Transcript for NMT 3: Justice Case

I offer this document as Exhibit No. 8 for identification.

THE PRESIDENT: It will be narked for identification

DR. GRUBE: The following documents refer to tho State Court for the Protection of the Republic, which was created by tho law for the protection of the republic on 21 July, 1922. I don't intend to read very much from this document. However, nay I direct the attention of tho Tribunal to the fact that in Articles 1 to 8 of tho law, that is pages 16 to 20, a large number of facts are cited, that is political facts and conditions which arc considered criminal, or declared to be criminal. I quote Article II of this law, on page 21 of the document book: "Germans and foreigners can be prosecuted for acts mentioned in articles 1 to 8 even if these acts were committed abroad."

The next paragraphs refer to tho Supreme State Tribunal for the protection of the republic. I direct the attention of the Tribunal first to Article 12: "Within the Reich Court a Supreme State Tribunal for the Protection of the Republic will be established. The Tribunal decides with a staff of 9 members: three of them are members of the Reich Court. Tho other six members do not need to possess the qualifications for the office of judge. Decisions outside the trial are made by three members, one of whom at least is not a member of the Reich Court. The members are appointed by the Reich President for tho duration of tho validity of this law."

I quote from the following paragraph the first sentence: "The Reich prosecution is the prosecuting authority."

Furthermore, I quote tho last sentence from this paragraph: "Legal appeal against the decisions of the Supreme State Tribunal cannot he made."

Article 13 contains the competency regulations in regard to the State Tribunal. It is explained that the acts specified in Articles 1 to 8 who is competent for their punishment. May I direct the attention of the Tribunal to the third paragraph of Article 13, and I quote:

"These regulations are also to be applied to punishable acts committed before this law came into force."

THE PRESIDENT: Let it be narked for identification.

DR. GRUBE: The next document is Document 39; that is on page 26 to 28 of tho document book. I do not intend to road the document itself. It concerns tho decree concerning State Tribunal for the Protection of the Republic. However, I direct the attention of the Tribunal to tho fact that this decree contains some paragraphs which are contained word by word in the later law for tho People's Court. I offer this document for identification as Exhibit 10.

THE PRESIDENT: Let it be marked Exhibit 10 for identification.

DR. GRUBE: On page 29 follows document No. 40. This is Bavarian decree for tho Protection of the Constitution of tho Republic, and is contained in tho Gazette of Laws and Decree for the Free State of Bavaria. May I direct the attention of the Tribunal to the preamble to this document. I quote: "The German Reichstag enacted a Law for the Protection of the Republic on 18 July 1922. Therein a court for tho trial of certain political criminal deeds was established which in its entirety is not staffed by professional judges, jurymen or sworn officials, but for the most part by persons, for whose selection political points of view are decisive."

Then, on the fourth to the last sentence on page 29 in tho German document book, the following sentence is quoted;

"For those reasons the Bavarian entire ministry feels it is necessary to issue the following provisions for the maintenance of the public security and order, as provided for in Article 64 of the Charter of tho Constitution for the Free State of Bavaria and in paragraph 48, subparagraph IV of the Constitution of the Reich, and on tho basis of tho Rights of Bavaria as a Sovereign State. The Bavarian Ministry decrees as follows: "Several sections follow: I will quote from Section 2 of the document book.

"The People's Courts are competent for deeds mentioned in Articles 1 to 8 of the Reich Law for the Protection of the Republic, committed against members of a former Republican Government, as well as for high treason, killing of attempts of killing, regardless whether they are punishable in accordance with this law or with other laws."

I then read from the third paragraph of Section 2: "Those provisions are also to be applied to punishable deeds committed prior to the day this decree becomes effective."

I offer this document for identification as Exhibit 11.

THE PRESIDENT: Let it be marked for identification.

DR. GRUBE: On page 33 of the document book there is a document 276. It is an excerpt from tho commentary by Werner Rosenberg regarding the code of criminal procedure. May I direct the attention of the Court to the beginning of this document, and I quote: "Since the enactment of the now Constitution of the Reich, the principle of Section 105 has already been disregarded twice by laws passed to meet special occasions, namely, by the law for the prosecution of war criminals and war crimes, dated 18 December 1919, Article 1 (Reich Legal Gazette 2125) and by the law concerning the trial of high treason activities of March, 1920, dated 2 April 1920. The State Tribunal for the Protection of tho Republic characterized by Kohlrausch as "a vesatious foreign body in a Reichstag, constitutional state" was of mixed nature. It was simultaneously Administrative Court and Criminal Court, Special Court and Emergency Court."

I now skip three lines and continue; "Its position as an Emergency Court was based upon Article 13, Section 4 of the Law of 21 July 1922, whereby the provisions concerning the competence of the State Tribunal were to be applied to deeds committed prior to the date by which the law became effective. In this connection it Was not a question of a general organizational measure whereby the Judicial Structure would be altered, but a temporary ordinance limited in regard to time, whereby an extraordinary Court was established in addition to the Regular Courts, whose competence remained in existence in subsidiary regard.

Added to these facts which, in themselves would perhaps not be decisive, came the whole tendency of this law. In regard to the tendency compare the pertinent expositions of Kern, page 21, Emergency Courts: 'It was the aim to transfer the unfinished cases, among others also the proceedings against Ehrhardt into other hands, especially it was aimed that the case of Rathenau should not be handled by the competent regular court, the Criminal Court of Assizes in Berlin; one wished to subject it to special treatment. Here is the ad hoc, the prejudiced amendment of the competence for a certain case, a fact which Section 105 of the Governmental Decree, revised, aimed to prevent."

I offer this document as Exhibit 12 for identification.

THE PRESIDENT: Lot it be marked for identification.

Dr.GRUBE: On Page 35 of the Document Book there is Document No. 29. It is an excerpt from the book "The Legal Judge", by Professor Dr. Eduard Kern, of the year 1927. This excerpt also treats the question of the State Tribunal for the Protection of the Republic. May I direct the attention of the Court to the following quotation on Page 36 of the Document Book? I quote:

"It is natural -- and is moreover absolutely inherent in the meaning of the Law for the Protection of the Republic -- that the President of the Reich should call only such persons to be judges in the State Tribunal, who, even if not necessarily stamped as belonging to a certain political party, are yet inwardly convinced republicans or at any rate not opponents of the now political constitution, judges, therefore, from whom not only -- as from every other judge, too -- self evident subjection to the law is to be expected but more the political conviction of the fairness of the republican form of government or at least a benevolently neutral attitude towards it."

May I further direct the attention of the Tribunal to the quotation on Page 37 of the Document Book, and I quote:

"Here it must be emphasized over and over again that the Reich Public Prosecution is a defendant authority which must render obedience to the Reich Minister of Justice ..."

On the same page may I also read the following quotation:

"We shall therefore, from the above mentioned point of departure, be obliged to come to the conclusion that the State Tribunal, in spite of its undoubted political character, is still to be counted among the special courts so far as it is competent for punishable offenses which have been committed after its institution.

This limitation must of course be made."

Then there are further explanations and statements by the author in which he points out that the State Tribunal, as has already been mentioned, was also competent for crimes committed before it was established. I offer this document for identification as Exhibit 13.

DR. GRUBE: On Page 40 of the Document Book follows an excerpt from an Ordinance of 31 March 1926. This order became effective as of the first of April 1926 and the jurisdiction of the State Tribunal for the Protection of the Republic was again transferred to the ordinary courts. I offer this document as Exhibit 14 for identification.

THE PRESIDENT: It will be marked for identification.

DR. GRUBE: Document No. 233 on Page 41 of the Document Book contains Articles 12 and 13 of the Law concerning the structure of the Judiciary. From these articles it is apparent which courts, according to the law concerning the structure of the Judiciary of 1879 originally were considered regular courts. I offer this document for identification ax Exhibit 15.

DR. GRUBE: On Page 42 of the German Document Book, Document 186 follows. That is the Law for the modification of provisions of the penal law and of criminal procedure of 24 April 1934. By this law, as is well known, the People's Court was created. Without reading anything more from this law I would like to direct the attention of the Court to Article 4 of this document.

THE PRESIDENT: May I interrupt you? Is that one of the Document Books introduced, or, rather, one of the documents introduced by the Prosecution?

DR. GRUBE: No, your Honor.

THE PRESIDENT: All right.

DR. GRUBE: May I remark the law was introduced in Document Book 2 of the Prosecution in part. However, as I have found out, a number of regulations are missing from that document. May I direct the attention of the Tribunal to the provisions of Article 4 of the Document, especially to Paragraph 3 in Article 4 on Page 44 of the Document Book. Furthermore, to Article 10. I quote Article 10:

"The Reich Minister of Justice will decree the legal and administrative regulations required for the enforcement of the law and the supplementation of same." I offer this document for identification as Exhibit 16.

DR. GRUBE: On Page 48 of the German Document Book, Document 277 follows. It contains an excerpt from the official substantiation of the law we have just discussed and which created the People's Court. May I direct the attention of the Tribunal to Page 1 of this Document, the first page, which is entitled: "To Article 1," and I quote:

"According to the law enforced hitherto, the Supreme Court of the Reich is competent for passing judgment on cases of high treason and treason. In the individual case the competence of the District Courts of Appeal may be established by a transfer resolution of the Supremo Court of the Reich or by a forwarding decree of the Chief Reich Public Prosecutor. This consolidation of prosecution and jurisdiction will be maintained for a few courts on a supreme level. However, the unification of jurisdictional activities of the first instance which has hitherto existed at the Supreme Court of the Reich with the task of guarding the legal unity of the Reich in its capacity as highest court of appeal (Revisionsinstanz) will be abandoned.

Both tasks have their individual characteristics and have only few points of contact. Therefore, a special court will be instituted for the activity of the first instance which has been incumbent hitherto upon the Supreme Court of the Reich. Besides members qualified for judicial activities, also such persons as assistant judges (Beisitzer) who have actually specialized experience in the field of defense against attacks hostile to the state belong to it."

I continue to quote, "To Article 3":

"The competence of the People's Court corresponds in its main points with the former competence of the Supremo Court of the Reich. Newly included arc the treasonal offenses (articles 90b to 90e of the Penal Code) and the acts of violence directed towards the president of the Reich and members of the Government as defined in Art. 94 of the Reich Law Gazette Article 5 of the Decree for the Protection of People and State (Verordnung zum Schutz von Volk and Staat) of 28 February 1933, and which, according to their nature and seriousness, border on high treason."

I then quote from the remarks "To Section IV":

"Already during the last year a number of now provisions were issued for the purpose of speeding up and consolidating criminal cases of high treason and treason. In the essential points they will be taken over and further supplemented in Articles 3 and 6. They arc applicable for the People's Court as well as for the District Court of Appeal."

I then skip five lines and then continue with the comments "To Article 3": "Defense in Cases of High Treason and Treason:

It is justified by the significance for the welfare of the Reich of the criminal cases which are to be handled by the People's Court and the District Court of Appeal in the first instance, that apart from the general conditions laid down in the Code of Criminal Procedure for the granting of a defense counsel of the defendant's free choice, approval by the presiding judge of the court be made mandatory. This formal regulation does not affect the principles of procedure with regard to Law. Law in regard to the independent and unhampered activity of the defense counsel. The defense is also not limited to a selection of attorneys at-law approved on a list. The circles of persons from which the defendant may select his defense counsel is to be loft wide. If the presiding judge decides, for reasons of expediency, to hold out the prospect of granting approval for a larger number of attorneys-at-law in advance this does not prevent the accused from selecting another defense counsel in whom he has confidence and to request approval for him."

DR. GRUBE: The next document which I offer is document No. 2 on page 52 of the document book. This is the law concerning the People's Court of the 18 April 1936. May I direct the attention of the Tribunal to Section I, Article I of this law, and I quote:

"The people's Court is an ordinary court in the sense of the Court Constitutional Law."

I offer this document as Exhibit No. 18.

DR. GRUBE: On pages 54 to 58 of the document book the order for the execution of the law which I just mentioned is contained. This also boars the date of 18 April 1936. May I call the attention of the Tribunal to Article 10 of this law, and I quote:

"The judges of the local courts, the district courts and the district courts of appeal arc obliged to take advantage of judicial activities at the People's Court."

Furthermore, I want to direct the attention of the Tribunal to the regulations and Articles 12 and 13, which I shall quote in part and I quote:

"Article 12.

"The Reich Public Prosecutor and the Public Prosecutor at the People's Court (Article 7 of the Law) may be temporarily put into retirement at any time by decree of the Fuehrer and Reich Chancellor whilst granting the legal compensation.

"Article 13.

"The Chief of the Public Prosecution at the People's Court has the official title of The Reich Public Prosecutor at the People's Court.

His permanent duty is appointed by the Reich Minister of Justice.

"The Reich Public Prosecutor exercises the official supervision over the Public Prosecution at the People's Court."

I shall skip the rest of the paragraph and continue:

"The Reich Public Prosecutor will regulate the signatory powers of the Public Prosecutors subordinate to him. Such ruling requires the approval of the Reich Minister of Justice."

THE PRESIDENT: Let it he marked.

DR. GRUBE: On page 59 of the document book, document No. 11 begins. It is an extract from the law of on the 31st amendment of the Salary Law of 9 December 1937. I quote from page 59; and I may direct the attention of the Tribunal to the place which begins with the words:

"Appendix 2 Reich Salary Order B Fixed Salary Wage Group 3-A 24 000 RM Lodging Allowance:

I "Chief Reich Public Prosecutor at the Reich Supreme Court "Chief Reich Public Prosecutor at the People's Court.

Wage Group 7 a 1600 RM Lodging allowance:

II "Reichsgerichtsraete "Reich prosecutors at the Reich Supreme Court, "Volksgerichsraete "Reich Public Prosecutors at the People's Court.

"Wage group 8 14 000 RM Lodging Allowance:

II "Attorneys General at the Appellate Courts, "Attorneys General at the District Court Berlin."

THE PRESIDENT: I don't think you need read that. In fact at the present we see no relevancy to it at all.

DR. GRUBE: I only want to read the last sentence.

THE PRESIDENT: I don't want you to read any more of that. It seems immaterial to us. Offer it in evidence and we will consider it and as to it's materiality.

DR. GRUBE: I offer it as Exhibit No. 20.

DR. GRUBE: The next document is on page 61 of the document book. This is document 263. May I say here that this document is mistakenly listed in the table of contents as document No. 12. Therefore, I request the Tribunal to correct the table of contents at the place where it says: "Document No. 12," to read "document No. 263.

Document No. 263 is an executive order of the Reich Minister of Justice of the 24 December 1937, regarding the constitution of the People's Court and I quote:

"In virtue of the law on the thirty-first amendment of the Salary Law of 9 December 1937, the Chief Reich Public prosecutor at the Reich Supreme Court, the Reich Public Prosecutor as leader of the prosecution at the People' s Court the official title of 'Chief Public Prosecutor of the Reich at the People's Court.' In accordance with that the designation of the two Prosecutions in future reads "Reich Public Prosecution at the Reich Supreme Court" and "Reich Public Prosecution at the people's Court.'" I offer this document as Exhibit No. 21.

THE PRESIDENT: Let it be marked.

DR. GRUBE: Document No- 191 on page 62 of the document book is the law on the distribution of duties to the Courts.

May I direct the attention of the Court to Article I of this law and I quote:

"Before the commencement of the working year and throughout its duration the duties are to be distributed among the judges of a Local Court, among the chambers of the District Courts and among the Divisions of the Appellate Courts of the people's Court and of the Reich Supreme Court and the presiding Judges and permanent members of the individual chambers and senates as well as the official deputies in the contingency of a judge being prevented from appearing to be appointed."

DR. GRUBE: On page 65 of the document book, document No. 4 begins. This is a copy of the ordinance on the competence of criminal courts, et cetera, of the 21 February 1940. First I would like to make the following remarks in connection with the document book. In the English document book 2 this document has already been reproduced as a copy of the law of the 21 February, 1940. In the English document book, the document, however, contains the regulations which at that time, in 1940, were not yet contained in the ordinance on the competence of the courts. May I point out that article 5 of this ordinance, which is on page 32 of the English document book and there has nine numbered paragraphs, nine items for which the People's Court was supposed to have been competent already in 1940. Eight and 9, however, were not yet contained in the ordinance on the competency of 1940.

This is very important because Nos. 8 and 9, which were introduced only three years later are the regulations regarding the competency of the People's Court is cases of undermining of military strength. Since in the English document book this document is not correct to that extent I shall again introduce this document as it is contained in the Reich Legal Gazette of 1940. May I direct the attention of the Court that according to this edition of the law of 21 February 1940, Article 5 contains only seven items for which the people's Court is competent. Furthermore, in the English document, is the following passage and I quote:

"In the case of acts which according to Article 82, 83, 90b to 90e, 92 of the Reich Penal Code are punishable, the Chief Reich Public Prosecutor at the people's Court can hand over the prosecution to the Attorney General.

"The People's Court, in matters described in Par, 2, can, with the consent of the Chief Reich Public Prosecutor hand over the proceedings and decision to the Appellate Court, as long as the main trial has not been ordered to be conducted by the People's Court.

I quote:

"In criminal cases belonging to the competence of the People's Court or the District Court of Appeal, the indictment may be raised before these courts. This also applies when a criminal act belonging to their competence at the same time fulfills the conditions of another criminal action."

"Action may be brought against another criminal act before these courts only when it is connected with a criminal case belonging to the competence of the court, when an all-inclusive punishment is to be given, or when an act has been committed in a drunken condition, which would otherwise belong to the competence of this court."

May I also direct the attention of the Tribunal to Section II, on page 68 of the document book? This section concerns the Special Courts. I quote from Article 12:

"The prosecuting authority is the prosecution at the District Court in the area of which Special Court is situated."

May I continue with Section IV, Article 32, at page 73 of the document book? I quote:

"If the-

THE PRESIDENT: You are still dealing with document No. 4?

DR. GRUBE: Yes. I repeat:

"Cases of Necessary Defense:

"The President appoints a defense counsel for the accused:

"1. If the trial takes place before the Special Penal Division of the Reich Supreme Court, the People's Court, or the District Court of Appeal;

"2. If the action in question is liable to capital punishment or penal servitude for life;

"3. If the action in question is liable to be punished with penitentiary sentence and the appointment of a defense counsel has been moved by the public prosecutor."

That was on page 71.

May I further direct the attention of the Tribunal to Part V of these regulations? They deal with the nullity plea. I quote Article 34, on page 72 of the document book:

"Prerequisites for the Nullity Plea:

"The Chief Reich Public Prosecutor of the Reich Supreme Court can file a nullity plea against effective sentences by the District Court, the Penal Chamber and the Special Court within one year after the date when the sentence became effective, if this sentence is found to be unjust by virtue of a mistake in the application of the law to the established facts."

Article 35. "Decision concerning the Nullity Plea:

"The nullity plea must be submitted in writing to the Reich Supreme Court. This will decide on it by pronouncing a sentence following a trial; with the approval of the Chief Reich Public Prosecutor it may decide also by writ without trial."

THE PRESIDENT: I suggest to you that you are reading matter which I certainly recognize as having been read to us before, and which we have read before. These last matters that you have just read--we have heard them before, and you waste your time by reading them again.

DR. GRUBE: Your Honor, I introduced the last-read quotations because in the English document book, where it is stated, in regard to this regulation, that the Chief Reich Public Prosecutor of the Reich Supreme Court can file a nullity plea, the words "of the Reich Supreme Court" are missing. That is why I introduced this document again.

THE PRESIDENT: If there is one phrase that you think should be put in--I will repeat, if there is one phrase that you think should be added to a previous document, merely call our attention to that. Don't read at such great length matters which we have already gone into quite thoroughly. The document, if received in evidence--I say, if the document is received in evidence, it is in just as completely, as fully, as if you had read every word of it.

The reading has no legal relevancy to the admissibility of the document.

DR. GRUBE: Your Honor, as I said, in document book II of the Prosecution, these documents are contained only in part, and there are a great many omissions.

THE PRESIDENT: No. 23 will be marked for identification.

DR. GRUBE: The next three documents refer to substantive criminal law of the People's Court. Without reading them, I merely introduce them.

First we are concerned with document 185, and I offer it as Exhibit 24 for identification.

DR. GRUBE: The next document is 250, on page 85. I offer it as Exhibit 25 for identification.

DR. GRUBE: Furthermore, as Exhibit 26, I offer document 251, for identification.

DR. GRUBE: Document 194, on page 90 of the document book, is Article 94 of the Reich Criminal Code. As far as I know, it has not been introduced so far. It concerns one of the regulations for which the People's Court was competent; it deals with the prosecution of criminal acts directed against the Fuehrer.

DR. GRUBE: Furthermore, I offer for identification, as Exhibit 28, document 197, on page 91 of the document book.

DR. GRUBE: Document 198, on page 94 of the document book, contains Article 139 of the Reich Penal Code, wherein, in certain cases, the People's Court is competent for sentences.

I offer the document as Exhibit 29 for identification.

DR. GRUBE: Document No. 199 contains Article 5 of the order for the protection of the people and the State. This was also under the competency of the People's Court in certain cases. I offer it as Exhibit 30, for identification.

DR. GRUBE: Document 200, at page 96 of the document book, is an excerpt from the law against economic sabotage. I also offer it for identification as Exhibit 31.

DR. GRUBE: Document 5, on page 97, is an excerpt from the ordinance concerning the extended competence of the People's Court, of December, 1941. The document shows that in December of 1941 the People's Court also became competent for the trying of espionage cases.

I offer the document as Exhibit 32 for identification.

DR. GRUBE: As the next exhibit I offer document No. 9, on page 98 of the document book. That is the ordinance which I have already mentioned before, concerning the supplementation and amendment of the decree on competence of 29 January 1943. I quote:

"Article 1.

"The sphere of competence granted to the People's Court is extended insofar as the following numbers 8 and 9 are added to Article 5, paragraph 1 of the ordinance of 21 February 1940:

"8. Public undermining of the defensive power (Article 5, paragraph 1, No. 1, subparagraph 2 of the Ordinance concerning the extraordinary war penal law of 17 August 1938), if the Chief Public Prosecutor at the People's Court considers a sentencing by this court as adequate."

I continue, now, in the third to the last line:

"In cases which are punishable under the law according to articles 82, 83, 90b to 90f, 91b, 92 of the Reich Penal Code, or according to Article 5, paragraph 1, No. 1, subparagraph 2 of the ordinance concerning the extraordinary war penal law of 17 August 1938, the Chief Reich Public Prosecutor at the People's Court can refer prosecution to the General Public Prosecutor."

THE PRESIDENT: Let it be marked for identification, and we will recess until 1:30 this afternoon.

(A recess was taken until 1330 hours)

AFTERNOON SESSION (The hearing reconvened at 1330 hours, 23 July 1947)

THE MARSHAL: The Tribunal is again in session.

DR. GRUBE: I would ask you to permit me to continue with introducing my documents. The last document which I introduced was Document 9 on page 98 of the German Document Book, Volume 1. The exhibit number was 33. That document was an extract from the Competency Order.

The two documents which are following now describe the substantive penal law on the regulations which were mentioned in the document I have just referred to. This is Document 195 on page 100 of the German Document Book. This is an extract from the so-called Ordinance of 17 August 1938 concerning extraordinary war penal laws. May I call the attention of the Tribunal to the second paragraph, which explains the facts of espionage activities. Further I would ask you to direct attention to Paragraph 5, undermining of the defensive strength. I quote from Paragraph 5 Section 2 and 3 on Page 102 of the German Document Book. It is also 102 of the English Document Book as Paragraph 1 is already contained in the English Document Book.

"(2) In less severe cases a sentence of penal servitude or imprisonment may be imposed.

"(3) Besides the death penalty or punishment of penal servitude the confiscation of all personal property is admissible."

I quote further Paragraph 10, Article 10, Authority to Make Alterations.

"The Chief of the Supreme Command of the Armed Forces will be authorized to issue explanatory details for this ordinance and to bring about its adaptation to the existing law. As far as the conduct of war requires it, he will also be authorized to make alterations and supplementations."

I am offering this document as Exhibit 34.

THE PRESIDENT: It will be marked for identification.

DR. GRUBE: The next document I wish to offer is Document 201 on page 104 to 106 in the German Document Book. This is an excerpt from the Competency order of 21 February 1940.

Transcript for NMT 3: Justice Case

Defendants