Q. What legal recourse was available to the defense counsel after the trial had been concluded before the Special Court?
A. It was impossible for him to apply legal remedies; he could ask for a retrial, which was especially important in connection with paragraph 26 of the Competency Decree. The defense counsel could approach the court directly oy that legal remedy, in contrast to the nullity plea which ho could only suggest and which could only be made to the Court by the Chief Reich prosecutor.
Q. Who had to make the decision?
A. The decision for retrial was made by the Penal Chamber.
Q. Was there any possibility of appeal if that motion was denied?
A. Yes.
Q. Who had to make the decision about that appeal?
A. The Senate of the District Court of Appeals.
Q. That was the regular procedure?
A. Yes; that only applied to ordinary courts.
Q. Who had to make the decision when the motion was granted?
A. In the retrial the decision had to be made by the Penal Chamber which would have been competent for the case had there not been any Special Court. The following example will illustrate that: There is a sentence by a Special Court; a decision about the question as to whether a motion for the reopening of the trial should be granted, was made by the Penal Chamber at the locality of the Special Court, that is to say, Nurnberg. If that Penal Chamber granted that motion, the trial would be reopened, for instance, in Amber, by the Penal Chamber because the offense had been committed in Amberg.
Q. What recourse existed against the second decision?
A. Normal legal remedies of an ordinary procedure, for instance, review.
Q. How long did that condition exist?
A. I believe until the end of January 1943.
Q. What legal guarantees were still in existence after these conditions changed?
A. Reopening of a trial under the normal prerequisites of the Code of procedure was extended so that it almost took the place of an appeal, and it had the advantage that there was no time limit set for it.
Q. What other possibilities did the defense counsel have?
A. As I have already mentioned, in addition to the possibility of the reopening of a trial, there was a possibility to file nullity pleas through the Chief Reich Prosecutor
Q. And who had to decide-- We can skip that.
What possibilities were there for other offices or other agencies which had anything to do with the sentence?
A. They had the same possibilities as the defense counsel himself, and also in favor of the defendant.
Q. And what were the possibilities for the defendant?
A. The same as for the defense counsel.
Q. And that was all outside of the clemency procedure?
A. They are all legal remedies which had nothing whatsoever to do with clemency procedure. If they are used or applied, it is not a question of mercy, but a question of law.
THE PRESIDENT: May I ask you a question? Do you recol lect at the moment whether there was any provision in Law Against Poles and Jews which specially limited the right to apply for a new trial or for a retrial?
THE WITNESS: As long as I was acting as a judge and knew conditions very well, a provision of that kind didn't exist. The same legal remedies could be applied in favor of Poles and Jews as in the case of anybody else.
BY DR. KOESSL:
Q. Will you please give us a brief outline of the basic principles of criminal procedure?
THE PRESIDENT: Do you want to do that?
THE WITNESS: I would like to do it.
THE PRESIDENT: Counsel said "brief".
THE WITNESS: The basic principles are the "offizial prinzip," in contrast to the so-called "disposition prinzip". The first demands prosecution and punisnment of all criminal acts in the public interest. In this connection one speaks of the principle of official prosecution, mandatory prosecution, prosecution by the state and by functionaries of the state officially. The legality.............................. principle requires the official functionaries, ipso lege, to make investigations and file an indictment.
Then there is the principle of immutability, that is to say, that judges, prosecutors, and defense counsel cannot, by settlement, establish the extent of punishment. The trial itself is governed by the so-called maxim of investigations. That is to say, in the main trial the judge had to evaluate the entire material. He is in charge of the trial and he has to search for the truth with all the means at his disposal, without being bound by motions of the parties, under the principle of substantial truth. As to the basis for the decision by the penal judge, the facts which have to be established by the court have to be in accordance with the actual true facts as that is humanly possible.
In order to achieve this, the principle of hearings of both parties is applied.
THE PRESIDENT: We are familiar with these principles; you don't need to tell us anymore about them.
BY DR. K0ESSL:
Q. Then I only want to put to you, witness, that a short time ago the prosecutor here asked the witness Zimmermann why Rothaug had not done anything after the occurrences in November 1938, that is, why he did not interfere since he was competent as a judge for political cases.
A. I was not competent to anything about that.
Q. That was your basic attitude in your activity as a judge in connection with the investigation of facts, evaluation of facts, and principles of law?
THE PRESIDENT: You had to investigate the facts, based on the evidence which you heard in court, determine what the truth was, and apply the law. Isn't that the theory on which you were going to answer the question?
THE WITNESS: Yes, Your Honor.
BY DR. KOESSL:
Q. Did you receive any directives or information of a secret nature?
A. None, none whatsoever.
Q. Now we want to deal briefly with a different subject. That was your position and the position of the German judge coward the law?
A. We exclusively had to examine whether the law was promulgated in accordance with the rules. Any other kind of investigation was not in our hands.
We did not have to examine whether a law was in accordance with the Constitution, or whether it was tenable in accordance with the principles of international law, whether it was necessary, whether it served a purpose, or whether its contents were moral or ethical. In all these directions, the German judge not only had no duty to examine, but he did not even have any right to examine, he was prohibited from so doing.
Q. But Germany had international legal obligations. How could they be taken care of if German judges did not have the right to examine questions of international law in connection with the laws they applied?
A. Examination based on all these points of view which I mentioned, where the judge did not have the right to make that examination, according to the Constitution, in all political systems which ruled Germany, was reserved for other agencies or offices and they had the responsibility for so doing. The examination of all of these questions was not part of the office of a judge in Germany. In so saying we do not wish to hide behind our office, but we want to say that this duty of examination was not at all part of our office.
Q. Was that specifically a German state of affairs?
A. That was a European-Continental state of affairs.
THE PRESIDENT: The time has arrived for our recess; 15 minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: I think it would be unnecessary to go into the general continental view on the natters which you were discussing. Professor' Jahreis has covered that very adequately and/we are quite familiar with the rules.
DR. KOESSL: Yes, your Honor. I wanted to ask the witness to state his opinion on the passage which the Prosecution has brought up, the passage by the American legal theorist, Hyde.
THE PRESIDENT: He may do that.
BY DR. KOESSL:
Q Witness, the Prosecution introduced the following passage during the examination of the expert, Jahreis, from the work by the American legal theorist, Hyde. "International law as well as the national law of any state is of necessity above every administrative regulation or any law or public decree which is contrary to it. There can be no conflict on the same level.
The exact relationship between the recognized law of international law to a local law which is contrary to this international law is often obscured by events which have taken place before the superior authority of the former has ultimately been reestablished. A local court can, therefore, with a view to the nature of the thing and the limitations of the rights given to it, be obligated to apply its law and even a national court of the highest instance can be obligated to approve such an action.
However, this means only that no local court has the possibility to force the state to apply the law. It does not mean that this manner of behavior should be defended internationally or that judges as such should approve it."
What do you have to say about that, witness?
A The attitude of this American scholar in my opinion is absolutely in accordance with the opinion that is also recognized as correct in Europe. He takes as the obvious premise that in a case of conflict between international law and national law the local courts and the highest national court too, due to the limitations of their rights; could be forced to apply the national law which is contrary to international law.
However, he does not draw any further conclusions from this than the following, that by this national jurisdiction the material for international conflict cannot be removed. This is generally recognized today.
However, he does not speak about the responsibility under international law of the national courts, but he assumes that their position, even in his discussions from the point of view of international law, is a matter of course.
Q You are being charged with the fact that you could have avoided the worst consequences of applying the laws which are regarded as contrary to international law by giving a corresponding opinion and pronouncing more lenient sentences. Please comment on that.
A The prohibition to review the laws from the point of view of their constitutionality, their being in accordance with international law, their morality, et cetera, of course applied absolutely and could be circumvented neither secretly nor indirectly. For even in the latter case the judge avoided his subjugation to the law by defeating the real will of the law. Such considerations he was not permitted in any situation and in no direction, but he had to leave this up to those authorities who, by the constitution, were assigned the responsibility for it.
Q Now, it was discussed that the judge could at least let his discretion rule where the law did not provide an absolute penalty but put at the disposal of the judge a certain scope of penalty. Please comment on that.
A This opinion is that of the layman and misleading. It is contrary to the theory of the amount of sentence according to the German Penal Law. Even if there is a scope provided for the sentence; the German judge is subject to the will of the law. Even here his mental activity may only lie in the recognition, not in his own will. This basic IP August 47-M-ATD-7-3-Goldberg (Int.
Wartenberg) attitude alone, which excludes the judge's own will, refutes the view of the free discretion of the judge in pronouncing the sentence.
Here, too, he cannot deviate from the recognized legal principles. In particular, he cannot make his own policy in regard to the length of the sentence.
JUDGE HARDING: I have a question, please, if the witness is finished. Under the decree, as I understand it, against Roles and Jews, more severe sentences could be imposed upon a Pole or a Jew for certain acts than could be imposed upon a German. Is that not correct?
THE WITNESS: The laws as such were more severe and that led to the fact, perforce, that the sentence was more severe.
JUDGE HARDING: In any other cases which you tried did you ever impose a sentence upon a Pole or a Jew which was more severe than which could be imposed upon a German?
THE WITNESS: We, of course, here also remained within the scope of the law. It would perhaps be clearer if you would give me an example.
JUDGE HARDING: I am asking you for the example. In any of the cases which you tried, did you ever impose a sentence upon a Pole or a Jew under that decree which was more severe than that which could be imposed upon a German for the same acts?
THE WITNESS: No. In all cases, if in the place of the Pole, a German would have committed the crime, the same sentence would have been pronounced. In order to make it clear I want to cite an example, namely, the case of the two Polish women that we spoke about yesterday. If two Germans had committed arson in this armament factory with the same intentions as the Poles, that is, in order to damage the German war potential, then these two Germans would also have been sentenced to death; or another example, which perhaps shows the principle more clearly It was mentioned that Poles were sentenced to death for cruelty to animals.
It is obvious that no Pole in Germany was sentenced from that point of view, but if, for example, by means of glass splinters or other acts of sabotage, he destroyed livestock with the intent to damage the German war potential in order to serve his country, then this could bring about a death penalty.
Let us take the case of a German farmhand who, let us say, was a Communist and who killed a horse with the intent thereby to serve the enemy. No one who knows German jurisdiction of that time will doubt that this German, too, and he in particular, would have been sentenced to death.
JUDGE HARDING: I understand that. However, for example, under the Malicious Acts Law certain punishment was imposed upon Germans for making certain statements. The same statement, if made by a Pole, could be more severely punished. I am asking if, in any of the trials which you held of any Pole, a more severe sentence was imposed upon a Pole under the decree against Poles and Jews than could be imposed upon a German for the same acts.
THE WITNESS: I understand the case. In my court it never happened but there is no doubt that a discriminatory judgment did take place here. This was, however, not the fault of the judge but it was due to the fact that the legal situation basically was different. The judge could not sentence the Pole under the Malicious Acts Law but under the corresponding article of the law against Poles and in that law from the very beginning more severe sentences were provided than were possible under the Malicious Acts Law. I want to say by this that the German legal system here --
JUDGE HARDING: Pardon me. I am not concerned at this time with a discussion of the law, I am trying to establish the fact whether or not in your court the situation in certain cases was such that a more severe sentence was imposed upon a Jew or a Pole for the same acts than could have been imposed upon a German.
THE WITNESS: No. If the action could be judged under the sane law as was the case with a German, then merely because a person was a Pole or Jew no more severe sentence was pronounced. However, I can state my opinion on this question of foreigners in regard to the Malicious Acts Law by saying that in our court in Nurnberg, not only when I was presiding judge, but under Oeschey or Ferber too, basically a different point of view was adopted in malicious Acts cases.
The foreigner, who was working here in Germany was to the German State not in the relationship of loyalty. Moreover, as far as his views are concerned, he comes from another world and is subject to the opposite propaganda. Therefore, in all Malicious acts cases against foreigners much lenient sentences were pronounced than against Germans.
JUDGE HARDING: I am trying to get what happened in your court. Since I have not been answered, I want to ask further. As I understand it, German juveniles were subject to certain exemptions, certain protection under the law. This protection was not given to a Pole, as I understand it. Is that correct?
THE WITNESS: Yes, that is correct.
JUDGE HARDING: Was there ever a case in your court in which a Polish Juvenile was punished as an adult where such punishment could not have been imposed upon a German juvenile?
THE WITNESS: I do not recall such a case.
JUDGE HARDING: That is what I wanted to find out.
THE PRESIDENT: I should like to pursue that same question a little. You said that when the act of the Pole violated the same law, that a German violated by a similar act, that the punishment would be the same in general. In other words, you were taking illustrations from the German Penal Code: arson, for instance. You did not mean to say that the ordinary German penal code covered every act which was covered by the law against Poles and Jews, did you?
THE WITNESS: No, no.
THE PRESIDENT: There were additional acts which were made crimes if committed by Poles and Jews which were not crimes under the penal code?
THE WITNESS: Yes. We wanted to go into that in the next question about the legal situation.
THE PRESIDENT: But your answer was that that was not a matter for the judges to determine?
THE WITNESS: Yes, yes.
JUDGE HARDING: That brings me back to my question, if I may repeat it. Then in your court there were cased in which punishment was imposed upon a Pole which could not have been imposed upon a German. Is that correct?
THE WITNESS: These cases in effect never happened in our court because one has to take into consideration, to come back to the question asked by the Presiding Judge, that this additional possibility of punishment against Poles took effect in Poland, whereas we exclusively had to sentence crimes by which German penal laws were violated at the same time and in such a case the application of the law against Poles was only a question or order. As a rule the sentence was determined on the basis of the German law.
JUDGE HARDING: Do I understand you to take the position that the decree against Poles and Jews did not apply in the Reich?
THE WITNESS: No. The law, of course, was applied but in its Part I it was not applied as extensively as it was applied in Poland. This is how matters were: primarily, the law was supposed to be applied in Poland to Poles and was extended later on to Poles who worked in the Reich. The facts of a crime which were threatened with a sentence in this law are such which were caused by the needs in Poland itself.
THE PRESIDENT: But the law against Jews and Poles was applied in your court; is that not correct?
THE WITNESS: Yes, yes. It was also applied. The sentence, for instance, read as follows: "So and so, by applying Roman Numerals II, III and XV, is sentenced for a crime against the law protecting the war economy, for example."
THE PRESIDENT: You were saying that the law against Poles and Jews was applied in your court.
THE WITNESS: Yes.
THE PRESIDENT: But the illustration you gave did not refer to that law. Did you mean that the section numbers were section numbers of the law against Poles and Jews?
THE WITNESS: Yes, yes.
THE PRESIDENT: I see.
THE WITNESS: Yes. I did nay sentenced under application of the law against Poles and Jews, article this or that number.
THE PRESIDENT: Now we understand. Go ahead.
BY DR. KOESSL:
Q: Witness, will you now please comment on the question of the scope of penalty in the war time laws and in particular on the question of the threat of penalty in the law against Poles?
A: I have already stated, in answering the previous questions, that the German judge within the scope of the penalty has no free discretion but here, too, has to comply with the generally recognized legal principles. Now, we have discussed this free discretion and, among other things, we have also discussed that it was after all in the hand of to judge to avoid the most severe consequences. In that connection we also discussed the laws which provided for the absolute death penalty.
The main laws which were applied by us during the war and which have been mentioned here in part by the prosecution and in part by the defense are the following I only am going in to this in order to demonstrate by what formulation from the very beginning the judge is under a binding condition regarding the question what sentence do I have to pronounce. The law for the preservation of legal peace is of importance here, the law of the 13 of October 1933 and of the 24 of April 1934. This law is important in the Schlamminger case which will be discussed here concretely. Here it says the death sentence will be pronounced or, unless a more severe penalty applied previously, a penitentiary sentence up to 14 years. The principle applied here is that if the law mentions the death penalty as the first threat, then the legislator thereby expresses that the death penalty is to be pronounced if no overwhelming mitigating circumstances exist. Thus, it was not up to the discretion or to the free choice of the court whether they pronounced one or the other sentence. The will of the law required primarily the death sentence.
Another law which was applied and is important is the law against undermining of military morale. In Article V in the special War-Time Penal Code of 17 August 1938, under figure I the wording is somewhat different than in the proceeding law. In this law it says simply for undermining of the military morale the person will be sentenced to death. In Article II, it is laid down that in less serious cases penitentiary or prison sentences can be pronounced. It was generally recognized that if the law is phrased in that way the legislator wanted to express that the death sentence was to be pronounced as a rule.
That is to say, that the ordinary, usual case that came before a court had to be punished with the sentence and only if in addition to this normal case overwhelming mitigating reasons exist, then the judge has the right not to impose this usual sentence.
In the law against extraordinary measures regarding radio, in this so-called public enemy law, in the order to supplement the penal regulations for the protection of the fighting force of the German people, the concept of an especially serious case is important. In this law, the jurisdiction developed from the very beginning the following practice, that the especially serious case as a concept was no reason for pronouncing a certain sentence, but that it was a characteristic of the facts of the case. This meant, in other words, that in an especially serious case the judge had either to give his reasons for regarding it as such or for rejecting it; and that if he regarded it as an especially serious case, the death sentence in accordance with the facts was mandatory. So that, for example, in the law against enemies if it was assumed that it was an especially serious case, two facts were contained in the regulations; one, the scope provided for the sentence, and another one, mandatory sentence, and that is the death sentence.
JUDGE HARDING: The legislative authority that you speak of was, after 1933, basically Hitler, is that not correct?
A: I did not have an exact insight into how matters were at the top, but since 1933 we had to work extensively with the so-called government laws, so that already before that time, the method of the so-called government law was practiced very extensively; and after 1933 this method, of course, and it was suitable for this system, and was practiced extensively so that most laws which were promulgated after 1933, which are important here, especially those laws regarding war time conditions, wore such war time laws.
Hitler himself did not issue any laws, at least, I did not know any law that he issued; but by law I mean the law in the usual meaning of that word. Beyond that, as is well-known, the view was represented that all expressions of Hitler's will or opinion had a certain force of law in themselves. The so-called Fuehrer order.
BY DR. KOESSL:
A: Did you, witness, ever make, for example, the Fuehrer Order a basis of a judgment?
A: Of course, that was out of the question. Ye exclusively had to apply the usual law that was published in the Reich Law Gazette, and we had to do nothing but to examine whether the law was promulgated in the regular manner. Everything else was none of our business. As far as the scope of the sentence is concerned, it is of particular importance. There were also laws which made the death sentence mandatory as for instance the order against violent criminals, as the law of 4 September 1941, the law about the collection of metal, but what arouses particular interest is the law against Poles. Here this question is discussed in Article Roman Numeral One under first, the factual material penal law, which the judge has broached. This is the question which Your Honor has broached. It is laid down there that Poles and Jews in the incorporated Eastern territories have to comply with the German Laws and the Laws and the orders that were issued by the German authorities for them. They have to refrain from doing anything which is derogatory to the sovereignty of the German State and the reputation of the German people. That is the general formulation which imposes the so-called general duty to obey.
This principle did not apply in Germany.
THE PRESIDENT: Didn't Article 14 extend that rule, too, to Germany?
A: Yes. I meant to say something else by that. I meant to express that the creation of a system of penal law on that basis and with that method did not exist with us in Germany. In addition to the mandatory death sentence, the sentence which is always primary as the test of the law shows, is the death sentence. And of importance is Article 2 where it says Poles and Jews will be punished also if they violate the German penal code or commit an offense which violates the basic principle of German penal law. This is of importance because the violation of German penal laws almost exclusively was important in our court.
In the sentences under Article Roman Numeral Three, Section 2, it is emphasized expressly that the death sentence will be pronounced wherever the law provides for it. Beyond that, also in cases where the law does not provide for the death penalty, it will be pronounced if the offense is evidence of especially base mentality or for other reasons is particularly serious. In those cases, the death sentence is also admissible for juveniles. This merely is to elucidate the question which I have broached on what basic scope the law moved in regard to the scope of the sentence, and that the law in imposing a sentence cannot avoid this basic tendency which is expressed here. The judge has to judge in accordance with that tendency through the legal system, and he is bound to a very large extent; and therefore one cannot say at all that the judge, might have judged in accordance with his free will.
Q. The witness Gross says in Exhibit 227, "Dr. Rothaug was faught against from many sides, but die to his brutal nature, and his intrigues, as well as by his excellent political connections, he also again and again knew how to prevail and to apply his much feared methods. One can speak of a terror which he exerted on us, his assistants, and by which he kept us under pressure." Please comment briefly.
A. During the 6 years during which I was working in Nurnberg, in only two exceptional cases which I have mentioned already, did I have arguments with other persons. Nowhere did I say anything about my person being faught against; and therefore, there is no cause in regard to my brutal nature to go into intrigues and political connections. Gross too, and I had a very good and peaceful relationship.
Q. What could happen to a judge if he should make a judgment which would arouse the displeasure of leading political authorities?
A. Until the well-known special authority granted by the Reichstag in the session of 25 of April 1942, in my opinion on account of a decision of a judge which aroused displeasure in leading political offices, nothing could happen to a judge. The Civil Service Law protected him to such extent that nothing could happen to him unless he defeated the law; but I never experienced it neither before nor after 1933, or that ever in Germany any judge was punished at all for defeating the law. Of course, it was a matter of course, that through decisions that aroused displeasure one could get into disfavor in the political offices and that one was demoted. In the case of promotion one was not promoted and one had to count with that and other chicanery; but after all, a. judge has to accept that. Already before 1933 if his judgments were not in accordance with the wishes of the legislature, he was attacked in the Reichstag and the press, and the effect that this had on his professional advancement within the meaning of the system of promotion of the German Civil Service was not pleasant.
THE PRESIDENT: The question that was asked you was not what had been done to a judge who aroused political hostility.
The question was what could be done to him, and you made the distinction between the time before and the time after 1933. Why did you do that, as to what could be done?
A. Your Honor, I did make the distinction before and after the 34th of April 1943, and I then only pointed out that the activity of the judge, if it was unpleasant to certain political offices, could have personal consequences for the judge, which, however, would not endanger his position. And that in Germany before 1933 such consequences were possible, too.
THE PRESIDENT: You didn't have in mind Hitler's address in which he stated that he desired the right to remove any judge, did you, and which was confirmed by the Reichstag?
A. Yes, I was thinking, however, less of the speech than of the special authority which was supposed to be the basis for such measures. In conclusion on this subject, may I perhaps state in one more sentence that not in a single case this special authority as far as I know was ever used. It was generally considered from the very beginning something that was not to be taken seriously.
THE PRESIDENT: However, some of your co-defendants have assured us by their documents that the effect of it was truly devastating from the state of mind of the judges.
A. There is no doubt about that, but I only discussed whether this special authority was used. It was a most serious threat, and as a law it was probably the elimination of the independence of the judge altogether; but for now, it was no longer a court that had to decide about the legal basis of the offense, but a political office or even the most political office in the Reich altogether, and this was the end of the administration of justice.
BY DR. KOESSL:
Q. Dorffmueller sited a phrase which you are supposed to have used toward him.
"Who contradicts me arouses the tyrant in me." And you are alleged to have pronounced that sentence outside of your official business on a business trip in Amberg. However, in a connection which Dorffmueller does not remember exactly anymore.
A. I know nothing about this affair. I could not remember every joke that I made.
Q. This witness Dorffmueller alleges that you were the main instigator for the hundred percent application of the Nazi Penal Law. Please comment on this charge of being the main instigator.
A. I always in every word within the sphere of my competence represented my point of view, and as long as I considered it to be correct -- even where I had the competence under the law -- I always endeavored to convince others of the correctness of my own conviction, but not in a single case did I in regard to this conviction of nine influence any person whatsoever in an illegal manner. However followed which is always being objected to repeatedly in this very same way was followed also at other places and regarded to be correct, and in offices which I could not influence at all because about those occurrences I simply didn't know anything.