Q. Witness, please give a brief survey of your life until the conclusion of your legal education.
A. I assume first of all you want to find out my personal data.
Q. Yes.
A. Oswald Rothaug; born 17 May, 1897. In my affidavit the birth date is given as 12th of May, 1897; that seems to be incorrect, because according to everything I know, I was born on the 17th of May. That seems to be all. As far as my life is concerned after attending the primary school, as in customary, I entered the new gymanasium (high school in Werzburg. In 1914 I-
Q. Please repeat. In 1914 you changed schools.
A. Then I entered the gymnasium (high school) in Aschaffenburg. Toward the end of 1915 I was drafted into the army. I participated in the first World War until 1918. Already before that time I had matriculated to Forestry University in Munich, and after the end of the war I studied forestry. But a short time after that, in view of the conditions that prevailed in Munich at the time, and out of personal considerations, I gave it up, and subsequently I began to study law and political science at the University of Wuerzburg. After I concluded that study, I first entered the preparatory service at the local court of Aschaffenburg, and the district office(Pezirksamt), and continued my preparatory service in the spring of 1925 with the lawyer Justizrat Raier, at Ansback. Then, toward the end of 1925 I took the examination for the higher legal and state service. Soon after the results of this examination were made public, I was call into the Bavarian service of the administration of justice, the administration of justice of the state. That is my personal data until I concluded my legal education.
Q. The witness Miethsam on the 3rd of June 1947, during the cross examination page 3,911 to 3,915 of the English transcript, stated that your behavior was described as brusque in your personnel file. Several other witnesses described your hardness in service and your severity towards yourself and others.
Frequently brusqueness and severity of a person are connected with the hardships encountered during his life. Therefore, I am asking you in your life did you have to overcome difficult, hard years?
A. They call me not only brusque, but they call me domineering, brutal, cynical, moody, a tyrant, a devil, am intriguing person; and in between that they say I am also friendly, polite; I am describe me as a human being who can only love or hate. I am supposed to have a super super human mind, and where that is not sufficient, I am supplied with a power of suggestion, of hypnosis, or even of magic. Everybody describes me in some way which is closest to his own nature and as the interests of the day require it. I myself knew nothing of these allegedly super natural and sub-terranean powers which are supposed to be dormant within me. Up to this hour with my surroundings at any time from birth until the terrible catastrophe which these came upon us, in my service and in my life, and in all situation of my life, with very few exceptions, I was not only on tolerable but in the best of terms also with those people who since catastrophe believe they have discovered my infernal or faustain soul. You now want me to comment on the most harmless of the characteristics described my alleged brusque manner.
For many years I have occupied myself with the study of the soul of a human being, but I have never made the attempt to undertake a research journey into my own soul; nothing comes of something like that. No person can understand his own soul, and we may be grateful to the Gods because it is just this very thing which they are merciful enough to cover up with night and horror.
Naturally, the course of life of a human being can assume significance from the point of view of his character and of his behavior. There is little to be said here in my case from this point of view. The young soul is most easily formed. I grew up among farmers. In their tactics, deplomacy is used to master the difficulties of life, but one's own power. Outside of a few harmless conspiracies, the grammer school did not show any peculiarities.
The first year of the war, 1914, brought the death of my father. Toward the end of 1915 I was drafted into the army and participated in the World War with a mine-throwing unit of the First Bavarian Jaeger Regiment until 1918. Here I learned to fulfill my duty for the ideal of the Fatherland to the utmost. What was hammered into my young soul at that time remained with me for the rest of my life; the principle of fulfilling one's duty for its own sake, and the idea that there are situations in life in which, as before Verdun, there are only living people and dead ones, but no sick people.
On the 19th of January, 1919, the very same day that I returned home, my mother died. She had died of the hunger, the sorrows, and the deprivations of war, as did many millions of others at that time.
My plans to continue my studies at the Forester's school in Munich where I had already registered during the war, were now in doubt; at the advice of my brothers and sisters, who held small jobs at that time, I dared to do the seemingly impossible. However, soon after that I gave it up and, as I have already mentioned when I described the course of my life, I began the study which, by its nature, seemed entirely foreign to me, and that was the study of political science, of the theory of the state, at my home university of Wurzburg.
The study, as such, did not offer any difficulties for me, but the outside conditions did and how I overcame those is still a mystery to me today. I got through and the rest of my life was dominated by the idea of duty, and that it had to be fulfilled with the utmost energy, especially during the most difficult years. That is in a more crude form, I would say that the human being lives in order to be born, work himself to the bone, and be buried. Duty was above all else for me. I did not spare myself in this respect, and also would not let others spare themselves. That is how it happened that once in a while, here and there, there were frictions which, to me, seem to be nothing extraordinary. They never entered into the personal relationship. After half an hour we were again good comrades. Only in one single case did it cone to a break.
I was what is described in Germany as a straightforward person. I told people my opinion as it really was. I could do so because I was not their superior. I was accepted by my surroundings as the Lord had created me and, as far as I can see conditions, they were satisfied with me.
Q. The witness Niethsam testified, at page 3912 of the English transcript, that when you were transferred he had made inquiries as to whether you were suitable for the position of a district court director, and that Heuwieser said you were suitable for that position but was against your being employed in the Administration of Justice because you were too brusque in your manner. Who was Heuwieser?
A. Heuwieser was the President of the District Court of Appeal of Bamberg. Schweinfurt, where I was working at the time at the District Court, belonged to the area of the District Court of Appeal of Bamberg. Thus, without doubt, Heuwieser was the right address for inquiries regarding that question.
Q. Did Heuwieser meet you personally?
A. One cannot say that Heuwieser got acquainted with me personally. The occurrence was so peculiar that actually one can say only that he saw me once.
Q. Please describe this incident.
A. In brief, it was as follows. I describe this incident because it is characteristic of the personal of the nan who judged me.
I was sitting in my office in Schweinfurt and working one day when a gentleman, accompanied by another one, appeared in my office. This gentleman did not pay any attention to me or the fact that I existed, but merely found out that the room did not need.
Q. Just a moment, what did you say about the room? The interpreter did not understand what happened to the room.
A. He merely found out that the room did not have to be painted, and he then left without greeting me. That was the only meeting I had with Heuwieser.
Q. Thus you never spoke a word to him?
A. I never exchanged a single word with Heuwieser
Q. When did he become President of the District Court of Appeal?
A. Until 1933, at least during the preceding era, or a few years before that, perhaps, he had been president of the District Court of Appeal in Nurnberg. He was in charge of the penal chamber in which the political cases of that time were tried and it was noticeable, as was being said at the time, that he had criminal police accompany him to his apartment from the office.
I could not understand that. During the most difficult times, for years, at any time of the day or night, I moved around in this city without carrying any weapon. I did not even carry a pocket knife. The idea that anything could happen to me, who after all was known everywhere, never occurred to me at all. That was my inner relationship with all levels of the Nurnberg population.
In 1933, Heuwieser was the man whom the then Minister of Justice, Frank, appointed as the first to the position of President of the District Court of Appeals of Bamberg. The emphasizing the danger of his activity in the struggle against the overthrow from the Left thus bore fruit. Heuwieser himself, as is demonstrated by the incident I already described, was of a cynical and rude nature. I am speaking about these matters only because Miethsam made the attempt to describe my character in such a way and supports this description by naming a man who, in that respect, should not feel himself free of faults. Moreover, it is interesting to find out in what reliable manner the people came to form an opinion of me. Here I may mention that, at that time, I had never seen Miethsam at all in my entire life.
Q In what places and what official positions were you employed before you become presiding judge of the special court of Nurnberg?
A I have already mentioned that, after the result of the state examination had become known, I was soon called into the Bavarian administration of justice. My appointment was first with the public prosecution in Ansbach for the so-called post-practice (Nachpraxis). This postpractice was supposed to last for about three months. In my case, however, it was interrupted after only three weeks. Perhaps, I had proved myself a good pupil and, after that, I was first transferred to the local court in Weissehburg. I want to mention that I was called to the prosecution in Ansbach on the 1st of May, 1926. Until approximately August, 1926, I was working at the local court at Weissehburg. Subsequently, I came to the local court at Pfaffenhofen on the Inn.
Q You just mentioned Pfaffenhofen on the Inn. Were were you living at the time?
A I would consider it more to the point if I would first describe my official positions now. Up to the special court in Nurnberg. That's what you asked me, isn't it?
I believe I have already mentioned that I came to the local court at Pfaffenhofen on the Inn. There I was employed until the turn of the year 1926-1927. Subsequently, I came to the local court at Ingolstadt on the Danube. I was Court Assessor during all this time up till the 1st of June, 1927. At that time, I became public prosecutor in Hof. In the late fall of 1929 I became Amtsgerichtsrat (local court judge) at the local court of Nurnberg. In the middle of 1933, I became first public prosecutor at the public persecution of Nurnberg-Furth. In the late fall of 1934, District Court Judge at the Schweinfurt District Court, and on the 1st of April, 1937, District Court Director at the District Court Nurnberg-Furth and there I was, among other positions, employed as presiding judge of the special court of Nurnberg.
Q You mentioned Pfaffenhofen on the Inn. With whom were you living at the time?
A In Pfaffenhofen on the Inn I was looking for a room. I was advised to take a room with a family who were from Franconia because I myself was from Franconia. This family had a small meat factory outside of Pfaffenhofen on the Inn. The family's name was Haberkern. That was in 1926.
Q Is that the later Gau Inspector Haberkern who was the owner of the "Blaue Traube" where the political table was that was supposed to have been the basis for your political position of power?
A That is correct. That is the same Haberkern who later on became Gau Inspector of Nurnberg or, more correctly, was working with Gauleitung of Nurnberg. He was.....
Q (Interrupting) Excuse me. I refer here to Exhibits 151, 237 and 222.
A He was the owner of the hotel "Blaue Traube" where that famous table is supposed to have stood on which my political position of power was built up.
Q In that time when you were in pfaffenhofen on the Inn did you also have closer personal relationships with the Haberkern Family?
A Yes. It is in accordance with my character that I do not merely live among people and just pass them by, but that I establish relationships of a personal nature. I could not imagine myself without doing so.
Q Did politics play any role in your relationship with the Haberkern Family at that time?
AAt that time, politics did not play the slightest role in that relationship. I myself, especially in regard to Party political affairs, had no interest at all and these young people, had to struggle with estraordinarily difficult economic conditions, so, at that time, certainly, their shirt was closer to them than their coat.
Q Were you, at that time, a member or a follower of any political tendency?
A I was neither a member nor a follower of any political tendency whatsoever. My political attitude, I would like to describe as patriotism - loyalty to the state even under the conditions which existed at that time. However, in order not to create a wrong impression, I would like to limit this statement to the extent that I, was in no way, enthusiastic about the developments that were taking place at that time. However, in these conditions I saw, nevertheless, compared with the conditions that had resulted from the collapse in 1918, a basis on which the German state could develop. That I was not an enemy of the state of that time, in the real sense of that word, can be seen from the fact, I think, that in 1926 I decided to serve that state. I did so even though my chief of that time, Lawyer Baier of Ansbach, whom I still esteem very highly, asked me to become a partner in his office.
At the bottom of my heart I would like to describe my basic political attitude by saying that I was a monarchist and that I have remained a monarchist to this day.
Q Then you left Pfaffenhofen, did you keep in touch with Haberkern?
A Yes, but that was the usual contact that exists between people who have met. We corresponded and wrote letter, or post cards on this or that occasion, and then everything became dormant. I believe that this condition had already existed during the time when I was in Hof, that is, before 1929.
Q In other words, you came to Hof in 1929?
A In '29 I came to Nuernberg.
Q When did you come to Hof?
A I came to Hof, as I believe I have already stated three times, on the first of June 1937.
Q That can't be correct.
A Oh, yes, '27, of course, I beg your pardon. This all refers to '26 and '27.
Q What official position did you hold in Hof?
A In Hof I had the position of a public prosecutor.
Q As public prosecutor you were a civil servant?
AAs public prosecutor I was a civil servant, that is to say, between me and the state there existed that unilateral relationship of power as exists between the state and every other official; a power relationship in which only one of the two parties has a right to issue orders and that is the state, and only one of the two has to obey, and that is the civil servant. That is the constitutional position, roughly, of the German civil servant, and that is true also of the public prosecutor the relationship of the public prosecution to the state. One becomes a civil servant, and also a public prosecutor by a unilateral, sovereign act of the state, not by a contract.
Q Was your position in accordance with the civil service law?
A Yes, the position of the public prosecutor, of a judge, and of very civil servant in Germany, is regulated in accordance with the civil service law which lays down his position and describes it exactly and without any doubt, unequivocally, and unilaterally tells everybody where the limits of the authorities of the state are.
This relationship is so comprehensive exhaustive that it does not leave any room at all for conspiracies, for example, between a superior and a subordinate, outside of this power relationship. Matters of that kind perhaps occur on a horizontal basis but never in a vertical direction in the civil service. Where the fields of acts contrary to law began, the relationship of a civil servant stopped, because the civil service law contains the express principle that the civil servant through his official acts is not allowed to violate the law, and that does not obey nor need to obey the directives and orders which are contrary to the law, but that he is not allowed to do so.
Q What fields of work were assigned to you as public prosecutor in Hof?
AAs public prosecutor in Hof I was exclusively concerned with cases of a general criminal nature, with theft, murder, arson, and like acts.
Q Were political cases assigned to you?
A Political penal cases at that time already required a special sensitivity so that tho chief exclusively concerned himself with this field. However, as a rule, I was employed during the trial of these penal cases as prosecutor. In other words, I had to represent the prosecution during the trial. And according with the conditions existing at that time, these penal cases were, roughly expressed, of such a nature that they were directed against movements for overthrow from the right or from tho left. Thus, they were mainly trials against National Socialists and Communists. Thus, it was as follows: Today Communists were tried and tomorrow National-Socialists.
Q At the time then, how did the chief judge your work as public prosecutor of Hof?
A I assume that he was satisfied with me because he was loath to lose me. When he said good-bye to me, he said, by exaggerating the actual conditions somewhat, that he had complained only of my Bloody Applications. Unfortunately the courts had complied with my Bloody Pleas too frequently. But I would like to say that this expression, Bloody Judge, and Bloody Pleas, and Bloody Judgments, and Bloody Chambers, is a rough manner describing severe pleas because in Hof I participated only in very few murder cases. I was on very good personal terms with public prosecutor Dietrich who was a very "un-bloody"democrat. We took many hikes together in the Fichtel-Gebirge, and this brought us into a very close relationship.
Thus, in spite of the clashes which I had again and again with my superiors, our relationship, especially when I said farewell to Hoff, was ideal.
Q In what technical fields did you work as local court judge at the local court of Nurnberg?
A When I was transferred to the local court of Nurnberg I had to make a call upon the chief judge of the local court. On that occasion he told me that he know me already through his friend, the district court judge Schmidt of; that he had thought up a special task for me. At that time six to eight jury courts at the local court of Nurnberg had gotten into serious arrears. Therefore, a so-called "flying jury" court was established and its basis was that the presiding judges of the existing jury courts referred the cases in which they were in arrears to this so-called "flying jury" court and then it was my task in regard to the cases which had reached me in that manner, to try them.
This was an institution which was established in 1929. In this field I worked until the fall of 1930. In the fall of 1930 I was, by surprise, transferred to the civil division and then became a judge in civil cases.
Q What was that?
A I remained in that capacity until I was transferred to the position of a first public prosecutor in the summer of 1933.
Q What was the reason for your transfer from the penal division to the civil division?
A In general one did not find out the reasons for such transfers. Usually there was an official reason, but my transfer at that time has a certain similarity to matters which have been discussed here, and, therefore, perhaps it is significant to point this out. The following incident occurred. In the course of 1930 a criminal case was being dealt with, which concerned the Deutsche Tag of 1929 in Nurnberg German Day. This German Day - Deutscher Tag - was Propaganda and Parade Day of the parties of the radical right, and during this day an entirely unpolitical incident occurred.
One of the participants in this day - a member of the NSDAP - the Nazi Party - had attracted a young girl of 14. to 16 years and had raped her, had taken her along when he went home to Northern Germany and there a had left her to her own devices. So that this young girl became a prostitute in order to got the financial means to get back to her home.
At that time - and I emphasize without any political thought - we tried the case. I was presiding judge of this court and because of this offense, an far as I remember, because of abduction, we condemned this man to three years in the penitentiary and only now did this incident assume its real significance.
Naturally, the Social Democratic press utilized this incident against the NSDAP and the NSDAP on its part denied it. In any case, the and result was that the Administration of Justice took the case up and actually it was none of its business at the time.
Then an appeal was lodged with the result that this sentence was quashed because the legal facts were alleged not to have existed. Those reasons did not convince me. However, the case was closed as far as I was concerned.
Then in August, 1930, I Went on leave and returned in September. When I returned, the name of my office had been removed and I had been transferred to the civil division. Since the order itself had not been made known to me I was interested in finding it out and I was informed that the orders had been issued a long time ago, a long time before I went on leave at all, and the most important thing is now this: My inquiries with the department chief far the reasons of this transfer led to the following conversation:
The department chief told me that I was not forgiven this case of the German Day. Later on he said, "Since the girl as such was no good anyhow, one should not have made so much fuss about the whole thing." And when I objected that under the law this was not a point, he answered that this was not important.
Thus, at that time already there were cases of the Leuneburger type. The difference was only that after 1933 the matters were written down on paper; whereas, before 1933 these things were done in an underhanded manner. I mention t is because this question plays a role in regard to any relationship to the Administration of Justice.
Q Before 1933 was there a political party which represented the point of view which was in accordance with your personal political basic attitude?
A I call to your attention that there is a question which you have to ask first because otherwise this does not make any sense.
Q What was your political attitude before 1933?
A My basic permanent attitude before 1933 was not a party political attitude. Since I had returned from the war only one single wish was burning in my heart: the wish for freedom, from the defamation of my country and freedom from the burdens of the time. Naturally, I was not thinking of a war because of that one could not think at all; but I was thinking perhaps the world could not think at all; but I was thinking perhaps the world could or would realize the situation into which Germany could involve a great danger to the world, and actually this was the case because what developed after 1933 was actually in accordance with its character -- if one left out all the accompanying circumstances -- actually only an uprising of slaves because its special danger lay in the fact that this development was instituted under the slogan: "Against oppression and injustice." And Hitler's person in this development is, in its nature, nothing but the result of this outside and inner condition.
THE PRESIDENT: We will recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: May I continue.
A Before the recess I discussed my basic potitical attitude on certain political developments that occured before 1933, and now I shall conclude this line of thought. As I have already stated, in my opinion the development of the NSDAp, the Nazi Party before 1933, was strongly influenced by the conditions that were the consequence of the Versailles Treaty. I am convinced that neither the party platform, nor political speeches, nor the book Mein Kampf, nor all propaganda that was made before 1933 would have been able to lead the German people on the dangerous path of a one party state if they had not understood it by utilizing the economic emergencies to make Hitler appear as the last help. I myself did not approve of this development, in my inner-most self, and toward the outset-not because I was an enemy of these people, because I saw a tremendous danger for the state and my country in this development. I did not care for parties at all, and in all of these developments I saw and still see for the life of our German people always something dangerous, because we Germans contrary to other peoples, take these matters too seriously. The quotation is well known which says -- laws are made in Rome; in Austria they read the laws; and in Germany they obey them. With us everything is inclined toward fanaticism, and we Germans were so great that we gave an unusual richness of thought and ideas to the world. In politics we are blind. Therefore, I was and remained a monarchist --- and still am.
Q Inspite of that attitude could you be a prosecutor in a democratic republic state?
AAs such, especially in view of the position that a civil servant has in a democratic state, this had nothing to do with this attitude. In my service, my official service, I had to apply the law, and in applying the law I had to enforce not my will -- I had to realize that it was not my will but the will of the law; and a monarchist can do that in a democratic state, too.
His private opinion had nothing to do with his official duty. This is contrasted to the position of a civil servant in an authoritarian state. There it is required that the civil servant also recognizes and approves of the political tendency.
Q If there had been a monarchist putsch, would you not have entered into a conflict of conscience?
A I already indicated that such a conflict could not arise because according to the oath of office I was obligated to apply the law as it is willed. In my own heart I can think whatever I want to think. It is obvious, and a matter of course, that I was not allowed to participate in a putsch myself; but, and this is my own personal opinion, if I am of the conviction that the restitution of a monarchy is the salvation, then I would have to go with the others; and probably I would have seized the eternal rights, the laws which cannot be changed and are as permanent as the stars themselves, but this would have to be done outside my office hours.
Q Why did you not have any confidence in the republic platform of the state?
A My basic attitude in regard to this question is the following: Every form of government is a matter which has to grow out of the character of the people. Those people which are happy under a democracy, a historical development which has gone on for hundreds of years, is after all the product of this historical development, and these peoples cannot be happy in any other system then the democratic one. Our development, however, went from absolute monarchy to constitutional monarachy, and the principle of this development is the principle which is indigenous to us and has grown in our country. Forms of government cannot be established by demand and thus be made indigenous. In fact, the removal of the monarchy in Germany in 1919 brought about the Reich and this was the basis for the later consequences of political power. The most free democratic constitution of the world brought legal dictatorship.
Q What was your attitude toward the parties?
A Toward the parties I absolutely lacked every interest before 1933. I especially was opposed to the radical wings, because in these, in particular, I saw the great danger whether one or the other of the radical wings should succeed. In effect, it was like this: That in 1933 they destroyed the middle course, and the only question was whether Germany would become authoritarian state or the basis of bolshevism; or, an authoritarian state on the basis of National Socialism.
Q What was your attitude toward the political change in 1933?
A Later on I shall go into detail in regard to the fact that already years before 1933 I was a follower of the Lundendorff movement. Lundendorff was in sharp contrast to the MSDAP and its leading men. This attitude I had also in 1933 exclusively because of the worry that my fatherland could be harmed if it would enter upon the risky course of a one party state which could be controlled and criticized by no one. In saying this, I have to emphasize particularly that one of Lundendorff's basic demands was freedom of religion and political freedom.
Q As first prosecutor, how were you employed, in the summer of 1933, and until the fall of 1934?
A First, for a few weeks, I was given a so-called General Referat (Section), which dealt exclusively with matters of general criminality. Few weeks later, however, I became an assistant to the General Public Prosecutor of Nurnberg, and in addition I was deputy of the Division Chief of Division II of the Public Prosecution in Nurnberg. Political matters were not connected with these jobs.
Q What technical fields were assigned to you in the General Public Prosecution?
A Here I had to review when proceedings were quashed by subordinate prosecutions, I had to deal with clemency questions, and with that, also with the supervision of the legality of the jurisdiction of the courts.
Q What tasks did you have to fulfill?
A I think I have answered that essentially.
Q Did that duty apply to the prosecution quite generally?
A You mean the duty of the supervision of the legality of jurisdiction? This duty applied to the prosecution in general, and according to the prevailing opinion it was regarded as general duty.
May I especially refer here to Loewe?
Q I believe that you have Loewe in your hand. Please state briefly what book you are talking about.
A I am concerned with the Code of Criminal Procedure for the German Reich, the Loewe commentary, new edition by Werner Rosenberg, from the year 1929; that is, before the seizure of power.
Q Is that the recognized work?
A This commentary was the standard book in the field of the code of criminal procedure in Germany. This general duty of the prosecution to supervise the legality of jurisdiction is mentioned in the Loewe commentary in footnote 5 to paragraph 155. This paragraph 155 describes the position of the judge in regard to an offense which is brought before the court, and in that connection it also deals with the position of the prosecution.
In the footnote 5 which I mentioned, under the letter "C", it states;
"The prosecution, in its investigations, must keep in mind the entire interest of the State. The State, however, is mainly interested in the proceedings being carried out in a legal manner, that the repealing of decisions and the repetition of proceedings should be avoided as far as possible. Therefore, the Public Prosecution is called upon to make all the applications which it considers suitable in that direction, and by these applications to see to it that the legal regulations are obeyed, not only when the prosecution is caused to make a statement by the court, but everywhere, when it observes nonconformity with legal regulations."
This means, in other words, that the public prosecution is the organ of the government, whose vocation it is to test the legality of jurisdiction and to supervise the legality of jurisdiction in order to increase the legal guarantees for the citizen. The prosecution is obligated especially to take into consideration also the rights of the defendant himself and to exploit them fully. Violation of these rights would be just as serious a violation as if, for example, the prosecution would disregard the interests of the State, because, according to German constitutional law, the violation of the interests of the defendant would, at the same time, also mean a violation of the interests of the State.
Thus the prosecution, in the group of problems, is not only in a central position, but also in a harmonious position.
Q Did this not affect the independence of the courts?
A This did not affect the independence of the courts, because the situation was as follows:
The prosecutor, in making proper applications and representing his opinion in the manner in which it was regulated by law, had to see to it that the court would act in accordance with the will of the law.
The State and the leadership of the State, according to German Constitutional law, are absolutely the masters of their decisions so far as the sentence is concerned.
The leadership of the State, for any reason that it considers suitable, can refrain from having a sentence executed.
Q Does the leadership of the State not at least have to execute a sentence which in itself it considers as correct in every respect?
A The State is not obligated, according to German constitutional law, to execute a sentence. The State can also refrain from executing a sentence that is absolutely correct.
Q Can you give an example of this?
A I can cite an example which I experienced myself, and which demonstrates this legal situation unequivocably.
As prosecutor, I was called as deputy to work on a case which concerned Swedish subjects who were indicted because of treason against Germany. They were people who had confessed. Moreover, the evidence was so overwhelming that no doubt could exist as to their guilt, and the penalty, too, was determined by law. All the participants knew, including the defendants themselves, that their situation was hopeless. The sentence was pronounced accordingly.
However, even though this sentence could not be objected to under any point of view, and though if the facts had been identical it would probably have been the same as it was pronounced here in every country of the world.