The political development of the People's Court, of course, one could not predict in any way at that time. But I remained in Hamburg and when in 1935 the Administration of Justice was incorporated into the Reich and my office as chief of the Administration of Justice, Justizsenator, was eliminated, I became president of the Hanseatic District Court of Appeals. That is a position of judge which, however, at the same time includes also administrative activity. I believe that the Tribunal is already familiar with the fact that from 1935 on Germany was divided into I believe 37 to 35 areas of district courts of appeal, and at their top there was each time a president of the District Court of Appeals. In 1936 or 1937 the Reich lawyers' leader Frank approached me through a representative and asked me if I would like to be his representative in Berlin in his capacity as Reich Lawyers' leader. It was not difficult for me to reject that offer, because during the course of those two years I got to know Frank. The personal characteristics of Frank have repeatedly been emphasized in this trial, but I want to add one more attribute, that he was extraordinarily vain and that he never forgave me that I could refuse to become his assistant.
Q. In conclusion in regard to this question would you please state something about your additional positions in Hamburg which you had in addition to your position as president of the district court of appeals?
A. In Hamburg I had several extra duties during the years when I was still in Hamburg, that is from 1935 on. That is in addition to my main duty. I was honorary professor at the Hamburg University for Civil Law and there I in a certain sense continued my activity as repetitor, that is, tutor, so to say. That is, I held lectures for students. From 1938 on I was President of the Reich Maritime Office. That was the final authority in decisions about collisions at sea and about the litigations regarding the withdrawing of a license for a captain which resulted from this for captains who were found guilty in case of a collision. And from the beginning of the war on I was president of the Prise Court in Hamburg. The Tribunal probably knows the functions of such a Prise Court.
Until August 1942 I remained at Hamburg, and from August 1942 until December 1943 I was in Berlin as Undersecretary. In December 1943 I again left there, returned to Hamburg, and was a notary in Hamburg.
DR. WANDSCHNEIDER: May it please the Tribunal, that exhausts the personal data. I don't believe that there is any point in going on to the next question before the noon recess, or would you like me to start tho next question?
THE PRESIDENT: We will take our noon recess at this time.
(A recess was taken until 1330 hours)
Court No. III, Case No. 3.
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 16 July 1947.)
CURT ROTHENBERGER - Resumed DIRECT EXAMINATION - Continued BY DR. WANDSCHNEIDER:
Q I ask to be permitted to continue the examination of the defendant Dr. Rothenberger. We come now to the political career of the defendant, after personal data had been dealt with. I want to ask you, Dr. Rothenberger, what your political career was, what the political conditions were in Germany before 1933, and how they impressed you and influenced you.
A Before 1933, at first I did not have any political activity. I did not belong to any political party. I had little interest for politics; at any rate, not any interest for that type of politics as it developed in Germany gradually. I was of the opinion that a judge should be neutral, and not bound to the policy of any individual party.
Q Could you give us more reasons for these explanations in connection with the statements you have made concerning your personal career?
A Then for the first time I came into somewhat closer contact with politics, at the end of 1931 and the beginning of 1932. My chief in the Administration of Justice -- I was at that time District Court Director -- Mayor Petersen, whom I have mentioned before, appointed me to be in charge of investigations carried on by an investigating committee in the Parliament of Hamburg. This was the situation: various parties in the Hamburg Parliament had made the motion that such a Parliamentary investigating committee should be established in order to find out whether in the administration of Hamburg--especially the police administration of Hamburg--corruption or other conditions of that kind existed, which according to statements that had been made, were alleged to be very extensive. A higher judge had to be in charge of that investigation and I was assigned that post by Major Peterson. Then in that capacity, in Court No. III, Case No. 3.proceedings which were carried on for several months, I tried to determine the actual facts.
My associates in that committee were from all political parties; that is to say, the Social Democrats, the Democratic Party, the Communists, the National Socialists, and various others.
When I had just about finished the investigation, elections were coming on. Although the proceedings had been kept strictly secret, the political parties took advantage of the matters which had been revealed in these proceedings in their election campaign. It was a free-for-all fight. On that occasion, I recognized for the first time the type of the Parliamentarian, and I gained the impression at that time that it was not the best, to be sure. So that my aversion against the kind of politics which prevailed at that time in Germany increased.
On that occasion, I also mot a member of the NSDAP, Herr von Alwoerden, who at that time was a member of the Gauleitung--the Gau Executive office. I had many conversations with him about the problems of the time and I had a good impression of that man: an objective, calm fellow with a clear mind. That for the first time brought me into contact with National Socialism. As a judge, I very often assisted him and other associates in solving general legal questions which at that time were of importance, and in that manner I can also explain that one year later, that is in 1933, the Gauleiter nominated me as Justice Senator.
Q What were your opinions concerning the general political conditions in the Reich? You have just mentioned your experiences in Hamburg.
A I, myself, had impressions of the imperial period, that is to say, the period before 1918, only from my childhood. Only after the war, as a young student, I made the acquaintance of the essence of democracy. First as a student and a referendar and a young judge, I occupied myself also scientifically with the problem of democracy. I wrote several articles about it, and as for the principle, I was quite for democracy.
THE PRESIDENT: May I suggest to you that a very brief statement Court No. III, Case No. 3.of your general feelings on this and that subject and this and that period may be permitted, but what the Tribunal is really interested in relates to the charges in the evidence and to your conduct with reference to the evidence which has been introduced against you.
Other matters should be made brief. It's conduct that we are interested in.
BY DR. WANDSCHNEIDER:
Q Will you please abbreviate your description concerning your opinion of conditions in the Reich at that time. You were of the opinion, therefore, that in theory you agreed with the principle of democracy, but-
A I only wanted to say in a few brief sentences what in practice were the facts of the Weimar Democracy until 1933; in particular, as far as the Administration of Justice was concerned, which in theory should be independent. That had, in practice, become a toy of the parties. In the Reichstag, demand was made by the President of the Reichstag, by the Reich Chanceller, to abrogate the independence of the Administration of Justice, just as the judges later after 1933 were severely attacked by the press. Thus gradually the Weimar Democracy, up to the year 1933, arrived at a condition for which there was only one solution, that is, either the solution of Communism or the solution of National Socialism. According to my whole tradition and my own career, I decided in favor of National Socialism.
Q Dr. Rothenberger, we have seen of the dangers and even more in the course of this trial, of the centralization by National Socialism. These dangers, of course, were not as recognizable at that time for you as they were described later. We want to restrict ourselves to the experiences which you gained from the development of that time in regard to your legal tasks and plans. Can you explain to us what your legal impressions were on the basis of your experiences in England and what you did about them?
A Owing to the fact that in Germany only one party had taken the place and position of many parties, I did not see any danger in that Court No. III, Case No. 3.centralization.
Most of the Germans, just as I was, were under that impression of uniformity in contrast to the condition of decentralization that had existed before. I did not realize these dangers, particularly because there were so many regional differences. In Germany, the southern German is different from the northern German, and the western German differs from the German in the cast. People in Hamburg are different from those in Prussian. Thus I believed that within that large unit, the disadvantages of uniformity would be avoided by variety. In practice, that is what actually happened. Everything was combined under one party, but in fact the struggle which hitherto had existed between the Parties began within the party now.
Court No. III, Case No. 3.
And I compared these impressions which I had gained in Germany with with impressions that I gained in England. Here I made the acquaintance of the term the principle of the personality of the judge, the authority of the judge, the respect for a sentence, or a judgment; the idea of the tradition and the corps d'esprit. I have made the acquaintance of a purely non-bureaucratical administration of justice and I knew from German literature that already for fifty years, since the year 1906, plans existed there to adopt these ideas and carry them out also in Germany, the idea of the authority of the judge such as it was in England; and I knew further more that these attempts in the imperial period as well as during the Weimar democracy again and again had failed, because there was no stable leadership of the state in Germany. Now, I considered it a matter of fact and the practical fact recognized by the new government after 1933 that it would be that stable leadership of the state which would be in a position to carry out also these projects and ideas. That is one of the reasons which caused me to affirm the idea of a stable leadership of the state and to become a National Socialist.
Q Could you give us any further reasons to complete the picture?
A My second reason follows: National Socialist propaganda before 1933 had fought against certain qualities of the Germans, which are conditioned by their historic traditions and historic development. The German is inclined, since only since 1870 there is a uniform Reich in existence, to be very narrow minded, to shirk responsibility; these qualities were combatted by the National Socialists. They promised that it had to be expected of the acceptance of the Fuehrer principle that there would be more a sense of responsibility than had existed before. To this reason one has to add as a third reason the emphasis of the social idea. I grew up, as I have said, in Hamburg, a port and worker's city, and I am of the opinion that the political development in every state depends upon the question as to how far one succeeds to incorporate the fourth estate, that is the estate of the workers into Court No. III, Case No. 3.the social community.
In that field National Socialism not only made promises but achieved actual results during the first years so that, therefore, my actions and my publications time and again were circling around those three problems -- one, reforms in the administration of justice; two, a different attitude; and three, a social state.
Q We come now to the question why you became a party member and a gaufuehrer of the USRB, the National Socialist Lawyers League; those are phases of your political life during which you participated actually and formally in the NSDAP. Can you explain why first you became a party member?
A For reasons of full conviction I became a party member in 1933 because the party at that time did not appear to me to be a party such as the parties before that time, but a whole; and in 1934, or 1935 when Gauleitier Kauffmann approached me and asked me to take over the Gauleadership of the National Socialist Lawyer's League, I had already gained my first impressions and experiences in the struggle between the administration of justice and the party. It has been emphasized here time and again how during the first period, after the revolution of 1933; every Kreisleiter attempted to interfere in court proceedings; the Gestapo tried to revise sentences, and it is known how the NSRB, the National Socialist Jurists League tried to gain influence with the Gauleiter or the Reichsstatthalter in order to act against the administration of justice. In this respect I gained very bad impressions in Hamburg with the Gaufuehrer at this time of the NSRB, Dr. Haecke. The Reichsstatthalter removed him from office and asked me to take his place, and I do not regret having taken that step because only owing to the fact that I myself held that office, I was in a position to eliminate attacks on the part of the party against the administration of justice from the outset. And that may only have been possible because I had a Reichsstatthalter, Reich governor in Hamburg who was smart enough and objective enough to realize pretty soon that any fight against the administration of justice can only lead to the destruction of the state Court No. III, Case No. 3.itself.
I gained influence on the man particularly by two elements. First, because at the first opportunity when the attempt was made to put an incapable man in charge of a penal institution, I refused to do so. I asked to be sent on leave and asked him to assure me that that man would not be removed. The case was mentioned here again -- a man by the name of Laatz.
Q I shall submit an affidavit about that case.
A To describe tho attitude of tho Reichsstatthalter in Hamburg, it is important to stress that also the mayor of Hamburg today, who, after the surrender in 1945 was appointed, officially and publicly expressed his gratitude for the calm and objective attitude displayed by Reichsstatthalter Kauffmann during all these years in Hamburg. It belongs to the same field that two years later I took over the Gau Legal Office and thereby excluded any competition; and it belongs to the same complex of questions that during the same year my membership in the pary was put down as 850,000, which gave me a possibility to stand up more strongly against the so-called old fighters. On account of the identity, of course, between president of the District Court of Appeals and Gaufuehrer, I was envied by all other district court of appeals because they continually had to struggle against the party while I was saved this struggle.
Q How long did you hold these offices?
A I held these offices until August 1942 when I was transferred to Berlin; then the Gau Legal office was dissolved, and the office of the Gaufuehrer of the NSRB, I gave up.
Q Then, you became deputy in Berlin.
A Yes, I became deputy in Berlin until December, 1943.
Q What was your attitude toward tho SD in Hamburg; could you tell us something about that? I am referring to NG-825 in that connection; NG-825; it is Exhibit 433; and it is to be found in Volume I Supplement, on page 29.
A The SD in Hamburg during the first few years had a bad selection Court No. III, Case No. 3.of personnel.
There was the usual system of informers; I was spied upon; the Reichsstatthalter was spied upon, and that lead to the removal of them; the Reichsstatthalter removed, when he found out about that, the entire personnel from office from Hamburg. The new men whom he appointed, as far as they were concerned with matters of administration of justice, come to me in 1939. In the meantime, the directive had been sent down from the Reich Ministry of Justice to the effect that tho SD should be considered and used as a source of information of tho state by agencies of the administration of justice; and here also I was independent to nominate individuals who would not submit reports intended to go against the interests of the Administration of Justice, but who themselves were in favor and sympathy with the principles of the Administration of Justice, and that is the basis for the conference with the SD-Fuehrer in Hamburg which is contained in NG-825, the fact that I made suggestions to nominate men, who were judges and whom I knew would never submit reports which were against tho Administration of Justice. Since that time, also in Hamburg, no SD informer appeared in court proceedings, and, as far as I know, no reports were submitted which were against the Administration of Justice.
Q Dr. Rothenberger, could you comment now on the question of establishment of special courts in 1933 in Hamburg. I am referring, if it please the Tribunal, to NG-514, that is Exhibit 113, in Document Book III-A, on page 1. It deals with the conference which took place in the Administration of Justice of Hamburg, in March, 1933.
A In March, 1933, a directive came down from the Reich government that special courts were to be instituted in the Laender. On the basis of that directive, I established a special court in Hamburg in March 1933 after having requested a legal opinion, as can be seen from the document, from my personal referent at the time, Professor Bertram, and the president of the District Court of Appeals, Dr. Kieselbach, who today again is the president of the entire Administration of Justice in the British zone. The establishment of the special court as mentioned in NG-514 is based upon this; there were no legal misgivings against it.
Q. I come now to NG-515. That was submitted as Exhibit 114 by the Prosecution in Volume III-A on Page 7. I ask you to comment on this, Dr. Rothenberger.
A. The special court became in part competent for criminal offenses for which, up to that time, the penal chambers or the jury court, Schoeffengericht, were competent and for which the necessity for defense did not exist. I had, therefore, suggested that in all cases where the facts are that simple where it does not seem necessary to appoint a defense counsel, that also in such cases, as far as the special courts were concerned, it should be left to the discretion of the presiding judge to decide whether defense counsel was needed. Cause for it was given by the finance senator of Hamburg because the fees for defense counsel would have amounted to too much, but that suggestion did not prove successful.
Q. In Bremen, subsequently, in 1939, a special court was established. Would you please tell us what you had to do with that?
A. After the outbreak of the war a decree was issued on the first of September 1939 according to which, in each Gau of Germany, a special court had to be established. Up to that time the special court Hamburg had also been competent for the City of Bremen. Now, a special courts was established in Bremen so that it was no longer necessary for the judges from Hamburg to travel to Bremen in order to perform their functions of the special court. For them that meant an improvement, but it did not amount to any material change of conditions.
Q. The exhibit to which Dr. Rothenberger has just referred was Exhibit 115 submitted in Volume III-A by the prosecution on Page 8. Dr. Rothenberger, then in the correspondence and in the exchange of letters of the year 1942 with the Reich Ministry of Justice where you requested a judge for the special court you expressed that you did not approve of a certain judge because ha had a tendency to be too lenient.
The prosecution has submitted that document against you. It is NG-519, Exhibit 116, Volume III-A, Page 9. I ask you to state your position for what reason you were of that opinion that that judge was not suitable for the purpose.
A. That correspondence is from the year 1942. That is a time when Hamburg was subjected to heavy air raids, air raids which, of course, resulted in an increase of criminality. There existed a regulation from the Reich Ministry of Justice that two weeks after indictment had been filed the main trial had to take place if at all possible.
In order to avoid any over-burdening of the special courts I requested, because there was a shortage of judges in Hamburg itself, a judge from another district. A judge was offered to me from the district of Duesseldorf of whom it was said that ha had a great tendency toward leniency. I was of the opinion that just at that time, whan we were faced with an increase in criminality, only such judges were suitable who had experiences in the field of special courts and that any judge known to be particularly lenient would not be the suitable person.
I may point out that this has nothing to do with any political tendency.
Q. In the next exhibit reference is made to NG-530. That is Exhibit 165, Volume III-D on Page 99. That is a letter from you, Dr. Rothenberger, to the Reich Ministry of Justice of the 16 June 1942, Subject: Criminal procee dings concerning looting.
A. I have to correct that, it is the other way around. It is a letter from the Ministry of Justice to the District Courts of Appeals.
Q. That is right.
A. The Ministry of Justice on the 16 June 1942 had directed that in the case of mammouth air raids special courts should be at disposition as quickly as possible. The decree found its justification particularly in large cities because the judges of the special courts in some cases lived far outside the city, traffic was interrupted frequently, and therefore they were not able to come into the city. For that reason in Hamburg those judges of the special court who actually lived within the city were put together in a special department of the special court of Hamburg. That again did not create any change in the legal conditions but only those indicidual judges of the special court who could easily be reached after air attacks were put on a special list for these cases. It was just a question of personnel, a question of distribution of work.
In connection with the establishment of that department of the special court, I made an arrangement with the Reich Defense Commissar. In many large cities of Germany the habit had developed that after large air raids, the police, unless administration of justice interfered immediately, the police on its part would shoot plunderers, looters on the spot. In order to avoid any such occurance in Hamburg I agreed, with the Reich Defense Commissar - as can be seen from the document - that the police was obliged to turn over looters whom they had seized immediately to the Prosecution to have them tried and sentenced by the special courts.
Q The Prosecution, as Exhibit 462, submitted the minutes of a conference of the 23 January 1942. That exhibit is contained in the Volume V Supplement, on Page 82. It is the establishment of a fourth special court penal chamber. Will you please describe how it came to that establishment?
A Until that time there were three departments within the special court in Hamburg. In order to avoid an overburdening of these three departments a fourth department of the special court was instituted. That provided the guarantee for a calm and thorough handling of these matters. That did not mean that the legal conditions were changed, but only that the sphere was extended. The capacity of the special court was extended.
Q. You were charged with having made two speeches which were submitted by the prosecution against you, one a speech made when Dr. Joel was instituted in office. That is Exhibit 54 in Volume I-A, Page 20. Would you please comment about the cause and contents of that speech?
A. That speech was made during my period of office in Berlin. I had been commissioned by Thierack - for what reason I no longer recall - to introduce Dr. Joel in officethe general prosecutor, Dr. Joel. Because he was a general prosecutor I considered it requisite to say a few words about penal law on that occasion and I set forth that the impression was made as if that war which the German people fought for its proper existence and for the maintenance of European culture would have come into a decisive phase and that in my opinion, in that statement of the war, what counted was the moral attitude and the spiritual attitude of the German people.
THE PRESIDENT: May I interrupt? That exhibit is in evidence and it is entirely unnecessary for him to repeat verbally what he said in the speech. On the other hand, if there is anything in the speech which the witness wishes to explain, he is at liberty to do so; but the mere repetition in other words of what he said in the speech will aid us in no respect whatever, and it shall not be done.
DR. WANDSCHNEIDER: Excuse me, Mr. President, I understood it that way too.
THE PRESIDENT: You may proceed.
BY DR. WANDSCHNEIDER:
Q Will you please just select those points from that speech which are absolutely necessary to explain your position and which heretofore, of course, have not been emphasized by the prosecution; expecially, what do you meant by a strong administration of justice?
A The essential point of that speech was that I considered it the task of the Administration of Justice that justice and equal treatment must be guaranteed. That was a statement made against all those people in Germany who believed they could be able to take advantage of the particular consitions created by the war on the basis of connections or positions within the State of Party. I was of the opinion that it was necessary to point out that the leading personalities in Germany should set an example and subject themselves to the same principles of justice and equality before the law as every individual in Germany.
I also considered it my responsibility to emphasize that a strong Administration of Justice was required, strong in the meaning of not to shrink back from problems, as a contrast to weak; and that Administration had the task and the obligation to counteract all those conditions and circumstances that had come to the foreground in Germany during the war, such as blackmarkateers, war racketeers, and so on.
That is the meaning of that speech.
Q Will you please refer now to the Lueneburg speech which you made in the beginning of 1943? It was submitted by the Prosecution as Exhibit 26, in document book I-A, on page 108. What was the reason for that speech, and before what group of people did you make it?
A Unfortunately, only a fragment of that speech is before us. The prosecution did not state where that fragment came from. I do not know who formulated it, because I always spoke without a prepared text, and therefore it must have emanated from the pen of a correspondent who, probably wrote it in free style and his own words. The meaning of my speech is the following. I remember it quite well.
On the whole I dealt with the reform in the Administration of Justice that I intended to carry out at that time. There again I stressed the fact that a strong Administration of Justice and application of the law was required. Furthermore, I expressed the thought that the feeling of justice on the part of the German people was one of the causes for Hitler to realize clearly that just now, during a time of war, a strong Administration of Justice had to be created, as I expressed it, he had realized clearly that our nation had to undergo extreme strain, but only under one condition, equal strain and justice for all.
Since I spoke before the judges of the districts, I also discussed the problem of the judgment of a judge, or the verdict of a judge. I expressed the view that their judgment should be untouchable in Germany, that one could only revise it within the normal legal mans and remedies, and that any attempt which could be made from any other side interfere with the verdict of a judge was quite arbitrary.
In the end, as far as this part of the speech is concerned which is contained here in the document, I referred briefly to the administration of criminal law, and I established two principles as a warning to the judges present:
"We are now in the fourth year of the war. In each nation, in the entire body of people, there are individuals who, by their own behavior place themselves apart from the common emergency.
There are criminals who are incorrigible, who live only at the expense of others, and that type of person has to be dealt with by the most severe punishment."
In the same sentence I also expressed the thought that, on the other hand, there are individuals who slipped once, and in such cases the judges had to be generous, non-bureaucratic, and lenient.
Those were the two poles around which I built my speech in order to give some principles to the judges present. That point of view on my part was based on neither political nor racial nor national considerations.
Q We come now to a new question, which dates back a little further. You experienced the Roehm Putsch, Dr. Rothenberger, and I should like you to comment on that problem of the Roehm Putsch and your position on it, because that was a far-reaching event which was important and essential in influencing of many people.
A I remember the Roehm Putsch very Well, because it occured on my birthday. I heard over the radio that, upon the personal order of Hitler, men had been killed in Southern Germany. Naturally, I was very much excited about that. I approached the Keichsstatthalter, Reich Governor Kauffmann, and asked him what the reasons were. He told me he did not know that himself, but he was going to Berlin and he was going to find out. When he returned, he told me about it and said that at the very last moment a revolution had been prevented in Germany; he had seen to it that in Hamburg itself no executions were carried out, and I asked him to also see to it that arrests which had occured should be rescinded. He then went to Berlin again and succeeeded in having five or six people from Hamburg, who had been arrested by Heydrich released from arrest.
That was another prof to me that if one was aggressive enough and stated one's point, one could be successful.
My general confidence in the development of law in Germany, of course, was shaken by that event, but I was calmed down again, especially by the public statement of a man of the stature of Hindenbburg, who publicly stated that it was a case of national emergency, and he officially expressed his gratitude to the Reich Chancellor. Whether such a state of national emergency actually prevailed, as far as I have seen from the judgment of the IMT, has not been cleared until today.
DR. WANDSCHNEIDER: In this connection I shall submit a few affidavits which will confirm the accuracy of what has just been said.
Q I think we can pass over the further development of the Administration of Justice in Hamburg, because it would just repeat the principles which you have already stated. Therefore, I would like to ask you to comment on the question as to how the centralization of Justice influenced your position in Hamburg.
A Personally, for me, the centralization of Justice meant that I became dependent. Until that time I had been an independent chief of an Administration of Justice, and I now became dependent upon the Reich Ministry of Justice. Technically, the centralization or the unification of the Administration of Justice, of course, brought about considerable advantages for Germany as a whole, because a uniform law was created for all of Germany. However, from the point of view of Hamburg, the centralization of Justice (Verreichlichung der Justiz), was a step backward, and that for two reasons: First, because a man of the type of Freisler, from now on, was to be the competent under secretary fro the area of Hamburg. He was responsible for the policies of the administration of penal law for the whole of Germany, and as for personnel questions, he was also the superior of such districts as Western Germany, Northern Germany, and Middle Germany.
The second reason was that the Reich Ministry of Justice was merged with the Prussian Ministry of Justice, and thereby a spirit entered into the Reich Ministry of Justice which, considereing the consepts prevailing in Hamburg about matters of Justice, also represented a step backwards.