Q What was your general opinion in regard to the NN proceedings?
A I was not very happy about this new task. The main reason was -- and to that extent I believe I have quite a good judgment as to where the real difficulties of this material lay, from statements by the prisoners which they addressed to me at the court, one could see again and again that what hurt the most, and from which they suffered most, was the fact not that they had been brought to Germany but that they were cut off from every correspondence with their relatives, and that while they were in detention the comfort which a prisoner needs very badly in such a situation was lacking for them.
Q Were you in agreement with these strict measures for keeping the prisoners incommunicado, which were provided in the regulations issued by the Ministry and in the orders which the Ministry gave to the prisons. Did you do anything against them?
A Keeping the prisoners incommunicado and cut off from the outside world, the witness Hecker testified to this, was carried out in accordance with strict orders which the Minister had issued to the prisons and it was assured in this way by the Thierack Ministry. I certainly would not have gotten any place with complaints. Therefore, I approached the witness Lehmann, and my friend Sack, in order to convince them to exert the necessary influence in their fields. I repeatedly showed them letters from prisoners. They also repeatedly told me that the Wehrmacht also continuously made efforts to achieve particularly this point, was moved by an appeal to Hitler, but they did not succeed, I myself could not have forced a change because if I had issued the instruction to the person to let a letter pass then either this instruction would not have been obeyed, or at the latest the letter would have been detained by the consorship offices.
Q Witness, would you have been competent to issue such instructions to the prisons?
A No, I could not have done that at all.
Q But later on, to be sure, in some individual cases reports about the fate of prisoners were permitted?
A In some few cases this happened. I believe that the defendant von Ammon knows more about this.
Q Did the Reich Public Prosecutor or the Peoples Court have anything to do with having the NN prisoners brought to Germany?
A No, when we were involved in these cases the majority of the prisoners had already been brought to Germany. Those who arrived later were brought to Germany without our participation in any respect.
Q The Peoples Court, and accordingly also the Reich Public Prosecution, within the framework of the so-called NN action, merely had the task of jurisdiction?
A Yes, that was our task.
Q Did you have anything to do with the carrying out of prison administration of the sentences in the case of NN prisoners?
AAfter a sentence was pronounced as to what was the prison term, it was our task to send the prisoner to the prison which was competent for his detention. That is where the task of the prosecution was completed. A death sentence in which the head of the state had refused to pronounce a pardon had to be executed in accordance with the regulations.
Q By the way, did all Senates of the Peoples Court have something to do with NN cases?
A The division of work among the Senates changed, not only in regard to that question, but generally, and frequently. Therefore, I can make this statement only with reservations. The second Senate was primarily concerned with NN cases, and the first Senate also had some NN cases.
It may be, however, that the third Senate occasionally also handled NN cases, but I don't know that for sure any more.
Q Can you still make statements as to how the NN cases were handled by the Reich Public Prosecution?
A When these new cases came to us I paid particular attention to them. I selected my best prosecutors, and my best experienced division chief. That was my deputy Reich Public Prosecutor Parrisius. Those who had been selected by me were people about whom I was certain that with the greatest care and conscientiousness they would examine the files so that no circumstances would be left out of consideration which could speak in favor of the defendant and was contained in the files. We selected only these cases in which espionage in favor of the enemy mostly by means of secret radio transmitters and through the establishments of wooden depots and partisanship, the security of the front in the West had been considerably jeopardized. Those are acts which, according to the war law of all nations, are considered to be very serious.
I repeatedly gave my approval or secured the approval of the Minister of Justice that in the occupied territories of Belgium and France, through mediation of the German Military Courts Martial which were working there, supplementary evidence was to be secured.
Q The Prosecution has submitted document Exhibit 323. Please comment.
A What does that concern?
Q Exhibit 323 concerns the serving of the indictment.
A I see. I have already explained, in the description of the order of business, that the serving of the indictment as such was a matter that was up to the Senate. Thus it would, as such, have been up to the Senate to see to it that the translation was attached to the indictment. During the first period the proper informing of the defendant by means of the indictment was assured by having, in the prisons of the West which were set aside for them, sufficiently trained interpreters at their disposal who translated the indictment for the defendant in the prison, and in so doing they could answer every question which the defendants put in connection with the indictment. That changed when, due to the air war, it proved to be necessary--at least the Ministry of Justice believed that it was necessary--to transfer the prisons to other places which would be in less danger of air attacks. There, occasionally, the necessary interpreters were lacking and in some individual cases it had occurred that the indictment was not translated for the prisoners, so that only during the trial they did find out what they were being charged with.
When I heard that, I immediately intervened and had the authorization issued to me that I, deviating from the prevailing procedure, would, in the future, submit a translation of the indictment which had already been completed in Berlin, and translated into the mother tongue of the prisoners--that is, as a rule, into French--for serving to the defendants, and that I could submit the indictment, together with the translation, to the People's Court.
The defendant von Ammon mediated on behalf of this, and in the future it was handled in that way.
Q In NN cases, did you have to submit the indictments to the Minister of Justice?
AAll indictments had to be submitted, as was true in every other case. It had to be reported, also, as to what application for penalty was anticipated for the trial of each case, that the result of the trial would be in accordance with the situation which formed the basis of the indictment.
Q I now come to Exhibits 325 and 333. These concern the number of trials. Please comment.
AAccording to Exhibit 333, until 30 April 1944, the Reich Public Prosecution, in 134 cases, filed indictments against 588 defendants. Since this figure did not increase considerably later on, it was thus concerned with not quite 9 percent of all NN cases.
Q The Prosecution further submitted Exhibit 314, 317 and 320. These exhibits refer to the appointment of defense counsel in NN cases. What do you have to say about this?
A The appointment of defense counsel was up to the Senates, but no defendant appeared before the Court without a defense counsel. Occasionally here too, when there was no conflict of interests, several defendants had one defense counsel.
Q A short intermediate question: In several documents concerning the NN group--for example, in Exhibits 315 and 316--the so-called Porto prisoners are discussed. Would you please state what that means?
A The designation "Porto" was the cover name for special espionage cases.
Q In documents submitted by the Prosecution, Exhibits 320 and 321, the treatment of so-called non-genuine NN prisoners is discussed.
Do you have any comments on this?
A The treatment of prisoners who were designated as non-genuine NN prisoners was in accordance with instructions issued by the Ministry.
Q I again come to the trials before the People's Court in NN cases. How were the trials of individual NN cases conducted before the People's Court?
A The treatment of cases before the Senate was absolutely correct. The trial, on principle, took place outside of Berlin in the places where the prisoners were detained. This was conditioned by this fact, that between the serving of the indictment and the appointment of defense counsel on the one hand, and the date of the opening of the trial, there was a sufficiently long period during which the defense for the trial could be prepared. The presiding judge in NN cases, in most instances, was the presiding judge of the second Senate; that was Vice President Krohne. Vice President Krohne had been an officer during the World War, and the foreign defendants, with dignity, who in part had also been soldiers, and were treated, all of them without exception, as this compatriots, showed a very good attitude before the Court, and the prosecutors, who attended the sessions for me also did the same.
In view of this correct treatment in this sector of jurisdiction, I can understand why the witness Roemer, who saw a greater number of sentences against NN prisoners, and who certainly read them very thoroughly and critically, summarized his opinion-- when he was examined here as a witness--to the effect that he had gained the impression that the defendants had really committed the acts which they were alledged to have committed in the sentence, the more so since farewell letters by defendants who were condemned to death showed that they did not profess their innocence, but expressed their pride in being privileged to suffer for their country.
Q Witness, may I remind you that the witness Roemer stated that the sentences were not contrary to international law? However, in some cases he considered the sentences too severe. Will you comment on this?
A The extent of the penalty in the cases taken over by the People's Court, if espionage had occurred, was laid down unequivocably by the law. In cases of espionage, only the death penalty could be pronounced. In the balance of cases the situation in the criminal cases was so serious that one could not avoid pronouncing the death penalty. However, prison sentences were pronounced too, in a very large number of cases, and there were also acquittals.
Q Did the Reich Prosecution effect more severe treatment in NN cases?
A We neither had the inclination not the reason to do so. My report of 15 May 1944, also in Exhibit 469, which is apparently interpreted in that way by the prosecution, does not prove that. This document shows that it is report which I had to make at the request of the Ministry, in which I stated my opinion in regard to a special question, namely, the question of the application of a decree of the German Commander-in-Chief in Northwestern France. This decree concerned a short excerpt of the cases which I handled.
Whether it was applied or whether the situation of paragraph 91-B was applied as we did when we filed an indictment was of no significance in the final analysis. In accordance with the seriousness of the case the most severe penalty had to be imposed. This is explained in this report, but at the same time it is pointed out that we started with that assumption. However, only if simultaneously there were sufficient reasons for thinking that the person who committed the offense actually had the same intention to damage the war power of the Reich in favor of the enemy.
Q. Did the trials before the People's Court in the NN cases always conclude with death penalties?
A. I have already pointed that out just now, that this was not the case. It couldn't be the case here. I only have to say something more about the acquittals. Due to the decree by Thierack from the beginning of 1943 -- I believe that is when it was -
Q. 14 October 1942?
A. No, the one from October 1943. That concerns itself with the acquittals.
Q. 1943?
A. Yes. Can you state the exhibit?
Q. That is Exhibit 313 and /or Exhibit 328. There are two exhibits which are concerned.
A. Through this decree which came to my attention also it was laid down that those who had been acquitted could not be released to go home but had to be handed over to the Gestapo for the duration of the war for detention. This instruction, too, was assured by having corresponding instructions issued to the prisons. I could not repeal these instructions. Moreover, one has to take into consideration that even if the prison had not obeyed the instruction, the prisoner without papers which he needed, after all could not have reached his country. This help he could not have obtained in view of the prevailing situation.
Q. Witness, did it happen that NN cases which were pending with the Reich Prosecution were not tried before the People's Court because the Reich Prosecution stopped the proceedings?
A. Suspensions also occurred occasionally. In view of the decree I just cited it could be suggested in the cases of suspensions to release the prisoner to the occupied territories. This suggestion was made repeatedly. Whether it was carried out we could not find out, not even via the OKW.
Q. The Prosecution submitted exhibit 309. This concerns the Leb case. Please state your opinion.
A. This document shows that I did not work on this case, and since it does not have any signature of mine, I apparently did not see it, either. In spite of that one can draw important conclusions from it. First, the two prisoners were not NN prisoners at all. Rather, they were designated as such only by mistake. In France they had already been arrested by the security police, the German Sicherheits Polizei, and one of them had, I believe, at least that is what their file says, been shot as a hostage, while the prisoner whose name was Leb, because she was a Jewess was sent to Ausschwitz. The consequences of the transfer of the prisoner Leb to Ausschwitz was not realized at that time by the representative of the Reich Public Prosecution.
Q. An intermediate question, witness. Who brought Leb to Ausschwitz?
A. I said that already. The Security Police in France immediately.
Q. Thank You.
A. Because the Referent requested Ausschwitz to send the prisoner Leb to Berlin for trial and only through this request did one achieve clarity to the fact that Leb was no NN prisoner at all.
Q. But the Prosecution alleges that, as in allegedly apparent from this document, the Reich Public Prosecution, especially emphatically desired that Leb be treated as an NN Prisoner. Will you please comment on this?
A. In the file in connection with the request to transfer Leb from Ausschwitz to Berlin a request to the police was made that during the transport the prisoner Leb should be kept incommunicado. This was not a special precaution because of the NN proceedings.
Q. The prosecution further submitted Exhibit 416. Can you make some statement about this? This is the action in the fall of 1944.
A. About the discontinuance of the action in the fall of 1944 I personally know very little, when this decree was issued in September 1944 due to the fact that I was working on the cases it connection with the 20th of July physically and mentally I was overburdened to the limit of my capacity, and therefore I asked my deputy Reich public Prosecutor Parrisius to take care of official business. However, I do know that one day during a recess he informed me that Hitler had issued a decree which repealed the continuance of jurisdiction of NN prisoners by the courts. There were still some things that were not quite clear, but that he would clear them up together with the Ministry, When a few weeks later I again could take care of my official business to a greater extent I also had this matter reported to me. I was told the following. As far as prisoners who were serving a sentence were concerned the matter had been turned over to the Ministry as being the office which was competent for prisons. Moreover he, that is Parisius, had to leave problems in connection with the decree in question to the Prosecutors at the Special Courts who had submitted the files to us. For the production of the prisoners from the different prisons had, due to the confusion in the traffic conditions, become so confused that he in Berlin no longer knew where the individual prisoner was being detained. However he had heard that this transfer action, due to the complete confusion and disruption, if at all could have been carried out only to the smallest extent.
Q. The Prosecution further submitted Exhibit 334. This concerns the delays in the treatment of NN cases. Please state your opinion in regard to this.
A. The delay of some -- well, one could say a large number of NN cases which are discussed in this document was due to the fact that when the RAF attacked Berlin in November 1943, a large part of the files burned, together with the office building, and that there was hardly a possibility, at least only under greatly increased difficulties, to again reconstitute the individual files. Attempts were made, but it was successful only to a small extent.
For many prisoners, or at least for some, this without doubt brought about the condition that they were not tried before a court, or, in any case they could not be condemned to death.
Q: Finally, the prosecution in connection with the NN cases submitted Exhibit 327. This concerns the information about the sentencing of women and the pardon question. Please comment on this.
A: From the documents that the prosecution submitted, it was already apparent that Hitler in regard to women who had been condemned, insofar as they originated from occupied territories, on principle pardoned them if they had been condemned to death, with the commutation of the death sentence into a prison term.
At the same time, however, instructions were issued that the prisoner concerned should not be informed during the war that this clemency had been exercised. Thus, in other words, the condemned women while they were under arrest continuously remained in uncertainty as to whether the sentence would be executed or not. That seemed to me so terribly hard that I ordered my deputy, Partisius, to report to the Ministry, and to suggest that by appeal to Hitler this passage be repealed. The defendant von Ammon also drafted a corresponding letter, but it seems that it was not sent out.
Q: That concludes the group of NN cases, and now I am coming to the problem of the extraordinary objection. As is known, due to the law for the change of regulations of the general Criminal Procedure the Military Penal Procedure and the Penal Code of 16 September, 1939, the extraordinary objection was introduced. The Prosecution submitted the following documents on this point: Exhibit 174, 175, 176, 177, 178, 181, 373, 474, 495, 512, 515. Witness, first of all what general remarks do you have to make on the subject?
A: The extraordinary objection which was introduced in 1939 was based on a bill which had already been drafted. The purpose to be able to correct obvious mistakes in jurisdiction, and thereby effect uniformity in jurisdiction.
Q: In Article 2, Paragraph 5 of the Law of 16 September, 1939 it says: And I quote: "Against sentences which have legal validity, the Chief Reich Public Prosecutor at the Supreme Court can within a year after the sentence becomes valid, raise an objection if on account of serious misgivings against the correctness of the sentence he consideres a new trial and decision in the case necessary."
In paragraph 3 of the same section it says, and I quote: "If the sentence has been pronounced by the People's Court the objection is up to the Reich Public Prosecutor at the People's Court, and the decision is up to the special senate of the People's Court." According to this, one should assume that the two Chief Reich Public Prosecutors ware those who had to decide whether an extraordinary objection was to be made or not. Please comment on this.
A: This assumption would be incorrect. According to all the regulations and the constitutional basis of his decree, it was without doubt that this extensive statement could be made only by the head of the state, the government, because the extraordinary objection repealed the sentence which had been pronounced, and returned, the trial to the stage at which it was before the trial. So thus, if an extraordinary objection was raised, a new trial had to take place as if nothing had happened heretofore. Therefore, through instructions issued within the office, it was assured that the two Reich Chief Prosecutors, the one at the People's Court and the other at the Reich Supreme Court, could raise an extraordinary objection only in virtue of an order of the Minister of Justice as a representative of the leadership of the state. And this is not expressed in the law because according to the German conception of a trial, the Minister of Justice cannot make any direct statements in a trial. The two Reich Chief Prosecutors, therefore, made these statements, as I said, therefore, only from case to case on orders of the Minister, and the order, which as a rule was even issued so unequivocally that the statement which had to be made, with the reasons for it, was prescribed to the Chief Reich Prosecutors.
Thus, the Chief Reich Prosecutor, just as the other offices, for instance the General Public Prosecutors or the presidents of the courts, were prevented if they thought that there was a cause for it from suggesting on their own, to the Minister of Justice that he should issue such an order.
Q: Witness, the material decision as to whether an extraordinary objection should be raised or not was thus made in the Ministry?
A: The material decision was made exclusively by the Minister of Justice. That is exclusively he personally made it on the basis of a report made to him by his referent personally. It was particularly like that; in case of every decree issued by the Ministry - it had been assured that either by the signature of the under secretary, or the Minister or the division chief, it was made clear that the decision had actually been made by the Minister in this case.
Q; Did you ever raise an extraordinary objection to the court without having an order from the Minister?
A: That never happened.
Q: You just said that the two Chief Reich Public Prosecutors as the officials, as supervising authorities of the Administration of Justice, for example general public prosecutors, presidents of the highest courts, etc., had the right to suggest to the Minister of Justice that the Minister of Justice should issue an order to raise an extraordinary objection.
Did you make use of that possibility?
A: I only did so very infrequently out of my own decision. And I still remember a few cases in which sentences pronounced by the senate presided over by Freisler were concerned. We were per se not very much inclined to attack sentences pronounced by our own court by such a legal recourse. However, Minister Thierack was not much inclined to admit such objections, but toward the senate presiding over by Freisler, he occasionally could be made to do so. The cases which are pertinent here, I may perhaps describe briefly. The first senate in one case had condemned a person to death because of treason. The facts were as follows: The defendant had transferred model 38 machine gun into the hands of an enemy; he had obtained the machine gun and given it to an enemy agent. The enemy had known about this machine gun for a long time because they had captured many of these machine guns on the battlefield. Thus, only attempted treason could be the case, and the indictment was filed in that manner. Nevertheless, the senate pronounced the death sentence. Here the extraordinary objection was permitted. A second case was a death sentence against a member of the protectorate, the opinion of which was based upon threequarters of a page by Freisler. I represented the opinion in this case that this was not a sentence at all, since from the facts one could not find out at all what the defendant had done; and because of this legal mistake the extraordinary objection should be allowed. This extraordinary objection, too, was permitted.
THE PRESIDENT: The Tribunal will recess for fifteen minutes.
(A recess was taken).
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
BY DR. GRUBE:
Q.- Witness, could the defense suggest that extraordinary objection be made?
A.- Yes, the defense counsel could do it, too. The contents of such petitions frequently showed that pure clemency reasons were used by them as arguments in favor of an extraordinary objection and not basic legal questions. In such cases it was suggested to them that they make a clemency plea. But , if the extraordinary objection was bases on such facts that there was a hope that it might succeed, I submitted it to the Minister of Justice and supported it. However, and I have stressed that here before, it was very difficult to get Thierack to allow extraordinary objection to be made in favor of a defendant.
Q.- May I interpolate a question. Were you, as Chief Prosecutor, the competent official who had to deal with such extraordinary objections?
A.- No, no, that was the Chief Reich Prosecutor of the Reich Supreme Court at Leipzig.
Q.- Can you tell us something as to whether extraordinary objection was made frequently?
A.- During the early part of the war, when the extraordinary objection was introduced, that is, until approximately 1942, it was a very infrequent occurrence. It was altogether the exception that it was made. From that time onward however, their number increased slowly, but I cannot even give a rough estimate as to the number of extraordinary objections that were ordered. Originally, the Ministry of Justice, if a report was made by me as to whether an extraordinary objection was to be made - for example, in the case of a sentence passed by the District Court of Appeals, originally the Ministry was agreeable to my using again and again the phrase that the sentence gave rise to misgivings on some points, but these points were by no means of such a serious nature that the unusual recourse of the extraordinary objection should be used.
That became different only when the new head of Department IV of the Ministry of Justice , that was Ministerial Director Vollmer, assumed the office of head of that Department. I asked him about this one day, and inquired from him how it was that these days the Minister more frequently ordered an extraordinary objection to be made. In reply he said, since the Fuehrer decree of August 1942, Thierack had all authorization in the field of the Administration of Justice and, therefore, in the sphere of the extraordinary objection too, he had more scope than hitherto.
DR. GRUBE: May I interpolate here. The statements by the witness concerning the last few questions refer to prosecution Exhibits 178 and 474.
Q.- Witness, Freissler, as we know, was the Presiding Judge of the First Senate. In addition, he was also the President of the Special Senate - that is to say, of the Senate which had to decide about cases where extraordinary objection had been made. If, as you said before, such objection was made against sentences passed by Freisler's First Senate, the same Freisler had to decide the same case the second time as President of the Special Senate. Was the extraordinary objection in cases like that, from the very outset, not a matter without any practical significance?
A.- That state of affairs was altogether undesirable. The Special Senate had different associate judges from the First Senate, but it did have the same Presiding Judge, and as the charge of the extraordinary objection was bases on the fact that the court, the sentence of which was being decided, had committed a serious legal mistake, it was not correct to have the same Presiding Judge. But this was different when a case was reopened. Under German law it is desirable that the same judges sit in the court when a case is reopened because the judges can then apply the knowledge which they gained at the first trial. Krohne and I, on account of that state of affairs, frequently made representations to Thierack and finally the Minister decided that in such a case Vice President Krohne should preside over the Special Senate since Freisler would have to be considered as prevented in cases where a sentence by his own Senate was being decided.
Q.- Generally speaking, what was the result in cases where extraordinary objection had been made?
A.- It cannot be disputed that in many cases the extraordinary objection was successful, but that was not a rule without exception. It did happen that the former Senates -- I mean that the new Senates corresponded with the former Senates. It did also happen that the sentence was reduced, and occasionally it happened that the person was acquitted although extraordinary objection had been made with the opposite aim.
Q.- Can you give us an example -- for example, can you cite a case of a doctor from Hamburg?
A.- Yes, a well-known doctor from Hamburg had been sentenced for seven years in a penitentiary by the first Senate for undermining military morale. Thierack in a very sharp decree ordered extraordinary objection to be made. The context showed clearly that the aim of the extraordinary objection was to have the doctor sentenced to death at the retrial. But the sentence of seven years in a penitentiary was upheld.
Q.- The Prosecution introduced an affidavit by Dr. Weimann as Exhibit 495. That affidavit deals with the case of Dr. Will. Can you comment on that case?
A.- I remember the extraordinary objection in that case very well; and it was made in favor of Dr. Will. It was not by any means made in order to have the entire property confiscated by a new sentence, which apparently is what the Prosecution assumes, because in view of the considerable property which Dr. Will owned, it really did not matter whether the money was left in the hands of his heirs or not.
At the new trial, which I did not observe closely because it took place during the period when I was otherwise occupied, on account of the events of the 20th of July, as I was told, the witnesses gave even more unfavorable testimony than they did at the former trial. That was probably the reason why the first sentence was upheld. However, if the death sentence remained, then the property had to be confiscated under law, that is to say, the entire property; at least the sentence could not allow even part of it to go to the family of the condemned person. That could only be done by way of a clemency plea, and in some cases it was done through the clemency plea.
Q.- Furthermore, the prosecution submitted Exhibit 512. That document refers to the Gaida-Sceletzni case. Can you comment on that case?
A.- The document reveals that Gaida and Sceletzni both had wanted to join the Czech Legion. However, Sceletzni was not condemned for that reason, but only because he had committed a passport offense. Evidently it was the aim of the extraordinary objection to have that unequal treatment of the two defendants corrected. That it was ordered by the Minister of Justice was in the nature of things. The sentence showed that it was successful. Sceletzni was sentenced to a somewhat higher prison term; I believe it was five years in the penitentiary.
Q.- If a sentence had been passed, once it was passed what were the following developments?