A The whole extent of that terrible development until 1945, in all details could not be foreseen by the civil servants at that time; but already there were the special courts, the People's Court. The supreme Reich court in the first instance had been eliminated by National Socialism. The outline of the development were indicated quite clearly. Yesterday I said that perhaps quite a few people, at that time, believed they might by coo* tion be able to avoid a worse development, but they had a certain amount of clear foresight, they were bound to realize the direction in which develop ments were moving. I think that the civil servants in the Reich Ministry were familiar with Hitler' s writings and with his intentions. If they w* not familiar with them it would be even more a responsibility on their par*
Q I think, Mr. President, your answer was to general. Just because left in 1935 -- in 1935 the centralization was concluded, and I would like you to tell us whether in 1935 a large number of jurists and civil servants considered the centralization such a good thing, just as the National Socialist Party considered centralization of the administration a great th* and made it a part of their own program?
A I can only say that anybody who is sad with achieving the aim as s* and does not care about the circumstances in which it was achieved and do not consider the danger involved in the circumstances, that such a person might easily have counted the achievement of the aim as such; but I have already said that after special courts had been set up everybody with a mind was bound to realize at that date centralization would, at least, means that it would become easier for National Socialism to be realized.
Q You give as the main reason for the critical judgement the special courts. Yesterday you told us something on that point. Now, I should like to put various things to you on the question of special courts. The legal' basis as you quoted yesterday, contained in the order of 31 March 1933, R* Law Gazette, volume I, page 136 - If I understood you correctly, yesterday you said that special courts were removed from the ordinary courts; you say that the special courts had made the ordinary courts part of itself, and that eventually the special courts far outnumbered the ordinary courts. I only want to make certain that my summary just now is the correct versi** your views.
A It is right so far, only I did not speak of figures or numbers of special courts, but the growth of special courts was particularly signifi****
Q Was that in 1935?
A No, the development increased in that direction after 1935.
Q Furthermore, if I understood you correctly, you wish to draw the conclusion, and you quoted Anschuetz that the special courts were not e* ordinary courts, but according to Anschuetz it was contradictory to law the special courts should curtail the works of ordinary courts. Yester also pointed out that the special courts already before the Nazi accessi to power were created by the 3rd emergency order of 8 October 1931?
A The legal basis.
Q But you pointed out that that order followed after the accession power in 1933, but those two things show fundamental differences.
A Yes -
Q Therefore, unfortunately, I want to prove the contrary. Therefore unfortunately, we must compare these two orders and must read through them. First of all, I do not know whether your text contains the complete text of that order. If it is not contained in that volume in front of you, have the Reich Law Gazette with me here.
MR. LA FOLLETTE: I did not get the citation, I am sorry.
DR. SCHILF: Reich Law Gazette, volume I, page 136, order of the R Government concerning the establishment of special courts.
MR. La FOLLETTE: What year, please?
DR. SCHILF: 1933.
THE PRESIDENT: That is known as the law of March 31, 1933, is it
DR. SCHILF: 21 March 1933.
DR. BEHL (Witness): The text is not contained in this.
DR. SCHILF: The preamble to the act states the following -
MR. LA FOLLETTE: The text is in full, I believe, in Exhibit 113; * 4. If Dr. Schilf has no objections we can furnish it to the witness so can have it in English.
Let me give him this and -- If I understand I Schilf he is referring only to the preamble; is that correct?
DR. SCHILF: I only wish to read the preamble, and the text which the Court has begins with paragraph 1, but unfortunately the preamble is no. * there.
THE PRESIDENT: What page of Exhibit 113?
MR. LA FOLLETTE: It is on page 4, Your Honor. Dr. Schilf says he reading only the preamble, and the preamble is not in the text.
Q. Between the order of 6 October 1931 and the order promulgated later on 9 August 1932, there is a fundamental "difference between the two?
A. We can't talk about differences the because it mainly concerns the first.
Q. I should like to read the preamble to the law. It reads as follows:
THE PRESIDENT: Please read it slowly.
Q. Pursuant to Chapter of Part 6 of the Third Decree of the Reich President to safeguard economy and finances and to combat political excesses." That is the heading of this order which is rather long. "As of 6 October 1931, Reich President, Part 1, pages 537 the following is decreed:-"Witness, you will admit that the constitutional and legal basis of the law of 21 March 1933 is the same as that of this order, and is not an independent emergency decree in the sense of Art. 18, Part 2 of the Weimar Constitution. This order according to the preamble is based on the Bruening Decree. If I read it clearly I think you will agree with me. To clarify the natter I should like to quote from the Reich Law Gazette, 1931, the order which is mentioned in the preamble. "Reich Law Gazette, 1931, page 537. The Decree of 6 October 1931, page 537." The order starts on page 537. It is a very long and the little of interest here is to be found on page 565. "Chapter 2, Special Courts." I will read slowly. "Chapter 2." Headed "Special Courts." I should like to draw the Courts' attention to the fact that the Tribunal evidently has no copy of the text now I am going to read. I shall try to have read particularly slowly. Perhaps the gentlemen of the prosecution have a copy?
MR. LA FOLLETTE: No.
THE PRESIDENT: From what pages of the Reich Law Gazette are you now reading?
MR. SCHILF: The year is 1931, the page is 565. This order lays down, among other things, the following: "The Reich Government is empowered to draw the judgment of certain punishable actw in area * in which there is a need to establish Special Courts. The Reich Government is furthermore empowered to issue directives on the composition of the Special Courts on their competency and on their way of procedure." That is the legal basis which is referred to in the order of 31 March 1933 and followed this order and which was done for this order. The Hitler Regime evidently intentionally issued no emergency laws of its own for that order -that is, the law of the Weimar Construction issued in 1931 but it based the establishment of its special Courts on that law. Is that complete and correct?
A. Formally it is correct according to the text you read which I have not in front of me at the moment. The emergency decree of the Bruening Government by virtue of Art. 48 of the Reich Constitution was used because the situation became more and more uncertain from 1931 onward due to National Socialistic activities and the National Socialists had that emergency order in view all of the time and that authorization was laid down so that in case of danger the Special Courts could immediately go into action but these Special Courts were only intended for a temporary period of danger and were not intended to become a basis of the Government. In effect, the Bruening Government in spite of the increasing unrest among the public did not use that authorization. In the Papen Government, which was the pacemaker for National Socialism - I can give you an example for that. It was only the Papen Government which under the signature of the Minister of Justice Guertner, who became Hitler's Reichsminister of Justice, made use of the authorization.
The Special Courts by the Government Schleicher after four weeks, or at the end of 1932 was stopped again. The transitional character of this institution of the Special Courts before the Third Reich -- is that clearly evident? As I said, I would give an example for the fact that the Papen Government must be considered the pace-maker for National Socialism. Under the Papen Government National Socialist officials male the decisions and their admission. They, as I found in one case, had instruction to watch their colleagues and to report on them.
Q. Witness, you said that formerly the order of 23 March 1933 was probably promulgated and was based on the constitutional foundation of the Weimar Constitution because the legal basis of the order itself was that of the constitution. I don't know whether when you speak of legal foundation of the law whether there is anything but a formal consideration, that , is, the formal meaning of constitutional. I should like to ask you, therefore, to tell me whether outside of that was there any formal correctness, that is, any material incorrectness -- substantive incorrectness.
A Not a material incorrectness; a substantive incorrectness, rather. But the tendency, proved by the later development to use the special courts contrary to the meaning of the Bruening decree and to make them a permanent institution, was to incorporate ordinary courts, ordinary jurisdictions, into special jurisdictions.
Q You say, quite rightly, that only the later developments and experiences give a picture of this. In the course of our conversation I stressed the year 1935 as the date. Do you think that in 1935 already the things which we heard about later could have been recognized?
A I do think so, because in the meantime the institution of the special courts had not been stopped, but further institution had been added, in particular, the People's Court, which was bound up with the tendency of developing this form of jurisdiction and which, in fact, shows that tendency very clearly. The People's Court-
Q (Interposing) I beg your pardon, Mr. President. He only want to discuss the special courts.
A Yes. You asked me whether, in 1935, it could already be seen that special courts would become a permanent institution. I must point out that there was not only the phrase "special courts", but that there was a further growth of such institutions, a further growth of special jurisdiction, in particular, the institution of the People's Court. And that, too, indicates the tendency that the special courts were intended to be kept on as a permanent institution.
THE PRESIDENT: We will take our usual recess at the time for fifteen minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
BY DR. SCHILF:
Q Witness, you have pointed out that the third emergency decree of the year 1931 was of a transitory nature. Would you admit that it was the intention at that time, but that it came out different as shown by expert and that until the year 1933, and it is two years later, throughout the two years the transitory nature was maintained?
A It was maintained, but only the Government Papen made use of it, and that only for four months.
Q I should not like to question whether it was made use of, because I consider it important that the formal basis of the decree of the 21st of March, 1933 -- that the formal basis for this decree of 1933 was the one of '31.
A Yes, I admitted that.
Q And that on the basis of what I have read, the Reich government at any time was entitled to establish special courts. That can be seen from the text of Bruening's emergency decree in 1931 to 1933, two years. If you have said before that in the year 1933 the majority of jurists must have recognized it, and '33 to '33, also two years, that they must have recognized it, and that one or another may have had a different opinion than you had- or than we have now in our recollection?
A I again have to point out that although formally an enabling act was there to justify it, the important thing still was whether that enabling act was used. I have to say again, the Government Bruening did not make any use of it. The Government Papen did make use of it, but after four months special courts were dissolved again. Then the National Socialist government also formally on the basis of this emergency decree again made use of it, but did not think for a moment ever to dissolve special courts which were established in places by this enabling act. But in the year 1935, as I have already described, there existed a condition, which I have already described, with permanency for special courts, and further special jurisdiction, exclusion of the supreme Reich court, for instance. The question therefore cannot be answered any different than to point to the actual establishment, the institution of special courts.
Q The institution of special courts was, therefore, at any rate in accordance with the Weimar constitution, wasn't it?
A That I have already answered, yes. Article 48-2.
Q I would like to say Article 48-2 gave the power to the Reich president, but that special courts by that decree, by the decree of 6 October 1931, were established and that this enabling act existed at least until March '33 -- we can say on the basis of law that a certain acceptance would have arisen from that?
A I don t believe that you could consider that because national socialism used, as we have seen, the enabling act of 1931 in order to introduce its special courts.
Q You say the Hitler government on 21 March 1933 did not have to base itself on the acceptance. Could they have done it? Would you answer this question?
A That is difficult to say.
Q I put this question, Mr. President, because it is surprising that the Hitler government on 21 March 1933 based itself on a legal enabling act of the Weimar Constitution, isn't it?
A That comes out of the entire method of national socialism, as far as it was possible to carry on the republican institutions and to utilize them, also the Weimar constitution itself for its own purposes, in the same manner as national socialism altogether has utilized democratic rights and privileges and exploited them in order to seize power apparently legally, under the guise of legality.
Q May I make an objection to that? You say "Apparently legally." If we consider that politically in general terms, that was justified, wasn't it? But if we are concerned here with a decree in the sense of the constitution, the Weimar Constitution, then it is purely a formal question, isn't it? Therefore we cannot say "Apparently." It is quite clear, isn't it, because we are dealing with the law.
A No. National Socialism which in its statements and utterances was always opposed to formalism and pretended to fight against formalism, utilized this formalism as far as it was useful to it.
And in th... same manner here it took advantage of the possibilities which existed in that enabling act based on the Weimar constitution, in order to establish these special courts which later were maintained as permanent courts and received more and more competence and power -- whereas as I have already stated, the meaning of Article 48 and also of the enabling act was to establish a transitory execution for periods of danger.
Q Would you say then because you want to limit it to periods of danger, the establishment of special courts, would you day then that from 6 October 1931 until 21 March 1933 there was such a period of danger and that for that period that enabling act was in force?
AAs I have said already, and I am sorry that I have to repeat it again, in '31 and '32 -
Q Excuse me, witness, I did not want to get started on a technical development. I just wanted to have the answer to the question, because you mentioned it was limited to danger periods, whether you considered the time '31 to '33 a period of danger.
A. In connection with the surge of National Socialism toward power, a sort of public insecurity existed which one could consider a period of danger in the sense of that article.
Q. That is to say for a year and a half, the conclusion would be that it covered the year and a half, the time from October 1931 until March 1933?
A Well, yes, the Government Schleicher.
Q. Excuse me. I mean only the Enabling Act covered the danger period, and for the time of danger, the establishment of special courts was common.
A. Legally, it was not limited, however.
Q. You have already said it was not legally limited. Because it was not limited was the reason I put the question. Could one consider this an acceptance, a legal acceptance? We agree that this question cannot be decided here, but I want to ask you whether it is known to you, that before 1931, during the period of the Weimar Republic, repeatedly special courts had been established?
A. It is brown to me that during the time of inflation and economic insecurity, there were so-called userers courts which, however, were dissolved immediately after stabilization in April 1942. They were established with all legal guarantees existing in orderly courts, in the regular courts.
Q. The question is, is it known to you that also after 1924, in the different states, Laender, there were special courts for criminal actions? For example, I cite Bavaria.
A. Yes. That is known to me.
Q. After the period of inflation -
A. Yes. Bavaria. I believe it was the Bavarian People's court. I am not quite sure of that.
Q. In other words, You make the concession that before 1931 special courts in the various states did exist?
A. Yes. but they were always of a transitory nature. The Parliaments were opposed to these courts. They continuously demanded that they should be dissolved. Finally they succeeded. During the time of National Socialism, as is well known, there was no control, and no super vision by Parliament or democratic organizations. There was no parties against the growing number of special courts. That is a fundamental difference.
Q. If we start from the assumption that the legal acceptance of special courts would be justified in Germany, would it be a point of argument for this assumption if I would put to you several names which were mentioned which have signed that decree as members of the Reich Government? The democratic ideology of those men is beyond doubt. I ask you to explain this to the Tribunal. I read only a few of these names. It is known to you that Reich Chancellor, at that time, was Dr. Bruening. The Deputy Reich Chancellor was Dr. Dietrich. To my knowledge he is now in the British Zone or in the Laenderrat, the State Council. Another signatory is Dr. Stegewald. And another one is Dr. Wirth. I do not wish to read any more names. The mentioning of these names may speak for the assumption that under the Weimar Republic, it would have been possible to establish a principle to the offect that the establishment of special courts can be justified, legally justified.
A. To that I wish to state that already yesterday I quoted the commentary by Gerhard Ansehuetz concerning this question according to which it is possible that the Reich Constitution does not exclude the establishment of special courts, but that the reduction of importance of the regular jurisdiction, as far as importance is concerned, not in figures, was not covered by the Constitution.
That the names Stegewald, Wirth and Dietrich are found under this Enabling Action is correct, I believe, however, that I may say that the fact that the Government Bruening did go as far as making this instrument for danger periods, they did not make use of it. That also can be explained by the fact that personalities suck as Wirth, Stegewald were members of that government.
Q. I always consider it important, witness, to discuss this matter as far as formality is concerned; that they did not make any use of it is known. I should like to discuss with you whether there was the possibility of a legal justification for the formation of special courts on the basis of the entire development, on the basis of the Enabling Acts and so on, as legally acceptable and reason for that. I have mentioned these names.
A. The possibility may exist. And as I have to state again, it is also mentioned in Anschuetz' commentary, I believe this was already covered by what I said yesterday.
Q. In summarizing, I just want to put to you the following. It is Law Number 11 of the Control Council concerning the removal of certain regulations of the German Penal Code.
This is called a so-called Penal Legal Constitution of 1946. You know about that, do you not
A Yes.
A For the benefit of the members of the high Tribunal, I should like to state that this Constitution of Penal Legislation of 1946 was published in the Bavarian Legal Gazette of 1946, 15 June, Number 8. I should like to read Paragraph 15 of that Constitution for Penal Legislation.
"Before regular courts should be brought all civil litigations and penal cases for which there exists neither the competence; of administrative authorities nor administrative courts-A" and now comes the decisive point--" but for which special courts have been established or admitted by Reich Law".
Do you believe, Mr. Witness, that Paragraph 13, within the framework of the Control Council Legislation, would not give a very good parallel concerning special courts? They speak about special courts there. It is mentioned they could be appointed or admitted to handle these cases under certain circumstance That would serve as an additional argument for the assumption that German law provides for the possibility and the acceptance of special courts and provides a legal basis for it.
MR. LA FOLLETTE: I would like to object to this question, Your Honor. I object to this question for the obvious reason that the legislation referred to is in an entirely different context. It is legislation proposed by four occupying powers. The word "special" is used. It seems to me to be very clear that the word "special" as used in this Control Council Law 11, can furnish no identification of a system of courts comparable to the special courts which existed prior to 1933 or subsequent thereto. For that reason the witness is being asked concerning a comparison with courts about which the evidence produced clearly shows it is impossible to make such a comparison. It is not within the range of the witness's testimony either under chief or under previous cross-examination.
THE PRESIDENT: It is the view of the Tribunal that there is a wide latitude given to cross-examination. While it may be argued that this comparison is far-fetched, in the broad view of the cross-examination, we will not limit it at this time.
Q May I ask, Mr. President, that you answer my question? The question, if I may briefly repeat it is this: Does not the text of this speak for the assumption that in Germany the acceptance by custom of such courts can be assumed?
A This paragraph 15 was copied from the law--the Constitution of jurisdiction in Germany. It was the purpose of this Constitution to provide for the judges, as quickly as possible, a somewhat purified text of the Constitution of German Jurisdiction, and to put it at their disposal It is a temporary text--such as I have been told several times--it is a sort of temporary text for the time being, so that after eliminating National Socialist ideas, it can still be applied. There can be found various passages which permit this assumption, when these texts were revised, that certain points have been overlooked which still should have been eliminated. For instance, the reason for arrest introduced by the National Socialists--the reason being the concern that the defendant, when released, would commit additional criminal actions--a regulation which I might consider non-Socialist one, and I think it should be removed, and it will be removed.
Q But, witness-
A May I finish my trend of thought? It is possible that here also, in Paragraph 13, a similar procedure is responsible for the fact that there is a possibility. As for the question of the legal acceptance, I can only point to the passage from Gerhard Anschuetz' Commentary, from which I have already quoted, according to which the German Reich Constitution of Weimar provides--or rather does not exclude--special courts.
Q May I add to your statements about your opinion that now it is valid as law. Paragraph 13, which I have quoted, which covers the territory of the United States Zone is valid.
A Yes.
Q You have frequently quoted Anschuetz' Commentary to the Reich Constitution, and in particular the fact that Gerhard Anschuetz is alleged to have stated--we don't have the text here-that the special courts in his opinion-- May I interrupt for a moment? One of my colleagues just gave me Anschuetz' Commentary. It is the Third Edition, 1929.
May I quote the title? "The Constitution of the German Reich of the 11 August 1919, known under the name Weimar Constitution. Commentary By Gerhard Anschuetz, Professor of Law at Heidelberg." The edition which I have before me was published in 1929; that is to say, before the decree, the Enabling Act of the 6 of October 1931. As far as I am instructed, there exists a fourth edition which will probably contain the decree of the 6 of October 1931 and a Commentary here too. And in consideration of the fact that this edition does not take care of this decree I will not quote anything. I should really like to ask the witness since he accepts the opinion of Gerhard Anschuetz and his Commentary, whether there were any other opinions--any possibility or another opinion--or whether Gernard Anschuetz', so to say, opinion would be as important as the decision of the Reich Court?
AAs in all fundamental questions of this kind, as is very well-known there is always the possibility of an opposite opinion which can be based on good arguments. However, I do not know of any opinion within the legal field which would approve of the taking over of regular jurisdiction by special courts, which would state that this would be compatible with the Constitution of the Reich, meaning the Weimar Constitution.
Q Concerning jurisdiction of special courts, you mentioned yesterday the decree of the 9. 8. 1932. That is the decree which the Cabinet Papen has issued. Again on the basis of the Enabling Act, the decree of the 31 of October 1931, as example, the fact that this decree was in conformity with the previously mentioned decree in making possible a retrial before a regular court, and if my impression is correct, you have also said that this decree, paragraph 17 of it, gave the defendant a very extensive right and privilege which was denied by the Nazi decree. Will you please toll me if I have repeated that correctly.
A I have said that Paragraph 17 reserves for the defendant, under certain circumstances, the right of a retrial before a regular court; that therefore, here the regular court still stands in the background--that is, behind these special courts.
Q That was Paragraph 17 of the decree of the 9 August 1932? If I understand you correctly, you want to state that the Nazi decree did not provide t hat privilege for the defendant?
A Not in that form.
Q Now, may I ask you, Mr. Witness, you have the text in front of you, haven't you?
A Not of 1933.
Q The decree of the 21 March 1933, could that be handed to the witness?
(Witness is offered the decree)
This decree, that is from the 21 March 1933, in Paragraph 16, which I should like to read--and if I may be permitted to suggest, I would like to ask the witness, if after I have read Paragraph 16 of this decree, that he may read Paragraph 17 of the decree of August 1932 in order to have a basis for comparison. I read Paragraph 16: "There is no legal opinion against decisions of the special courts. Section ": Application for a reopening of a trial are to be decided upon by this criminal chamber of the district court (Straf-Kammer.)" Here I have to include some explanation. The Straf-Kammer is the so-called public court. That is the chamber within the district court to which also the special court is attached. The special Straf-Kammer, criminal chamber, means therefore the regular court as opposed to the special courts.
May I continue with my quotation? "The reopening of the trial in favor of the defendant will also take place if there are circumstances which point to the necessity of re-examining the case in the ordinary procedure." And here again I should like to make an addition. Mention is made of ordinary procedure as against special procedure. I do not need to read the next sentence. It's purely technical.
The next one reads: "If the application for the reopening of the trial is justified, tho trial will be ordered to take place before the competent ordinary court." That means that in the case of a reopening of the trial, the ordinary court--the criminal chamber of the district court--is competent to decide and to try the case. Then follows the additional legal remedy, that is, the examination by a higher court.
May I ask now, as the witness yesterday has stated particularly that this regulation, Paragraph 17 of the decree of August 1932, had given that right to the defendant, but as he has stated before, the Nazi decree had limited that right. May I ask the witness, therefore, to read the text of the decree of the 9.8.
A. I do not have the text here, but I admit that in this text the retrial, the reopening of the trial, has been regulated, provided in the same manner * in this first decree for special courts. Yesterday when I made this comparison I did not consider the special courts on the basis of this decree to the compared with the special courts of 1933. I had in mind the development of the special courts from 1933 on until 1940 and I described that; and the final version of the decree concerning special courts does not -- you do not find anything about the reopening of the trial. I did not mean to point to the first decree particularly.
Q. May I point out first, witness, we are somewhat limited by the medium of translation; there was another error yesterday when you stated that the decree of the 9th of August, 1932 gave that right to the defendant, but the special courts regulations as soon as the Nazis had come to power did not.
A. Yes, that I stated, and that was the very first regulation of the Nazi, concerning special courts and there it is not so.
Q. Could you toll me, witness, in your opinion, when or where was this regulation omitted?
A. The final decision about special courts can be found in the regulation concerning competence of the 21st of February, 1940. Here we don't find, a regulation which would be in accordance with paragraph 16 which we have just read.
Q. May I point out that the regulation concerning special courts of the 21st of March, 1933 has been published in a new version, in the form of the regulation of which we have just quoted, in February 21, 1940; that is the Reich Legal Gazette Blatt, Part I, page 405, of 1940, and if we look at this regulation which we have mentioned, of which you say that such a provision is no more contained, then I hope you don't mind, witness, if I prove to you the contrary. In paragraph 26 of that decree, paragraph 6, Section II, we find literally word for word the same as in the decree of March, 1933.
A. That is incorrect because I will read it now. The reopening of the trial takes place also if special circumstances prevail which would inquire an additional trial before the special court.
Q. May I read my text, please, now?