Q Now, in an affidavit made by Suchomel on the 18 of February 1947, Suchomel, in discussing the policy towards death sentences of Thierack and his under-secretary, which you discussed yesterday, said this:
"Death sentences were passed in such great numbers that I felt induced to go and see THIERACK and to declare that we had lost all proportions concerning penalties. I pointed out that the number of death sentences kept on rising and that this state of affairs was hardly bearable any longer. His standpoint, however, was that in war no weakness could be shown. Thus, during the last year there were 8000 executions in the civil jurisdiction alone. A really alarming figure. Dr. FREISLER actually bragged in my presence that if he compared working hours in the People's Court with the number of death sentences it would amount to one head every twenty minutes. This was exactly as incomprehensible to as Dr. Thierack's quasi birthday present for the Fuehrer when he laid before him the figures of death sentences carried out."
Do you agree with that analysis of the situation by Hugo Suchomel from the time that Klemm became under-secretary?
A May I ask you to put that question again? I didn't understand the final question, just the final question.
Q Yes. I said do you agree generally with that statement of Suchomel's as representing the condition after the defendant Klemm became under-secretary?
A Yes.
Q Now, Suchomel also said: "One of the most severe Sub-Department Chiefs was JOEL functioned on offenses against War-Economy and in cases against Public Enemies (including Austria) and who was the liaison-man between the Reich Ministry of Justice and the Reich Main Security Office. He received at least 100 documents per day. It was said of him, and I have seen it with my own eyes, that a file after he had screened it looked something like this:
Name:
30 pigs, 4 cows (illicit slaughtering) Motion:
Death Penalty.
"At the bottom was the word: 'Einlegen' meaning: 'agreed'. I know that on one occasion in Austria father and son were executed for slaughtering a number of oxen, pigs and calves. Honestly, I must say that I cannot conceive how a man can take it on his conscience to exterminate a whole family on that, for it was the matter of an only son and only the mother was left."
Now, is that a correct or an incorrect statement of judgment the way in which the defendant Joel handled the cases within his referat?
A: I did not have that much insight into the Referat.
Q: Yes, but you have testified about Joel's attitude, I believe, toward these matters, or did I misunderstand you?
A. That was the impression we got from Joel, in our contacts with him. I was not his superior, so of course I cannot make any definite statement about that.
Q: That is right, so you could be mistaken, and Dr. Suchomel could be correct; that is right, isn't it?
A: I am surprised at that statement; I cannot imagine that that was the way Joel worked.
MR. LA FOLLETTE: Yes. The Prosecution offers to introduce as Prosecution Exhibit 534 the affidavit of Hugo Suchomel, and we will distribute the English and German copies now.
DR. THIELE-FREDERSDORF: The affidavit of Suchomel has not been made available to the defense until now, therefore, I object to the acceptance of the affidavit as an exhibit because the required 24-hour rule has not been adhered to.
THE PRESIDENT: The Tribunal will make its ruling 24 hours from now. It will request counsel to call it to our attention tomorrow morning.
MR. LA FOLLETTE: Yes, Your Honor.
BY MR. LA FOLLETTE:
Q: Now, you testified about a matter involving the war economy and a man who stole money from the NS Welfare Fund, who was supported, as I understand, by a prominent SS official named Hildebrand -- what was the name?
A: Yes, it may be that the name was Hildebrand, at Luebeck or Hamburg.
Q: I thought you said at Berlin, but it may have been at Hamburg. Do you recall?
A: Hamburg or Luebeck. I thought the contacts that man had went all the way to Berlin in that matter, and these contacts went to Hilgenfeld in Berlin.
Q: Yes. All I am interested in is, what year was that? Do you remember, Mr. Altmeyer?
A: It was during the war, as far as I know; it was a matter of food stores which were held in reserve for people who were bombed out.
Q: Can you place it any better as to what year? If you can't, you can't, but I just wanted to know.
A: It was the middle of the war, or I assume that it was about the middle of the war.
Q: Now, the defendant Joel was made chief prosecutor at Hamm, was he not, in August of 1943?
DR. THIELE-FREDERSDORF: May it please the Tribunal, I want to object to this question. The activity of the defendant Joel during his time as general Prosecutor in Hamm was not touched upon in the direct examination and therefore it cannot be a proper question in cross-examination.
MR. LA FOLLETTE: Your Honor, I simply asked to fix the time when he was. I haven't asked him any questions about what he did there.
THE PRESIDENT: We haven't yet heard the question. Go ahead and state your question.
MR. LA FOLLETTE: I asked him if he knew whether Joel was appointed general prosecutor at Hamm in August 1943.
THE PRESIDENT: He may answer. Answer the question, Mr. Altmeyer.
THE WITNESS: Yes; yes, that date may be correct.
BY MR. LA FOLLETTE:
Q: Were you there when Dr. Thierack made his speech on the occasion of the installation of the defendant Joel?
DR. THIELE-FREDERSDORF: I want to object to this detailed question, particularly because it can be seen from the documents which the prosecution submitted that it was not Minister Thierack who made the speech on that occasion.
MR. LA FOLLETTE: I thought it was Mr. Thierack. Will you advise me whether Dr. Rothenberger made the speech?
I beg your pardon, I withdraw the question. Dr. Rothenberger made the speech. I am very sorry, I was mistaken.
BY MR. LA FOLLETTE:
Q: So far as you know, at any time, from the time you knew Joel until the end of the war, was he ever disciplined by being discharged or released without pay for any specific period of time, or was he ever in any form of concentration camp?
A: No.
MR. LA FOLLETTE: I think that is all.
THE PRESIDENT: Is there any redirect examination?
DR. THIELE-FREDERSDORF: I have no questions, Your Honor, on redirect.
THE PRESIDENT: There appears to be no redirect examination; the witness is excused.
(Witness excuses)
EUGEN EGGENSPERGER, a witness, having been duly sworn, took the stand and testified further as follows:
DR. SCHILF: May it please the Tribunal, may I point out that the witness Dr. Eggensperger was here once before and has already been sworn in.
JUDGE BLAIR: You may be seated.
DIRECT EXAMINATION BY DR. SCHILF:
Q: Witness, will you please give the Tribunal your name, the place and date of your birth?
A: Eggensperger, Eugen, born 31 August 1901, in Stuttgart.
Q: It is correct, isn't it, that you have already been heard as a witness before this Tribunal?
A: Yes.
Q: Can you still remember the day?
A: I believe it was the 9th of May.
Q: At that time I cross-examined you, you were a witness for the prosecution. I put a question to you at that time which could not be answered, however, because it was not within the scope of the cross-examination, since it had not been discussed in the direct examination.
I should like to ask you a question now concerning General Prosecutor Hanssen. In January and February 1945, General Prosecutor Hanssen was the superior of the penal institution which was in his district, and he was also in charge of the penal institution Sonnenberg. Will you please tell the Tribunal to what extent you, as an official of the Ministry of Justice, had any official contacts with the then General Prosecutor Hanssen?
A: I was the only official, apart from Hecker, in Division V, who had remained in Berlin, and in that capacity I maintained contact between the Ministry -- that is, the Reich Ministry of Justice -- and the evacuated divisions.
If Hanssen was given any instructions, then it was I who passed them on to him. That brought about the fact that I had frequent contact with him, particularly over the telephone.
Q: You knew Hanssen. personally?
A: Only through our official business.
Q: Could you tell us what your opinion was of Hanssen?
A: Hanssen appeared to be an unscrupulous official who did not know any restraint, and, one may well say, who stopped at nothing.
Q: From your official contact with Hanssen, did you find that Hanssen was inclined to threaten the Referents and counsellors at the Ministry that he would approach the Minister or the Undersecretary immediately if any one of the counsellors or Referents did not do what he wanted?
A: Yes. Hanssen was a headstrong man who, according to his entire past career, did not believe in taking any instructions from Referents. Therefore, I frequently could observe -- partyly from his own statements, but also from information received from his through his Referents -that he would approach the Minister or the Undersecretary directly in order to discuss matters with them personally.
Q.- Dr. Eggensperger, the prosecution here several days ago submitted a document in evidence. It is Exhibit 530, that is NG-746. It is a so-called circular decree of the Reich Minister of Justice of the 17 January 1945. In January or February 1945, there was the case, well known to you, the case in Sonnenburg pending. That circular decree contains under Roman Number II a list of regulations with the heading, "Execution." Then a number of figures are listed. Under Figure 6 in the second paragraph, "The following is directed by the Reich Minister of Justice."
First paragraph, "Death sentences are to be executed on principal by decapitation."
Second paragraph, "Execution by shooting is applicable if decapitation offers difficulties or delay, or if otherwise specific circumstances make it desirable to deviate from the usual manner of execution. Execution by shooting is to be carried out by a squad of the police or the Armed Forces."
I should like to put that circular decree to you and ask you to comment as to whether that circular decree was in any way connected with the murder which occurred in Sonnenburg at the end of January?
MR. LA FOLLETTE: I object to the question for the reason that it seeks to elicit from the witness an interpretation of the legal effect of this decree. The decree itself speaks for itself.
THE PRESIDENT: The Tribunal will arive at its own inferences, but if this witness can state facts to the Tribunal which tend to bring the two events into connection, we are willing to hear them. The witness should limit himself to stating such facts that may tend to indicate that connection, if any.
THE WITNESS: I have only known of that decree since yesterday. Defense counsel showed it to me. It cannot be in any connection with Sonnenburg because it concerns the execution of death sentences, that is to say, measures against prisoners who have been sentenced to death.
As far as I am informed, at Sonnenburg there were only prisoners who had been sentenced to prison terms. In the case of Sonnenburg, in the case in question, it was not a matter of execution of a legal death sentence. Therefore, in my judgment this decree cannot find any application to the occurrences in Sonnenburg because it concerns persons who legally by court action had been sentenced to death but not prisoners who are serving their term and against whom no death sentence has been pronounced by a court.
BY DR. SCHILF:
Q.- Dr. Eggensperger, you in Division V knew, didn't you, in what penal institutions, so-called places of execution were established? Do you happen to know whether was such a place of execution was established in Sonnenburg?
A.- Division V dealt only with the administration of punishment, that is to say, with prison terms. The execution of the death sentence was a subject for the work of Division IV. That can also be seen from that circular decree of the 17th January, which according to its file note, emanated from Division IV, Enclosure No. 2 of that circular decree lists the penal institutions where death sentences are executed. In the district of Berlin, they are the institutions of Brandenburg and Ploetzensee.
Q.- Sonnenburg is not listed?
A.- No.
Q.- Concerning that chapter, I have no further questions, Only in conclusion I should like to ask you, when you worked at the Ministry in Berlin, did you over happen to be present several times or frequently when Thierack conferred with Klemm? On these occasions did you happen to hear whether they addressed each other with "Sie" or with the more intimate "Du"?
A.- I frequently listened to conversations between the two gentlemen, but I have never heard that they said "Du" to each other.
Q.- I have no further questions.
DIRECT EXAMINATION BY DR, GRUBE (For the defendant Lautz):Q.- I ask to be permitted to put several questions to the witness.
Witness, was the defendant Lautz, as Chief Reich Prosecutor with the People's Court, competent for matters of penal execution?
A.- No, he was a public prosecutor, and according to our terminology, the public prosecutor only has to do with execution of death sentences and not with the administration of punishment. He has to see to it that the sentenced individuals are transferred to a penal institution. Anything further was not under the competency of the public prosecutor.
Q.- Therefore did the defendant Lautz have any influence concerning the place where and the manner in which these sentenced individuals were imprisoned or transferred or used for work?
A.- He was heard on it and he could state preferences and suggestions, but he had no competency on his own in this matter.
Q.- And that, as you said already, is based upon the fact that the penal institutions were not under the supervision of the Chief Reich Prosecutor?
A.- No, they were not under the supervision of the Chief Reich Prosecutor. He could only, from the point of view of his interests, make suggestions and express preferences.
Q.- Witness, could you tell us what the reputation of the defendant Lautz was?
A.- You mean officially? As for his official capacities and functions?
Q.- Yes.
A.- In comparison with Thierack and Freisler, of course Lautz was a great improvement. He was considered a man who did not belong to the severe fraction, but could not get his views through. That was the general opinion.
Q.- Thank you, I have no further questions.
THE PRESIDENT: Is there any other direct examination? There appears not to be. You may cross-examine.
CROSS EXAMINATION BY MR. LA FOLLETTE:Q.- Dr. Eggensperger, I am not acquainted, of course, with the grammatical forms and the formalities of the German language, but I have just been advised that even close friends and relatives, when engaged in official business, address each other with the pronoun "Sie" rather than "Du". Is that a correct statement of accepted practice in German?
A.- I didn't quite understand the question. I am sorry.
Q.- I said that I have been advised that even close friends or even relatives, when engaging in a conversation on official business in a place of business, will use the pronoun "Sie" rather than "Du" so long as they are conducting a conversation concerning official matters. Is that correct or not?
A.- It is indeed true that a superior, in this case a Minister, in official matters will hardly permit his Under-Secretary to say "Du" to him. That part is true.
Q.- Thank you. Now, it is also true, is it not, under this Regulation of the 17 of January 1945, that the Chief Public Prosecutor in Berlin was competent to order executions throughout the province of Brandenburg, and that Sonnenburg is within the province of Brandenburg? That is correct, is it not?
A.- Yes.
Q.- Now do you recall -- I beg your pardon -- you may finish.
A.- I said before that the Public Prosecutor, according to our terminology, is only responsible and competent for Strafvollstreckung and not for the actual Strafvollzug. But that only refers to prison terms. In case of death sentences, the Public Prosecutor is also the bearer of the responsibility for the execution of the death sentence.
Until the very end he is responsible to see that the punishment is carried out. That is the difference from just prison terms.
Q.- You, of course, remember the decree under which Thierack was appointed by Hitler in August 1942, and that it contained the provision that Thierack could even vary from existing law?
DR. SCHILF: One moment. I want to object. That question was not a subject of the direct examination. Therefore, neither can it be a question to shake the credibility of the witness.
MR. LA FOLLETTE: If Your Honor please, it's a preliminary question to several others.
THE PRESIDENT: The objection is overruled. We will take our morning recess of 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY MR. LA FOLLETTE:
Q. I believe you answered my last question that you were acquainted with the decree appointing Thierack Minister of Justice which stated, among it provisions, that he could vary from existing law; is that correct?
A. I do not know that decree. I only know the law which was published in the Reich Law Gazette which was decided upon once in a Raichstag session.
Q. Was it your understanding after the Reichstag session of April 26, 1942, that -
A. I think so.
Q. --- that all legal power was then vested in Adolf Hitler as the head of the state? Is that correct?
A. Yes, I am thinking of that law.
Q. and you know, of course, of the law which was passed early in July, 1934, which declared that any acts taken in the Roehm Purge of 1934 were legal?
A. I know that law, too.
Q. And then will you permit me to ask you to assume, in addition to what you know, that under the decree appointing Thierack as Minister of Justice by Hitler he was granted the authority to vary from existing law, and let me also ask you to assume as a fact that which was testified in here yesterday, namely that after four men were executed at Plostzensee in 1943 whose executions had not been ordered, that thereafter Thierack ordered the executions approved, approved the executions, and assuming these facts I will ask you whether or not you would care to deny that it was possible that Hanssen and the defendant Klemm agreed that these prisoners in Sonnenburg could be shot, whether or not any execution order had been previously issued, whether it is possible that they could have done that.
A. If I understand your question correctly it is concerned with the problem whether the measures taken in Sonnenburg were in any connection whatsoever with this Enabling Act, with this authorization by law which you mentioned.
Q. No. Remember now the facts which you and I agree upon and assume as facts those things which I have stated as assumptions. I am merely asking you whether you would say now that Hannsen and the defendant Klemm, without your knowledge, might not have agreed that these prisoners at Sonnenburg could be executed and that legal authority would be thereafter created for these executions, whether it was possible. I don't ask you to say whether they did it; whether it was possible.
A. I consider it to be possible that in accordance with the --
DR. SCHILF: Just a moment, please. I have to object. This is an assumption. This a merely hypothetical question. In that case you should discuss a hypothetical case. The witness was not asked for facts.
MR. LA FOLLETTE: Well, I think I did.
THE PRESIDENT: The objection is sustained.
BY MR. LA FOLLETTE:
Q. Then let me understand you. Your answers to the questions on direct examination as to whether it was possible for Hanssen to order the execution of the prisoners at Sonnenburg was based purely upon your understanding of the provisions of the published laws as you then knew them?
A. I could answer as follows: The Minister of Justice no doubt considered that he was authorized under the authorization which had been given him to transfer prisoners to the police as for instance the Sonnenburg case, but the regulations in particular and his authorization of course, I do not know. As matters stood, I believe that the administration of justice considered itself authorized for such action.
MR. LA FOLLETTE: That is all. Thank you.
DR. SCHILF: May it please the Tribunal, may I ask, my objection was somewhat late. The witness had already started to answer. May I ask that his answer be stricken from the record to the extent that my objection was sustained?
THE PRESIDENT: The motion is denied.
DR. SCHILF: May it please the Tribunal, may I ask an additional question of the witness?
REDIRECT EXAMINATION BY DR. SCHILF:
Q. Witness, during the direct examination you spoke about the decree of 17 January 1945, and about the fact that it was worked on and dealt with in Department 4. Do you consider yourself competent to give a general opinion about this decree, whether it was in accordance with the existing laws or not?
A. I cannot do so because yesterday was the first time that I saw this decree and I did not read it through in detail.
DR. SCHILF: May it please the Tribunal, I have no further questions.
DR. GRUBE: I request permission to ask a question which arose out of cross examination.
BY DR. GRUBE:
Q. Witness, during the cross examination you stated that in case of death sentences the Public Prosecutor has to carry out the execution of the death penalty until the very end. This answer could bring about misunderstanding. Therefore I would like to ask you the following: If a court, for example the People's Court, has pronounced a death sentence, had the Prosecutor or in the case of the People's Court the Chief Reich Prosecutor the right to make the decision as to whether this death sentence should be executed?
A. No. He only had to make a statement pro or con. But the final decision was up to the Chief of State or the Minister of Justice whom he delegated to render such a decision.
Q. Witness, is it correct that if a death sentence was pronounced, the Prosecutor had to make a report to the Ministery of Justice?
A. Yes.
Q. If he made this report he had first before he did so to obtain the opinion of other different offices as to whether they were in favor of a clemency plea or not, is that correct?
A. That is correct. As far as I know there was regulation governing clemency matters in which the different offices were mentioned that had to state their opinion as to whether the sentence should be executed or whether it should be commuted. The Prosecutor was only one of those offices whose opinion was obtained.
Q. If that report by the Prosecutor together with the opinion of the other offices who had to state their opinions and together with the files was received in the Ministry, it was decided after all in the Ministry or by Hitler whether the clemency plea should be granted, was it not?
A. Yes, that was the normal course.
Q. If the Ministry of Hitler were of the opinion that the clemency plea should be rejected, what course did matters take then?
A. The Prosecutor was then commissioned to carry out this order given by the Ministry?
Q. In what form did he receive this order?
A. I believe that the technical expression was he received the commission for execution, Vollstreckungsauforag, in the form of a written decree.
Q. Who gave him this order for execution?
A. The Ministry of Justice.
Q. If the Prosecutor or the Chief Reich Public Prosecutor then received this order for execution, did the prosecutor or the Chief Reich Public Prosecutor have to decide anything at all as to whether the sentence should be executed or not?
A. The execution had already been decided upon.
Q. It had been decided upon?
A. Yes.
Q. What then was the task of the public prosecutor or the chief Reich Public Prosecutor?
A. Now, to carry out the execution and take all further steps.
Q. According to your statements then, his activity consisted only of the administrative execution of the order which the Ministry had issued.
A. Yes. According to the decree which I read through briefly, it is seen that only in exceptional cases, if the connection between the Ministry and the public prosecutor had been severed, the general public prosecutor could decide on his own competence; that apparently had been provided for exceptional cases during the air war. But from this exception one may conclude as to the rule that otherwise he was not authorized to do so.
Q. You just said yourself that this decree said that the general public prosecutor in exceptional cases, where the connections were severed, the he could decide himself whether the sentence was to be executed or not.
A. That can be seen from the text of this decree of the 17th January.
Q. Does this decree mention the Oberreichsanwalt?
A. I did not read it that carefully.
Q. Do you know any case whatsoever in which the Oberreichsanwalt on his own decided whether a death sentence was to be executed or not?
MR.LaFOLLETTE: If the Court please, I object for the reason that it goes beyond anything that was raised in the cross examination, and is repetition of evidence which has been conclusively stated by this witness and other witnesses.
DR. GRUBE: If the Court please, I consider it necessary to ask this question, since the witness had stated before that the prosecutor was the one who bore the responsibility for the execution of death sentences until the very end.
THE PRESIDENT: Your question now relates only to whether the witness knows of any case in which the Oberreichsanwalt, on his own authority, executed a death sentence; is that right.
DR. GRUBE: Yes.
THE PRESIDENT: He may answer.
A. I don't know anything about that.
THE PRESIDENT: That is a sufficient answer. But I could hardly get any insight into those matters.
DR. GRUBE: Thank you. I have no further questions.
EXAMINATION By JUDGE HARDING:
Q. Dr. Eggensperper, at the time Sonnenburg was evacuated, who was competent to order that evacuation?
A. The order of the evacuation of Sonnenburg?
Q. That is correct.
A. Well, as far a I am infored, Sonnenburg was not evacuated in the normal course of affairs, but inmates remained there, and a commando of the police arrived and took over those prisoners.
Q. Part of them were evacuated; is that not correct?
A. Yes, some of them. Those who had been put on the march in time.
Q. Who was competent to order the turning over of the prisoners who were left to the police?
A. This seems to be a question which I cannot judge from my own knowledge. It was like this: At that time the Minister of Justice was still in Berlin; at the same time the Reich Defense Commissar was there who also had some authority -- very extensive competence. If the events had occurred in a very far-living district --if it was in a southern district, according to the war situation of the time no connection might have existed any more at that time between the Reich Defense Commissar and the Minister of Justice. In the Sonnenburg case, on the other hand, the Reich Defense Commissar and the Minister of Justice were still in the same place, and could got in touch with each other because they were both in Berlin.
Q. Did Hansen or any one else have authority to order that procedure without the consent of the Ministry of Justice?
A. I don't believe that Hansen on his own wanted to act without making inquiry to the Ministry, but rather - and this is in accordance with my personal estimate - he wanted to be covered by the Ministry.
Q. Was any one ever called upon to account for the shooting of the prisoners that were left at Sonnenburg by the Minister of Justice or any one connected with the Ministry of Justice subsequent to the event.
A. I don't know; I never hoard that anybody was called to account for it.
Q. Were you in a position to hear if such had been the case?
A. I knew Hecker, who was competent for those evacuation measures; and, if he had heard anything about such a thing, in any way, I certainly would have heard it from him.
EXAMINATION
BY THE PRESIDENT:
Q. You said that Hansen wanted to be covered by the Ministry. I think the question put to you was whether Hansen had authority to act without securing an order from the Ministry - not what he wanted to do, but what he had authority to do.
A. I cannot state that with certainty from my own knowledge, because I am not familiar with the law about the Reich Defense Commissar. Hansen probably was also an organ of the Reich Defense Commissar at the same time.
THE PRESIDENT: The witness may be excused.
DR. SCHILF: May it please the Tribunal, I again have to express my regret that my document books still have not been returned by the Translation Branch. Therefore, I am not in a position to submit any documents. Therefore, I have to request the Tribunal to permit me to do so at an appropriate time when my document books will have been returned to me.
I also want to state the following: The Tribunal has permitted me to call two more witnesses, the witnesses Dr. Hans Hartmann and the witness Dr. Erich Moeller. Both witnesses are in a British camp called Edelsheide. These witnesses have not appeared inspite of the utmost efforts by Major Schaeffer of the Defense Center. It is possible that these witnesses may come later. Therefore, I would like to reserve the right to examine these witnesses at a later time. The witness Hartmann is a very important witness, and I do not want to refrain from examining him. In addition to this, finally there is another cross examination, that is in regard to the witness Horst Guenthe Franke.