I remember, in particular, extensive trials before the special court of Oppeln against numerous defendants who were charged with participation in dangerous resistance movements in Belgium. According to the indictment I was under the impression that heavy sentences would be pronounced here. In effect, however, the result of the trial was quite different. The defendants maintained that it was not a dangerous resistance movement, but a harmless club. In view of the limitation of foreign evidence material it was impossible to disprove this allegation. Thus, the defendants had to be acquitted or they could be given only slight penalties because of participation in a club which was not authorized by the military commander.
Q: #6 of the executive orders of 6 February 1942 which have already been mentioned - that is, Exhibit 306 - makes the following provision: "The Public Prosecutor can, until the sentence is pronounced, withdraw the indictment or ask that the trial be postponed. The Court has to agree to the application of the Prosecutor for suspension. If the court wants to deviate from the application made by the Public Prosecution, it has first of all, to afford them an opportunity to state their opinion."
Witness, what can you say about this regulation?
A: Dr. Schlegelberger, when he was examined, commented extensively on these regulations. I only have to add the following: The procedure described is, as Dr. Schlegelberger stated, introduced in order to prevent that NN prisoners be transferred to the police. For the court itself, in view of the prestige of the court, it probably was not very pleasant.
The authors of that regulation realized that too. As I said already in my affidavit of 17 December 1946, that is Exhibit 337, even Freisler in this meeting of 6 February 1942, said that with this regulation one had reached the utmost limit of what one could expect of the court. The authors of this regulations, however, believed that they had to put up with that regulation in the interest of the NN prisoners.
Q: Regulation #6 of the executive orders which we just discussed - was it ever applied in practice?
A: I don't believe so. The regulation was in effect only for a brief period. Thierack, in October, 1942, soon after he became Minister, again rescinded it. During the time that that regulation was in effect, as far as I remember, only very few NN cases were tried. These were clear cases in which the court had no misgivings against agreeing to the application of the Prosecutor. If that regulation would have been applied, the Ministry certainly would have been informed about it and I certainly would still remember it.
Q: In regard to the changes which Thierack ordered in October, 1942, Dr. Mettgenberg commented. Did you have misgivings against these changes, especially also against the transfer of NN prisoners to the police?
A: The changes which Thierack made without doubt also had a favorable side. The unpleasant regulation of #6 of the executive order of 6 February 1942 was removed. Even Freisler, as I mentioned before, stated about it that with this regulation the outside limit had been reached of what could be expected of the courts. Now, this bad condition was removed, that the authorities of the administration of Justice had to detain persons in whose cases the reason for detention had to be maintained by the procedure discussed by Dr. Schlegelberger.
On the other hand, the transfer of the NN prisoners to the Gestapo was without doubt unpleasant. Since the competency of the general administration of Justice for the detention of NN prisoners who were acquitted or whose time of arrest had expired - after this had been removed again was returned to the Wehrmacht. According to the provision of the NN decree, however, the Wehrmacht, as a rule at least, was not allowed to return these NN prisoners to the occupied territories. Also for the reason of keeping this matter secret, they could not be set free in Germany. The only way out that Thierack saw was their detention by the Gestapo, and the OKW who, in the last analysis, had to decide about this affair, agreed to the suggestion by Thierack. If now I am asked if, in regard to the treatment of the prisoners by the police, I had misgivings, I can answer that in the following way: The prisoners were handed over to the police with the express provision that the detention was carried out only for reason of secrecy and in the interest of keeping the whole affair secret. Therefore, the Gestapo merely had to detain them and not to carry out a penalty. As far as I know, in the negotiations between Crohne and the Gestapo, the representatives of the Gestapo stated that, in the case of detention of NN prisoners, they would take into consideration the fact that against the prisoners personally there was no longer any charge. Later on, the Reich Leader SS also ordered expressly that the NN prisoners, who were handed over to the police, always should be put on the level of Custody #1 which was the most lenient level.
Q: I refer to Exhibit 328 in regard to the last statements made by the witness.
Witness, as Mettgenberg testified, in September, 1944 the general authorities of the administration of Justice again were deprived of the competency for NN cases. It was ordered that NN prisoners generally had to be handed back to the police. What can you say about this?
A: I can confirm the statements made by Dr. Mettgenberg to their fullest extent and only have to make a few supplementary remarks. As Mettgenberg already testified, in the discussions at the OKW, which took place in the beginning of September 1944, the witness Hecker and I represented the Ministry of Justice. Since the matter could not be reported to Minister Thierack in advance, my department chief Vollmer had given me the instruction to reserve the right for the Minister to state his opinion. I acted accordingly during the negotiations. The representatives of the OKW then also agreed that the OKW would forward a draft of the intended draft of the OKW to the Ministry of Justice and that the Ministry of Justice could then state its opinion on the draft, in writing.
In place of that the O.K.W. then sent us an already filed decree, which ordered the discontinuance of the NN-procedures and the transfer of NN-prisoners to the police. When I reported this to Mettgenberg and together with him to Vollmer was very much displeased about the manner of handling used by the Wehrmacht. Vollmer said the OKW by-played us in that manner and he instructed me to tell the referent of the O.K.W. by telephone and protests against this manner of conducting this business. He said the decisive thing, however, was that the regulation made by the O.K.W. had to be accepted according to the division of business as the O.K.W. was competent for NN-cases.
In accordance with the instructions given by Vollmer, I then telephoned the referent of the O.K.W. and expressed our surprise at this manner of handling this. The referent replied this was a misunderstanding and he regretted it very much, in any case I can testify that on the part of the department 4 of the Ministry of Justice no agreement of that regulations was given but that department 4 only through force submitted to the regulation, which was made without it's agreement.
Q The meeting in the building in the Supreme Military Court in the beginning of September, 1944 was presided over by Dr. Werner Huelle and at that time he was supreme judge. I submit an affidavit by Dr. Huelle that was taken on 17 July 1947. Following the usual introduction formula, it reads as follows:
"By order of the chief of the Legal Department of the Wehrmacht I presided over the discussion in the beginning of September 44 in the building of the Reich Military Supreme Court in Berlin. In this meeting the question of the transfer of the NN-prisoners was dealt with. The basis of this discussion was a Fuehrer order, which had ordered to return of the NN- prisoners to the police.
"The representative of the R.S.H.A. insisted on the giving back of the prisoners who had already been sentenced, since the will of the Fuehrer referred also to those and by saying so he referred to a classification which Himmler had wrote about to Hitler.
"Although in view of this the discussion could have only the value of a technical discussion. I consider it absolutely possible that the referents of the Reich Ministry of Justice reserved to themselves the right of obtaining the opinion of their Minister Since they had not received instructions from him. More exact statements I can no longer make from memory. In what manner and by whom my office then received a statement by the Ministry of Justice, I do not know since I was not the referent. With absolute certainty, however, I can say that only the transfer to the police for the purpose of commitment for labor for urgent armament work was considered for which the manpower of the prisoners was needed. My superior Generaloberstabs Richter D. Lehmann, who himself had formerly been a member of the Ministry of Justice, always attached importance to relations without frictions with the Administration of Justice, and therefore, he had the questions which interested both offices discussed in common.
THE PRESIDENT: Will you tell me the author of that affidavit, I did not catch the name.
DR. KUBUSCHOK: HUELLE. I submit this affidavit and ask to reserve the number von Ammon Exhibit No. 2 for this affidavit.
THE PRESIDENT: The exhibit is received.
BY DR. KUBUSCHOK:
Q The witness Hecker in his affidavit of 10 March 1947, exhibit 416, stated what considerations he had about the fate of the NN-prisoners which were transferred to the police, did you share these misgivings of Hecker?
A No, the witness Hecker stated during the course of his cross-examination of 12 May 1947, stated that he did not discuss these misgivings with me. How Hecker reached his point of view, I do not know. Even from the point of view and from the knowledge I have today, I consider the considerations that Hecker had wrong. The police offices technically were not in a position to examine the cases of the many prisoners that were to be transferred to them, the police did not have the sufficient machinery. The first prerequisite for such an examination would have been the transferring of the files to the police, however, even in those cases where NN-prisoners were transferred to the police as far as I know the files were not given to the police.
Q Do you know to what extent the return of the NN-prisoners to the police was carried out?
AAs far as I know the return was carried out only to a small extent. The reason was probably that the police did not have sufficient room to house the prisoners. Later on during the last months of the war possibly the congestion in the traffic system was added complication. More exact statements, however, I cannot make because I had nothing to do with the execution of the return.
This was a matter under the competence of Division V. However, at the time Herr Hecker in Berlin, already in 1944-45 informed me that the police were hesitating very much about taking over the NN prisoners. From the statements of Ludwig Schirmer and Josef Brei, who testified here before the Tribunal on the 4th of June of this year, it is apparent that of the numerous NN prisoners in the two orisons at Ebrahc and Amberg none were returned to the police. I myself made other similar observations during the last week before the collapse in Southern Germany.
Q From the documents submitted by the Prosecution it is apparent that keeping NN prisoners incommunicado was one of the main peculiarities of the NN procedure which was applied from the very beginning. In the opening statement by the Prosecution, among others, you, too, are being charged with having systematically carried out and approved these regulations about keeping the procedure secret. In this connection exhibit 319 is of interest. It contains a circular decree by the Reich Minister of Justice in which several directives are given as to how agencies of the Ministry of Justice are to handle NN cases in order not to endanger the cutting off of NN prisoners from the outside world. What can you say about the origin of this circular decree?
A The circular decree was initialed by reports of the senior public prosecutor in Cologne and Essen. These senior public prosecutors had reported about the difficulties which resulted from the strict regulations about keeping the NN prisoners separate from the put side world, especially when NN prisoners died, and they had made suggestions for overcoming these difficulties. The report of the senior public prosecutor in Cologne is contained in Exhibit 314. In this report the decisive questions arc dealt with under Roman numero III. The report of the senior public prosecutor in Essen was not submitted in this trial here.
THE PRESIDENT: The morning recess --fifteen minutes.
(A recess was taken.)
THE MARSHAL: Persons in the court room will please find their seats.
The Tribunal is again in session.
BY DR. KUBUSCHOK:
Q: Before the recess, you answered the question as to the origin of the circular decree which we discussed. Please continue.
A: The circular decree, Exhibit 319, referred to the reports from the Senior Public Prosecutor at Cologne and Essen which he issued for regulating the questions which arose. Herr Mettgenberg has already stated here that decree was worked out by both Referates of departments 3 and 4. I participated in the work on that particular decree, insofar as the competence of my department was affected by drafting the provisions contained in it. Various questions that were settled, in that circular decree, did not affect the competence of department 4 at all. Thus, for example, the question of funerals of NN prisoners who died a natural death while there cases were pending and the question of treating the possessions they left behind was a matter for department 5 to deal with. To that extent only department 5 was responsible for the provisions which had been worked out. As a consequence, apart from my section, there were other sections partly in department 4, and partly in other departments which were competent. The questions which emerged, therefore, had to be dealt with by these various sections cooperating.
Q: What are your comments about the contents of the circular decree in general?
A: By that circular decree the existing provisions concerning secrecy were not made more severe in any way.
The stringent provisions concerning the seclusion of the NN prisoners from the outside world had applied since an NN decree as such had been issued. As far as we were concerned it was a shock from the very beginning that in the case of the death an NN prisoner, the relatives could not be informed. That was true in the case of a natural death, as well as in the case of a death sentence being carried out. We, naturally, were aware of the severity of such a provision, but we did not see any possibility of avoiding it, but as far as that was possible within the scope of the severe provisions we wished to take into account the principles of humanity. We did want to make sure that persons who had been sentenced to death would have spiritual care. We did wish to afford them a possibility not only to leave a private testament but also to make a real testament before a notary or judge. We also wished that NN prisoners who had died should have a proper funeral. That was the purpose of the provisions in the circular decree of the 6 of March 1943.
Q: Please comment on the more important details of that circular decree?
A: The provisions under figures 1, 3 and 5 of the circular decree, I believe speak for themselves. Concerning the other provisions I would like to say this: No. 4 said that farewell letters by NN prisoners were not to be sent out. That was not a new provision but that was the unavoidable consequence of the NN decree. Since the general administration of justice had to deal with NN cases. As early as the first day when the NN provisions had come into force, the department 5, the administration of punishment had issued a provision to the effect that NN prisoners were not allowed any correspondence.
The farewell letters of prisoners who had been sentenced to death also came under that provision. No. 4 circular decree furthermore reads that the farewell letters from NN prisoners were to be kept in custody for the time being by the Prosecution. It was to be made sure that the farewell letters when the NN provisions would be rescinded, that is to say, at the latest at the end of the war, would be passed on to the relatives. No. 6 of the circular decree laid down that the relatives were not allowed to receive information about the death of NN prisoners. That was a repetition of the old provision which had existed since the NN decree as such had been issued. It was an unavoidable consequence of the NN decree as such. No. 7 of the circular decree laid down that the dead bodies of NN prisoners who had been executed or who had died from other causes were to be turned over to the Gestapo for their funeral. That provision is not new and is not peculiar to the cases of NN prisoners. That is obvious from the document, exhibit 322. That document contains the reply from Thierack to the complaint by the Chief of the Security Police, that this opinion had not been obtained before provision 7 of the circular decree was issued. Thierack's reply points out that provision did not provide new tasks for the Gestapo. That the Gestapo was to carry out the funeral, that in itself was not of a dishonorable nature, but funerals in cases where the relatives could not take care of them, that in Germany is one of the duties of the police. Whereas, under the general regulations in such cases the corpse is offered to an anatomical institute for research purposes, an exception was made in the case of NN prisoners, and the corpse was buried.
As the provision shows, we, of course, ordered that every NN prisoner receive a grave of his own which was not identified by his name, but figures on something of that nature.
Finally, No. 8 of the circular decree laid down that the possessions which NN prisoners had left behind were not to be handed over to the relatives. That also was the necessary result of the provisions which dealt with the seclusion of the NN prisoners from the outside world. On the other hand, we ordered that the possessions which the NN prisoners had left behind were to be taken in custody by the NN prisons and once toward the end of the war, a General Public Prosecutor - concerning the watches and other articles left behind by Nn prisoners, wanted to make his own regulations. Naturally, I repudiated that view.
Q: In it's opening statement the Prosecution said this: "If the armed forces in the occupied territories arrested the people by mistake, who quite evidently had not been guilty of any form of resistance against National Socialism, then those victims, for the sake of keeping the program secret, had to be treated in the same manner in which other persons were treated who succeeded in getting away with a prison sentence", is that correct?
A: That assertion by the Prosecution is not correct. First of all I consider it out of the question that the general authorities of the administration of justice ever had persons handed over to them who quite evidently had not made themselves guilty of any resistance to the occupying powers. Persons who had been arrested were not immediately after their arrest moved into Germany, but, to begin with, investigations were carried out inside the occupied territories and in particular the defendant was interrogated.
In the course of these investigations obvious errors were soon discovered and in that case the person concerned was not moved to Germany but was set at liberty in the occupied territories. May I refer to the testimony by the witness Lehmann. He testified that the agency of the armed forces in the occupied territories has issued provisions which were to make sure that as far as possible only such matters were handed over to the general administration of justice which were clear cases on account of the evidence that had been obtained. If it did happen after all that a person who was obviously innocent was taken into Germany -- I cannot remember that such a case ever occurred - there was the possibility to transfer him to the occupied territories. In this respect I would refer to the document Exhibit 313 and 328.
Q: According to the indictment one of the purposes of the NN proceedings supposed to make it impossible for the NN prisoners to have access to a defense counsel. What do you have to say about this?
A First of all the same is true here that was true of the limitation of evidence obtained abroad. Certain limitations of the defense which had been ordered for NN proceedings were not the purpose of NN proceedings, but a consequence which resulted of necessity from the particular manner of these proceedings and from the war time conditions.
We must distinguish between two different limitations of defense. First of all, a limitation of choosing a counsel; and, secondly, limitation of having counsel appointed by the court.
Q Please comment first about the limitation of the free choice of defense counsel.
A In respect of the seclusion of the NN prisoners from the outside world, which had been ordered, the executive office of the Ministry of Justice, in carrying out the NN decree from the beginning believed that a limitation of the free choice of defense counsel was necessary, but they believed that the provisions in No. 3 of the Circular Decree of 6 February 1942 would be sufficient.
Q That Circular Decree of the 6 February 1942 is contained in Exhibit 308. I quoted the provision concerned: "The choice of a defense counsel requires the consent of the presiding judge who can only give such consent with the agreement of the public prosecutor. The consent may be withdrawn." Please continue.
A In the subsequent time, however, we found those provisions not to be sufficient, in order to guarantee the secrecy of the proceedings which after all had been ordered. As the decisive document on the subject is available to the Tribunal I can be brief. I am referring to Exhibit 314. The document contains a report by the senior public prosecutor at Cologne, dated 15 October 1942. In that report he states at length that, so as not to endanger the secrecy of the NN proceedings, he had doubts about consenting to allowing a defense counsel being chosen freely.
Similar reports, as far as I recollect, were received from other senior public prosecutors as well. The document also shows that at the Reich Ministry of Justice we only, after careful examination, decided on further limiting the free selection of defense counsel. From marginal notes which, however, can only be seen on the photostat of the document add which bed not been entered in the document books, the following is to be seen: The question of the free choice of a defense counsel, I first, on 22 September 1942 reported on to my sub-department chief. In accordance with the result of that report of 1 December 1942 I then discussed the matter with the expert of the OKW over the telephone. He first of all reserved his opinion, but on the 12 December, 1942, he told me that the OKW took the view that the admission of defense counsel selected by the defendant in NN matters was not desirable.
We then contacted Department 3 of the Ministry of Justice, the Department Penal Legislation, and when that department took the same view as the OKW, Departments 3 and 4 of the Ministry of Justice issued to join regulation of 21 December 1942, which is contained in Exhibit 314.
Q I would point out that in this decree, which has just been discussed, a reference is made to Article 32 of the competency order. That competency order is contained in the Schlegelberger Exhibit No. 81. In connection with the question which has just been discussed, I would ask you to comment on Document Exhibit 320. According to the designation of this document in the index of the document book, this document is supposed to show that Germans and foreigners, in respect of the right of choosing a defense counsel, were subjected to different treatment. Is that correct?
A No, that is not quite correct. As one will notice easily, if one studies the document carefully, this document is not concerned with the basic difference in treatment of Germans and foreigners, but it is concerned with the difference of treatment of NN prisoners and such prisoners who were not subject to the NN provisions.
In Thierack's letter of 13 May 1943, which is contained in this document, it is pointed out that Hitler's NN decree, according to its meaning and its wording, applies only to foreigners, but not to German nationals. The provision that for NN prisoners in principle no defense counsel could be allowed, could therefore, not apply to German nationals. Freisler did not realize that at the time and only on account of that error the correspondence which is contained in Exhibit 320 occurred.
Q What about the limitations concerning the necessity of defense?
A Originally concerning the necessary defense, a provision in No. 7 of the executive order of 26 February applied, according to which the appointment of a defense counsel required the consent of the public prosecutor. May I point out that the following wording of the executive order of 6 February 1942 has not been submitted here as a document. Exhibit 306 merely reproduce the draft of that executive order. The provision concerning the necessary defense was issued immediately before the executive decree was issued and it is therefore not contained in the draft which we have before us here. In the subsequent period opinions were voiced according to which further limitation of defense was considered necessary. The prosecution has submitted Exhibit 317. Although that document unfortunately is very incomplete, it does show that at the special Court at Essen there had been difficulties in appointing defense counsel as frequently several defendants were dealt with in one proceeding and, on account of the collision of interests, a defense counsel had to be appointed for each defendant.
It is obvious that, in view of having to maintain the work of the court in general, the simultaneous employment of a large number of defense counsel was not desirable. In so far, the desire of limiting the defense by appointed defense counsel was understandable.
If the report from the presiding judge of the Special Court at Essen points out that the interests of the defendants did not justify so much strain placed on manpower and material, I would point out in this connection that not one of the persons who dealt with the subject at the Reich Ministry of Justice shared that view.
The matter itself was then dealt with at Department 3 for Department 4 Penal Legislation and not at our Department 4, because the suggestion 3 then informed me about these events and made a suggestion of his own which, unfortunately, is not contained in the document which has been submitted here.
I then reported the matter to Herr Mettgenberg and together with him to Herr Vollmer. The result of that report can be seen from the note made on the 1 February 1943 which is initialed by Vollmer and which also bears Mettgenberg's and my initials. That note provides for certain limitations of defense counsel appointed by the courts, but the document does not show the wording of the decree as it was actually issued later on.
What I remember is that after that decree had been issued the limitation of defense counsel, appointed by the courts applied neither to proceedings before the People's Court nor did it apply to those proceedings where the death sentence could be expected.
How insignificant the practical effect of this limitation of the appointment of defense counsels by the courts was is revealed by the position which defense counsel hold under German code of procedure, a position which has been discussed here repeatedly. For the rest, according to my observations, the special courts in practice almost always appointed defense counsel.
Q: In Exhibit 334, at the end, employment of NN prisoners in industry is mentioned and what is mentioned too is that these prisoners, even after they had been acquitted or after they had served their term, were to be employed in industry. What can you tell us to explain this document?
A: Last week Herr Mettgenberg commented on that document. I would like to add the following. The question of employment of NN prisoners during the time they were in prison for investigation and during the time they were serving their sentence was, according to the plan of distribution of work of the Reich Ministry of Justice, a matter for Department 5 to deal with. Department 5 to deal with. Department 4, where I worked did, on principle, not deal with these questions. The general public prosecutor at Kattowitz, in his report of 27 July 1944, which is contained in Document Exhibit 334, broached the question whether it was possible to continue to employ NN prisoners in industry after they had been acquitted and after they had served their sentence, and to leave them further in the custody of the administration of justice. He was apparently guided by the following considerations: In accordance with the agreement between Thierack, the OKW and the Gestapo, these prisoners, after they had been either acquitted or after they had served their sentences, had to be handed over to the Gestapo for protective custody for the duration of the war.
That, did not mean that these prisoners were now less well off if they continued to remain under the custody of the administration of justice. The general public prosecutor thought that the prisoners should be registered as police prisoners by the Gestapo but should, in effect, remain at the place of work where they had been previously employed. Concerning the question which had been broached by the general public prosecutor at Kattowitz, I reported on this to my sub-department chief just as I reported to him on all doubtful cases. As is shown in the photostat of this document, I made a note about that report. The result of the report was as follows: Regarded from the point of view of Department 4, we did not think that there were any decisive doubts about acting in accordance with the suggestion by the general public prosecutor at Kattowitz, and if Department 5 were not to have any doubts here we considered it advisable to have a discussion on the matter with the RSHA from that angle. Accordingly, I wrote to Department 5. As is evident from the remarks by the witness Hecker, the expert in Department 5, no decision was made in that department. The general public prosecutor at Kattowitz later on asked that these prisoners should be transferred and the whole question then lost its importance. The discussion with a representative of the RSHA, which had been suggested, did not take place either.
Q: The indictment, when speaking of the NN proceedings, also asserts that the defendant was not informed that his case had been dealt with. Is that correct?
A: No, that is not correct. In #4 of the executive order of 6 February 1942, that is Exhibit 306, which has been frequently quoted here, it was laid down that the trial was to be held with the exclusion of the public but, naturally, that did not mean that the defendant himself was excluded from the trial.
On the contrary, he was the chief character and naturally he was also present when the sentence was pronounced and when the opinion was read, whether he was sentenced at all or whether he was acquitted.
Q: I believe it is necessary that you give us an explanation concerning the circular decree by the Reich Ministry of Justice, which is contained in Exhibit 321 and which was issued on 3 June 1943. What is the subject of that document?
A: The document deals with the so-called non-genuine NN prisoners. In the English document book these nongenuine NN prisoners were termed "NN prisoners taken by mistake." That is an incorrect translation. The nongenuine NN prisoners wer, by no means, arrested by mistake. Their cases were as follows. The NN decree of 7 December 1941 was to apply, without exception, to all civilians who were not Germans in the occupied territories, without any regard to their nationality. A decree by the Chief of OKW of 27 October 1942, which is mentioned in the document, limited the original decree. According to that decree by the OKW, the provisions about NN proceedings were to apply only to the nationals of the occupied territories and not to other citizens, for example, they were not to apply to Americans, to British citizens or to the citizens of neutral countries. An exception was only to be made in one certain case cited by the circular decree of 3 June 1943. The details are as follows. If the citizens of occupied territories - one might describe them as the genuine NN prisoners, together with other foreigners, had collaborated in a punishable manner, the last named also could be moved to Germany if, for reasons of the conviction of defendants, that appeared expedient.