Witness, who was it in cases where an indictment had been filed with the People's Court who submitted the indictment to the defendant?
A That was the office of the senate.
Q Not the Reich Prosecution?
A No.
Q Witness, is it correct that when the indictment was served the defendant was notified by the court that he had the right to make objections against the scheduling of the main trial within one week?
A Yes, that is in accordance with the code of procedure.
Q Could this time be shortened?
A Yes, it could be shortened on the basis of the amendment to procedure of 1943.
Q Who was it that had to make that decision?
A The president of the court.
Q Did the Reich Prosecution have anything to do with that?
A No.
Q After that period and when there was no objection against the scheduling of the main trial, as is well known, the date of the trial had to be fixed. Who determined that date?
A The presiding judge.
Q Did the Reich Prosecution have anything to do with that?
A No.
Q What was the minimum time originally between serving the indictment and the trial?
A Minimum time of a week.
Q Could the presiding judge shorten that, too?
A Since May 1943 he could do that, and he could reduce it to 24 hours.
Q Did the Reich Prosecution have anything to do with that?
A No.
Q That reduction of that time to 24 hours, was that only admissible and customary with the People's Court?
A No, with all courts.
Q Was that fact made use of regularly with the People's Court?
A That quite indispensable measure was applied at the People's Court, in fact, only by the first senate, and the first senate could do that because since the amendment of May 1943 the court itself could schedule the main trial and could call the participants for the main trial, which normally was the task of the Prosecution. Normally the way it happened was that after the date was set by the presiding judge the files had to be returned to the Prosecution so that the prosecutor could notify the defendant and the witness and bring them for the main trial. The same amendment of 1943 reserved the right to the court itself to take these stops. As such it was clear that the return of files to the Prosecution after the date had been set, that in itself would bring about a certain amount of delay, and that reduction to 24 or 48 hours would only be possible if the court itself did that. But of that right to summon the defendant and the witnesses, only the first senate ever made use of. All the other senates did not.
Q Would you please comment as to what times were set by the other senates, normally, between the filing and the serving of the indictment and the date for the trial?
A That question is very difficult to answer from memory. I can only say that for years the aggendas were supervised by the Reich Prosecution and at the People's Court in order to find out what the delays were which existed between the serving of the indictment and the main trial. Since the fact that they were late -- in fact, the dates were late much more often than early. As for the early date, Schmelltermin, in the case of Havemann I remember that case pretty well. When the indictment was served in the case Havemann it was very interesting to me, because this was a new type of case of conspiracy. My office took about two weeks on account of being overburdened with work in order to turn out the written copy of the indictment; therefore that time between the signing, middle of November, until its being received by the People's Court, in the beginning of December.
That is about how I remember it. I was all the more surprised when I heard that Freisler had set the date after about 48 hours, and that he had already disposed, through his senate, to summon the defendant and witnesses. I immediately went to him and pointed out the nonsence of a scheduling of that kind and told him since that act had been committed months ago, since the indictment was in my office for two weeks, now some days or hours certainly wouldn't matter. But, caused probably by the Ministry of Propaganda or some other office, he was of the opinion that he had to set that date very soon and he had to have that trial before a large number of spectators.
Q In this connection may I refer to the Exhibit submitted by the Prosecution, Numbers 48l and 484 from which it can be seen that complaints were filed concerning the fact that between the serving of the indictment and the date set for the trial too much time elapsed. Witness, if a defense counsel believed that he had not sufficient opportunity to prepare his defense, what rights did he have from the court?
A Well, he could demand that the date for the trial should be postponed.
Q Did he? Did anybody make use of that right before the People's Court?
A Occasionally that occurred.
Q And who had to make the decision?
A The presiding judge also.
Q I, myself, just based my question on the assumption that the court had no objection against the setting of a date for the main trial. My exhibits 57, 58 and 59 revealed yesterday already what the court had to do if it had any objections against setting the date for the main trial. In this connection, therefore, may I ask you the following: did it occur at the People's Court that an individual senate for objections of some kind refused to schedule the main trial?
A Those decisions and not only with the People's Court, were extremely rare, because in anticipation of the fact that one could be sure that the person could be convicted, that anticipation could only be made if one had clear legal elements because one could not anticipate in what direction the main trial would go.
Q How a brief question. In what form was the indictment served to those defendants who were not able to understand German?
A Partly in writing in their native tongue, partly translated by interpreters in the prison.
Q The assertion has also been made that the defendants had to return the indictment. Would you please comment on this?
A Indictments which wore stamped Secret or Top Secret -- Geheime Reichssache -- according to a directive by the Ministry, had to be returned, and that, after the trial.
Q In the various affidavits which I have already previously mentioned, the assertion was also made that when defense counsel were appointed or selected, emphasis was placed on the fact that only reliable National Socialists should be nominated. Did the Reich Prosecution have anything to do with the procedure by which defense counsel approved by the court?
A No, we were not even asked about that.
Q Did you observe whether it was true that only reliable National Socialists were admitted as selected defense counsels -- selected by the defendant?
A I never bothered about that. There were certain regulations as to what offices had to be heard on that question before a defense counsel in general or in particular was admitted to the People's Court.
Q If a defendant had no defense counsel of his own choice, then as is well known, the court had the duty to appoint a defense counsel for him. In appointing that defense counsel, did the prosecution have anything to do?
A No, not at all. That was purely a matter for the court.
Q Concerning appointed defense counsel, did you make any observations to the fact that only reliable National Socialists were nominated as counsel by the court?
A The difference wars the following: as appointed counsel, in general only a lawyer was nominated who was contained in the list of lawyers admitted to the People's Court, and that list, to my recollection had about 100 names of lawyers from Berlin only. In the case of a defense counsel of a defendant's choice, it was a matter of the senate to decide whether, if that counsel's name was not contained in that list, he was admissible.
Q Do you know of any case where a defendant in a trial before the People's Court had neither a defense counsel of his own choice nor appointed by the court?
A He had to have a defense counsel at any rate. However; in the case of an appointed counsel; occasionally one or more defendants had a defense counsel together; if there was no collision of interests expected.
Q Did foreigners always have a defense counsel when they were indicted?
A Yes; certainly; of course.
Q Also in various affidavits which I have mentioned before; mention was made of the so-called permission to have visitors. First; I want to ask you; did defense counsel at the People 's Court have the right to speak to a defendant before the main trial?
A Every defense counsel had that right; but before the indictment was served; that conversation could only take place in the presence of an official.
Q Who was competent to give that permission?
A In general; the judge who had served the summons for arrest -but also the public prosecutor could give that permission.
Q Did you ever receive a complaint about the fact that no permission was given to speak to a defense counsel?
A I never received any complaints myself about that.
Q In addition to those statements just made; may I say that they refer first of all to the Exhibits of the Prosecution: 145; 283; 240. When the witnesses Wergin and Gruenwald were heard; and also from the affidavit of Falck -- exhibit of the Prosecution; No. 147 -- the socalled right to study the files was mentioned. Yesterday already by submitting my Exhibit 63; 64 and 65; I proved that the right to study the files was in force only after the indictment had been served. Witness; I want to ask you, was it; in spite of that; possible to afford an opportunity to defense counsel before that time to study the files?
A It was possible, but in view of the provision concerning secrecy, it was not the rule. But if a defense counsel or lawyer was known to me to be a fair person, then he could find out by conversation with the public prosecutor or myself about the charges against his defendant so that he could prepare his defense and base it upon that information until such time after the serving of an indictment when he could study the files.
Q As I have already stated, did the defense counsel from the moment on when the indictment was served, have the right to study the files? Did the court have the right to refuse that right to the defense counsel to study certain parts of the files?
A That was possible, but it had to have a good reason; for instance, if secret personal files of an official who might have been indicted were among the files, then these personal files could be excluded. But no file for which the right was excluded to the defense counsel to study could be used in any form in the main trial.
Q Concerning that last statement made by the witness, may I refer to my exhibit 64. Witness, in how many cases did you personally, during the main trial, represent the prosecution in main trials before the People's Court?
A That only occurred in connection with the 20 of July 1944; and there may have been ten main trials.
Q In all the other cases, therefore, there was some other representative of the prosecution in the trial?
A Yes.
Q It is known that you were authorized to issue directives to that representative for t he Reich Prosecution as to what penalty he should demand at the end?
A Yes, I could do that.
Q Did also the Ministry of Justice issue such directives?
A Yes, that frequently occurred.
Q Were these directives which were issued to the representative for the trial binding without regard to the result of the presentation of evidence during the main trial?
A No. Of course the decisive factor was that the evidence presented was in accordance with that which was considered as to be expected at the time when the directive was given.
Q Another question. According to the provisions which I yesterday submitted in Exhibit 75; interpreters had to be present when persons were concerned in the trial who did not speak German. Was that always kept by the People's Court?
A Yes, of course, otherwise one could not have understood the defendants and witnesses.
Q The witness Gruenwald in his affidavit, Exhibit 283 of the prosecution; and also when he was here in cross examination, stated the following: "Before the People's Court, an oral indictment could be pronounced." Would you comment on that?
A The witness Gruenwald was mistaken. At all times there had to be an indictment in writing, but that indictment in writing at the beginning of the main trial had to be presented though briefly but orally.
Q: Therefore, you maintain that, in all cases, a written indictment existed?
A: Without that it could never have come to trial.
Q: It was furthermore asserted, and that through exhibits 145 and 283, that proceedings before the peoples' court had at times been carried out in secrecy - that is, with the exclusion of the public. Would you comment on this, please?
A: That was in accordance with a provision contained in the legal code of procedure accocding to which a proceedings which, if it became known, would endanger the security &f the state, could be conducted under exclusion of the public. That is to say, without any spectators, Any listeners, from the public. That was so in the State Tribunal for the Protection of the Republic and that was not different in the case of the Reich Supreme Court.
Q: May I refer to my Exhibit 69 in this connection. The prosecution...
A: (Interrupting) But I must point out that that was not the rule. Many trials were public trials.
Q: The prosecution quite generally asserted that proceedings before the peoples' court had deviated from the normal trial procedure. Therefore, I am obliged briefly to refer to other shortcomings which were asserted and to explain how these proceedings took place.
At the peoples' court was also the presentation of evidence only directed and supervised by the presiding judge?
A: Yes, that was in accordance with the law.
Q: I have already yesterday demonstrated that, according to German law procedure, the defendant could never be taken under oath.
I refer to Exhibits 48 and 49. Was that different with the peoples' court?
A: No.
Q: Was it so that also in the peoples' court already the presiding judge had the right to question the defendant?
A: Yes.
Q: Was it so that also in the peoples' court the representative of the Reich Prosecution could only question the defendant through the presiding judge?
A: Yes, that was the same.
Q: Was it so also in the peoples' court that the witnesses were only questioned by the presiding judge?
A: Yes, tut defense counsel, defendants and associate judges could also ask for permission to question them.
Q: But, is it true that these questions could be put with the approval of the presiding judge?
A: Yes, and he would certainly give that approval.
Q: The witness Havemann in his affidavit, Exhibit 240 of the prosecution, stated that during his trial, which took place on the 15th of December, 1943, and in the case of later trials he never observed that there were any cross examinations. Would you comment on this, please?
A: Cross examination in the German criminal trial never played any practical role although it was admissible. Then, by the decree of August, 1942 it was abolished - the possibility was eliminated.
Q: You must said that a provision from the 15th of August, 1942, abolished the cross examination?
A: Yes.
Q: At the time, therefore, when Havemann made his observations - that is to say, from December, 1943 on, it was no longer possible to carry on a cross examination?
A: No.
Q: May I refer to my Exhibit 75 in that connection.
The witnesses Wergin and Gruenwald in their affidavits which are Exhibit 146 and Exhibit 283, also refer to the question as to how far motions for submission of evidence were granted. Is it correct that also in the peoples' court the decision about motions for submission of evidence was with the presiding judge only?
A: Presiding judge - that is to say, the court.
Q: I refer to my Exhibits 80, 81, and 82.
As I demonstrated yesterday by an exhibit, also as early as 1939 the decision for the acceptance of evidence was reserved for the courts. Did that also apply to the peoples' court?
A: Yes.
Q: In trials before the peoples' court was there such a thing as burden of proof similar to the American trial?
A: The German procedure does not know any such thing.
Q: I had explained yesterday already that the court officially had to investigate the facts, independent of evidence submitted. Dif that also hold true for the peoples' court?
A: Yes.
Q: In this connection, may I refer to my Exhibits 71, 72, 73 and 74, Is it then correct, witness, to understand your statements about the presentation of evidence before the peoples' court to mean first, no burden of proof on the part of the Reich Prosecution or the defense, but duty for the court to investigate the facts independently of evidence submitted by the Reich prosecution or the defense.
Second, evidence to be heard, admitted by the presiding judge. Third, the right reserved to the court to decide upon notions for submission of evidence on the part of the prosecution or the defense?
A: Yes, that is in accordance with German law.
Q: I have afforded you an opportunity before already, to comment to the question as to whether or not, in spite of all that, the findings of the court might have been influenced by the fact that, according to German law procedure, the files were submitted together with the indictment. Did you make any observations in this connection that the court felt itself bound to the results of these files?
A: That observation I have never made.
Q: According to German court procedure, at the end of the presentation of evidence the prosecution not only has he make a plea, but also has to make a specific demand concerning the extent cf punishment which it considers appropriate. The same holds true for a defense counsel. Would you please explain to the Tribunal what the legal significance of those motions is?
THE PRESIDENT: May I ask you a question in this connection? Would it be fair to say that the plea of both the prosecution or of the defendant's attorney were merely advisory and not binding upon the court?
A: Yes.
THE PRESIDENT: Of course, that would be true in any case.
BY DR. GRUBE:
Q: Could you quote examples for the fact that individual sentences of the peoples' court, quite independ ently of the legal or factual statements in the indictment, and quite independently of the statements or pleas of the representative of the prosecution, were decided solely upon the basis of the evidence presented?
A: It could be seen from several documents which are in evidence here. For instance, from NG 354, Exhibit 135, where of the two defendants one was acquitted. It can also be seen from Exhibit 512, that is NG 1471, where, in the case of Gaida and Zeletzni, at least in the first trial, the defendant Zeletzni was not sentenced for giving aid and comfort to the enemy but for violation of passport regulations, and that can be also seen from a number of other documents.
Q: The prosecution apparently charges you that you, as a jurist, had to recognize that you were functioning at an exceptional court, that exceptional laws were applied, and that an exceptional procedure allegedly took place. What can you say about that, in general?
A: In connection with this point I ask for permission to make a more detailed statement. If one observes and one knows the development and the attitude of a jurist at that time after 1953, and if one wants to evaluate it correctly, one cannot overlook the following: The course of events after 1918 was in no way a stable course or a peaceful one, neither as far as the politics of the Reich were concerned nor the life of the people nor the development of the administration of justice. The collapse in 1918, the spartakus revolts, the Kapp Putsch, the occupation of the Rhineland, the revolts in the Ruhr area and Central and Western Germany, and in the field of national economy, inflations, sanctions, deflations, the collapse of the economy in 1931, and struggles between the parties on the Left and on the Right for power, fights in assembly halls and on the streets which, to anyone who lived in Berlin between 1930 and 1933, were quite well-known facts.
These things let to the fact that also exceptional courts or special courts had to be instituted; that laws had to be introduced for the protection of the state.
THE PRESIDENT: Those laws have been introduced in evidence in this case, haven't they? Those laws to which you refer have been introduced in this case?
A: Yes, indeed.
THE PRESIDENT: Certainly. You can draw the comparison.
A: And, therefore, when in 1935 the political turn, which at first was considered only as a move to the right, brought about new structures such as the People's Court, at first that was nothing surprising. Now, as for the competency of the Poeple's Court and the laws which were put in application there, a considerable difference cannot be found between it and the competency of the Reich Supreme Court, especially the charge raised by the Prosecution seems to be unfounded that the interpretation and extension of the term of preparation for high treason was inadmissible and unjustified, for these provisions were contained to the same extent and were interpreted to the same extent by the Chief Reich Supreme Court for the protection of the Republic; and especially the further example of communist aims and tendencies spread by pamphlets even before 1933 was considered a preparation for high treason. To typify cases as preparation for high treason as the law before 1934 contains it, is moreover almost literally in accordance with the amendment which was contained in a draft for a new penal code of 1928, but never became law. And, as for the charge that the People's Court decided as the first and last resort, that was the came with the Reich Supreme Court and the Court of the State for the Protection of the Republic.
Q: Witness, the Prosecution submitted Exhibit 467; that is a memorandum for the treatment of treason and high treason cases, directed to the local courts. First, who drafted that memorandum?
A: That was drafted in the Ministry of Justice.
Q: What was its significance?
A: Its significance was that preliminary proceedings should be protected against indiscretions.
Q: And that was designed, as you said, for the preliminary proceedings?
A: Yes.
Q: That is to say for that period of time during which the Reich Prosecution, or the local courts, by order of The Reich Prosecution, were investing.
A: Yes.
Q: Is it correct that these provisions for secrecy in the memorandum are particularly based upon the fact that it was only concerned with a stage of the trial where in the interest of the prosecution, that is to say, the clarification of the case, there was a particular necessity for secrecy?
A: Yes, of course that can be seen from the facts themselves. It can be seen from the nature of the facts.
Q: In the course of this trial the assertion was made that in certain cases the defendant of their counsel had not been served the indictment in writing by the court. I refer to Exhibit 147 of the Prosecution. Would you please comment on that?
A: In the case of secret Reich matters, and in other cases which required secrecy, that could not be done; but the defense counsel had the possibility to study it.
Q: If a defense counsel wanted to file a clemency pleas, and the case in question was one where the indictment on the basis of provisions which I have just mentioned, would not have been given to him in writing, he still had an opportunity to study it?
A: Yes. He had to study it right there.
Q: The Prosecution asserted that the new legal possibilities offered to the Administration of Justice after 1933, by some courts, especially the People's Court were used for arbitrary decisions and terrorism. Would you please comment on that?
A: To these charges any political court which handled political cases would be exposed only too frequently. Minister Guertner recognized that, and, therefore planned the establishment of a Supreme Penal Court for the entire territory of the Reich where the penal senates of the People's Court and the Reich Supreme Court should be combined.
Q: The Prosecution has tried to prove it's assertion by submitting documents concerning the jurisdiction of the people's Court. Could you make a comment on that at th3s time, without dealing with individual cases in detail -which we shall do later.
A: When I assumed the office of Chief Reich Prosecutor the war had broken out already. The entire area of the Reich was a combat area; rise according to constitutional law before 1933, the laws governing the constitution of courts, the government cf the state would have had the right to make the substantial legal provisions more sever in wartime. Apart from that, it is clear, however, that an attempt, for instance, to shake the structure of the state would have to be considered more serious, more dangerous if it was undertaken against a state at a time when the state has to defend itself in a war against the outside.
Q: That explains why the entire course of legislation had to be rendered more severe during the war, but you have not yet explained how, in your opinion, these judgements had to be evaluated; in particular, whether you approved in general the sentences pronounced by the People's Court.
A: That is right; I hadn't finished what I wanted to say. The consideration of the fact that during the war different laws had to be applied than in peacetime -that also had its limits, and these limits are, in my opinion, the criminal act itself and its consequences. He who does take that into consideration will find Himself on the wrong course, --- he acts according to the infamous slogan by Goebbels because the best men are killed in combat during a war, the criminal at hope has to die." It was first of all Freisler who on account of his close relations to Goebbels applied such points of view which were really outside of legal considerations during the trials, which probably mostly had the purpose of propaganda, and emphasized them at every opportunity, which was most harmful to the reputation of the People's Court, particularly in cases of charges of undermining the military strength of the nation.
Q: The Prosecution apparently is of the opinion that you by your motions and your indictments had exerted a great influence on the jurisdiction of the People's Court. It asserts, first of all that indictments and sentences were quite in accordance, as could be seen from the opinion.
Will you comment on that?
A: As for the task of the Prosecutor before and during the trial, I have explained that already, but here in this trial a lot has been said about the influences exerted during the trial, apart from the trial, before the trial, as it is alleged by the Prosecution; as for the People's Court conditions were different there than at other courts. Thierack and Freisler, as presiding judges of the People's Court, refused to receive any instructions or suggestions from me. They referred to their own superior knowledge of the facts and of the matters, and their greater political understanding. Both of them were rather inclined to try to instruct the Chief Reich Prosecutor and to try to bring him under their influence. Come of the presiding judges were of the same point of view, and certainly not inclined to take into consideration or place any special emphasis on the statements and explanations oh the part of the prosecution in and outside of the trial if they were of a different opinion.
Q: Was it so that this situation at the People's Court led to it that you yourself was subordinated to the influence of Thierack and Freisler?
A: No, I went my own way.
As to whether and for what legal reasons an indictment has to be filed, whether a case has to be suspended or transferred as a case of lesser importance to another court, that decision was with me only and to that extent I only had to carry out instructions received from the Minister of Justice. I certainly did hot have any negotiations with the presidents, Thierack and Freisler.
Q.- Did Thierack and Freisler, in spite of that again attempt to influcence you?
A.- They demanded time and again to be informed about a new case and as to how this case would be handled, but I always rejected that.
Q.- And what about the motions made during the main trial?
A.- The instructions of the representatives of the prosecution for the main trial were usually given by the chiefs of the departments and they had a free hand in that, in view of the many cases when that could not have been done in any different manner. However, I made one exception. It had to be reported to me if the department chief or the referent intended to demand a death sentence. These cases were discussed in detail in my office and everyone was at liberty to state his opinion.
Q.- You already mentioned before that the instructions given to the representative for the session were only valid provided the evidence submitted would not lead to another result. What would happen if a referent or his department chief did not consider a case punishable with death? What happened then?
A.- If they had no doubts in the matter they didn't even have to report to me.
Q.- But your decision was only requested if the department in question wanted to demand death sentence?
A.- Yes, or at least if he was in doubt as to whether I should be asked for a decision and, to supplement in the case of sessions in many other localities, if the result of the presentation of evidence was different, of course, he could deviate from my instructions; but he could not go beyond my instructions.