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.
For that he would have to have my approval which he could get by telephone, if necessary.
Q.- Witness, did you personally, by general directives to your department chiefs and prosecutors, demand that all cases which were pending in your office should be measured by a rather severe yard stick? I put this question because the prosecution apparently submitted Exhibits 220, 469 and 488 for that purpose.
A.- I never gave any such general instructions and the exhibits do not prove it either. As for the first two, I referred to these this morning. And Exhibit 488, that is NG-823, a report on a trip to Vienna, that does not speak for that either. In Figure 2 of that report it is clearly to be seen that on the basis of an assignment by the Minister of Justice, I went to Vienna, because on account of new and serious crimes concerning explosives which had been committed there, it had to be investigated as to whether the practice applied up to that time could be continued. From that Figure 2 it can be seen that the Reich Prosecution with the People's Court, to a large extent had transferred high treason cases to the District Court of Appeals in Vienna and that there was a directive from the Minister to the effect that transfers to that large extent should not continue. But it was necessary to get in touch with the general prosecutors in Austria at that time, the Ostmark, to find out whether one should not demand more severe sentences especially against functionaries of the Communists and on that I submitted a report to the Minister.
Q.- You must have discussed with your department chiefs what course should be taken in prosecuting cases. Is that correct?
A.- Of course we did that. At intervals we had discussions with my department chiefs and apart from pure routine matters, such as the distribution of work, personnel questions, of course also questions were discussed as to how individual cases should be handled because there were six and in the end seven departments over which the work should be distributed evenly and which should take an even course. During these dis cessions, however, neither I nor the department chief ever proposed special severity to be applied.
We were glad if we could agree as to how the severe decrees which were handed down to us could be handled with reason.
Q.- Would it have been possible for you to influence the jurisdiction of the People's Court in individual cases by channeling certain cases to certain senates?
A.- That was not possible because, according to the distribution of work, as established, the cases came before the different senates automatically. Sometimes, however, it was possible in the case of Freisler's senate, because he had reserved for himself to handle cases which appeared particularly important to him. In that case, however, one could use his absence to schedule a case which otherwise he would have taken for his senate before another senate.
Q.- I come now to the jurisdiction or, rather,to the filing of indictments by the Reich Prosecution against members of the Protectorate Bohemia and Moravia, When was it that the Reich Prosecution for the first time dealt with criminal cases from the Protectorate Bohemia and Moravia?
A.- That was the middle of December 1939* In the middle of December 1939 the first files, reports and investigations made by the state police in Bohemia and Moravia concerning the great resistance group of Narodna Obrana were received by the Reich Prosecution. The Armed Forces Court, in accordance with the High Command of the Armed Forces, refused to handle it was military cases and decided to transfer these cases to the regular courts.
Q.- What was the purpose of that resistance movement which at first was organized as Norodna Obrana? What was its extent?
A.- The kind, the extent and the aims of that resistance movement are described in the sentence against Elias and are described correctly there. May I mention here that the sentence against Elias in the case of Elias is contained in Exhibit 375 of the Prosecution. Since the sentence is just before the Tribunal I do not have to repeat the facts so that it won't waste any time.
But that does not mean -- rather, I do not mean to say whether I consider that sentence correct otherwise.
Q.- What was the activity of that resistance movement?
A.- That activity was especially directed against the Reich for the re-establishment of the borders and not only to remove the so-called German domination, German rule, but also to regain the territories which by the agreement of Munich, had come to the Reich. The agreement at Munich in 1938 was referred to, but it was also directed against the autonomous government of the Protectorate, the removal of which the conspirators also intended to carry out. Already, when the first files were received, one could see that that case would reach very great extent. The number of people who at that time were arrested exceeded several hun dreds.
Q.- What did you undertake in that case?
A.- After I had gained an impression of the case by studying the files in the beginning of 1940, I reported to the then Minister of Justice Guertner about the matter. He said that if the facts were true, as described in the files, the danger of that movement for the Reich would be a very great one; that the Administration of Justice in this case had to carry out its specific task at all costs, and that if necessary, also the People's Court had to be expanded byt first he sent me to Prague to enable me there to get in t ouch with the appropriate officials of the Security Police and the then Reich Protector and to talk to them to find out from them what their views were about immediate developments.
Q.- What were you told as to the lines of thought of the chief of the Security Police at that time?
A.- At that time, at the end of February, 1940, when I came to Prague, I discovered the following: The Chief of the Sicherheitspolizei, Security Police, had the following plans. Heydrich was to receive from him the suggestion that only the main leaders of the movement should be turned over to the People's Court but, as for the rest, Standgerichte, civilian courts martial should try the other people.
Q.- What was your point of view concerning that plan?
A.- The plan to me seemed to be quite unacceptable. Therefore, I told the chief of the Security Police that that way of handling the case was not in accordance with the considered opinion of the Administration of Justice and that I had no authority to agree to it. On the sesequent day the matter was discussed with the then Reich Protector von Neurath. There the Chief of the Security Police made the same suggestions, and I stated my opinion as I had done the day before. Reich Protector von Neurath said that in view of the consequences of the suggestions made by the Chief of the Security Police he had to get in touch with the Minister of Justice and, if necessary, one had to ask ones decision on the part of Hitler.
Q.- What did you do then when you returned to Berlin?
A.- When I returned to Berlin I reported to Minister Guertner. He immediately decided that none of the accused could be turned over to a Civilian Court Martial -Standgericht, and even if the Volksgericht had to be extend to 30 senates. In that sense he immediately wrote to the then Protector von Neurath, and as far as I am informed, the question was submitted to Hitler for a decision. Hitler's decision at that time was that he wanted for the time being no trials at all, and, therefore, no sentences in these cases. However, they should continue and the administration should prepare these cases up to the filing of the indictment, and it was also expressed that Hitler at that time apparently expected the war soon to end favorably and that he planed in that case an genetous amnesty.
When that decision of Hitler arrived at the Ministry of Justice Dr. Guertner directed that immediately an experienced prosecutor be sent to Prague to be able to have current information of the police investigation and could take the necessary steps. Senior Prosecutor Volk, when he was sent to Prague reported to me soon, however, that he alone could not carry out that task, and that was the cause why Minister Guertner's investigation judges were appointed in the Protectorate. About the task of these investigating judges I have already spoken this morning.
Q.- Were these investigating judges active in the first year of the war in the Protectorate?
A.- They were active constantly.
Q.- In this connection may I refer to Exhibit of the Prosecution 364?
A.- Later when the prisoners, for lack of prison space in the protectorate, were transferred to prisons in Germany, to Breslau, Bautzen, Dresden, Leipzig and Nurnberg, the investigating judges were appointed in these places.
Q.- Witness, you mentioned before the so-called stop order by Hitler, on the basis of which individual cases were only prepared up to the point of filing the indictment. Were these cases never actually tried?
A.- Yes, they were really tried, That is shown by a letter which Meissner wrote to Schlegelberger on the 13 March 1942.
Q.- May I add here, it is Prosecution Exhibit 363.
A.- Further development was the following: In the summer or fall of 1940 a now situation arose. It appeared necessary that a decision be found for the large number of people against whom the charges were of minor extent because it wasn't possible to keep them in prison for an indefinite period of time. Here again Minister Guertner brought about the decision on the part of Hitler, and that decision was that these proceddings could be resumed and continued but that it was not desirable that any death sentence be pronounced. As he said, he did not want to create any martyrs. I personally believe for certain that that decision was due to the advice of the then Protector von Neurath.
Q.- Is it correct that in the Summer of 1941 conditions in the Protextorate became more serious?
A.- That is correct. In the middle of the Summer of 1941; especially particularly after the campaign against the Soviet Union had started, one could sec from the files which wore received that there was a considerable increase of the activity of the resistance groups who now were not only in the Harodna Obrana and tried to obtain results there, but received a lot of support from the Communist Camp. Various attempts were used since for that increased inactivity. I at that time reported that to the Minister of Justice in accordance with my duty and I was sent into the Protectorate consequently to gain an impression of the situation there myself, and especially to discuss those matters with the Reich Protector.
Q Would you please inform the Court what the result of that trip was?
A From my discussion with the offices of the State Police, as well as with the Investigating Judges and Reicsportector von Neurath, I gained the impression that the activity of the resistance groups had increased, but that there was no grave danger for security. Reichsprotector von Neurath was particularly of that opinion. During the discussion with him, the case Elias was also mentioned. That was in the middle of September, 1941.
THE PRESIDENT: Our hour for the afternoon recess has arrived. We will take a 15-minute recess.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. GRUBE:
Q Before the recess I stopped with your trip which you made in the summer of 1941 to the Protectorate and your conversation which on that occasion you had with the Reich Protector Freiherr von Neurath. Just before recess you began to comment on the Elias case which was discussedat the time.
A I had reported that at this discussion with the Protector von Neurath the situation was clarified to the effect that in his opinion, in any case, there was no cause for special measures to be taken. Especially did this apply to the Elias case. Elias was at that time acting minister president of the government of the protectorate. He was being suspected of having had contact with the resistance groups and also with the government in exile of Czechoslovakia in London. In spite of that, von Neurath with Hitler's approval did not take any steps against Elias, and there was he official trial against him, either, at least it was not conducted by the Reich Public Prosecution. I had known that for some time, and during this conversation in September, 1941, Neurath again spoke about the Elias case and stated that in this case nothing had changed, either, that measures against Elias were out of the question at the time, that Elias continued to act in his official capacity with the approval of von Neurath. After my return to Berlin I reported to the acting minister of justice about these impressions which I gained on my trip. The events which occurred at the end of 1941, due to the sudden appointment of Heydrich as Protector, the events which occurred in the Protectorate thereafter came as a complete surprise to the Administration of Justice.
Q What consequences in the field of the Administration of Justice did the first exceptional condition have in the Protectorate?
A The first time that martial law was declared, that court martials were instituted for the first time in the territory of Bohemia and Moravia, involved the serious danger for the Administration of Justice that the trials which were pending before its courts would be handed over to the civilian courts martial which was also required at first.
But from the documents which the Prosecution submitted it is evident that the skilful defendant Joel succeeded in meeting this danger and averting it.
Q May I say here that we are concerned mainly with Exhibit 480 of the Prosecution. The second declaration of martial law then followed. What happened at that time?
A The second time that martial law was declared in Bohemia and Moravia was in the beginning of June, 1942, after Heydrich , who was Deputy Reich Protector, had been killed. This time, too, the danger that civilian courts martials would intervene was even increased compared to the first time since there was a state of emergency. And at that time this caused the acting Minister of Justice to instruct the agencies which were concerned with prosecution and penal cases -- that is me and the Public Prosecutors of Breslau and Leitmeritz and Dresden -in order to discuss what consequences the Administration of Justice, would have to draw from this newly arisen situation. The reason was apparently the following, that due to the events which were connected with the murder of Heydrich it had become clear that the resistance groups in the Protectorate were much more dangerous than one had assumed so far. This gave cause for the issuance of an instruction to the participating Public Prosecutors to use the application for a death penalty more frequently than had been done heretofore in their application for penalties during the trial, but only against functionaries, activists, and people who had distinguished themselves by distributing leaflets of dangerous contents and by collecting of weapons and who had been especially active in these fields.
Q You had already stated before that the aim of all resistance groups in Bohemia and Moravia was the removal of the power of the Reich, the removal of the autonomous government of the Protectorate, the tearing away of the Sudeten territories which had been given to, the Reich by the Munich Agreement in 1939.
What instructions did you as representative of the Prosecution receive from the Reich Ministry of Justice as to how the collaboration in this resistance group was to be considered from the point of view of criminal law?
A In my earlier statements I had made some statements about the application of German law in the Protectorate and stated that the first indictment had to be submitted to Minister Guertner, that he himself assured himself of Hitler's attitude before I was instructed in those cases. - the aim of which has just been stated - to start from the supposition that preparations for high treason existed, and not only against the Reich but also against the autonomous government of the Protectorate, and it was to be pointed out also that the inhabitants of the Protectorate on the basis of the statements made by their government were obligated to loyalty. That was the legal basis on which indictments had to be supported in cases in the Protectorate.
Q Is it correct that after the Soviet Union entered the war in 1941 the instructions by the Ministry of Justice were made more severe, namely that now not only for preparations for high treason but also for giving aid and comfort to the enemy people had to be indicted?
A That is not true, generally speaking, not true everywhere, but it applied only to especially serious cases in which, according to the intent of the person who acted, this aim was within his will. In any case that is how I always interpreted the instruction. Moreover it applied not only for the territory of Bohemia and Moravia but it applied everywhere.