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 It was to be made sure that the farewell letters when the NN provisions would be rescinded, that is to say, at the latest at the end of the war, would be passed on to the relatives.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.
The proceedings were then to be conducted separately so that the one group of offenders were to remain in ignorance of the fate of the other group. In the case of separate proceedings, that is to say, in the normal case, the NN provisions were not to be applied in the proceedings against those NN prisoners who were not citizens of the occupied territories. In that case, those foreigners were non-genuine NN prisoners, that is to say, they were not real, not genuine NN prisoners. Only if, for reasons of evidence, the two proceedings, by way of an exception, could not be conducted separately, the foreigners who did not come from the occupied territories too were to be treated according to the NN provisions. That provision was necessary in order to guarantee that the secrecy of the proceedings against the genuine NN prisoners was not jeopardized. The non-genuine NN prisoners, therefore, were not NN prisoners who had been arrested by mistake nor had in their case proceedings been extended to persons to whom originally the NN decree was not to apply, but it was the opposite. The NN decree was limited. Whereas that decree originally had applied to all civilians of non-German origin in the occupied territories, without regard to their nationality, from now on it was to apply to those foreigners who were not citizens of occupied territories, only in exceptional cases.
Q: In Exhibits 313, 315, 316, so-called Porto matters are mentioned and so-called Porto prisoners are mentioned. What does that mean and what can you tell us about the treat ment of those matters?
A: The Porto matters are a sub-species of NN matters. The word Porto was the camouflage word for an anti-German movement which was active mainly in France but which extended beyond France to other countries. Among the other countries it also extended to Portugal. That cover name, as far as I know, derives from Portugal. These Porto matters were treated by the general administration of Justice in the same way as other NN matters. To begin with, difficulties had arisen in the treatment of Porto cases because the police had handed over Porto prisoners to the administration of justice without the armed forces authority previously having waived their competency.
The OKW then, as can be seen from Document 314, in principle waived the competency of the aimed forces authority for "porto" matters. That meant from there on the general administration of justice office in accordance with NN-provisions and porto prisoners were dealt with by the general administration of justice.
Q. In Exhibit 311 there is contained a report by the senior public prosecutor at Essen, in which he asks for instructions as to whether the NN-prisoners who had been sentenced to death and which number would be very large were to be transferred to Cologne prison. Please comment on this report.
A. The question as to whether the NN-prisoners who had been sentenced to death were to be transferred to Cologne was not dealt with by me, but by the department for the administration of penalties nor do I think this question is of interest here. On the other hand of interest is the remark by the senior public prosecutor that in the future a very large number of death sentences would be pronounced. I would like to say that the assumption which the Senior Public Prosecutor voiced in his report on 20 August 1942 did not in fact come true. In October, 1942 by having the People's Court involved in NN cases, the serious cases were taken away from the special courts and taken over by the people's court. The special court at Essen passed in effect on only a very few death sentences on NN-prisoners.
Q. Concerning the executions at Ploetzensee, mentioned in exhibits 286 to 283, executions which occurred in September of 1943, were there any NN prisoners who were executed on that date and did you have anything to do with that matter?
A. No, I can answer both questions with no. At Ploetzensee at that time there were no NN prisoners who had been sentenced to death, therefore I had nothing to do with those executions.
Q. The documents which have been submitted by the Prosecution reveal that in your capacity as expert for NN matters you undertook various official trips some of them into occupied territory; it is necessary that you comment on the purpose of your trips and that you explain the work you did there.
A. The first trip was when I went to the Netherlands in 1943.
Q. What can you tell us about that trip?
A. The documents which have been submitted by the prosecution above all exhibits 381 and 324, reveal the previous history and the purpose of our discussions in the Netherlands. They make that purpose so clear, that I have no remarks of any importance to add. I would merely like to draw attention to one point. The documents also show what difficulties we had even at that time with the police who wanted to draw the NN-matters within their sphere of work. At that time we managed to succeed in warding off the attack by the police because the OKW, which had to make the final decision after the initial waivering shared our view to the effect that it was better to let the administration of justice continue to deal with NN matters.
Q. You undertook you second official trip to Breslau in January of 1944. Exhibit 325 gives information on that trip. What can you tell us above and beyond the contents of that document with regard to that trip?
A. The reason for my trip on official duty to Breslau was this; a few weeks previous, the special work on NN cases had been transferred from the special courts at Essen to Breslau. The Breslau authorities were confronted with various questions on which they wanted advice from the administration of justice. On the other hand, my superiors and myself considered it advisable to obtain a personal impression of the men who were dealing with matters in Breslau and to establish personal contact with them. The problems which were discussed at Breslau are mentioned in detail in the document, which has been submitted. I do not believe it is necessary for me to refer to all details of that discussion.
I would merely like to emphasize the following: As is shown by the documents, before the trip I reported to my sub-department chief Mettgenberg as well as Vollmer my department chief about the individual points for the discussion and when I went into that discussion I was in a position to explain the views of the competent department at the ministry.
As to Point 1-A of my notes, which is contained in Exhibit 326, that is for the cases where the death sentenced was to be demanded, the consent of that Reich Minister of Justice is reserved expressly. That was clear that in such cases we considered a particularly careful examination necessary. Under figure 3 of my remarks, it says that in NN-cases also reports were to be made in abbreviated form, that would mean in the NN cases too, the same provisions were to apply which had been issued in 1943 to speed up the treatment of clemency pleas after the death sentences had been pronounced. These orders are contained in Exhibit 379. They had simplified formally the clemency proceedings in the interest of speeding up matters, but they had not changed the fact that at the Ministry of Justice that the clemency plea was subjected to careful examination.
Q. In February of 1944 you again went to Breslau and afterwards went on to Kattowitz, exhibit 504, refers to that trip; what can you tell us in explanation of that document?
A. Document Exhibit 504 deals with the transfer of NN matters from Essen to Oppeln. This transfer took place because of the increased danger of invasion in the spring of 1944. On account of that danger, Minister Thierack at the beginning of February, 1944 decreed that the penal camp at Pappenburg, where the NN-prisoners were housed and who came before the special court at Essen, was to be evacuated on very short notice. Thierack was thinking of housing these NN-prisoners within the area of the district court of appeals at Kattowitz, but it was to be seen whether it would be possible to house the NN prisoners there.
To conduct the proceedings there for that purpose, Hecker from department 5 and I went to Breslau in order to discuss matters there with the competent men of the district court of appeals of Breslau and Kottowitz and to discuss with them the question of accomodations. The question of housing these NN-prisoners was in itself purely a matter to be dealt with by department 5. I had nothing to do with it. But the solution of the question of accommodations was important for the solution of future problems, that is to say what court in the future was to deal with the trial of NN-prisoners. I went to Breslau with Hecker and when the question of accommodations had been settled at Breslau, I went on to Kattowitz by myself to discuss the matter with the general public prosecutor and a representative of the president of the district court of appeals as to what court in the future in the place of the special court at Essen would be able to deal with NN proceedings.
For the result of that discussion I made a note on the 24th February, 1944, which is contained in Exhibit 504, and that constituted a report to my superior. I have no further comment to make on that subject. Following a joint decree from Departments III and IV, it was ordered that in the future, concerning NN prisoners and their trials, who had come from Belgium, France and northern French territories, that these trials would in future be handled by the Oppeln Special Court, instead of the Essen Special Court. I drafted that decree and I co-signed it, but naturally I could not personally make that decision; rather, the final signature of that decree was affixed by the two chiefs of Departments III and IV
Q. In April 1944, you went on an official trip to Paris. Exhibit 326 and Exhibit 332 deal with that trip. What are your comments on that trip to Paris?
A. I went there together with the chief officials of the Administration of Justice at Breslau. The reasons for that trip are revealed in the letter from the Ministry of Justice to the Military Commander in Paris, a letter which is dated 7 February, 1944. The letter is contained in Exhibit 326. The purpose of the trip was to give the officials of the Administration of Justice at Breslau an idea of the situation in occupied France, and it was also to give them an idea of the importance of punishable offenses which they had to deal with. Furthermore, an object of the trip was to establish contact with the offices of the Armed Forces which dealt with prosecuting the same offenses in the occupied territories. My report on that trip to Paris is contained in Exhibit 332. By way of explanation I should like to say the following: During the discussions with the Chief Judge, Hauptrichter, Dr. Boettiger, the most important question to me was the question as to whether the sentences passed by the special court at Breslau were considered adequate by the military authorities in the occupied territories.
The statement that the sentences passed by the special court at Breslau on NN prisoners, in the view of the Chief Judge, with the Military commander in Paris, at any rate were not too lenient, I put down quite intentionally in order to counteract efforts which were being made at the Ministry of Justice for making such sentences more severe.
Q. Your last official trip was the one you made to Oppeln at the end of June, 1944. This is mentioned in Exhibit 335. What are your comments on that document?
A. The conference at Oppeln had a similar purpose, as the trip to Paris. We had a discussion on the situation in the occupied territories in Belgium, and northern France with the Advocate General -- the Generalrichter at Brussels, but the people from Oppeln had not gone to Brussels to see the Advocate General, but it was the other way around. The Judge had gone to Oppeln. Exhibit 335 contains my statements about the main topics of that discussion. By way of explanation I should like to say the following: The sentences passed by the special court at Oppeln, in particular sentences which were passed under the presidency of a man called Buergelbach had for sometime cause the displeasure of my department head Vollmer because they were so lenient. The name Buergelbach had the effect of a red flag on Vollmer. I, on the other hand, always tried to defend the sentences as far as possible, and the remarks I put down on 6 July, 1944 were to have the same purpose. Therefore, I emphasized that the line of policy which had been hitherto followed by the special court, the general line had been approved by the chief judge Schikatsky; and further more, that in spite of the invasion which had in the meantime occurred it was not necessary at the moment to make a more stringent line of policy in pursuance of which sentences were passed.
Concerning the ill treatment of NN prisoners on the part of the German police in Belgium, which I mentioned in that remark, I would like to add that Schikatsky afterwards promised that he would see to it that these abuses would be eliminated. Naturally that promise was very valuable to me. In Berlin, I informed the chief expert of Department IV, Minister Counsellor, Ministerialrat Mielke, of these ill-treatments so that he could see to it that the chief of the security police was informed and that he could see to it that necessary steps were taken.
Q. What are your comments on the punishment in NN cases by the regular courts in general? And what is your own point of view?
A. As concerns the extent of sentences, the scope of the sentences, I was always out to avoid severity. As concerns individual offenses, particularly in respect of espionage and guerilla activities, the death sentence was mandatory. In those cases there was no scope for initiative, but in the majority of cases a wide range of punishment was available. Thus, for example, among the NN cases, illegal possession of arms, statistically speaking played a great part. The order issued by the military commanders concerning that, generally speaking, made the death sentence mandatory; but, in the case of less serious cases, prison sentences were passed. Most other offenses which had to be dealt with by the special courts had similar regulations applying to them, and a wide scope was left to their initiative. As far as that was possible to me in that position as referent, I worked towards seeing to it that sentences were passed, commensurate with the offense and in so doing I had the consent of my sub-department chief, the defendant Mettgenberg to a far reaching extent.
But I also had to battle with strong counter tendencies.
Q. Who was it from whom those counter tendencies emanated?
A. Within the Ministry of Justice it was above all Thierach and Vollmer, who were in favor of a severe line of policy. Outside the Ministry of Justice, among other persons, the president of the district court of appeal of Kattowitz, who, on one occasion tried to have illegal possession of arms punishable by a mandatory death sentence, and after a discussion which took place in Oppeln, at the end of June, 1944, which I mentioned briefly earlier, he broached the question as to whether in the case of illegal possession of arms the death sentence should not be mandatory. And in addition, occasionally, people outside the Administration of Justice tried to have a more severe policy adopted. I can remember, for example, that from circle of the Reich Fuehrer SS information reached us as to whether in a certain case a too lenient sentence had been passed or maybe an acquittal had occurred.
Q. And what position did you take up in this matter?
A. Against these tendencies to adopt a more severe line of policy, I found myself in continuous opposition. I pointed out that in the NN proceedings a deterrent did not lie in the sentence which was passed because that sentence would not be made public, but that the deterrent was that offenders vanished from the occupied territories. Further more, I repeatedly pointed out that the armed forces authorities in the occupied territories had considered the sentences passed by our courts as sufficiently severe.