Transcript for NMT 3: Justice Case

I am offering this as Exhibit 63.

THE PRESIDENT: Let it be marked.

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.

I am offering this document as Exhibit 67 for identification.

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.

I am offering this document as Exhibit 55 for identification.

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.

I offer this document as Exhibit 76 for identification.

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.

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.

The German Judges! Association at that time sent a letter to the Reich Minister of Justice and announced that the German judges would, under certain circumstances, refuse to apply this law because it was contrary to usage. This letter is copied here in Document 278. It is the letter of 8 January 1924. As Professor Jahrreiss further explained on the witness stand, this attitude was rejected at that time by the German Reich Minister of Justice in an open letter. This letter too is copied in this document and is on Page 25 and the following pages of the German Document Book.

In this open letter, the Reich Minister of Justice states that it would lead to the dissolution of the legal order and a disturbance of the Reich if a court would assume the right not to apply a law which was issued in accordance with the Constitution, because in the opinion of the majority of its members, it was not in accordance with the general law of usage.

DR. GRUBE: Document 118 on Page 26 of the German Document Book is a further excerpt from the Book "Introduction into Jurisprudence" by Professor Radbruch, of the year 1925. Radbruch in this book states his opinion on the question to what extent natural law can be applied in a legal system; he says it cannot be applied, and states that only what the legislator has laid down is valid law. I offer this document as Exhibit 94 for identification.

DR. GRUBE: Document 119 is a further excerpt from the book by Professor Dr. Radbruch, from 1925.

He states here that it is the mission of the jurist to apply the law also whore the law is contrary to justice.

DR. GRUBE: Document 120 too is an excerpt from Professor Dr. Radbruch's book. He bases his acceptance positivism at that time on the reason that the security of the law requires that the German official applies the law even when in his own mind he is not in agreement with it.

DR.GRUBE: Document 188 on Page 35 of the German Document Book is an excerpt from a decision of the Reich Supreme Court in criminal oases, from 1923. The subject of this decision was, among others, the question as to whether an ordinance of 1922 was contrary to the constitution. At that time, the defense claimed that the ordinance, which was issued on the basis of Article 48 by the Reich President, was not valid because the actual prerequisites for ordinances on the basis of Article 48 had not existed.

The Reich Supreme Court states in this sentence whether the actual conditions as prescribed in Article 48 for the promulgation of the ordinance existed, could only be decided by the discretion of the Reich President, whose judgment is not subject to examination by the Court.

DR. GRUBE: Document 271 is a decision of the Reich Supreme Court in civil matters of the year 1924. In this case, too, the defense attorney, who represented the plaintiff, referred to the fact that a regulation was contrary to custom. Here, too, the Reich Supreme Court stated that the judge is not authorized at all not to apply a law which has been promulgated in accordance with all regulations because of its contents. I offer this document as Exhibit 98, for identification.

THE PRESIDENT: Exhibits 97 and 98 will be marked.

DR. GRUBE: Document 187 is a decision by the Reich Supreme Court in criminal matters, of 30 October, 1924, and also is concerned with the question as to what extent the court is authorized to review ordinances as to whether the prerequisites for their promulgation existed. The Reich Supreme Court stated in this case too that whether the continuance of an ordinance was still in accordance with the conditions of the time was to be decided exclusively by the legislator, not by the judge; for the judge, the only decisive thing was whether a formal law was still valid.

DR. GRUBE: Document 18 is a sentence by the Supreme Bavarian District of 24 October, 1927.

It deals with a case in which a judge refused to apply paragraph 350 of the Penal Code; because he considered it untenable that the father of a family should be condemned to a penitentiary because of twenty pfennigs. He considered this provision too severe. The Bavarian Supreme District Court declared expressly in this case that if there is such a provision, the judge has to apply it even if he considers it too severe.

DR. GRUBE: Document 273 is an excerpt from the famous decision by the Civil Senate of the Reich Supreme Court of 4 November, 1927. The expert Jahreiss referred to the famous sentence in that decision -- "the legislator is self-governing, and is bound by no other restrictions than those which he has imposed upon himself in the Constitution or in other laws."

DR. GRUBE: Document No. 37 also is a decision by the Reich Supreme Court in civil matters. It is a decision by the VII Senate of 6 July, 1934, in proceedings against the New York Life Insurance Company. In this case, too, it was stated that the law was untenable; here too, the Reich Supreme Court was of the opinion that the judge did not have the right to refuse to apply a law because he considered it undesirable for economic or other reason - this was exclusively the affair of the legislator.

DR. GRUBE: Document 157 contains a decision by the Reich Supreme Court in penal matters of 8 December, 1936. This decision is of importance in so far as it states an opinion on the question to what extent, and whether at all, the binding force of the law on a German official, especially a judge, was changed by the analogy provision in Article 2. The Reich Supreme Court states in this sentence that without consideration of this analogy provision in Article 2, the judge was still bound by the law. Thus, it still affirms positivism.

DR. GRUBE: Document No. 17 is also a decision by the Reich Supreme Court in a criminal case, of 15 December, 1939; here too, the question was -- whether the judge can deviate from the scope of penalty which is laid down in the law because he considers it too severe or too lenient. In this decision of 1939, the Reich Supreme Court also stated that the judge is bound by the law and has to apply the penalty provided in the law without consideration of his personal attitude.

DR. GRUBE: Document 19 is an excerpt from the second supplement to the commentary on the Penal Code by LoeweRosenberg, and the supplement is by Professor Emil Niethammer.

Niethammer states, too, in that document that the judge is bound by the penalty provided in the law, even if the penalty which he has to apply in accordance with this is by him considered, under the conditions of the individual case, too severe or too lenient.

THE PRESIDENT: It will be marked Exhibit 105.

DR. GRUBE: Document 170 is an excerpt from the Leipzig commentary on the Reich Criminal Law Code, from the edition which appeared in 1944, immediately before the collapse. The Leipzig Commentary states, as is shown in this document, without a doubt that the court cannot deviate from the law even when it considers the law too severe or untenable for other reasons. Merely the legislator is authorized to change it.

DR. GRUBE: Document 149 is an excerpt from an article by Professor Dr. Radbruch. It has already been mentioned repeatedly here in documents in which Radbruch agreed entirely with the points of view of positivism. Radbruch states in this document that positivism -- with its teaching that law is law ---- made tho German jurist powerless to change laws because of their criminal contents; and this article was written after the collapse.

DR. GRUBE: Document 150 is an excerpt from an article by Prof. Dr. Jerusalem. He, too, states in his article that legal positivism in Germany was decisive and, that this theory of law was also made tho basis by the Weimar Constitution. I offer this document as Exhibit 108, for identification.

DR. GRUBE: The last document in this volume is Document 148. It is an excerpt from an article by the Judge of the District Court of Appeals, Dr. Robert Figge, Zelle about the responsibility of the judge. The author describes in this article the development and especially states that the theory of natural law could never be applied in the practice of law in Germany; that it was immediately pushed out by positivism and he makes positivism responsible for the fact that individual laws, which may perhaps appear to be too severe, were applied by tho German officials.

He states in this article that they could not act otherwise because, in legal theory and practice in Germany, positivism was the only theory that was recognized.

MR. KING: Dr. Grube identified tho last document as Document 148. In my book it seems to be 150.

THE PRESIDENT: Your last two documents have the same number.

DR. GRUBE: But that is an error, your Honor. The last document, this Article, "The responsibility of the Judge", actually bears the number 148.

MR. KING: It appears that the English book, according to what Dr. Grube has just told me, beginning on page 56 and continuing through the end, should be 148 instead of 150.

THE PRESIDENT: We have made the correction.

DR. GRUBE: Your Honor, I have concluded the submission of the documents which I have so far received in translation and now I intend to begin the examination of the defendant Lautz on his own behalf.

THE PRESIDENT: You may call him. Will you raise your right hand had repeat after me:

swear by God the Almighty and Omniscient that I will speak the pure truth and will withhold and add nothing.

(Witness repeats oath.)

You may be seated.

DIRECT EXAMINATION BY DR. GRUBE:

Q. Herr Lautz, may I first ask you to tell the Tribunal when you were born, where you were born and what was your professional career, until 1920?

A. I was born in 1887 in Wiesbaden. There I attended preparatory school and then followed a classical course in a Gymnasium, that is, high school. In 1906 I passed the high school graduation examination. From 1906 to 1909 I studied law at the Universities of Marburg, Bonn and Munich. In 1909 I passed the first State examination. I did my legal preparatory service up to 1914 at the local court at Bad Nassau on the Lahn, at the District Court of Wiesbaden, the District Court of Appeals at Frankfurt on Main. Since I had served in the Army, this preparatory service was interrupted on 1 August 1914 until 1919 when I was an artillery officer during the World War and was on the Western Front. After my return from the Front I completed my preparatory service and in the Spring of 1920 I passed the great State examination. Since I was interested in criminal law, I applied for service with the prosecution. In accordance with my wish, I was assigned to the District Court Neuwied on the Rhine.

Q. Herr Lautz, may I interrupt you briefly here? Would you please tell the Tribunal in what spirit you were educated as a student of law and as a referendar?

A. Before World War and also after the World War the young jurist was educated in Germany in the spirit of obedience to the law. In questions of politics a judge was expected to stand above the parties and to remain distant from political life.

Q. Herr Lautz, you just stated that in Neuwied you exercised your first professional activity.

What were your tasks as public prosecutor in Neuwied, since you were active in Neuwied since 1920?

A. As public prosecutor I worked in the field of general criminarlity. In addition I was entrusted with working on political and press matters, but these were not very numerous and finally I concerned myself with working on those criminal cases in which the then occupying authorities of the Rhineland were interested, that is, in those criminal cases in which a German was being prosecuted who had violated the regulations of the occupying authority.

Q. At that time did you gain insight into the jurisdiction of the military courts of the occupying authority?

A. Yes, I did.

Q. Will you please describe it in detail to the court?

A. Neuwied belonged to the District of Coblenz which from 1918 on until the beginning of 1920, was occupied by the Americans; from then on it was French occupied territory. Since I worked on the criminal cases, which interested the occupying authorities, I frequently had contact with tho American Delegate in Neuwied and the Military Court in Coblenz. Therefore, of course, I also gained insight into the practices followed there.

Those two authorities at that time, in handing over the prosecution of those cases of Germans who were supposed to be prosecuted because they had violated the interests of the occupying authorities, were very generous, because they were of the opinion that the German courts would handle these natters justly and orderly.

As concerns the law which the occupying authorities themselves applied, this was in part the law for the purpose of the occupation which had been issued in the 300 ordinances of the Rhineland Commission For the rest, however, they judged according to the law of the home state, in accordance, that is either in accordance with the American, French, Belgian or British law.

Transcript for NMT 3: Justice Case

Defendants