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.
Mr. LaFollette frequently had the opportunity to complain about this witness Franks that he does not come here, even though for months efforts have been made in order to bring him here. The right to undertake this cross examination I also want to reserve if it should be that the witness can appear here after all Therefore, for the time being I have to conclude my case on behalf of the defendant Klemm.
THE PRESIDENT: You may proceed with the next defendant's case.
CURT ROTHENBERGER; a defendant, took the stand and testified as follows:
BY JUDGE BLAIR:
Hold up your right hand and be sworn. Repeat the following oath after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated.
DIRECT EXAMINATION BY DR. WANDSCHNEIDER: (Attorney for Defendant Rothenberger) May it please the Tribunal, I am in the same position as my predecessor, Dr. Schilf, that I cannot submit my document books oven though I handed the main document book to the Translation Branch already two weeks ago.
The defense was naturally built on an effort to establish a connection between the personal statements, the testimony of the defendant and my own documents for the purpose of submitting the evidence. Nevertheless, the interest that I, as defense counsel for the defendant Dr. Rothenberger, have in expediting the proceedings is great, and inspite of the lack of the document books I want to begin with the examination of Dr. Rothenberger in the witness stand.
Since my own documents are not here at the moment, I have to refer more to the Prosecution documents to the extent that they are available in that context.
May I during the noon recess tell the Court and the Prosecution the documents of the Prosecution to which I want to refer to, today, so that the Court and the Prosecution can follow the testimony better. If the Tribunal desires I can also state these documents now. In connection with the personal examination of the defendant I want to use exhibit 433, in volume 1, supplement, page 29-e in the English document book; exhibit 113, in document book 3-A, page 1-e in the English document book. I shall quote only the English page numbers. Exhibit 114, volume III-A, page 7; exhibit 115,volume III-A, page 8; exhibit 116, volume III-A, page 9; exhibit 165, volume III-D, page 99; exhibit 462, volume V, supplement, page 82; exhibit 54, volume I-A, page 20-c; exhibit 26, volume I-A, page 108-c; exhibit 28, volume I-B, page 48. In the last two documents exhibit 400, volume VIII-A, page 98, and exhibit 388, I mean exhibit 111, volume I-B, page 67.
May I start the examination of the witness?
DIRECT EXAMINATION BY DR. WANDSCHNEIDER:
Q. Dr. Rothenberger, please describe in brief outlines, your personal and professional career.
A. I was born on 30 June 1896 in Cuxhaven, that is the outlet of Hamburg to the North Sea. I spent my youth first in Cuxhaven, and later in the City of Hamburg, from the sixth year of my life on. In Hamburg I received a classical education. Shortly before the war, I made my classical examination (Abitur); then I studied law for two semesters in Kiel and in Berlin. And, from 1915 until 1918, I was a soldier, and at the end of the war I was at the front as an officer. After the war I continued my legal studies in Hamburg where the University had been founded in the meantime. And, in 1920 I passed my first legal examination, the so-called Referendar examination. In 1922 I passed the second legal examination, the so-called Assessor examination. It was my desire to become a judge; however, at that time, I was only 26 years old; therefore, my desire was, first, to work a few years as a lawyer.
Previously, at the time when I was a Refendar, I worked with a lawyer's firm for a year and a half. This desire I told to the, then Justice Senator of Hamburg, Dr. Noeldecke. However, according to the practice in Germany at the time, he did no consider that it was possible first to appoint me prosecutor and then to take me over into his office as judge -- those, in Germany were completely separate stages of training; therefore, I gave up that intention, and in 1922 I became a judge, and first I became an assistant judge. And, in 1925, I was finally employed as a professional judge. In addition to this activity as a judge, from 1922 on, I was in charge of the so-called Repetitorium in Hamburg. This is an institution which existed in Germany for decades. Young legal students have the feeling that the training which they receive at the University and the education they receive there does not give them sufficient practical experience, and the practical outlook; that it is too scientific and too theoretical; and, therefore, it is usual in Germany, in addition to their University education the students -- law students in Germany go to a Repetitorium. I, myself, too, before the Refendar examination, as well as before the Accessor examination, have to thank for the essential part of my education -- a Dr. John Ulrich Schroeder.
Q. Would you please state briefly who this Dr. Schroeder was?
A. Dr. Schroeder was in Hamburg, a very well known person, an Oberlandesgerichtsrat who was very gifted, pedagogically, politically and theoretically; he was a leading Socialist. Therefore, in 1922, he was transferred to Saxony in the then Socialist Saxony Ministry of Justice as a Ministerial Director, and he requested me to take over his Repetitorium. I did so, and I carried on that activity in addition to my profession as a judge from 1922 until 1933. I maintained contact with Dr. Schroeder. He turned to me in particular in 1933 when in Saxony he was discharged without receiving a pension because of the Socialist attitude. And, since he had formerly been Oberlandesgerichtrat in Hamburg, I secured a pension for him which he had received until today.
After the surrender, he became General Public Prosecutor in Saxony and unfortunately he died a short time ago, in March of this year.
Then, from 1925 until 1927, I was a judge. In 1927 I gave up my profession as a judge temporarily because I was called as Regierensrat Government Counsellor , in the so-called justice administration of the District of Hamburg. That is the Ministry of Justice of a State (Land). It is a very small agency with only three higher officials. One was competent for personnel matters of the entire administration for justice of Hamburg; the second, for criminal law; and, the third, for civil law and public law-- I was in the latter position. In that activity in the administration of justice of the Land, I had to deal with two special tasks which influenced my development at that time, and at a later time to a considerable extent. Therefore, I want to mention them briefly. The first task was in December 1927, at that time I was concerned with a trial before the then state court in Leipzig. The state court is the supreme court of Germany that dealt with constitutional questions. During the time of the Weimar constitution it was the task of this court, among others, to examine whether the laws which a Laud has promulgated are in accordance with the Weimar constitution.
And now Hamburg, with my collaboration--I was competent for that question--had promulgated an electoral law for the Hamburg Parliament. This electoral law laid down that a party which wanted to appoint representatives to the Parliament had to fulfill a minimum requirement, which was that it had to obtain 300 signatures and submit 3,000 Marks, The purpose of that regulation was to prevent too many small parties from entering Parliament. This electoral law, according to which the Hamburg Parliament was elected, was attacked before the State Court. The so-called Revaluating Party contested this law, and the Nazi Party, which at that time was entirely unknown, small party in Northern Germany. I lost this case before the State Court, for the reason that this regulation was not in accordance with the regulations of the general right to vote. In other words, the State Court was of the opinion that every German, even if he did not meet the requirements where he could submit 3,000 marks and obtain 300 signatures, had the right in an election, to make a suggestion for a party and possibly representatives to the Parliament.
This was a task which influenced my later development.
The second task was in 1928. At that time I was concerned with discussions in the German Reich Council. This has already been mentioned in this trial, especially by Professor Jahrreis, that in addition to the Reichstag--that is, the actual Parliament of the German people-there was a Reichstag (Reich Council), in which the individual Laonder, including Hamburg, were represented; and before a law could be passed by the Reichstag, the Reichsrat had to discuss the law. Thus, the Reichsrat had a so-called right to participate, according to the Weimar Consitution.
It was my specific task at the time, as representative of the Hamburg Government, in very extensive negotiations in the Reichsrat, to advice in regard to a law at that time; that was a law regarding illegitimate children. This law, or rather this draft, of a bill, had already been prepared several years earlier in the Reich Ministry of Justice, and efforts were now being made to transform this bill into a law.
In the discussions in the Reichsrat, where the eighteen German Laender were represented, it became apparent that entirely different opinions existed in regard to this problem. This was conditioned by the fact that the governments of these eighteen German Laender were of different compositions from a political point of view. One government was purely Socialist; another was Deutschnational--that was a rightist party at the time in Germany; another--and this was the Hamburg Government--was a mixture of Socialist and Democrat Parties.
The result was that a definite law never came about even at the stage when it was still in the Reichsrat, and therefore the law never got to the Reichstag and never became law even to this day.
Q Would you please continue with your description of your personal career?
A In 1929 I was promoted to Oberregierungsrat. For about three quaters of a year I worked on the Hamburg Health Board and then I returned to the Administration of Justice of the Land as Oberregierungsrat In 1931 I was promoted to Landgerichtsdirector, that is, District Court Director. In other words, I became a judge again. In that same year Hamburg was requested by the Reich Ministry of Justice to suggest a judge who should become Reichsgerichtsrat. The then senator of the Administration of Justice was Mayor Petersen.
Q Would you please tell us who this Mayor Petersen was?
A Mayor Petersen was the leader of the Democratic Party of Germany in the Reicgstag. He was a candidate for the position of Reich President in 1925 when Reich President Ebert died, and Hindenburg was then elected Reich President.
His suggestion was accepted by Reich Minister of Justice Dr. Joel, but nothing came of the matter because the President of the Reich Supreme Court, Dr. Bumke, objected because I was too young. I was 35 years old at that time, and the usual age for the Reichsgerichtsraete--that is, the Reich Supreme Court judges--who were to be newly appointed was about the middle 40's.
Q Dr. Rothenberger, please describe to the Tribunal whether you were abroad for a considerable lenght of time and what those sojourns in foreign countries meant to you.
A In 1929 I was in England for about eight months. There I studied the organization and structure of the English courts, the position of the English Judges, the position of the Masters and Registrars, and the relationship of the barristers and solicitors to the Court. I studied these in detail; I worked at the High Court of Justice with a barrister and with a solicitor. I wrote a lenghty article about the result of that trip, which my defense counsel will probably submit as an exhibit.
Q Did you learn anything about any other institutions in England, which later was decisive for your plans, which served to relieve the judge of his burdens?
A I have already explained that the Masters and Registrars and the clerks, on the whole, made it possible for the English Judge to have a different position than here in Germany.
Q What were your professional and economic consitions at the time in Hamburg?
A They were absolutely good and secure. I was a higher judge, and I had a very good additional income due to this institution for young lawyers. I was teaching fifty to sixty students and Referendars, and therefore I was doing well.
Q Now, a great change occured in your career. Could you tell the Court when and on the basis of what considerations you decided to give up this quiet and secure life?
A The year 1933 came. On the 5th of March 1933, there were Parliamentary elections in Hamburg, as everywhere throughout the Reich.
In these elections the National Socialist Party obtained about 40 percent of the votes. Therefore, it was ordered to form a new Government, because it was the strongest party in the Parliament.
Until that time Hamburg had the government majority which consisted of Social Democrats and Democrats. The NSDAP, which was ordered to form a now government, formed a coalition government with the Democratic Party, the Gorman People's Party, and the Deutschnationalen people's Party, Gorman National People's Party.
A. The day after the election, that is on the 6th of March, the Reich Statthalter and Gauleiter of Hamburg, Kauffmann, called me up. Until that time I had not known him personally. He asked me whether I would be willing to assume the position of the acting mayor in this now government of Hamburg. He told me that he had heard about me, and therefore he was making this offer to me. I requested him to give me one day to think the matter over, and then I refused his offer. I gave as a reason that I considered that my task lay in the Administration of Justice, that I wasn't inclined for representative nor for political tasks, and those were to be connected with the position of mayor of a city like Hamburg. Thereupon he asked me whether in that case I would be willing to take over the Administration of Justice of Hamburg as its chief, and I answered that I would.
Q. In the subsequent time did you again refuse leading positions in the Reich? Perhaps you can mention that in this connection here now.
A. In March '33 I thus became Justizsenator, as he was called, in Hamburg, Chief of the Administration of Justice. And the Tribunal already knows that these Ministries of Justice of the individual Laender, of which there were about 18 at the time, in 1935, wore dissolved by the so-called centralization of the Administration of Justice. Therefore toward the end of 1934 the Reichminister of Justice, Dr. Guertner in Kiel, where we met on the occasion of a University festival, approached me, and asked me whether I would he willing to become presiding judge of the People's Court, which at that time was being created. I rejected that offer, oven though this was the second position of a Judge in Germany next to the President of the Reich Supreme Court. But for administration of criminal law I had neither the experience nor the inclination.