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?
AA report on those cases was made to me. I did not see the files, but the expert made an oral report on such cases to me.
Q Your approval was not an automatic approval, but it was based on a study of the record of the case as presented to you, wasn't it?
A The expert had studied the case and then reported to me on the contents of the files and told me what opinions had been expressed by the various authorities.
Q But you didn't depend solely on those opinions. You made up your own opinion, as I understand you?
A Yes, yes.
Q That is what I wanted to know. Reference is made in your direct examination to the fact that Department 5 was at least technically under your control with reference to penal administration.
A That it was under my direction formally, that is true, but in practice that was different.
Q But there was an order which formally put that department under your control?
A Yes.
Q Why did you visit the women's prison?
A I visited that prison because my family, on account of the air war, had been evacuated to that place. My wife lived in this prison with two children in one room and a half in the women officials' quarters, and when I went to see my family I used that opportunity to inspect the prison.
Q If you had carried out the formal and technical order which placed penal administration under your control, in other words, if the practice had been in accordance with the order, would it then have been your duty to investigate conditions in the prisons, either by yourself or by a subordinate?
A What orders are you referring to, Your Honor?
Q I understood the Department 5 with reference to penal administration was technically under your authority. You said it was.
A Formally, yes.
Q If the practice had been in accordance with the formal order, would it then have been your duty to investigate conditions in the prisons?
A My personal duty -
Q Either your own personal or your subordinates.
A. Department 5 existed for the purpose of, among other things, inspecting the prisons and to see to it that everything was in order.
Q Yes.
A The general public prosecutors were responsible for these matters above all. They in fact were the supervisors in every district of a district court of appeal.
Q I may not have a perfect recollection of that matter, and you can correct me if I am in error. I understood that the question was asked to you whether Division V could decide when prison authorities were authorized to turn over prisoners to the Gestapo, and your answer was that that was a matter which anyone who knew Thierack would know that he reserved for himself. Was that substantially your answer?
A Yes.
Q Would Thierack have acted upon a matter of that kind without first receiving some report from his subordinates?
A I cannot say. I can't answer about a hypothetical case. I only meant to say that Thierack reserved to himself the making of decisions of that kind.
Q I think the answer is quite obvious. Even though he did reserve to himself the decision of that kind? wasn't it a part of the duty of his subordinates to present to him reports concerning the matter? on the basis of which he made his decision?
A That varied. Department IV was in a position to submit such reports? but it could happen that somebody else, above all the police? submitted a report to him -- an immediate report. I do not know of such cases.
Q Our time is running out. Do you know whether the question of clemency was ever submitted to the Ministry of Justice in the Montgelas case?
A No. I know that for certain because contact between Nurnberg and Berlin had been disrupted.
Q We will recess until tomorrow morning at nine-thirty.
(The Tribunal recessed until 13 July 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Altstoetter, et al., defendants, sitting at Nurnberg, Germany, on 15 July, 1947, 0930-1630, Justice Brand presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please, Your Honors, ell the defendants are present in the courtroom with the exception of defendant Engert, who is absent due to illness.
THE PRESIDENT: Let the record show that the defendant Engert has been excused.
I understand the cross-examination has been concluded.
MR. LA FOLLETTE: Yes.
THE PRESIDENT: Is there any redirect examination?
DR. SCHILF: May it please the Court, I have only a few questions to ask in my redirect examination.
HERBERT KLEMM - Resumed REDIRECT EXAMINATION BY DR. SCHILF:
Q Mr. Klemm, the Prosecution during the cross-examination submitted Exhibit 528, that is NG-584. The Prosecution put it to you that it was the Ministry of Interior that sent you to the Netherlands. I assume that you have had an opportunity to examine the entire document, and that you are in a position to make a statement as to why you were called to the Netherlands and by what authority.
A I examined Exhibit 528, and in connection with what I was told after I had been in Holland, the Minister of the Interior as Plenipotentiary General for the Reich Administration and as the General Minister for Civil Servants had received instructions to organize a staff of officials for Seyss-Inquart in the Netherlands, because officials from all sectors of the State could be considered, from the Ministry of Economics, from the Ministry of Finance, the Ministry of the Interior, the Ministry of Justice, and so forth.
Q Furthermore, Mr. LaFollette put it to you from the same document the last page is a letter from the Reich Commissar for the occupied Netherlands territories, that is Seyss Inquart, dated 9 July 1940, to Dr. Guertner, the Minister of Justice of those days. The letter says that the Reich Commissar, that is to say Seyss-Inquart, did not intend to organize a new jurisdiction in the Netherlands , but merely had to supervise the existing administration of justice from a supervision angle. Only in penal cases a new jurisdiction was to be organized, and the ordinance concerning that organization was already completed. Mr. La Follette asked you whether that statement was in accordance with the Hague Convenant on Land Warfare, that is Article 43. It was read out to you. I only want to point out to you that Article 43 contains the regulation that public order was to be restored or to be maintained, that is, as far as there was no serious obstacle, while preserving the laws of the country. Were those regulations adhered to at the time as far as you can judge matters?
A Yes, the laws of the country were observed. The Netherlands jurisdiction itself continued to work quite independently, nor did we demand to exercise penal jurisdiction over the Dutch, but only to the extent to which a Dutchman infringed German interests and rendered himself liable to punishment.
THE PRESIDENT: Dr. Schilf, will you pardon an interruption which has has nothing to do with your redirect examination? I think before you started the redirect examination we should have inquired concerning your document books and also concerning what the prosecution proposed to do with the exhibits which were marked for identification as a part of the cross-examination. May we dispose of those questions before you proceed further? First, as to your document books.
DR. SCHILF: May it please the Court, I regret it very much, but my document books still have not been translated.
I went to inquire again yesterday, and I was told that there were arrears in the translation department because there had been three days of public holidays two weeks ago and because of that my document books are not available yet. I can only express the hope that they will arrive any moment now, but until now that hope has not been fulfilled. Therefore I am confronted with the problem that I am not able to submit my documents until a later time.
THE PRESIDENT: Then let me ask the Prosecution what its intentions have been with reference to the introduction of exhibits which were marked for identification and which, according to the practice with which the Prosecution is no doubt familiar, would be introduced as a part of the cross-examination.
MR. LA FOLLETTE: If Your Honor please, the Prosecution had originally contemplated introducing these documents, both the Schlegelberger documents and these which were marked. Apparently a practice developed in Tribunal I, for reasons that I do not know, in which that Tribunal apparently desired that documents be merely identified and then introduced as part of the rebuttal testimony. I do not care to follow that, except that it apparently was for some reason and a custom. If this Tribunal desires to have these documents offered - I think the reason in Tribunal I was that they did not want argument on the probative value at the same time during the cross examination, as has been told to me. If this Tribunal desires that they shall be offered after being marked, of course the Prosecution will do so, and we will try to bring in all that we have so far which are in the possession of the Prosecution.
THE PRESIDENT: The Tribunal is of the opinion, notwithstanding the practice of Tribunal I, which is certainly not binding upon us, that fairness to the defense requires that these exhibits which have been used in cross examination in accordance with the practice with which we are familiar, to the end that the defense may treat them as being exhibits in connection with their redirect examination.
MR. LA FOLLETTE: If Your Honor please, of course, I think the best -- I think that that is a more satisfactory way. I realize that what Tribunal I did is not binding. It is merely that that is what apparently was being done here.
THE PRESIDENT: The record will be more understandable if the exhibits which have been identified and discussed are also first received or rejected in connection with - or in close connection, at least, with the cross examination.
MR. LA FOLLETTE: Those which are prepared for distribution, Your Honor, we will bring in and offer when the Court desires.
THE PRESIDENT: I think this would be a proper time to do so.
MR. LA FOLLETTE: It would be a proper time, except that I believe that they are not physically in the courtroom, are they?
THE SECRETARY GENERAL: No, they are not. They are in the archives.
THE PRESIDENT: They can be brought into the courtroom.
MR. LA FOLLETTE: The Schlegelberger documents also, Your Honor? They were also marked.
THE PRESIDENT: Yes. Can you make your offers now, and the mechanical features can be attended to between now and the recess time.
MR LA FOLLETTE: The Prosecution offers to introduce into evidence Prosecution's Exhibit 528, Document No. NG-584.
THE PRESIDENT: What about 526 and 527?
MR. LA FOLLETTE: If Your Honor please, those are two Schlegelberger documents.
THE PRESIDENT: Yes?
MR. LA FOLLETTE: I don't see in the courtroom any of the defendant Schlegelberger's counsel, and I hesitate to offer those in their absence.
THE PRESIDENT; 528 is received.
MR. LA FOLLETTE: The Prosecution offers to introduce into evidence Prosecution's Exhibit 529. I find that at my table they do not have the identification of the NG numbers here.
THE PRESIDENT: 1580.
MR. LA FOLLETTE: 1580?
THE PRESIDENT: That's right, The exhibit is received.
MR. LA FOLLETTE: The Prosecution offers to introduce into evidence Prosecution's Exhibit No. 530, NG-746.
THE PRESIDENT: The exhibit is received.
MR. LA FOLLETTE: Now if Your Honor please, Exhibits 531 and 532 have been described and given no NG numbers, but I ask that 531 be admitted into evidence and prepared for distribution later.
THE PRESIDENT: It will be received in evidence.
MR. LA FOLLETTE: The prosecution offers to introduce into evidence Prosecution's Exhibit 532 which was described yesterday subject to being prepared for distribution as a document.
THE PRESIDENT: It will be received in evidence.
MR. LA FOLLETTE: When at any time during these proceedings today or tomorrow when any of the defendant Schlegelberger's counsel are present, the prosecution will then make an offer of those exhibits.
THE PRESIDENT: Now let us hear your views as to the proper procedure with reference to the Klemm documents which should be but are not available for offering at this time, and in making that statement we imply no criticism of defense counsel. We understand the delays which were unavoidable as far as you are concerned.
MR. LA FOLLETTE: So far as possible, the prosecution under these circumstances will not require a 34-hour notice. There may be individual documents which we might want to check, which when offered we may ask the court to permit us to rely upon the 24-hour rule. However, we can't very well introduce these documents, at least until there has been an English translation, under any circumstances that I see.
THE PRESIDENT: The interest which the Tribunal has is in seeing that the examination of this witness, whether in general or in relation to exhibits, shall be concluded at one time, if possible. We may have to somewhat relax that rule in view of this difficulty with the documents, but it must be avoided so far as possible.
MR. LA FOLLETTE: Again I relieve the Tribunal will agree with me the that I must ask the right to reserve some right of cross examination after seeing these documents because I never had an opportunity to see them at all.
THE PRESIDENT: You have already reserved thy right.
MR. LA FOLLETTE: Subject to that reservation and the other statements I have made, as soon as the documents are translated, we have no objection to them being brought in and offered as exhibits.
THE PRESIDENT: Thank you, gentlemen. Now Dr. Schilf you may proceed with what you were doing.
REDIRECT EXAMINATION --Continued
BY DR. SCHILF:
Q. I referred to article 43 of the Hague Convention, and you have already given your answer. Yesterday under cross examination you mentioned an example to the effect that the competency of the German court existed when, for example, a Dutchman became involved in a brawl with a German. Do you know what the present regulations are in the territory under American occupation regarding the competency in similar cases?
A. It is the same, with this one restriction! In the Netherlands* territory, at that time, such cases did not come before a military court but before a civilian penal court of the civilian administration in the Netherlands.
Q. Mr. Klemm, Mr. La Follette put several passages to you from the IMT sentence referring to Seyss-Inquart. They concerned, above all, the question that Seyss-Inquart was responsible for the transfer of Jews from the Netherlands to Auschwitz, for example. I ask you until March '41 when you left Holland, did you hear of anything indicating that already at that time Jews were being transferred from Holland?
A . No. That problem was never discussed. It was never under discussion at all.