Transcript for NMT 3: Justice Case

I offer this document as Exhibit 50, for identification.

THE PRESIDENT: Let the exhibit be marked.

DR. GRUBE: The next document, No. 242, on page 31 of the German document book, is an excerpt from the order on the execution order for the adaptation of the criminal law of the Reich proper and the Alpine and Danube-Reich Gaue, dated 29 May, 1943. This ordinance made things a great deal easier in reference to the question as to whether a witness was to be asked to swear an oath. I quote from paragraph 4 -- paragraph 59: "The court decides whether a witness must be sworn in after proper deliberation. He will be made to swear to an oath unless other decisions have been made at the trial. The witnesses are to be asked to take their oath singly."

I am offering this document as Exhibit 51, for identification.

THE PRESIDENT: Let it be marked.

DR GRUBE: Document 209 refers to witnesses and the swearing or taking of an oath during the preliminary proceedings and outside the trial.

DR. GRUBE.: The next document, 217, is paragraph 170 of the Reich Code of Criminal Procedure. It states as to how the prosecution should proceed after investigations have been made. I quote: "If the investigations made offer sufficient reason for a formal accusation, the public prosecution shall file it either in the form of a request for a pre-trial examination or by filing an indictment with the court.

Otherwise, the public prosecution orders the proceedings to be dropped; the arraigned person is to be notified of this if he was interrogated by a judge or a warrant for his arrest was issued."

DR. GRUBE: Document 13 is an excerpt from von Hippel's text book on German Criminal Procedure. It states when the prosecution has to file an indictment. I quote: "The final result, therefore, is this: the public prosecution makes formal accusation at the court if, in its opinion, there exists either after conclusion of the pre-trial examination or -- as a rule -- after conclusion of police investigation sufficient proof for making a formal accusation, Article 170. 'Sufficient proof' exists if the possibility, based on the facts ascertained and the applicable laws, is so great that a ruling of the court is warranted; see above page 244. The public prosecution is obligated by the principle of legality (subject to legal exceptions) to take action in all criminal and punishable offenses, provided sufficient facts are established. See Article 152, paragraph 52. It is a question of conscientious consideration to decide when this will be applicable in individual cases."

DR. GRUBE: The next document, No. 265, on page 37, an excerpt of the German document book, concerns regulations for the Administration of Penal Law, Directives for Criminal Procedure, and Preparatory Proceedings; and Acceleration of Proceedings.

May I draw your attention to one sentence under Figure 7. I quote; "It is part of a speedy and purposeful examination that the investigations be not extended farther than is necessary for arriving at an indisputable decision on whether an indictment should be filed or the case dropped. See Article 190, Reich Code of Criminal Procedure."

DR. GRUBE: Document 218 refers to preliminary investigations. May I draw the attention of the Tribunal to paragraph 1, Article 178. "In all cases falling within the jurisdiction of the People's Court or the Provincial High Courts, a pre-trial investigation will take place upon request of the Public Prosecution, if it deems it necessary after careful consideration."

Article 184 Says -- I quote: "The pre-trial investigation is ordered and conducted by the examining judge."

Article 186: "In the People's Court the examining judge for each case is selected by the President from among the members. The presiding judge may also select any member of another German Court and any local judge to act as examining judge."

Article 188, I quote: "A record must be made of each phase of investigation and signed by the examining judge and the recorder."

I am leaving out one paragraph and am continuing with paragraph 3: "As far as it concerns them, the record must be read to the persons taking part in the hearing, for their approval, or handed to them for their own perusal.

The approval must be put on record, and the record must wither be signed by the party concerned or the reasons why the signature was omitted must be stated."

Article 190: "The investigation should not be carried further than is necessary to determine whether there should be a trial or whether the proceedings are to be dropped."

On the last page of the document may I quote from Article 197: "As soon as the examining magistrate considers the purpose of the pre-trial investigation attained, he forwards the records to the public prosecution so that it may file its requests.

"Should the public prosecution request the continuation of the pre-trial investigation, (Voruntersuchung) the examining magistrate has to submit the case to the court for decision, if he does not want to comply with the request.

"The accused must be informed of the conclusion of the pretrial investigation."

I offer this document as Exhibit 56 for identification.

THE PRESIDENT: Let the document be marked.

MR. KING: May I understand the exhibit number of the last document? Was that 56 or 58?

THE PRESIDENT: 56.

DR. GRUBE: Document 219 refers to the ordering of a trial. May I draw the attention of the Tribunal first of all to Article 198? I quote:

"The Public Prosecutor makes the formal accusation by filing an indictment with the president of the appropriate court. This contains the request to fix a date for the trial.

"Article 199.

"If a pre-trial investigation has taken place, the Public Prosecutor submits the case to the court for decision an whether the trial is to be ordered, whether the prosecution of the accused is to be discontinued or the proceedings are to be suspended for the time being. The request for fixing the date of the trial is made by filing an indictment.

In bases within the jurisdiction of the People's Courts or the District Courts of Appeals, the decisions are made by these courts, otherwise by the Criminal Court. If the Public Prosecutor has requested to discontinue the prosecution of the accused, the court however, decides to have a trial, then the Public Prosecutor has to file an indictment according to that decision.

May I now draw attention to Article 202? These provisions refer to the so-called interim proceedings. Article 202:

"If the president has no objections against the ordering of the trial, he determines place and date of the trial. At the same time, he decides on the ordering or continuance of the pre-trial detention, or the provisional placement in an institution. If in the opinion of the president the trial should not or not now take place, he submits the case to the court for decision."

Article 203: The court refuses to order a trial if, in its conviction, for factual or legal reasons it is to be expected with certainty that the accused person will not be sentenced at the trial. It refuses to order a trial for reasons of not being competent, (1), if there is no court of competency in its own district; (2) if the case does not fall within the factual competence of the court.

I now quote the final two paragraphs:

"The decision to refuse will be passed on to the accused person and to the prosecutor. If the court has no misgivings about ordering a trial the presiding judge fixes time and date of the trial."

I am offering this document as Exhibit 57 for identification.

MR. KING: May I inquire from Dr. Grube which translation he would prefer us to have, the one which appears in the Document Book or the one which has just come over the headphones? Certainly the two translations are in no respect similar.

DR. GRUBE: As far as I can see these, paragraphs are contained in the Document Book.

THE PRESIDENT: I suggest that during the recess counsel confer with each other and ascertain if there is any discrepancy in the translation. Proceed with the next document.

DR. GRUBE: The next document is Document 36. It gives an excerpt from the commentary on the Criminal Code of Procedure by Rosenberg. May I draw attention to Note 2 referring to Article 203? I quote: "on rules for the forming of an opinion on the value of evidence question it is stated in Motive (official publication stating the reasons for the draft of the law) page 174: 'Specific rules cannot be given on the extent of evidence required for the opening of the main proceeding. The significance of article 203 consists only in the rule, that: main proceedings are not to be started, if the arraigned person does not appear to be sufficiently incriminated and if it is therefore not even probable that he will be convicted."

DR. GRUBE: Document 130 is an excerpt from a decision of the Supreme Court in Penal Cases, 19 November 1942. This decision by the Penal Senate of the Supreme Reich Court expresses an opinion as to when, in accordance with 203 of the Penal Code of Procedure, an indictment is to be filed.

I quote: "Pursuant to Article 203, paragraph 1, Code of Criminal Procedure, as amended, - paragraph 2 does not apply here - the court can refuse to set trial only if it is convinced that for reasons of fact or law, it is to be expected with certainty that the accused will not be found guilty in the trial. This prerequisite does not exist here. The refusal, pursuant to Art. 203, paragraph 1, Code of Penal Procedure, as amended, is admissible, not as the Criminal Court assumed, because a conviction is not possible on the basis of penal statutes cited in the indictment, but only if it is to be expected with certainty that the accused, for reasons of fact or laws, will not be found guilty at all of the act which forms the basis of the indictment. The court, however, must examine the circumstances of the case submitted, to it in the indictment, giving consideration to all applicable legal aspects. In this it is not bound by the legal interpretation of the prosecution."

I offer this document as Exhibit 59.

THE PRESIDENT: The document will be marked.

DR. GRUBE: The next document is No. 96 on Page 51 of the German Document Book. This is an excerpt from an article by Reichsgerichtsrat Dr. Schwarz. It discusses the question of the significance of circumstantial evidence in German penal procedure. May I draw attention to the Tribunal the following passages? First of all, I quote from the opening of the Article:

"It is not necessary to dwell on the fact that the administration of criminal law cannot do without circumstantial evidence, since, in numerous cases, there exists neither a credible confession of the defendant, nor are there any eye-witnesses to the act."

I am leaving out five lines and continue:

"An effective corrective for the undeniable shortcomings of circumstantial evidence is the discretionary evaluation of evidence which today forms the basis of our procedure. The only question is, how much circumstantial evidence must be available to justify the carrying out to its conclusion of a perhaps long drawn-out and costly trial in court."

DR. GRUBE: I offer document 203. It deals with the question of appointing a defense counsel and as to when a defense counsel is to be appointed.

THE PRESIDENT: Just a minute. Exhibit 60 is the last exhibit. That is to be marked for identification. Now what is the next number you are offering, the next one?

DR. GRUBE: The next one is document 203.

THE PRESIDENT: The Tribunal calls once more to your attention what we have previously said. Much of what you are reading is so elementary, it is wholly unnecessary to even introduce it in evidence, and we further say that if the matters are of some importance and difficulty the Tribunal cannot make up a considered opinion by hearing it read over the car phones. We will examine the instruments and we beseech you once more to restrain yourself in reading those elementary matters in open court. You are wasting time. If you do not exorcise your own discretion we will have to impose a limitation upon it.

DR. GRUBE: I will be brief. Document 203 is Exhibit 61. I am offering it for identification.

DR. GRUBE: Document No. 212 deals with the question as to whether and to what extent the accused person may have available and retrain contact with a defense counsel. The document reveals that the Judge has to make a decision on that subject. I offer this document as Exhibit No. 62.

DR. GRUBE: In the course of this trial the question as to whether the defense counsel before an indictment has been filed is entitled to look at the files has played a part and document 123 deals with this problem. It contains article 147 of the criminal procedure and also excerpts from the directives on criminal procedure and shows that the accused person before the indictment has been filed, has no such legal claim nor has defense counsel any such legal claim to look at the files.

I am offering this as Exhibit 63.

DR. GRUBE: The next document No. 176, is an excerpt from the decisions by the Supreme Reich Court in penal cases. This too deals with the question as to whether and when the defense counsel is entitled to see the files. I offer this document as Exhibit 64 for identification.

DR. GRUBE: Document 168 on page 69 and following in the German book also represents a decision of the Supreme Reich Court in penal matters, dating back to the year 1900. It also deals with the question as to when and to what extent defense counsel may look at the files. I am offering this as exhibit 65 for identification.

THE PRESIDENT: Let it be marked. Let us compliment you on that manner of presenting the document. We will make particular notes when you do specify some matter which appears of special interest in that manner. Go ahead in that way.

DR. GRUBE: Document 220 refers to the so-called preparation of he trial, what is of importance here in particular and I would ask you to make an exception and let me read this provision, article 221, and I quote:

"The president of the Court may also, on his own initiative, order the summons of witnesses and expert witnesses and the procurement of other evidence."

This provision is important in particular because of its bearing on the Judges. I am offering this as Exhibit 66 for identification.

DR. GRUBE: Document 81 is an excerpt from an article by a Ministerial Councillor F. Grau in the Reich Ministry of Justice. It deals with the question that the Court too can carry out decisions and in particular that a Court itself on the basis of the ordinance of the 31 August 1942, can set the date for trials.

DR. GRUBE: Document No. 207, is also of importance. Seven times a subject of this trial has been the assertion that between the handing over of the indictment and the trial there was only a very short space of time. This cutting down of that interim period which originally lasted for one week was made possible by this ordinance, document No. 207, and section 3, where it says: "The presiding judge for important reasons may reduce the period to twenty-four hours." I offer this document as exhibit No. 68.

DR. GRUBE: Another frequent subject of this trial has been the assertion that in the People's Courts also so-called secret proceedings had been carried out to the exclusion of the public. Document 239 refers to that subject. It is an excerpt from the provisions of the Judiciary Act of 1879 and it contains provisions as to when the Court may exclude the public. I am offering this document as exhibit No. 69 for identification.

DR. GRUBE: Document 240 is also an excerpt from the Judiciary Act and refers to the question of employing interpreters when people attend a trial who do not know the German language. I am offering this as Exhibit No. 70.

DR. GRUBE: Document 107 is an excerpt from the amendment to an opinion covering a commentary on criminal procedure by Professor Nicthammerr, an expert on the subject. It contains a summary on the principles which are valid for trials in Germany. The document reveals that the Court, independently of the action of the Prosecution, has to clear up a fact on it's own initiative and has to produce evidence. I am offering this document as Exhibit No. 71 for identification.

DR. GRUBE: Document No. 214, contains article 155 of the Reich Code of Criminal Procedure. In view of the importance of this article I would ask your permission to quote that article:

"Investigation and verdict are confined no the offense as described in the indictment and to persons incriminated by it. Within these limits, the courts have the right and the duty to proceed independently; in particular they are not bound to apply those articles of the Penal Laws which have been quoted as applicable by prosecution or defense."

I offer this document as Exhibit No. 72 for identification.

DR. GRUBE: Document No. 221 contains excerpts from the provisions covering trials before criminal Courts. It reveals that in not only the Judges decides on the procedure of the trial, but also examines the accused person and the introduction of evidence is in charge of the presiding Judge. This document also shows that contrary to proceedings in the United States and the United Kingdom the presiding Judge on his own initiative has to clear up the facts. The Prosecutor and defense counsel have merely the right to examine and that is dependent upon the approval of the presiding judge. I offer this as Exhibit 73 for identification.

DR. GRUBE: Document 32 contains the provision which was formerly valid for criminal procedure. The document shows that cross examination in German criminal procedure had played a very small part. In fact the accused person himself could never be taken under cross examination. I am offering this as Exhibit 74 for identification.

DR. GRUBE: Document 249 contains an excerpt from the ordinance for the simplification of the administration of the criminal law, dated 13 August 1942.

It says that cross examination in accordance with the document previously submitted, was admissible though restricted, and in August 1942 was finally abolished.

THE RESIDENT: Let it be marked.

DR. GRUBE: Document 222 also contains provisions relating to trials. It is concerned with the procedure at the trial, with the examination of the defendant, and with the oral indictment.

DR. GRUBE: Document 223 contains one of the basic provisions of the German Code of Criminal Procedure. Again, it deals with the duty of the judge to make investigations. It states that the Court has as one of its official functions the duty to determine the truth, and it is not restricted to evidence formally introduced. I offer this as Exhibit 76 for identification.

THE PRESIDENT: No. 223?

DR. GRUBE: That was document 223.

THE PRESIDENT: Isn't that No. 77?

DR. GRUBE: Yes, exhibit 77.

The next document is No. 106. It is an excerpt from the second amendment to the Rosenberg commentaries on the Criminal Procedure Book by Niethammer. It shows that the Court, on the basis of its duty to make investigations, is independent; and, even, against the will of the defendant, it has to investigate facts in favor of the defendant.

DR. GRUBE: Document 224 contains provisions concerning the extent to which the court has to allow motions for evidence.

BR. GRUBE: The next document is document No. 156, which contains the very important provisions of Article 24, the so-called Simplification Order of 1 September 1939. This provision states that the Court can refuse a request to hear or collect evidence if, in its well-considered opinion, this evidence is not requires to establish the truth.

I offer this documents as Exhibit 80 for identification.

DR. GRUBE: Document 179 is a decision by the Reich Supreme Court of 2 December 1940. This sentence on a penal case by the Supreme Reich Court expresses an opinion on the question as to the significance of Article 14, tho Simplification Ordinance, which I have just introduced as a document. It explains the significance of that article in reference to the question as to whether motions for evidence are to be allowed or not.

DR. GRUBE: The last document from this volume is document 89, which is an excerpt from the article by Reich Minister Dr. Schwarz on the submission of evidence and the duty of the court to make investigations in criminal procedures. May I draw tho attention of the Tribunal, first of all, to this article because it shows without any doubt that producing the evidence, in the course of the years, became more and more the duty of the Court, and particularly in respect to the question as to what motions for evidence were to be allowed.

It was article 24, contained in my document Exhibit 80, which gave cause for this essay to be written.

I offer this document as Exhibit 82.

DR. GRUBE: I now come to volume III-A, and would ask your permission to submit the documents contained therein.

Document 31, which appears on page 1 in volume III-A, is an excerpt from the commentary by Rosenberg to Article 152 of the Code of Criminal Procedure. It states in particular that the public prosecutor, also in respect to the question as to whether an indictment is to be filed or not, is bound exclusively by the instructions of his superior authority if he is of the view that an indictment is not to be filed or is to be filed.

DR. GRUBE: Document 266 is an excerpt from the directives for criminal proceedings. It states when the prosecution is obligated to file an indictment. We are concerned with figure 156 of the directives, which states that the prosecution is obligated to file an indictment if the facts as established offer sufficient cause.

DR. GRUBE: Document 247 is a reprint of Article 346 of the Reich Penal Code. It states that an official may be punished with a penitentiary term of up to five years if he, although he is obliged to do so -

I repeat: Document 247 gives Article 346 of the Reich Code of Penal Procedure. In virtue of those provisions, a public prosecutor would render himself liable to punishment if he refrained from filing an indictment, although the legal prerequisites were in existence. This is one of the penal provisions under which he would have rendered himself liable to punishment, but there are others as well.

DR. GRUBE: Document 244 is a rendering of Article 139 of the Reich Code of Penal Procedure, which I have already introduced in a different connection. That was in connection with the proceedings governing the competence of the People's Court. I am introducing those provisions here again as a special document because they are of importance from the point of view of the position of the public prosecutor.

I offer this document as Exhibit 86, for identification.

DR. CRUDE: Document 15 is an excerpt from the commentary by Gerhard Anschuetz, whose name has frequently been mentioned here. It is a commentary by Anschuetz on the Weimar Constitution. In this document the problem is dealt with as to whether the judge or any other German official has or had the right of revision concerning German laws. What appears to me to be of extreme importance in this context is the statement under the figure 7. After Anschuetz had previously refused the right of revision, he now states that the German official and judge cannot examine Reich laws for their validity before international law, and if they do not have such a right for revision they cannot refuse to apply such laws. Anschuetz states that even if a German official is of the conviction that a provision is contrary to international law, he is still under an obligation to apply it.

I offer this document for identification as Exhibit 87.

DR. GRUBE: Document 122 is an excerpt from the book "Introduction into the Science of Law" by Professor Dr. Radbruch, from the year 1924. Radbruch, in this document, also expresses his opinion on the question as to what extent the German civil servant and judge is justified in examining laws. At the end of this document he says that the judge is not entitled to refuse to apply a law because he is not in agreement with the contents of the law.

We will take our afternoon recess at this time.

(A recess was taken)

THE MARSHAL: The Tribunal is again in session.

DR. GRUBE: Before the recess I had assigned to Document No. 125, the Exhibit No. 88, and had introduced it into evidence. The next document is Document 297. It's an excerpt -

THE PRESIDENT: Correction. It was document 122.

DR. GRUBE: Document 122 is Exhibit 88. The next document is Document 297. It is an excerpt from an Article by Professor Richard Thoma in the Manual of German Constitutional law of 1932. He also states his opinion on the question as to whether the German civil servant is justified in reviewing laws as to their injustice, immorality, or senselessness. Thoma in this Article also is of the opinion that the German civil servant does not have this right. I offer this document as Exhibit 89 for identification.

DR. GRUBE: The following document No. 280 is also an excerpt from the Article by Professor Thoma in the Manual of German Constitutional Law in 1932. Here he states his position to this problem and goes into a great deal of detail. He mentions the two currents the one that is positivism, and the opposite line which considered whether the German civil servant should not be justified in reviewing laws. He again says that the German civil servant is not entitled to do so, and moreover points out that even if a court were authorized -- that is to say, perhaps the Supreme Court -- to review laws as to their immorality or their contrariness to nature or international law, that then too the question would remain open as to who should then review the correctness or incorrectness of the decisions of this court. In the final analysis, he says that they do not have this right, and says that only international arbitration courts were authorized to review German laws in regard to their agreement with international law.

That German courts never had this right is expressed in the final paragraph of this document.

I offer this document as Exhibit No. 90 for identification.

DR. GRUBE: The next document 283 is an excerpt from an Article by Professor Dr. Kern, also in the Manual of German Constitutional Law of 1932. Kern too states here that the German civil servant is not authorized to evaluate German laws; that his activity was to find law not to want it. I offer this exhibit 91 for identification.

DR. GRUBE: Document 282 is an excerpt from an Article by Professor Alberg Hensel, also in the Manual of Constitutional Law of 1932. He states here that the Administration is bound to obey official orders and is obliged to apply ordinances without examining whether these norms disagree with norms of a higher order. I offer this document as Exhibit 92 for identification.

DR. GRUBE: I now come to Document 278. In explanation, I may remark in regard to this document that the expert Professor Jahrreis, here in the witness stand, mentioned the case which happened in Germany in 1924. At that time the Reich Supreme Court had developed a practice in regard to the evaluation question. The Reich Supreme Court one day heard that it was intended to issue a law which would be contrary to this practice in regard to evaluation which the Reich Supreme Court had developed.

Transcript for NMT 3: Justice Case

Defendants