MR. KLEMM: (the witness) Your Honor, my name does appear on it and the certification of the Ministry of Justice is beneath it.
THE PRESIDENT: Did you sign or didn't you?
MR. KLEMM: I must assume that I did, because it is certified but I do not remember any details about that at all.
THE PRESIDENT: That's all I wanted to know.
MR. LA FOLLETTE: Your Honors, please I would like at this time to distribute NG 584, which we previously identified as exhibit, I think 529, is that not right? ---528. This is the English copy for the Bench and the Reporters. Your Honors, I have not had the opportunity to get an NG nunber put on the next two exhibits, so I would like to read a part of then so the record nay show what they are when they get their NG numbers; to be identified as exhibit 531, is a decree from the Reichsgesetzblatt, 1944, part 1, page 184, dated 21 August 1944; decree for the securing of total warfare, signed by the Reich Minister of Justice, the Deputy Klemm. I send a copy of this to the witness.
Q. Witness, that is one of the decrees that you testified you signed, on Friday, one of the eleven decrees, is that right?
A. Yes.
MR. LA FOLLETTE: I ask that that be marked for identification as Prosecution's exhibit 531, and we will proceed to prepare both German and English as quickly as I can get then done.
THE PRESIDENT: Let the exhibit be marked for identification.
MR. LA FOLLETTE: As the Prosecution's exhibit for identification, 532, I refer to a letter dated Berlin, 7 July 1944, on the letterhear of the State Secretary in the Ministry of Justice, to the Chief of the Security Police and SS Obergruppenfuhrer Kaltenbrunner, signed by the witness Klemm. I sent the photostatic copy of the original letter to the witness.
Q. Is that your signature, Mr. Klemm?
A. This,too, is again only printed but I remember this matter; it concerned the brother of SS Obergruppenfuhrer Kaltanbrunner who after serving with the armed forces, wanted to take the veterns examination.
(The answer did not come through)
THE PRESIDENT: The sound system was not working. I did not hear any of the answer. Will you repeat your answer please.
A. The brother of SS Obergruppenfuhrer Kaltenbrunner had returned from the front either wounded or sick, and had made an application asking that he should be allowed to take the examination which had been rendered easier for persons who had done service at the front.
TEE PRESIDENT: I still did not get the answer.
THE WITNESS, KLEMM: Shall I repeat my answer.
THE PRESIDENT: Yes.
A. The brother of SS Obergruppenfuhrer Dr. Kaltenbrunner had returned from the war either wounded or sick and had made an application to be allowed to take the abbreviated state examination for veterns as a jurist. Kaltenbrunner had asked me to notify him of the decision. I had the expert make a report to me on the matter. The conditions were fulfilled, and the application was approved. In this letter I notified Kaltenbrunner of the approval as he had asked me to do. The brother was in Vienna whereas Kaltenbrunner was, of, course, in Berlin.
Q. Mr. Klemm, I shall read you a list which is not altogether complete, but I believe fair in the statements it makes, of the things that you remember, as I have noted. You remember your actions in the Hohenstein case in 1934; you remember that Thierack opposed the Gauleiter Wunschmann in 1934; you remember that in 1938, "Deutsche Justiz" reported one death sentence for high treason and 16 for treason by the People's Court in 1938; four, you remember that you dealt with malicious acts against the party and state as a district Referent from 1935 to 1936; you remember that in 1935 there was a case prosecuted--I act sorry I will start again.
You remember, five, that there was a case prosecuted about 1936 or 1939 against police officials in Dusselforf, and that Dr. Crohne wanted you to collect statistics against the handling of prisoners by the police in order to get confessions.
6. Your remember the case of the prison director Schaefer. 7.You remember the case in Schleswig-Holstein of the SA doctor who committed abortion and was punished. 8. You remember that while in the Hague the Dutch courts did not pronounce a single death sentence. 9. You remember hat you did not want bad Party members with reference to the Schlegelberger plan for handling clemency in 1942 to influence the Oberlandesgerichts presidents. 10. You remember with reference to Exhibit 35 a letter of August 1st from Bormann to the Gauleiters to contact the Reich Justice Administration in all cases. 11. You remember that as to Exhibit 359, a letter of the 23rd of October 1942 by Lammers to Meissner and a copy for the Party Chancellery, was caused, by the Count Stuergkh case in Vienna. 12. You remember, as to Exhibit 296, NG-324, that on the 1st of December 1942 Thierack wrote you a letter about hanging plunderers, and you remember that while you were in the Party Chancellory that there was little difference between the attitude of the Party Chancellery in Heimtuecke cases, and what there were no recommendation of the death penalty under any existing statute. Now, you either forgot, or have never heard of, Hitler's plans for war. You never saw any of the things in connection with the pogrom of November 1938. All during the war you never heard anything except that which the German people heard over the German raido or in the press. You never heard of the letter of Thierack to Bormann about the extermination of Jews, which was on October 13, 1942. 4. You never heard of Lammers' letter to Bormann about the inadequate sentence for Jews. 5. You never heard of Exhibit 369, NG-424, which was a provision on the 31st of July 1942 for the confiscation of Jewish property. 6. You have no recollection, or know nothing about, Exhibit 401, 4055-PS, which deals with the total solution of the Jewish problem. You did not remember that you initialed Exhibit 456, NG-326 in 1937, which was a letter signed Heydrich, dealing with Jewesses who had violated the racial laws.
And you never heard of the correspondence limiting the rights of the Jews, which is Exhibit 204, NG-151, dated 9 September 1942, although that bears the initials, the letters and initials 3 C, in the Party Chancellery at Munich.
Would you explain for me why it is that you remember so many of the good things you did, and either forgot or never heard of the things that might be injurious to you?
A. I can explain that very easily. Many of the things which you enumerated a moment ago only came back to me because I read about them in the documents submitted by the Prosecution. It was only then that I remembered those things. For the rest, however, whenever I stated that I do not remember, or that I did not know about the matter, I cannot remember that I did see then, and I believe that in every case I have given proof either by the file note or the dictation note, particularly in reference to the matters of the Party Chancellery, that those affairs were not dealt with by Group 3 C on account of the distribution of work plan.
MR. LA FOLLETTE: Thank you. That is all.
BY JUDGE HARDING:
Q. Mr. Klemm, what constituted "more severe interrogation" as practiced by the police?
A. Severe interrogation by the police constituted interrogation first of all, for a longer period, without interruption. Furthermore, it meant smaller food rations-- I suppose it was bread and water--and we described as more severe interrogation also the cases when prisoners were beaten. Those cases we investigated. Paragraphs 440 to 441, and 341, of the Penal Code made such actions punishable.
Q. Was not a certain amount of corporal punishment authorized under certain conditions for certain prisoners according to one of the documents that we have had before us here?
A. Within the administration of Justice beatings were not allowed.
Q. Wasn't there a document introduced here in which so many blows were allowed, so many lashes, in a matter of interrogation?
A. I cannot remember that such a document has been introduced here.
Q. You were, in your various capacities, familiar with the fact, were you not, that in many cases both defendants and witnessesses were subjected to very severe treatment and abuse in the matter of interrogation, at the hands of the police?
A . I only heard of isolated cases, and if they became known to the Administration of Justice they were dealt with by the section about which that ruling was made. We heard of very severe interrogations only from those persons who had been subjected to more severe interrogations, and we only heard of those cases when the persons said that they withdrew their confession because the police forced them to make such confession by beating them up. Only then was it possible to take steps against such methods. The police officials, however, since the establishment of the SS and police jurisdiction, were no longer under the direction of the administration of Justice-that was since 1939--consequently, we no longer exercised any influence on such matters. Such more severe interrogations on the part of the police were not reported to me in my capacity as Under Secretary.
Q. But you had every reason, from your position in the Ministry of Justice, to know that severe interrogations had been at one time authorized and that they took place, is that not true?
A. On the contrary, we never asked the police to undertake more severe interrogations. We attacked that system to the extreme, because a confession made as a result of a more severe interrogation would never have been considered by us as incriminating.
Q. You only knew of the more severe interrogations, however, when you say a witness changed his testimony, is that correct?
A. A defendant?
Q. Or a witness?
A. Well, I never heard of it. At least, I cannot remember a case where a witness had been beaten. I can only remember a few cases from the time before the war, where defendants before the judge withdrew their confession and said that they had only made that confession because the police "compelled me to do so by beating me up."
Q. And you knew of those cases?
A. Such cases were to come to my section, cases where police officials had committed such offenses, and such cases were followed up, and one case from Duesseldorf I have described here.
Q. After September 1, 1939 were there any cases that were followed up by the Ministry of Justice at any time, that you are aware of, in that connection?
A. No, I became a soldier. Then I went to the Netherlands and then I was in Munich at the party chancellery, and in the time in between, the SS and police jurisdiction was established. Cases which were reported to the administration of justice after the first of September , 1939, are not known to me. When in 1944 I joined the Ministry of Justice, general jurisdiction in consequence of the SS and plice jurisdiction which had been established in the mean time, was no longer competent for much matters.
Q. So the question of how the confessions of these defendants had been obtained was no longer investigated by the Ministry of Justice, is that correct?
A. No. The sentences were submitted to us, which contained the findings of the judge.
Q. Did you ever have a suspicion that some of these witnesses and defendants had been subjected to such treatment prior to giving their testimony or confessions in the case of defendants?
A. That that happened in the case of witnesses, I never believed or thought; that it had happened with the defendants I knew from the time prior to 1939. If in the period of 1944 it still happened and if it had become known to the Ministry of Justice, in my view, such cases would have had to be reported on to me, but no such cases were actually reported on to me.
Q. You only had a chance to hear those cases where they changed their testimony, is that correct?
A . Yes, Some were filed during the years 1937 to 1939.
Q. So that if a witness had confessed under torture and did not change his testimony when he came into court, the Ministry of Justice had no way of knowing whether that man had been subjected to such treatment?
A. No, in that case we did not hear of it.
Q. Did you ever suspect that a lot of this testimony that you received was so obtained?
A. No, The idea that-influence was exercised on witnesses in that direction never occurred to me.
Q. Did you during the period of time that you were there--you were in charge of investigation of those cases, so you knew at one time, did you not, that such measures had been used?
A. I knew that defendants had been beaten; therefore, the prosecutions were instituted. But diring that time I did not hear that witnesses were influenced in that matter.
Q. Is it not a fact that both witnesses and defendants were frequently in the hands of the police and that the indictments that were drawn were based upon the evidence submitted to the prosecutors by the police?
A. It all depended. An indictment was made not only in virtue of the police interrogations but the public prosecutor also had to investigate material in favor of the defendants; and furthermore what counted was also whether the testimony by the witness appeared credible. That lay within the discretion of the judge who presided at the trial.
Q. But those witnesses were in the hands of the police. They gave statements to the police upon which the indictments were based, then they came into court and testified and then they went back sometimes into the hands of the police, is that not correct?
A. Generally speaking, the witnesses were not under arrest. It did happen however, that witnesses were brought into court from prison. Those witnesses, if they were under prison arrest, did return to the police. I do not know whether I heard your question properly.
Q. I am not speaking of whether they were in prison in the hands of the Ministry of Justice. I am speaking of--I am asking whether or not these witnesses were not interrogated by the police under their own system before they gave the statements upon which these indictments were drawn?
A. After the witnesses had appeared before the court, they were not returned to the police to discuss their testimony before the court there. There was no further cause for the police to do that. The proceedings were closed by the verdict of the court.
Q. Was here anything to prevent the police picking these people up and taking them back into their hands after they had given testimony and if so what was that?
A. That the police re-arrested a witness after his testimony given before the court on account of this testimony, I never heard of that.
Q. Would you have heard of it and why?
A. I Believe I would, for that would have meant criticism aagainst the supremacy of the administration of justice which would have been particularly crass and severe. We would have heard of that.
Q. You do not question now, do you, that those things happened and happened to a very wide extent?
A. I geg your pardon. I did not get that.
Q. Do you question at this time with your knowledge of the various evidence that had been brought out in the IMT trial and other trials that to a wide extent torture and abuse was used upon both defendants and witnesses who gave testimony in the various cases that were on trial?
A . What I heard now, since the IMT proceedings, we had no idea that things were going on to that extent. I am bound to believe now that those things did occur with the police and that they did occur to that extent, but I have only known it since the evidence that was brought out . **** before the IMT.
Q And then these cases which were tried under the Ministry of Justice were obtained by that kind of procedure, is that not correct?
A. That the police took the liberty of doing such things, that we heard by that; but that it was a method with them and that it occurred again and again, that we did not hear by that.
Q. But you know now then that these cases which came to you in many cases as clear cases, that the confessions and evidence in those cases must have been obtained by torture?
A. Torture? I did not know of that at the time. I know it now purely from the material which has been introduced here.
Q. But these people that were tried and executed, now you know that in many cases the testimony against them was obtained by such methods?
A. In respect of the death sentences which were passed, for the Ministry for the decision of the Minister or in the clear cases as far as I decided them, what was decisive for us was the report by the referent. He made his report on the basis of the sentence passed by the court, and never, not one single case was I told in a report, that even the mere suspicion existed that in the case under discussion a more severe interrogation had taken place.
Q. From the prosecutors and the courts and the various officials that you knew in the Ministry of Justice, you never heard any suspicion or had a suspicion or heard any suggestion that the evidence had been obtained by torture?
A. Never, never. As long as I was the Under-Secretary never had that suspicion been voiced in one single case. Had I had that suspicion, I would immediately have refused to describe such a case as a clear case.
Q. Didn't the fact that you were supposed to and did look into that matter and found such cases when you were in the Ministry of Justice in 1937 and 1938 give you a suspicion that later on after the jurisdiction of the police had been turned over to then as to offenses which they committed, that they still continued?
A. No, those Cases which occurred between 1937 and 1939 and with which I had to deal did not provide us with an insight into the matter. These were merely individual cases which were disconnected and which had occurred at different times and at different localities and not a single political case was among then at that time where a more severe interrogation had occurred.
There were always other crimes committed, for instance as I mentioned the Dusselforf case was a homosexual case.
Q. In all cases which were proved for death sentences in the list submitted here, you never had any suspicion that the evidence had been obtained by such methods?
A. No, I could not have had such a suspicion because of the findings of the court on which the report was made to me. I would never have refused to grant a clemency plea in the case of a death sentence where even the mere suspicion might have occurred that a more severe interrogation had taken place. Such a case would not have been in favor of refusing the clemency plea. It is entirely out of the question.
Q What constituted a clear case?
AA clear case was a case where none of the authorities of the judiciary were in favor of granting a clemency plea. Earlier I enumerated the various agencies which participated.
Q Would you name those authorities which passed on that matter?
AAn opinion as to whether the clemency plea should be granted had to be given, first by the Court that had passed the sentence; secondly, by the presiding judge of that court; third, by the prosecution; furthermore, the collaborator at the Ministry, the Referent of the Ministry, and the head of Department IV at the Ministry also had to give their opinions. If those seven authorities unanimously stated that there was no reason to grant clemency, the case was considered clear and was listed in the category of clear cases and was reported upon in that manner.
Q In cases before the People's Court, then, the President of the Court--that is, the Court would give an opinion as to whether it was a clear case, and then the president, and then the prosecutor.
A There were clear cases of a different kind, with different decisions. The findings of the Court referred only to the offenses as such. Then, after the sentence is passed, the Court gives its opinion as to whether the offender deserves clemency. I have only been referring to the second phase, that is to say to the phase after the sentence had been passed. I mean, I am referring to the statements concerning the question of clemency, and I have not been discussing the question of guilt.
Q I am referring to exactly the same thing. If a sentence was a clear case, then in the People's Court it shows that the sentence was approved first by the Court and then by the President. Is that correct?
A No. The sentence was passed, and whether the sentence constituted a clear case from the point of view of granting clemency, that only emerged at the ministry when the last person who had to give his opinion on the matter--that is to say, the head of Department IV-had given his opinion.
Q I am referring to the officials of the court and the prosecution in the People's Court-
A Yes.
Q --who had to pass on the question as to whether, in their opinion, it was a clear case. Now who were they?
A The Court decided according to its own conviction and sentenced the defendant or acquitted him. Once the Court--to give an example --had sentenced the defendant to death, then the Court gave its reasons for the death sentence. When that had been done, the sentence had to be reported to the Ministry. At that moment, after the sentence had been passed and after the reasons for the sentence had been stated in writing, the People's Court passed the sentence on to the OberReichsanwalt, the Senior Reich Prosecutor, and, its own initiative, gave its opinion on the problem as to whether the offender was worthy of clemency.
Q Yes. Then it went to the prosecuting office, and who there passed on the question of clemency?
A The Senior Reich Prosecutor, on his part, expressed his opinion, which was usually drafted by the expert of the prosecution or by the official who had attended the proceedings. Anyhow, that is the way it was done when I was a member of the prosecution at the District Court at Dresden. I do not know how the senior Reich Prosecutor handled such matters. Furthermore, the judge who had presided over the trial, separately, and the whole court, had to give their opinion. These three opinions were then forwarded to the Reich Ministry of Justice.
Q Then, in the People's Court, the Chief Reich Prosecutor had a passed on all clear cases against clemency, is that right?
A That varied. I cannot tell you from memory as to what view he took on some of the individual cases for clemency. I have already pointed out that whether it was a clear case from the point of view of granting clemency was only discovered when the experts at the Ministry itself had stated their opinion. It is quite possible that the public prosecutor, the Senior Prosecutor at the People's Court--and I am giving that as an example--may have said "I think that this man is worthy of clemency", whereas the Court refused to accept that view. It also happened, however that the Senior Reich Prosecutor suggested to make an extraordinary objection because he considered the sentence wrong. That has occured too.
Q Then, if any of those officials decided that there should be clemency, the prosecutor or the chief Reich Prosecutor, then it became a doubtful case? Isn't that correct?
A If one authority, be it the People's Court or the Reich Prosecutor, stated that they thought clemency should be exercised, that case entered the category of doubtful cases when the report was made to the Minister.
Q Yes, and when they said "no clemency should be granted," all down the line of these seven officials, then it was a clear case, and only in clear cases--
A In that event the case was entered in the category of clear cases.
Q Yes, and then in all clear cases in the People's Court, clemency had not been recommended by the Chief Reich Prosecutor, the defendant Lautz?
A I can only say that if clear cases were concerned, the prosecuting authority with the People's Court had not suggested clemency either; whether it was the defendant Lautz personally I don't know.
Q You testified that Nacht und Nebel cases, when you came into the Ministry of Justice as State Secretary, were merely routine, I believe.
A The proceedings against, and the treatment of, these cases had already started, and those matters, and the treatment of those matters, were no longer discussed at the Ministry.
Q They were still being carried out, were they not, at that time?
A NN proceedings were still being carried out, yes.
Q As a routine procedure, while you were State Secretary, is that correct?
A How am I to understand that, "as a routine procedure I don't know what you mean by a routine procedure." Those cases were pending with the various competent courts, and when reports were made to the Minister, and in two cases also when reports were made to me, death sentences were mentioned in cases which were described as NN cases.
Q Well, while you were State Secretary you were still trying these NN cases ans sentencing men to death?
A Yes, sentences were still being passed on NN prisoners.
Q When you were State Secretary, the law against Jews and Poles, as far as they were at that time available, was being carried out was it not, and cases being tried on the basis of the decrees against Jews and Poles?
A In virtue of the decree against Poles, proceedings were still being carried out.
Q In due course, just as a matter of regular business of the Ministry of Justice.
A In ordinary court proceedings, with the exeption of the Jews, who, by the Thirteenth Citizens Decree, had been withdrawn from the Administration of Justice. Jews were no longer sentenced by the Administration of Justice.
JUDGE HARDING: That is all.
THE PRESIDENT: Mr. Klemm, I should like to have a few matters clarified.
MR. WOOLEYHAN: Your Honor, may I interrupt one moment, please, to clarify briefly the interpretation that came over the microphone? I believe the decree last referred to by the witness Klemm was the 13th amendment to the Citizenship Law in document book II.
THE PRESIDENT: Yes.
BY THE PRESIDENT:
Q Did the Ministry of Justice have any procedure whereby it investigated to determine whether crimes were committed by the police?
A The Administration of Justice was not competent to deal with punishable acts committed by the police. Since, from 1939, an independent SS and Police jurisdiction had been established, we had no right to institute proceedings against police officials. We were not competent; our hands were completely tied in that respect.
Q Before 1939 you did participate, as I understood you, in causing some prosecution to be made against police officers who had committed crimes against prisoners?
A Yes.
Q Then at that time the Ministry did have authority or power to prosecute and punish, or to cause the prosecution and punishment of police officers who were guilty of crimes against prisoners?
A Yes; at that time no SS and police jurisdiction existed.
Q Yes. Now, if they had the power at that time to prosecute police officers, when knowledge of the crime of the police officer came to their notice, did they not also , at that time, have the power upon their own initiative to investigate conditions under which the police were handling prisoners, in other words, to make general investigations?
AAt first we would have had to have some reason for suspicion, and beyond that we would have had to have the authority to investigate matters.
Q If you had some reason to suspect, did you then have in the whole Ministry of Justice, the power to make an investigation on your own initiative?
A No, I personally not.
Q Did the Ministry of Justice have power to conduct a general investigation?
A The Minister of Justice could instruct the Prosecution which was competent for the place where the offense had been committed, to institute an investigation.
Q And who was that officer?
A The Public Prosecutor at the place where the offense had been committed. When there was a suspicion against a police officer, he could ask him to come to see him, could interrogate him, could take him before an investigating judge and could ask that a warrant of arrest be taken out against him.
Q I still have some interest in the Jewish city of refuge which was two kilometers from the place where you performed some of your duties. Did you at the time when you were stopped by the guard on the highway understand that the guards were there only to keep outsiders from going in, or did you understand that they also were there to keep the Jews from coming out?
A No, that barrier -- nothing could be seen of the town of Theresienstadt from that place. That must have been still quite a long distance from Theresienstadt. This was merely the guard that was standing by the barrier, just as you have customs officials standing by a frontier, and this was near Leitmeritz where twice I spent a day.
Q Were you then at that time under the impression that the Jews who lived in this model city were at liberty to leave it if they desired?
A That within that town and its surroundings they were able to move, of that I was convinced.
Q Were they able to move out of that town?
A I don't know.
Q You didn't know and don't know now?
A No.
Q You don't know that they were confined within the model town?
A Well, that they were isolated, that I knew, yes.
Q Then you knew it was a concentration camp, but a model one?
A No, that I did not know. I did not know that it was a concentration camp, for they had their own administration -- that is how I imagined things to be -- with their own mayor and their own police, etc. That, after all, was the difference.
Q But you did know that they couldn't escape from the model town?
A I had to assume that, because they were there together.
Q And that was in the Sudetenland, was it?
A Yes, that was in Sudetenland.
Q I wonder if you know the name or the names of any of the judges who sat in the case of the doctor who was tried for commercial abortion, and who acquitted him? Do you know?
A The name of the defendant was Saalfeld. That is the case you are referring to, Your Honor, is it?
Q The doctor case, yes. I have forgotten his name.
A Yes. His name was Dr. Saalfeld. I cannot remember the name of the judge nor can I remember the names of the honorary judges. The court was at Schleswig Holstein, I believe it sat in Luebeck. I can't say for certain.
Q Returning just for a moment to the question of clear cases, I understood that you were not one of the seven officials whose approval was sufficient to constitute a clear case. Am I right?
A I was not one of the experts.
Q No. Then the list was made up of the clear cases before it came to you?
A Yes, it was.
Q Were there ever any orders granting clemency to any of that list?
A The clemency plea could only be decided upon by the Minister. We could only give our views as to whether -- I mean those authorities which I mentioned before could only voice their opinion as to whether clemency was indicated.
Q Yes. But as to the list of clear cases I understood that an order was made up in advance for the signature of the Reich Minister of Justice.
A No. Those lists merely gave a division to make it easier to keep a survey of the cases which had to be reported on. It meant that in the clear cases where there was no division of opinion, the referent alone gave a report, whereas in the doubtful cases, the collaborator too reported on the case in particular detail. That was merely an aid in respect of the report to be made to the Minister or in the case where I decided; I only accepted reports on clear cases.
Q When a report was brought to you with the list of clear cases, did you personally make any investigation as to the merits of the case or did you approve the sentence and deny the clemency plea simply on the basis of the fact that it was a clear case?
A No. I had a report made to me on every single case, and I examined the case as to whether I could concur with that opinion. If in one of these cases on which a report was made to me alone, I would have been of the conviction that the offender in question deserved clemency, I would have said a report on this case must be made to the minister.
Q I understand. Then you did investigate the merits of the clear cases personally?