A There were definite regulations and instructions from the Minister of Justice concerning the manner of proceedings, which have been submitted here as documents. Within the scope of these instructions by the Minister of Justice, I was, of course, in a position to make certain suggestions.
Q Can you tell me, Dr. Joel, what ultimately happened to the property in the Gau Franken which was, at the outset, taken over by the people who ran the Gau?
A That I could not say, but I believe that, at some later date, Goering, in an agreement with the Ministry of Finance, made a decision which applied to the entire territory of the Reich.
Q You made a recommendation, did you not, in your report which is Exhibit 370, which was written in February, 1939. In the last paragraph of which .... I think you'll find that on probably page 9 and 10 of the loose document which you have. In any event, it's the last paragraph of your letter.
A Well, that is not exactly a recommendation. It's just a statement to the effect that the decree by the plenipotentiary for the Four Year Plan had gone into force and that Ayranization depended upon the application of the Regierungspresident.
Q Let me read a sentence that I have particularly in mind. You say in concluding your letter:
"It was therefore decided ..." You are discussing the result of a conference. You're saying:
"It was therefore decided to enter Deputy Gauleiter Holz as quasi--trustee purchaser in the land register so as to enable the Gau to dispose of the properties and to exclude intervention of the Reich Treasury Department of the Party. The reasons given for this were that the Gau Franconia had its own special merits in the Jewish problem and that it must therefore receive special rights."
And you go on to say:
"The special task of the Gau in town planning and in connection with the National Party Congress, as well as the fact that its production is weak if it is compared with other Gaus and that it had been particularly looted by the Jews, would justify its acquiring an extraordinary amount of property."
Now, this letter was written, as you testified, toward the end of the period of your investigation. Now, I ask you, was this the core of your recommendation in the Nuernberg property matter?
A. That was not my point of view but the report which I made to the Minister of Justice contained a description of everything that happened here, and what you have just read is the presentation of a conference with the Deputy Gauleiter Holz of which I was informed and about which I received information through a lawyer at Nuernberg because I considered it important to find out what went on during that conference. On page 9, you will find, in my report, that it was not I who had that conference and not I who gave that recommendation, but it is shown clearly that the conference with the Deputy Gauleiter was attended by City Council Sandreuter, Gauamtsleiters Wolff and Nagel; the three notaries who had been involved with Ayranization of Jewish property in Nuernberg, Reinfurt, Koppel and Hussel; the judge dealing with the real estate at Nuernberg--Doerr; the judge at Furth-Leiss Deputy Gauleiter. Holz and Nagel, Gauamtsleiter were the speakers, etc., and then I described here what I found out and that concludes the description of occurrences. That should be considered a recommendation on my part cannot be seen from it.
Q You don't consider it strange that the ultimate disposition of the property coincides very closely with the statements you make in your last paragraph? That is just pure coincidence, is that right?
A I haven't made any statement at all about it. I was merely investigating official and it was my duty to investigate what had been discussed during that conference. I didn't state my personal point of view.
Q You were the investigator in charge and this was the close of your period of investigation.
A I was here to investigate as to how far the officials of the administration of justice had taken illegal steps and the report itself begins and it expresses:
"I had a thorough conference with the Magistrate in charge of Land Registry at the Local Court in Furth, Herr Amtsgerichtsrat Leiss, today. Amtsgerichtsrat Leiss reported on his experiences with entries in the Land Register from the point of view mentioned above and made roughly the following statements:"
And then I mention the matters which I considered were important enough to be brought to the attention of the Minister.
Q Can you tell me roughly, Dr. Joel, when the transfer of this Jewish property in Nuernberg was effected so that the land was registered under the name of Holz or perhaps some other Gau official?
A The property was not really transferred, but notations were made in the real estate register in favor of Holz.
Q Yes.
AAs the when that happened I cannot tell with any precision, but I have a sheet from the real estate register here from which I can see that. This is a copy of a page of the real estate register of Furth. I don't recall the date any more.
Q Well, the date is the important thing. If you have that there, well be glad to have the date.
A When these entries have been made, on which day, I cannot see from this sheet from the real estate register. I can only see when it was cancelled and that shows the following: I have before me the copy of an extract from the real estate register of the Nuernberg Local Court of the 22 January 1941:
"ORDER "In the land register for Gleishammer volume 40, sheet 1173, must be entered:
"1/II Meta Landsberger" Apparently that is the Jewish owner of the property.
"Section I, No, 3; the entry of the new owner under No. 2/II is not valid."
Underneath, it says:
"2/II Holz Karl" That is the Deputy Gauleiter's name which was entered.
"Owner is the person entered under No. 1/I - that is Meta Landsberger again - entered of the strength of authorization for correction of 24 April 1940."
I can find these dates here.
Q Dr. Joel, I'd like to show you a document which I have identified as NG 1566. This is a report of a conference which you attended and during the course of which you were called upon or, at any rate, did make a report on a certain matter. On page 4 - I presume it's on page 4 in the German as well, in the middle of the page, you are reported to have made the following recommendations:
"Whatever actions were taken against the Jews before the 9 November 1938 must be treated like the events having taken place during the period from 9-11 November 1938."
Then you go on to say:
"All deeds committed after 11 November 1938 are to be treated as usual since the counter-order was known at that time."
I have one question only.
Does that mean, as it appears to mean, that all measures taken against the Jews prior to 11 November 1938 were, according to your interpretation, not to be punished or property was not to be returned? If that is not the meaning, what is the meaning of that paragraph?
A I do not believe that that had anything to do with matters of civil law, but that was a question of the handling on the basis of penal law - that is the events of 9, 10 and 11 November.
Q Well, applying it to criminal law is that the interpretation?
A One moment, may I be permitted to read what I find on page four?
I can only state that this report is in accord with what I actually stated.
THE PRESIDENT: I would like to clarify one matter. What the prosecution read to you was as follows: "All deeds committed after 11 November 1938." It is not clear to me whether the word deeds was intended to apply to deeds of conveyance or to acts; what was the proper understanding of that phrase?
Did it refer to criminal deeds or to deads of conveyance of property?
THE WITNESS: No, I personally had nothing to do with matters of civil law. Acts are not mentioned here.
THE PRESIDENT: I am not asking you that, I am asking you what the word "deeds" means there?
THE WITNESS: It is not here in the German text. It says in the German text, "What has been committed before that and that date.."
THE PRESIDENT: That is what I want to know. Thank you.
THE WITNESS .... Committed actions against Jews.
THE PRESIDENT: And the last sentence, the translation says here, "All deeds committed after 11 November 1938 are to be treated as usual; " what is the German?
THE WITNESS: It says here the following: "What ever has been committed, committed after 11 November 1938, to be treated as usual, because at that time the counter-order was known."
That means the following: during 9, 10 and 11 November a counterorder was issued to the Party that no arson should be committed and no more Jewish stores should be destroyed.
The question was important as to whether it could be granted that they knew or did not knew whether they were committing anything illegal before. After that counter order that could not be assumed any more, therefore those cases had to be prosecuted.
THE PRESIDENT: So that your interpretation of this is then that any acts committed after 11 November had to be prosecuted, those committed prior to 11 November were not to be prosecuted; is that right?
THE WITNESS: That is not correct. Special handling of these cases should only apply to crimes committed on 9, 10 and 11 November, upon orders of Minister Goebbels. For if one did not punish the Minister Goebbels, then in our opinion one could not punish the ones who had carried out such orders on his part. However, after the 11th, when it was known that the order by Goebbels had been cancelled and rescinded officially, then no perpetrator could refer to the fact that they acted upon orders of Goebbels.
THE PRESIDENT: And were therefore to be prosecuted?
THE WITNESS: And were therefore to be prosecuted, yes.
BY MR. KING:
Q I am not sure I have this right yet, Dr. Joel, between 9 and 11 November the people who committed these acts were not to be prosecuted in your opinion; right?
A Individuals were not prosecuted if they committed arson and damage to objects, because it was clear to us that Goebbels had ordered that and that the perpetrators had received instructions to that effect by the agencies of the Party. In your opinion Goebbels was the only one who could be punished for that.
Q Yes, I understand that. What do you mean by the first part of the sentence, in which you say, "Whatever actions were taken against the Jews before November 9 must be treated like the events having taken place during the period from 9-11 November 1938."
The plain meaning of that is obviously that acts committed in September, October, November, or even prior to that are not to be prosecuted; is that right?
A No, that refers to the procedure at the beginning of November. Here in this court room, as well as in this report just submitted, I set forth that for all actions committed against Jews after 9 November, the Supreme Party court and the disciplinary courts of the Party throughout the country had the competency for disciplinary actions. I also set forth that considerable action was necessary on the part of Minister Guertner and twice I had to negotiate with Minich in order to establish the competency for the ordinary courts for these purposes, but we had to make the concession to the Supreme Party Court that before the prosecution actually took place against Party members, the Party Court would have an opportunity to take disciplinary steps against them. For that purpose the Senior public Prosecutor in the various local communities had to submit the files to the Party Courts so the Party Courts could take the necessary steps before hand and that should apply to all cases which happened before 11 November. That is what this provision refers to.
Q Dr. Joel, only one more question on this matter. Since Goebbels had issued the order for mass arson against the Jews, it was your theory that the people who committed that arson could not be prosecuted? Now, let me ask you: did you apply the same reasoning to murder and ether crimes which you knew to be against the law?
A No, but the order by Goebbels concerning arson and damage to objects only referred to these specific acts. When the arrangement was made and the competency of the Administration of Justice was reestablished, we did not know of any other acts committed.
Therefore, I also said in my direct examination that a number of acts, which had been committed, were withheld by the Supreme Party Court and that later Minister Goering was informed about these cases and he subsequently informed Guertner.
THE PRESIDENT: May I ask you one question before counsel goes to another subject? As I remember your testimony, you did assist in the prosecution of some of the people who had acquired Jewish property by illegal means during the period concerning which you have just been testifying; did you not?
THE WITNESS: Yes.
THE PRESIDENT: Did you report or your actions, result in the actual returning to the Jewish owners of any of the property, which was illegally taken from them?
THE WITNESS: In the case which I mentioned, the case from Berlin, the illegal arrest and the Aryanization of the property of the brothers Guckenheimer and others, the first result was their release and as far as I know upon their return the restribution of a the property. As far as I know of course, these business men conducted negotiations voluntarily to give up their business in Germany and these negotiations were conducted in a perfectly adequate manner.
THE PRESIDENT: Did these negotiations result in the formerly mentioned transfer of 15 percent of the property.
A No, that was a measure taken in Nuernberg.
Q Well, do I understand then that it is your belief not only in one or more cases which you mentioned, but in general, that the property which had been illegally acquired from the Jews and registered to Gau officials, was as a general rule returned to the Jewish owners?
A Yes, I believed that at the time.
Q Do you believe it now?
A I couldn't say that for sure because I really have no insight in these matters.
MR. KING: We offer the document NG-1566 as Prosecution Exhibit 552.
THE PRESIDENT: The exhibit is received.
MR. KING: Distribution has been made. The Prosecution at this time has no more questions of Dr. Joel. It may possibly be when the balance of the documents are submitted that we may wish to recall him briefly to discuss some of them.
BY THE PRESIDENT:
Q I have a further question , Dr. Joel. You also testified concerning prosecutions which were conducted under your supervision against members of the police who had illegally treated prisoners, particularly in connection with interrogations. I wonder if you could tell us under what statutes or decrees the prosecution were conducted. Could you do that?
A The prosecutions were carried out on the basis of the previsions of the German Penal Code for acts of violence in office.
Q Were those statutes repealed during the period of the war at all?
A No, it is still in force. The Penal Code is still in force.
Q The next question: In 1937 the central prosecution's office was abolished.
A Yes, yes by a decree of the Minister of Justice.
Q By name of office, who was the, or who were the persons who abolished -- I mean what official position was the Minister of Justice, for instance.
A The Reich Minister of Justice signed a circular on the 18th October, 1937, by virtue of which the central public prosecution was dissolved.
Q Did he sign that alone?
A Yes. It was a dissolution regulation on the part of the Minister of Justice.
Q You testified that you dealt with the NN cases for about five months. During that time do you know of any NN prisoners were acquitted?
A No case of that kind was reported to me through my office.
Q You have no knowledge of any acquittal.
A I have no knowledge of that.
Q One other statement that you made that I didn't understand. I think it was to the effect that Reich Minister Guertner used you in connection with acts by Hitler for the correction of judgments. I remember you used that phrase. Would you explain what you meant that-how you were used in connection with that procedure?
A Hitler orders to the police were to the affect that convinted individuals sentences were considered too mild. These orders were considered by me always to be corrections of sentences, and since these orders -- caused a lot of trouble, a lot of work to the Minister of Justice, because immediately after these orders were received, letters of protest had to be drafted; files had to be obtained from the various localities; intervention had to be made with the police; that the limit of twenty-four hours which Hitler had set for the execution or administration of punishment should be extended.
Furthermore, it was necessary to get in touch with other referents in the office of Hr. Lammers and Meissner, and for all these matters Guertner used me.
THE PRESIDENT: I understand, that is all.
BY DR. HAENSEL:
Q May I continue right here on the same line of questioning as the Tribunal, especially the interest which was manifest in the question as to whether property which was taken away from the Jews by violent actions had been returned to them. What was your tasks in all these cases. Did they have anything to do with criminal justice; or, with civil justice, that is legal questions concerning property?
A In all these matters I functioned as an official of the Ministry of Justice who was commissioned and assigned to carry cut investigations.
Q Since as an official you were bound by your duties, your rights and your duties, did that leave you any opportunity at all to gain any insight or to intervene into the jurisdiction of civil courts?
A Of course I had no authorization to interfere with the workings of the penal courts nor the civil matters.
Q Authorization -- I should like to extend the scope of that term to possibly not even a technical possibility because I refer to the excerpt from the real estate register which was submitted to you before. Would you mind it very much if I put the question to you whether during your entire life you had much to do with real estate registers.
A With the exception of the time when I was a student and active at the real estate office for several weeks, I no longer had anything to do with read estate registers.
Q You just proved that because if we go on reading that sheet, then we find the answer to the question which the Tribunal wanted to have, because on 5th December, 1938, Gauleiter Holz' name was entered as the proprietor or the owner in that register, and the approvals for correction are dated 29th November, 1940. Now, you can help us. Do you remember; do you recall that the clearing up of these injustices concerning the real estate property occurred in the way that on one single day Holz had to sign an entire pile of such approvals of correction?
A I remember that because Holz had received the order from Minister Goering to sign.
Q And that concluded your special mission in these cases, didn't it?
A My assignment, my mission was already completed, when after my investigations were completed in February, 1938, I was in a position to inform the Minister of Justice what had been done.
Q On the part of the prosecution elements were entered into this matter which come from an entirely different field, the confiscation of Jewish property; during your work on that commission, did you have anything to do-- any contacts with these matters, or, was that quite outside your field of activity and also your sphere of authority or influence.
A To discuss these questions which were regulated by a decree based upon the arrangement between Minister Goering and the finance minister, for these questions, to take care of these questions, an official of the finance ministry was present. I had nothing to do with these matters.
Q May I revert to a subject previously discussed. It is very brief; I should like to ask you to tell us the following: When you came to Hamm, was the procedure in NN cases already developed;
was the matter only routine, and was it so that you only became acquainted with a procedure which had become customary; or whether you interfered by giving instructions or directives.
A I did not give instructions in Hamm because there was a referent who for about three years had handled NN cases as they came from the Chief Public Prosecutor.
THE PRESIDENT: We will recess gentlemen.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. HAENSEL:
Q.- The Tribunal tried to clarify why, in trials where Poles with Polish names appeared, you had come to the conviction that they were German. I would now like to ask you to recall briefly the legal basis on which you think you were basing your actions. First of all, do you recall the published treaty between Russia and Germany regarding the annexation of Poland?
A.- Yes, I know the Treaty; I believe it is the Treaty of the 28th of September, 1939.
Q.- Do you remember, accordingly, a Fuehrer decree which ordered the incorporation of the Eastern Territories?
A.- I believe I recall a Fuehrer decree which referred to Article 3 of this Treaty, in which the USSR and Germany undertook the reorganization of Poland that had fallen apart and each, for his part-- Germany on the West of the demarcation line and Russia on the East -- wanted to regulate it without an interference of a third party.
Q.- Then the question was put to you as to how you formed a picture in regard to the citizenship, and I missed a technical expression in your statements. I ask you again to search your legal memory as to what this return of the Germans to German citizenship was technically called.
A.- From the point of view of working in the field it was very simple, because at the moment when we were concerned with a foreigner, there was a note on the file "foreigner", and his personal data were recorded. However, the technical expression that you are referring to is probably the one of rapatriation of those Germans who had been expelled from Poland in 1918.
Q.- Was there any legal regulation about this?
A.- I believe so.
Q.- Thank you; yes, your belief is correct. By this, of course, I do not mean to say in this part of this trial here to what extent these norms could form objective international law or could be attacked.
However, I do want to ask you whether, in your activity as an official, as a civil servant, you felt that you were obligated to first act in accordance with the law in regard to the points which you had before you and which had been promulgated.
A.- I felt obligated to apply the existing laws and to comply with them.
Q.- A letter from Gauleiter Hoffmann was shown to you today in which Gauleiter Hoffmann in some way or other, tried to have you declared essential. Did you know of that letter before, and did you give direct cause for its being written?
A.- I say the letter here for the first time, and so far I had not hoard anything about it either. I did not even hear anything about it when I saw Gauleiter Hoffmann in the jail hero.
Q.- There is something written in this letter about your membership in the Waffen SS. This membership, according to your testimony, seems actually not to exist, really.
A.- I have a military pass of the German army in my possession, and from this pass it is apparent that I was a member of the Reserve Corps I of the Wehrmacht until the end of the war.
Q.- If you had known the draft of the letter, would you have corrected it?
A.- Well, I probably would have corrected it.
Q.- An efficiency report by Thierack was put to you. Will you please tell us, in the language of the German Civil Service, what is meant by saying that somebody is "praised out of his position", or the practice which was developed in German official circles to have a man one did not like removed by kicking him upstairs in that way?
A.- From the many addresses which are in this draft, Party-Chancellery, Reich Ministry, Minister of Interior, Reich Treasurer, it is apparent that a number of offices in the Reich had to agree to this transfer. And perhaps, under the circumstances, if one wrote to all those offices it was not appropriate to write bad qualifications, that is, for Thierack to write what he really thought.
Q.- The Prosecution made the point that it would have been simpler for Thierack to get rid of you if he merely had you no longer declared essential. Let us assume that at that time -- that is, 1942-1943 -- he would have done so, at a time when you, as you have described here and about which a number of affidavits have been or will be submitted, had the possibility to obtain other positions in other offices, in official agencies or in industry, would the simple result of having you no longer declared essential by Thierack not have been that these other offices important to the war effort would have had you declared essential?
A.- That would without doubt have been the result. Most of the agencies assured me that they'would do so, that if Thierack said that he would be willing to have me leave the Ministry of Justice, then they would take me from the Ministry of Justice.
Q.- Then Thierack would only have done you a favor at that time by doing so?
A.- Yes, a big favor.
Q.- Now, you turned against Thierack later on -- much later on -having you declared as no longer essential. Was not your main objection that he did it so secretly that you were not in a situation to find another position and to take it over?
A.- In this step of having me declared as no longer essential on the 17th of October I saw that the unbelievable factor for me was the following: On the 17th of October, 1944; I had again made the attempt, through an official of the armament industry, to have Thierack requested that he release me from service with the Administration of Justice. On the morning of the 17th of October this official had called on Thierack and subsequent to that conference he told me the contents of that conversation in a letter. Thierack told him that I was absolutely essential for the Admi nistration of Justice, and about two hours later he must have issued the order to telegraph the draft board in Hamm, to tell the draft board that I was no longer essential.
Because of that incident I called on the chief of the Personnel Department and he told me that as Chief of the Personnel Department even he was not informed about these events.
Q.- The Prosecution apparently had the impression created that the transfer to Hamm was a question of mathematics for you regardless of whether it was pleasant or unpleasant; that is was a question of salary. Will you please state briefly two matters: first, to what extent was your financial position at the time such that these few hundred Marks were of absolutely not the slightest interest to you; and, secondly -
THE PRESIDENT: The Tribunal is not greatly interested either in that matter. The matter is of very small importance in the first place.
DR. HAENSEL: All right.
BY DR. HAENSEL:
Q.- In regard to the SS rank, the Tribunal put the question to you whether the Obersturmbannfuehrer -- Lieutenant Colonel - was a title in the SS and you answered that question by saying yes. However, I believe that does not answer the question exhaustively. The contents of the question seem to me to lie mainly in the question of whether it was only a title of the SS, so that if you have that title it refers, without any qualifications, to the SS or whether a number of other affiliated organizations also had that title. Can you comment on that?
A.- Three independent affiliated organizations had the same title. They were the General SS, the Waffen SS, and the SD; and in each of these organizations the title had another meaning.
Q.- And in addition to that what other formations I want to know the general validity of that title apart from "SS" Obersturmbannfuehrer had that title in General?
A.- Oh, I see. The SA too.
Q..- Do you remember, in regard to the question of the SD rank which was conferred upon you, that at that time, in particular when that occurred all officials of the Gestapo of the Kripo had a so-called SS rank conferred upon them regardless of whether they were members of the SS or not? The clue is assimilation of rank.
A.- I know about that. All officials had gradually had ranks conferred upon them by the police and police officials all were carried on the personnel roster of the SD, and merely the leading officials of the police became leaders of the General SS and police leaders.
Q.- From your knowledge pan you answer the question as to whether, on account of this assimilation of rank, it was possible that a man wore a uniform which was quite similar to the SS and also to that stars and insignia and was working in the police but without doubt did not belong to the SS?
A.- Yes, that existed. That applied to almost every criminal official.
DR. HAENSEL: This is a problem to which I shall permit myself to return in my argument. May I also refer to the IMT opinion on the SD and Rank Assimilation? I have concluded my redirect examination.
JUDGE HARDING: What part of the IMT. Opinion is that found in, Doctor?
DR. HAENSEL: The I.M.T. Opinion, Chapter Gestapo SD, Paragraph 5 a.t the end.
THE PRESIDENT: There being no further examination of this witness he is excused from the witness box. You may call your next witness.
DR. HAENSEL: I then ask to have the witness excused and to be permitted to call my other witness, Otto Lenz.
(Witness excused.)
OTTO LENZ, a witness, took the stand and testified as follows:
JUDGE BLAIR: Raise your right hand and be sworn:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may be seated.
DIRECT EXAMINATION BY DR. HAENSEL:Q.- Witness, please tell the Tribunal your full name and your present profession and the place where you are living.
A.- Dr. Otto Lenz, Berlin, attorney at law and notary.
Q.- What were you in 1933?
A.- In 1933 I was referent in the Prussian Ministry of Justice. I was a personal referent of the then Undersecretary Hoelscher.
Q.- After Hitler took over the government in 1933 did you work in the Prussian, and later the Reich Ministry of Justice? Did you remain there?
A.- Until 1938 I remained in the Ministry of Justice and I then left it and became a practicing lawyer.
Q.- Can you make some brief remarks about your political opinion in regard to the Nazi regime?
A.- I used to be a member of the Center Party - Zentrums Partci -. Before that I was personal referent of the Former Prussian Minister of Justice Schmidt, who also was a member of the Center Party, and of Under Secretary Hoelscher who also had been a member of the Center Party. Furthermore, I was a very good friend of a number of representatives in the Reichstag of the Center Party and from the very beginning I had a negative attitude toward National Socialism.
Q.- In that respect was it an established fact that one could say generally that you. were not only distant from National Socialism but that you were an express opponent?
A.- In the Ministry it was probably well known that I had a negative attitude toward National Socialism and that because of my negative attitude later on I left it, too.
Q.- Can you tell us when you met Dr. Guenter Joel?
A.- As far as I remember Joel joined the Ministry of Justice in March or April, 1933, when Kerri took over the Ministry.