Court No. III, Case No. 3.
MR. LaFOLLETTE: Yes, your Honor -- the more appropriate word would have been respondents, I quite agree; but that is the intent of the language used. I hope that with this explanation the Court will feel that it can either order that, or I can make it -
THE PRESIDENT: It is clear to my mind what you mean.
Court No. III, Case No. 3.
THE PRESIDENT: The order, as submitted by the Prosecution, provides for a trial upon the issues of fact as they shall appear from the pleadings on Tuesday, the 29th day of July, and for other appropriate matters relative to the securing of witnesses. The order is approved by the Tribunal and goes into effect as of this moment.
MR. LaFOLLETTE: May I ask, does the Tribunal desire to have a transcript of this for the record? There are adequate German copies, your Honor -- whichever the Tribunal desires.
THE PRESIDENT: The Marshal is directed to give notice of the contents of the order to each of the respondents by giving to them a copy in the German language of the order.
MR. LaFOLLETTE: Thank you, your Honor. There are adequate German copies available. And now, may the record show that the Prosecution delivers to the Secretary-General a list of the witnesses which the Prosecution desires to have subpoenaed to testify on behalf of the Prosecution.
THE PRESIDENT: You may deliver the list. This proceeding grows out of it, but is not a part of, the main trial in the case of the defendants now in the dock. The hearing on the contempt proceeding will, of course, be in open court but the defendants and their counsel will be excused from attendance on Tuesday, and on Monday evening we will recess this trial against the defendants in the dock until Wednesday morning.
MR. LaFOLLETTE: Yes, sir.
THE PRESIDENT: If any of the defense counsel desire to be present they may do so on Tuesday, but they are not required to be here, and the authorities having in custody the defendants should be notified that the defendants need not be produced in court on Tuesday.
DR. GRUBE: May I continue?
BY DR. GRUBE:
Q Witness, what in your experience was the practice in clemency pleas on the part of the Ministry of Justice?
A There was no clear line of policy.
Court No. III, Case No. 3.
Q What happened when the clemency authority, that is to say, the various Prosecutions, had reported to the Minister of Justice?
A When the head of the state had given his decision to the effect that he would not exercise his right to clemency, that decision was imparted to the public prosecutor -- in my case to the chief Reich Prosecution -- in writing and simultaneously an instruction was issued to execute the death sentence. That so-called instruction for execution of sentence mentioned all particulars which had to be observed during the execution.
Q Did it happen that a condemned person or his defense counsel made a clemency plea or made a second clemency plea when the ministry of Justice had already issued orders for the death sentences to be executed?
A That happened.
Q What steps did you take in such cases?
A Such pleas were passed on to the Reich Ministry of Justice through the quickest channels and even there was merely another hour to go until the execution. Frequently such pleas were cause for postponement of the execution.
What was even more important was the question as to what would happen if, somewhere else, as the witness Poemer testified here in Munich, an execution was carried out in such cases where it was obvious that an application for reopening of the trial entitled a public prosecutor to postpone execution.
Q In your capacity as an authority administering punishment, did you ever have a sentence of the People's Court executed without having obtained a decision by the Ministry saying that clemency was not to be granted without having received instructions for execution?
A Naturally that never happened.
Q I am now reverting to Exhibit 530. Under No. I of the circular decree from the Reich Ministry of Justice of 17 January 1945 it states that on account of a disruption of communications the general public prosecutors had been authorized, after examination of the clemency problem to order execution insofar as that seemed desirable for maintaining peace and order. In exceptional cases the competency of the Ministry for de Court No. III, Case No. 3.ciding upon clemency pleas and ordering executions, was transferred by the Ministry to the general public prosecutors.
Will you tell us, please, whether that decree also applied to you?
A It did not apply to me. It did not have to apply to me either because I was in the same place where the Ministry of Justice was, and communications between our two offices was never disrupted. Anyway, we could always be reached quickly by messengers.
Q The Prosecution apparently also stated the fact that the death sentence sometimes was not executed by beheading but by hanging. You have already mentioned that the order for execution from the Ministry always stated exactly by what method the execution was to take place. Can you tell us whether, by German law, the Ministry could also order that the death sentence was to be executed by hanging?
A The Minister could do so on the basis of the law of 1933, I believe it was, of the 29 March. He, on the basis of that law, could decree so in the name of the government. If he did so that had to be mentioned expressly in the order for the execution.
Q I now come to the executions at Ploetzensee in September 1943. I am referring to Exhibits 286, 287, 288, 289, 301 and 450 of the Prosecution. The document opens with a letter to the Minister of Justice of 9 September 1943. I am referring to Exhibit 286. In that letter you evidently refused to accept responsibility for the occurrences in Ploetzensee on 8 September 1943. Why did you do so?
A I can give a brief explanation of that. In reply to my inquiry at the Ministry of Justice, when I had heard of the events, on 7 Septembber I was told that the Ministry exclusively would deal with the matter and that I was not to play any part in it. Therefore, when I heard that a mistake had occurred and that persons had been executed by mistake, in whose cases no decision had yet been made on the clemency plea, I refused to accept responsibility.
Q You did so by your letter of 9 September?
A Yes. By that letter of 9 September and that was acknowledged for the general public prosecutor at the Kammergericht as the responsible Court No. III, Case No. 3.superior officer of the prosecutor who was in charge of the execution was asked to make a report and I was not.
DP. GRUBE: Thank you. Your Honor, I am now coming to a new group of questions. Perhaps it would be a good time for recess.
THE PRESIDENT: We will adjourn until Monday morning at the usual hour of 9:30.
(Whereupon,the Tribunal adjourned at 1630 hours, until Monday, at 0930 hours.)
Official transcript of the American Military Tribunal in the matter of the United States of America, against Josef Altstoetter, et al., defendants sitting at Nuernberg, Germany, on 28 July 1947, 0930-1630, Justice James T. Brand presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been excused; let notation be made.
DR. GRUBE: May I continue with my examination of the witness Lautz.
ERNST LAUTZ - Resumed DIRECT EXAMINATION - Continued.
BY DR. GRUBE:
Q The witness Havemann in his examination on 10 April 1947 stated that on 20 April 1935 in Brandenburg thirty-three persons who had been convicted by the Peoples Court had been executed. Will you please comment on that, witness?
A I believe it should read 1945.
Q Yes, you are quite correct; 1945.
A That testimony by the witness Havemann is correct. It was also correct when he said that those condemned persons had, for weeks and months after the sentence had been passed on them, been sitting at the Brandenburg prison. Whether the number which he stated is correct, I cannot tell from memory. What happened was this:
At Brandenburg prison at the beginning of the year 1945 a fairly large number of persons were kept who had been sentenced to death by courts in Berlin. Among them were people who had been sentenced by the People's Court. For several weeks no executions had taken place; that was on account of the air war. For communication between Brandenburg and Berlin it was considerably disrupted. I did not urge matters, but I left things as they were. In April 1943, however, Hansen, the General Prosecutor from the Supreme Court of Prussia, who was responsible for the prison, called on the Minister of Justice and said that he could not guarantee for safety at the prison unless those sentences were executed. Thereupon, Minister Thierack in a number of cases which had been examined and finally decided upon at the Ministry for weeks and months, ordered execution. On 18 April 1943 Ministerial Counsel Franke, whose name has been mentioned here several times, handed me in due from the execution orders and a car was made available. Originally, the executions were to taken place on the 19th of April. An unusually heavy air raid by the RAF which occured on that day prevented the executions from taking place on that day. I made my report to Ministerial Counsel Franke in the evening, and pointed out that execution would now have to be postponed for several days as on the 20th of April, Hitler's Birthday, no executions had ever taken place. After a little while he rang me up and said that the Minister was insisting that the executions were to taken place on the next day, that is to say, on the 20th In view of the situation to point of view such as I had stressed should not be taken into account, and on the 20th of April the execution were carried out in accordance with the order.
Q A supplementary question, witness: Had the Minister made a decision in every case that the clemency right was not to be exercised?
A Yes, I have said that already, that this was a decision which Thierack had signed.
Q The prosecution has introduced Exhibit 299. That exhibit concerns negotiations about the question as to whether, and in what form, the relatives of executed persons were to be informed of the fact that executions had been carried out. In that document there is a note which reveals what point of view you had on this question. Will you comment on that subject, please?
A Information that a prisoner had died - whether he had actually died at the prison or whether he had been executed by virtue of a death sentence - that was a matter for the administration of the prison deal with. As it was my experience that the administration of the prison frequently did not carry out that duty, and that the defense counsel did not always notify the relatives either, I, in the interest of the relatives, considered it necessary that the Minister of Justice should give a ruling which made it certain that such notification was made. Therefore, I suggested that in principle the prosecution offices, that is to say, in the case of the Peoples Court, the Reich prosecution should be asked to notify relatives, with the exception of cases an express prohibition made that impossible.
Q The prosecution in introducing the Exhibit 299, which we have just discussed, on 21 April 1947, German transcript Page 2429, gave explanations from which one might deduce that according to your suggestion only the relatives of German prisoners were to be notified that execution had been carried out. Please comment on this.
A When I made my suggestion I did not differentiate between Germans and foreigners. That is evident, too, from the note of 28th April 1944, which is contained in Exhibit 299, and deals with my question, and it makes it quite clear.
Q The prosecution furthermore introduced Exhibit 362. That exhibit deals with the correspondence about publication of the execution of death sentences passed by the People's Court in the Protectorate. What can you tell us about that, witness?
AA public announcement saying that a death sentence had been carried out was ordered. As such placards in the cases of sentences against inhabitants of the Protectorate could not be produced in Berlin because of the lack of certain printing letters, that they had to be printed in Prague. That was a purely technical matter which was of no significance.
Q A final question on the subject of the execution of punishment. Were the authotities for execution under German law authorized to examine whether the order for execution and the sentence on which the order was based, were justified in accordance with the facts?
A No, they were not authorized to do so, I believe that is the same in other countries. The executing authorities had merely to examine wheter the order for execution was correct. That is to say, whether it had been issued by the competent authority, and whether that authority had observed the official form. In the case of death sentences, that is, whether a denying decision had been obtained from the head of the state. That examination was always undertaken.
Q The prosecution has submitted documents which show that certain groups of persons who were in the hands of the Administration of Justice were transferred to the police. Jews, Poles, Gypsies, asocial elements, etcetera, were transferred - such as had been laid down in the agreement which was made on 18 September 1942 between Himmler and Thierack, and in the circular decree which accordingly on 22-10-42 was published by the Minister of Justice. In particular, I am referring to Exhibits 39 and 264. Furthermore, I am now concerned with the evacuation from prisoners when the enemy was approaching, which evacuation had been provided for in the directives issued by the Reich Ministry of Justice. I am referring especially to Exhibit 290. Did you, as Chief Reich Prosecutor, have anything to do with these two schemes?
A No. The documents made it obvious that these measures were carried out on the basis of directives sent by the Ministry of Justice, directly to the prisons. As I was not in charge of the prisons, I could not have prevented such transfer; and that is how one can explain the fact that none of the documents contained instructions to me.
The witness Hecker also described that state of affairs in that way to the Tribunal here.
Q What do you have to say in that connection about Exhibit 134 and Exhibit 267, which the Prosecution introduced here?
A Those documents contain proof that such instructions were sent by the Ministry of Justice directly to the prisons. As to the documents which you have just mentioned, I have only seen them now for the first time.
Q After those two measures had been taken, did you not receive notification that the prisons transferred prisoners to the police?
A The circular decree of 22 October 1942 was known to me.
Q May I just interpolate a question? You are referring to the circular decree of 22 October 1942, which is Exhibit 264?
A Yes, Exhibit 264.
Q Thank you.
A No doubt I did hear that Thierack had those measures put into effect, but I did not know the important decree of 21 April 1943; that is Exhibit 268. That decree gives instructions in detail as to the places to which the prisoners were to be transferred by the prison, that is to say, Auschwitz and Lublin. That decree was only addressed to the General Public Prosecutors who were the authorities responsible for the prisons. I was not informed of the decree. That this agreement between Himmler and Thierack which was kept carefully secret was linked with the intention to exterminate prisoners through work only came to my notice at this trial.
In spite of everything unfavorable I knew about Thierack in spite of all the brutality of his character of which I did know, I would still not have believed is possible that he, as the responsible Minister of Justice, would play a part in such matters. As for the reasons for those transfers, I occasionally did hear at the Ministry of Justice that the Minister was of the opinion that the labor potential of those prisoners--who were separated from other prisoners and had to be housed in prisons of their own--was not fully utilized in these institutions. At these occasions I also heard that it was most definitely not the intention to treat political prisoners as asocial elements. That that evidently was not done is revealed by document Exhibit 271, NG-557. That is in document book IV-B. That extensive document constitutes part of of the prison register at Ebrach prison, a register which was kept until the collapse and which shows that of the 74 prisoners of the People's Court who were serving a penitentiary term there for preparation of high treason, not one was transferred to Mauthausen, while a number of ordinary criminal cases, according to that prison register, were transferred to Mauthausen.
Q What can you tell us in this connection about the Leb case, Exhibit 309?
A I have already said something about that in connection with the NN problem.
Q What can you tell us about Exhibit 266?
A That is the letter to Rodgau. The Rodgau letter was not signed by me, I have seen it here for the first time. It seems to me that its only purpose was postpone after the war, the question of the term that was to be served. However, the defendant who wrote that letter is best able to testify as to that.
Q What experience did you have with the Gestapo in general?
A Concerning that point, I would ask the Tribunal to allow me to take some more lengthy statements.
For a correct description of the relationship between the public Prosecution and the Police, a very distinct separation needs to be made. First of all, a dividing line has to be drawn between the relationship with those agencies of the Gestapo which dealt with preventive custody and, through this with concentration camps. The Public Prosecutor had nothing to do with that type of relationship. Their contact was limited to relationships with those agencies of the Gestapo which worked as police investigating agencies. I want to say the following concerning relations with those investigating organs of the police. The Code of criminal procedure of 1877, not legally, but in effect, had been changed by conditions which developed in the course of time. That development began with the changeover in 1918 when the Minister of the Interior became the most powerful man in the state. As a result, he devoted his particular attention to the training and equipment of the police, and he equipped the police with all technical facilities of modern times. In 1933, therefore, the German police--that is to say, the criminal police as well as the political police had reached a considerable level. Naturally the new rulers after 1933, could not do without that police machinery and they took it over as it was. As was to be expected, they purged as they turned it--the body of officials of those elements who, in their opinion, were not bearable.
In some cases they put in new officials who were politically reliable, but whose qualifications were anything but adequate. That is how one can explain the fact that the witness Brem testified that the police transcripts which he saw had varied greatly in their value. Since those days it was the task of the Public Prosecution mainly to examine those police investigations for their contents with great care and supplement them through investigations instituted by a judge and possibly also through investigations instituted by public prosecutors. That, in the case of the Reich Prosecution, was done on a scale such as was at all possible with the personnel that was available. If it was impossible to examine all cases, that was due to the war, as there were no longer so many judges and public prosecutors avail albe, but the most important cases were always checked by interrogations instituted by the Prosecution by inspecting matters and by taking any other steps that might appear necessary. As for my personal knowledge of concentration camps, as I have already said, in my official capacity I had nothing to do with concentration camps. I should like to state the following: I never had any doubt that the transfer of a prisoner from the sphere of the Administration of Justice to a concentration camp did not improve the situation of that prisoner. I was aware of that for two reasons. The first reason was the fact that protective custody was imposed for an unlimited period of time, and that no legal remedy could be applied against it. The fact that the prisoner had a right to complain to the RSHA in Berlin, the fact I did not consider to be a legal remedy because it was that very agency which had imposed protective custody. Secondly, I knew from my experience in Berlin in the days before 1937 that a prisoner in a concentration camp was not as safe from occasional ill treatment as he would have been in a prison under the Administration of Justice where disciplined personnel, with the exception of a very few cases where severe punishment was imposed, had been trained never to touch a prisoner.
That under a secret system some concentration camps during the war were used for mass extermination I did not know during the war.
Q. I am now coming to another point. That is the so-called more severe interrogations. What can you tell us about that subject?
A. The more severe interrogation was an institution which caused much worry to the Administration of Justice. What happened was this: I believe already before the war, but I cannot name the exact year, Hitler after he had received a report from Himmler, had told the chief of the Sicherheits Polizei (Security Police), that in certain cases he would be entitled -- that is, in cases where the issue of the interrogation was very important for the safety of the state -in the course of interrogating such a prisoner to exercise compulsion, duress, for the type of which certain forms were prescribed. But great emphasis was placed on the fact that such a measure was only admissible as long as the police alone was in charge of the prisoner. The Minister of Justice had been informed of that in order that in these cases which had been legalized by Hitler, the police officials who had to carry out such a measure would not be exposed to the danger of criminal prosecution.
Q. Was the procedure in such cases made safe by special directives?
A. There were detailed written instructions on this procedure which, naturally, were known to all public prosecutors and judges who dealt with more important criminal cases and which was also known to such officials in the Ministry who dealt with such cases. The instructions said that first of all the more severe interrogation could only be approved from case to case by the chief of the security police. Secondly, that it was only to be applied if the prisoner was entirely in charge of the police and in their custody. And thirdly that when later on the results of such interrogation were passed on to the Administration of Justice a special letter which was to be treated as secret was to notify the Administration of Justice of the fact that the more severe interrogation had been applied.
Q. I have here a document from the IMT trial. I am referring to US Exhibit 507. That document refers to the more severe interrogations and refers to the regulations passed by the RSHA for the Reich territory. Witness, may I ask you whether the regulations as provided for here in respect of notifying the Public Prosecutors about more severe interrogations are the ruling of which you spoke just now.
THE PRESIDENT: May I ask you a question, Dr. Grube? You are not referring to an exhibit in this case, are you?
DR. GRUBE: No, that is an exhibit from the IMT trial.
THE PRESIDENT: Thank you.
A. The decree in this form I am seeing for the first time now, but the principles of this decree are in accordance with the things which I did know.
Q. It says here if a prisoner who has been subjected to more severe interrogation is brought before a judge, the competent senior public prosecutor has to be informed in writing by way of a secret Reich matter that the prisoner, for reasons which must be stated briefly, was subjected in the manner mentioned to more severe interrogation .
Q. Witness, testimonies which were given as a result of such interrogations, how were they evaluated by a court?
A. The letter by which the Gestapo had announced that more severe interrogation had taken place was submitted to the court when an indictment was filed so that the presiding judge always, even if the prisoner until then had not referred to the fact that he had been subjected to pressure, knew that in fact that had happened. If at the trial the defendant withdrew his statement and if no further evidence came out, either through witnesses or through testimony given by codefendants, the transcript which had been compiled on the basis of the more severe interrogation was not utilized. The last case which I can remember from the jurisdiction of the People's Court occurred at the end of 1944 and beginning of 1945. The defendant was a young worker who at a fairly big industrial enterprise in Silesia had committed rather dangerous arson.
He had been subjected to the more severe form of interrogation because the police assumed that there had been other men involved who for political reasons intended to carry out sabotage plans on a large scale.
The defendant withdrew his testimony at the trial and the Fourth Senate acquitted him.
Q: Witness, were those cases where the Police applied a more severe form of interrogation, according to your observation, frequent?
A: Measured by the total number of cases with which we dealt, they were not very frequent.
Q: Exhibits 364 and 488 refer to talks which you are alleged to have had with the Gestapo and investigating judges. Please comment on that.
A: Those conversations had for their sole purpose to make sure that the investigating judges' work was restricted for practical purposes to the difficult and important cases.
Q: The Prosecution submitted Exhibit 32. That document quotes a decree by the Minister of Justice of 10 March 1937 which says that in the interest of as close a collaboration as possible between the Public Prosecution and the authorities of the Gestapo, the Public Prosecution whould in the future direct requests for investigation of denunciations of political contents via the competent Gestapo agency. What have you to say about that?
A: That decree did not apply to the Reich Prosecution. That is evident from the decree as such. It is not directed to me.
Q: And, moreover, it was issued at the time when you were not there?
A: Anyhow, I did not proceed on the basis of those principles.
Q: What were your relations with the police?
A: Even before 1933 I limited my relations with the police to the scope which was conditioned by service necessities.
I did not entertain personal relations with them. I never exchanged one single word with Himmler. I met both Heydrich and Kaltenbrunner once at a discussion at the Ministry of Justice where the Minister presided. The other so-called leading men in the in the State and Party, only a very few of them did I get to know through my official capacity. I did not entertain personal relations with any one of them.
Q: Why is it that you had no close contact with the leading men of the police and so forth?
A: It is perfectly easy to explain that from the fact that I took the point of view that for the clarification of basic questions between the police and the Administration of Justice only my superior, the Minister, was competent for such clarification.
Q: I am now coming to the jurisdiction of the People's Court in general. The Prosecution, in Exhibits 172, 124, and 378, has submitted figures on death sentences. What have you to say about that?
A: The figure in the Thierack report, that is, exhibit 172, does not differ much from the figure in the business report of the People's Court, that is, Exhibit 124. That can't really be right for the Thierack report includes the whole of the Reich, that is to say, all the district courts of appeal including these in the incorporated territories in the East, and those in the incorporated territories in the East did produce a fair number of death sentences. Therefore, the figures in the Thierack report should be higher than those quoted in the business report of the People's Court or those in the business report by the People's Court should be lower than those given in the Thierack report.
As such statistics were compiled by subordinates who, as a rule, did not apply great care, mistakes are, after all, not impossible.
Q: Witness, if you were to assume that the figures in the People's Court report are correct, would you then, in view of your particular knowledge of the conditions, say that you. can deduce from that certain opinions on these sentences passed by the People's Court?
A: The figure which has been computed for the People's Court, from the point of view of present days, naturally appears terrifically high, but one must bear in mind that in many cases the death sentence was mandatory for the People's Court and that only the most serious cases were brought before the People's Court and that after all those cases referred to an area which was inhabited by nearly 90 million people. As to the figure of the applications for death sentences made by the Reich Prosecution, one cannot draw any conclusions from that figure. On the other hand, the business report by the People's Court, that is exhibit 124, shows how the senates differed in their sentences. Thus, for example, the first senate passed one death sentence to every two cases; whereas, in the case of another senate there was only one death sentence to every four sentences. The Witness Buchholz already testified as to that here.
Q: Do the figures in Exhibit 124 show any other peculiarities?
A: Yes, they do. They indicate that the first senate dealt with almost 50 percent of all cases which came before the People's Court. It could only do so because the same senate could sit in different compositions.
Q: Were any steps taken to see to it that business was no longer distributed so unevenly among the various senates?
A: The vice president of the People's Court and I, myself, several times called on Thierack. He did promise to remedy that state of affairs, but evidently he did not take any steps, for Freisler had much support from Goebbels.
Q: And what attitude did you take about the sentences passed by the first senate and other senates when you considered the sentences they passed too severe?
A: According to the facts of the case, there were only three ways open to me. I could suggest a clemency plea. I could suggest that extraordinary objection might be made and I could consider reopening of the trial. But, in all such cases, I only had a chance of success if there were proper reasons for taking such steps. In my earlier examination I remarked on that. For the rest I wanted by transferring cases to lower courts, to keep as many cases as possible outside the People's Court.
Q: In the cases with which Exhibits 128, 132, and 133 deal, the prosecution assumed that the defendants had attempted to join the Polish Legion. The People's Court, however, passed a sentence in those cases, contrary to the other cases, for having injured the interests of the Reich, and the fact that they had left their places of work and had intended to remove themselves and their labor potential from the Reich permanently by escaping a broad injury to the Reich interests was based on such plans. What was your attitude to this sentence?