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.
Prussia, became a power by its military and by its civil servants, and the Administration of Justice in Prussia was always somewhat behind, a stepchild. The former Reich minister of Justice Schiffer expressed that once in the words "To command and to rule has always been more important in Prussian than to administer justice." At Hamburg many institutions of the Ministry of Justice were removed after the first year. I should like to mention also the considerably higher salary of the judge which he always had in Hamburg was reduced. The title of the judge in Hamburg which had simply been judge was removed, and in its place was put the Rat (counsellor), Local Court Counsellor, the District Court Counsellor, and so on. The disciplinary jurisdiction which existed so far for judges in Hamburg was removed, and thus the entire professional level of judges in Hamburg was lowered. To that extent the centralization of justice, (Verreichlichung der Justiz), as seen from Hamburg was a disadvantage.
Q. Could you also describe what occurred in the field of the police?
A. During the same year, 1935, when the Administration of Justice was merged, the police also was centralized. That also meant that thereafter decisions on the part of the police in Hamburg were not made as heretofore, but through the Reich Security Main Office, RSHA in Berlin, which, at least in questions of fundamental importance, had the right of decision. That led to it that also in Hamburg frequently on the basis of decisions made at Berlin sentences were corrected that people who had been acquitted were rearrested and that the prestige of the Administration of Justice here again suffered greatly.
Q. Did such things occur in Hamburg?
A. Yes, these matters became visible in Hamburg in the beginning. As far as the Reichstatthalter, Reich governor could, he removed these, but he could not always achieve a removal because the RSHA had the final decision.
Q. What did you do in such cases, in cases of transgression on the part of the police and the SS?
A. First I tried in the reports which were sent monthly or bimonthly to the Ministry of Justice to emphasize these bad conditions which existed. But since this alone was not sufficient to bring about a change, I considered my duty to go before the public. For the first time in the end of 1938 during a meeting at the University of Kiel I protested publicly against the attacks made particularly by the Schwarz Korps, The BlackCorps, against the profession of German judges. I stated there literally that a state where it is possible that a judge be publicly attacked is not as it should be and cannot continue to exist. That fact became known in Berlin and the Minister of Justice of the Reich asked me therefore in January 1939 to speak on a conference of all the presidents of the District Courts of Appeal and General Prosecutors about that subject. In that speech I listed all the attacks the data on which I collected, asked Minister Guertner not satisfy himself by coming to an arrangement with Himmler because I did not expect anything from that, but to report to Hitler directly and to see to it that these attacks should be publicly taken back in the press. In that report, in that speech, I emphasized the consequences which that attitude on the part of the Schwarze Korps would have, of necessity, for the judges of Germany and for the German people's legal feeling. In Document NG 629 reference is made to that speech of mine.
Q. It is Exhibit 28, volume 1-B on Page 48. And what did you do about that in Hamburg thereafter, Dr. Rothenberger?
A. Returning from Berlin I assembled all judges and prosecutors at Hamburg and Bremen and in a large hall in the prison building I reported about my trip to Berlin, and in very clear terms expressed what the consequences of such an attitude on the part of the SS toward the Administration of Justice would have to be. I told the judges of hamburg that if they would be attacked personally in any form whatever, they could be sure of my protection.
Q. Dr. Rothenberger, do you recall a conference of 1 February 1939, a conference of the presidents which is contained in Exhibit 28, NG 629? Do you remember particularly that you asked them that all cases where the judge was under the impression that the police performed any corrections of sentences should be immediately submitted to you?
A. Yes. In NG 629 the page before last is in addition to the speech about the Schwarze Korps, the Black Corps, I mentioned that is on the page before last; in the middle -- that any measure for correction, as it had become known in various instances in the Reich, should immediately be reported to me, and that all cases where arrest took place in the courtroom by the police should also immediately be reported to me, so that I could see to it that these measures be discontinued.
Q. Did it become know to you from any judge as to the effects of your speech concerning the Schwarze Korps, of 28 January 1939?
A. In that presidents' meeting I asked the presidents of the courts for the results of that speech, and I was told, as could be seen from the minutes, that the impression was that there was hope for improvement on the basis of my statements. However, doubts were voiced as to whether the Reichminister of Justice would be successful in counteracting the Schwarze Korps, and these doubts were based upon the passive attitude displayed hitherto by the Ministry.
Q. You have now acquainted us with a number of positive and negative impressions from your point of view. Since we have come to the time when the war broke out, will you please describe to us your attitude at that time as a result of all these impressions about the beginning of the war.
A. The course which the administration of justice had taken up until the beginning of the war in Germany was apt to cause very serious misgivings in the mind of any jurist. Yet it is not possible to say that at that time on could know, and had to know, in what direction that development was to continue and where it was going to lead to. At any rate, one could not do so if one sat there in Hamburg.
For one, because in Hamburg one was lacking the necessary oversight over the entire political development and tendency. One had no insight in the high politics, and above all I had always had the experience in Hamburg that it was possible if one stuck to one's point of view to convince the various political authorities, and in the positive sense one depended on the general propaganda which continued to stress the social aspects time and again which stressed the desire of Hitler to come to an arrangement with England which underlined the naval agreement, At any rate, the result was that the jurists would see danger in the future but did not have to have the impression that the road to a reasonable development was blocked.
Q We come now to a new subject which plays an important part within the scope of National Socialism; that is, the Jewish question. Will you please tell the Tribunal quite generally what your point of view is concerning the Jewish question.
A Concerning the Jewish question, there were in the NSDAP, already before 1933, two factions which opposed each other. One was the so-called Streicher wing which put the racial problem in the foreground. The other wing was the so-called social wing, led originally by Gregor Strasser. Gregor Strasser, already as early as the end of 1932, want into open opposition, and in 1934 was killed together with Roehm. Among the men who emphasized the beliefs of that social group was Kauffmann. That was conditioned by the fact that in Hamburg, of course, social problems played an important role. The Jewish question did not play the same part in Hamburg as in many other parts of the Reich. One reason for that was that on account of a large Portugese immigration in Hamburg, the connection to western Jewry had been very strong for centuries; particularly the socalled good old Hamburg families are greatly mixed by intermarriage. Furthermore, it was due to the fact that the people of Hamburg are generally more tolerant in their basic temperament.
Another indication of the attitude of the people of Hamburg to the Jews was, for instance, that the display of the so-called Stuermer Boxes in Hamburg was prohibited by Reich Statthalter Kauffmann. I, of course, officially and also privately was in close contact with Jews. I knew the advantages and disadvantages of Jewry.
Q Now, of course, it is known to you, Dr. Rothenberger, that the party program ambiguously states its position to the Jewish question. I assume you knew the party program at that time. Could you comment on that as to what thoughts you had concerning the attitude the Party would take to the Jewish question?
A In the beginning of 1933, I believed that just as in many of the Party platforms, many points are made which later do not play an important role. Gradually, however, I realized that the general line became more severe. It is beyond doubt that any German under the influence of propaganda considered a limitation of the Jews in cultural and spiritual life absolutely required, and so did I. But what was generally rejected in Hamburg was any method of violence, any economic exploitation and any kind of hatred. As for the general line, such as it developed gradually in Germany, I could not change anything anymore. In each individual case of my personal and official sphere of influence, individually and from the human point of view, I helped.
Q In connection with this question, the pogroms against Jews of November 1938 play a part. Will you please state to us what experiences you have made of these pogroms and what your attitude was.
A On the day before the pogroms -- that is the night before -- by way of rumor I heard of the intention that Jewish shops were to be looted. There again to obtain information I got in touch with the Reichstatthalter Kauffmann who told me that he had asked for information in Berlin because he and also heard about it and he had already alerted the Hamburg police too. He had posted them before the Jewish shops so that nothing should happen, and in fact, in Hamburg nothing did happen with the exception of a few individual cases. About that, in the document submitted NG-629 -
Q I refer to Exhibit 28 which has already been mentioned.
A It also mentions that due to the attitude of Reichstatthalter Kauffmann, nothing happened.
Q Will you please discuss now the question of the legal position of Jews, as far as you had to do with it.
AAs for the legal point of view, of course in the course of years many instances of conflict occurred to everyone; also to me. In a meeting in Berlin about various legal questions, negotiations were made and the result of these negotiations, as far as it concerns questions of civil law. was passed on by me to the subordinate courts. As far as matters of penal law were concerned, it was passed on by the General Prosecutor at Hamburg.
The opinion which the Ministry stated at that time in matters of civil law was just about in accordance with my own opinion.
Q Here again we are concerned with Exhibit 28, which has already repeatedly been mentioned; specifically the point of view of the Ministry which Dr. Rothenberger mentioned and which he shared and passed on to the subordinate officials can be found on the last page of the Exhibit 28.
A If I may be permitted, I would like to point out that during the same meeting -- the conference of presses -- I mentioned two further points; the one the question of sensational reports in the press about trials, where I promised to get in touch with the competent agencies to see that such sensational reports should have to cease; and the other concerning the speed of signing the sentences. I pointed out that no pressure should be permitted to be exerted on judges so that they should be given an opportunity to work on their opinions in all peace and quite.
Q Would you please describe your attitude toward foreigners and how in your profession it became apparent?
A The relations between Hamburg and foreign countries were, of course very close, both economically and personally. Consequently, I, before 1933 as well as after 1933, had close personal contacts, particularly to the western countries. Up until the outbreak of the war, I had a continuous exchange of service of jurists between England and Hamburg. English barristers would come to Hamburg continuously and vice versa. I sent judges from Hamburg to England in order to exchange experiences. With the outbreak of the war, of course, that stopped completely, so that I personally no longer had any connection with foreign countries. Professionally, I continued to remain only in two kinds of relations with foreigners. For one, in my capacity as presiding judge of the German Prize Court, an institution which was purely the capacity of a judge who had to decide or to investigate the legality of taking prizes and secondly, in connection with the so-called custodial administration of foreign property.
THE PRESIDENT: We will take our recess now for 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. WANDSCHNEIDER: May I continue the personal examination of the defendant?
BY DR. WANDSCHNEIDER:
Q: Dr. Rothenberger, please continue your statement.
A: I had stopped with the question as to what extent I had to deal with foreigners during the war. One of the tasks I mentioned was my activity at the Prize Court, and I was just beginning to tell about my second task, foreign property.
In 1924, and until 1933, a large amount of foreign money had been invested in the large corporations in Hamburg. The foreign property was given to a trustee during the war. He was appointed by the President of the District Court of Appeal, and supervised by him. During my activity in Berlin, when I was Undersecretary, I also dealt with that question in Division VII.
Already a few days after my appointment, the Party Chancellery in particular, the Ministry of Economics, and the Reichsfuehrer SS, urged liquidation of this foreign property. I arranged a meeting of the Undersecretaries, in 1943, and, in cooperation with the Foreign Office, we succeeded in beating back these attacks by the Party Chancellery and foreign investments remained in the same condition until the surrender, that is, under a custodian, and then they were handed over.
Q: We now come to the seventh question. Can you now make some statements about developments during the war, from 1939 to 1945?
A: For the Administration of Justice, the war brought with it an increase in difficulties from another external point of view, which were merely due to the fact that a large number of the personnel was drafted into the Wehrmacht, while the police did not have to give up their personnel to the Wehrmacht.
The legislation excluded legal recourse to a large extent because of the economic bottlenecks which Germany had. The administrative, legal procedure was eliminated altogether, and thus the Administration of Justice felt that it was pushed more and more into a defensive position due to the war.
Q: Please state some individual cases in which you protested against this development from your position in Hamburg.
A: In the current situation reports to the Reich Minister of Justice, I called attention to all the bad situations which had arisen. I happen to have some of these situation reports still in my possession, and if I may be permitted to do so, I would like to mention some examples from these situation reports.
In one situation report of 17 November 1940, I again had an argument against the Schwarze Korps. I said: "Unfortunately, the "Schwarze Korps" again deals with questions of the Administration of Justice, and especially with the German judge. Since I am of the opinion that only immediate representations can avoid the impression that the Administration of Justice lets attacks on it go on without objection, I point out the article about "The Law in the State." When a group which has no idea whatsoever about the tasks of a judge talks about such basic questions as independence of the judge, and writes about them in the official paper of the Reichsfuehrer SS -- that is, "The Schwarze Korps" -- that has to be prevented by all means. The individual German judge has this article put to him in many cases; he will be the object of attacks if a higher office does not immediately write an article which does justice to the difficulties of the tasks a judge has to fulfill."