We now take the recess.
(The recess was taken at 12:15 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 24 June 1947.)
THE MARSHAL: Persons in the Courtroom will please find their seats. The Tribunal is again in session.
DR. SCHUBERG: May I continue? I had discussed questions of punishment award and I am now continuing on page 7 of the German text; that is page 8 of the English text:
Besides, OESCHEY did not pass his sentences alone, but together with two associate-judges. As presiding judge he was not more than a "primus inter pares;" he did not have more than one vote and had in this respect just the same rights as his association judges. It is a generally observed phenomenon that a strong personality tries to put his opinion across, especially if he is convinced that his opinion is just. I cannot see anything extraordinary in the fact that OESCHEY, when conferring with his associate-judges, defended his opinion and tried to convince them accordingly. It has not been proved that by doing so he possibly employed means which were not permissible, and if an associate-judge states as witness today that he succumbed to the hypnotic power of OESCHEY' one must say that this belongs to the realm of phantasy. In this case the witness was either of dissenting opinion ....: I ask your pardon if I interrupt here; the expresssion here, in my opinion" has been mistranslated. I would ask you to change "of dissenting opinion" to "outvoted". In this case the witness was either outvoted - in order to pass a sentence OESCHEY needed the vote of at least one associate-judge - or he does not possess today the civil courage to stand for his conviction at that time if it should deviate from his today's conviction.
This statement would be incomplete if it would limit itself to the facts. The intent has also to be discussed. This was also recognized by the prosecution which quoted in its-opening statement (page 89 of the German Transcript) the formulation which judge Stephen gave with regard to the intent of the perpetrator in connection with a crime of manslaughter.
This formulation seems to be the same as the German conception which requires as prerequisites that the perpetrator wants the result and that he knows that his act was illegal. In our case the perpetrator would also have to know that in spite of the fact that he is acting in accordance with a law issued by the legislator, he is violating - at the same time - a superior law - the law of nature or moral code. When the defense presents its case, the Court will, as I hope, recognize to what extent the German People was exposed to an unscrupulous propaganda during the National Socialist Regime. Quite a number of witnesses declared frankly when I talked to them in person during the interrogations: "Under the influence of the conditions of the war and of the official publications we thought at that time that it was correct to pass these severe sentences." Should just the defendant 0LSCHEY have succeeded in remaining uninfluenced by this propaganda, should just he be made subjectively responsible for these severe sentences? Like innumerable other people he could not remain uninfluenced by this propaganda which told the German People only what it considered would serve its purpose, in order to withhold from the German People any report about the committed inhuman acts and in order to make it therefore impossible to form a true and just opinion. Surely, he was convinced that his sentences were just, a fact, which I shall prove during the defense by numerous examples.
The above statements apply as well to the substantive criminal law as to the law of criminal procedure. Those provisions which form in criminal procedure a guarantee for the defendant were considerably limited during the war due to the necessities of war time.
Within these limitations, however, a conscientious judge could so manage the individual trial that the essential requirements of an orderly trial, namely the according of a fair hearing to the defendant, the comprehensive and exhaustive explanation of the facts of the case suitable facilities for the defense, were obtained. I shall prove - so far as such proof has not resulted from cross-examination of the witnesses for the prosecution - that the defendant OESCHEY granted this fundamental requirement, allowed to every defendant in criminal proceedings held in due form, even in the Summary Court (Standgericht). The formal deficiencies of some trials conducted by OESCHEY which have been observed by the witnesses, and which consisted in misplaced treatment of those concerned in the proceedings, particularly of the defendant, originated in OESCHEY's somewhat unhappy temperament and has himself sincerely regretted them.
They have made no difference to the scrupulous finding of the facts of the case, as many witnesses have already confirmed, and many more will also confirm; they therefore do not constitute in themselves a violation of the law and do not prove lack of humanity, but are merely signs of clumsiness or lack of taste, as one witness put it.
The indictment has not however limited itself to charging the defendant OESCHEY with his own actions in the broadest sense but also accuses him of taking part in possible crimes committed by other people and includes in this accusation without consideration all the forms of participation given in Article II No. 2 of the Control Commission Law. This regulation comprises in part forms of participation which are known to German law and have also been developed and discussed by the German jurispurdence and jurisdiction, and in part such forms which are quite strange to our legal conceptions. It will therefore be necessary to examine the legal aspect of the forms of participation of No. 2, b, c and d, which require theoretical consideration in this case classify them under certain general headings. The broadest idea is undoubtedly "the being connected with the planning of a crime", being a. purely intellectual participation in preparatory measures (No. d). Not much less broad is the participation in "an organization or association which had a connection with the commission of a crime" (No. e), while the other forms of participation (Nos.
b, c and the rest of d) are better known ideas and obviously require that there must be some causality between the act of the participator and a specific criminal result.
As to what, to begin with, participation in planning moans, it will be enough in this connection, to raw attention to the fact that OESCHEY, as presiding judge of the Special Court had to make decisions on criminal cases brought before him through the raising of an indictment on the part of the office of the Public Prosecutor. He had no influence on the selection of such cases, as I shall prove by submitting evidence. There can therefore be no question of planning. The so-called directive discussions and the communications maintained between judge and public prosecutor are similarly - since they only affect single cases - not planning. They have, moreover, as I shall prove, never led to any unjust prejudice against a defendant.
Nor did OESCHEY ever belong to an organization or association which was connected with the commission of crime. Such an organization or association could only have been, in accordance with the extremely wide terms of the indictment at this point, the entire German judicial machine. In this judicial machine the judge occupied an exceptional position. In spite of all the measures which were taken, especially after Thierach took office in August 1942, there is no doubt that judicial independence was preserved to the extent that no instructions were or could be given to the judge as regards any individual case. In taking a decision on any one criminal case brought before the judge by the public prosecutor's office, he was, accordingly, and remained, solely subordinate to the law and in the application of such law responsible only to his own judicial conscience. This fact blocks the operation of any conceivable chain of cause and effect subsisting between the activity of a criminal association or organization - the existence of which I hereby absolutely decline to admit - and the judge taking a decision in anyone case.
It also, therefore, forbids the imputation of any participation or membership of the judge in any such association or organization.
The same consideration leads to the denial of any other form of participation. At this stage a further point calls for reflection. The participator must have in himself the consciousness of affording and the will to afford support to another's act. Such subjective conditions have never been present in the mind of the defendant OESCHEY. If he, as a judge, as presiding judge of a bench, pronounced sentences in common with his associate judges, he intended the result of the trial to be a declaration by his own Court, a responsible decision by himself and his duly appointed associate judges and not support given to the policy of a Ministry far removed from him in its operations or to that of a superior tribunal, let alone to that of a public prosecutor's office.
All these explanations apply equally to the defendant OESCHEY in his capacity as presiding judge of the Summary Court (Standgericht). They apply in exactly the same way to Germans as to foreigners, who were judged in principle under the same regulations as Germans and who in certain classes of offences, such as malice, were liable to a milder penalty. Polish cases were handled by OESCHEY as presiding judge only to a very small extent, as, during the time he acted as permanent presiding judge of the Special Court, viz, from 1 October 1943, these cases were no longer brought before the Courts at all. He is not charged with any verdicts against Jews.
As to IV of the Indictment the last count of the indictment is the defendant OESCHEY's membership in so-called criminal organizations.