Q Well, we have frequently discussed that matter of correction of sentences. If I mentioned individual cases I meant cases where you can show how you reacted in other fields which were complicated, in difficult cases concerning policies, with regard to Jews, racial pollution, that is more interesting now.
THE PRESIDENT: The question as to how he reacted has been gone into at great length. You will have to limit yourself this time to any explanation or denial of the matters specifically mentioned in rebuttal.
DR. WANDSCHNEIDER: Yes, Your Honor. It's not the time for general explanations, now of course, but we are here concerned with two or three complete definite eases and the steps that the defendant took.
A (By the Witness) There is, for instance, the half-Jewish witness Schneit, a Polish woman, who was arrested in a race pollution case against a man by the name of Leis, in Hamburg, and where I intervened to have the witness released from imprisonment.
Q (By Dr. Wandschneider) On the previous page I think there is something to the effect that you intervened - that Jewesses who were sentenced for race pollution should not be taken into protective custody, and made protest against it.
A Yes, there aye eight cases mentioned by name.
Q Will you please tell us the name of the document?
A German copy pages 23 and 24. There are eight cases of Jews who, after serving sentence for race pollution and in spite they had served that term, were arrested by the Gestapo, and in which cases I had demanded of the Reich Minister of Justice that this must be revoked.
THE PRESIDENT: Is that 78 also?
DR. WANDSCHNEIDER: 78, yes, Your Honor.
THE PRESIDENT: The date, please - when these cases came up?
THE WITNESS: The cases are - may I mention, Mr. President, that this is a collection of all cases of the years 1936 to 1939 - and the cases which I have just mentioned cover those years 1936 to 1939.
THE PRESIDENT: That is sufficient.
BY DR. WANDSCHNEIDER:
Q Only one more case, because the Court can look at the document itself. Is it correct that in cases of suits against Jews to vacate their apartments, you were against that - you did turn against the fact that they were turned out of the apartments just because they were Jews?
A Yes, that can be seen from page 4 of the Exhibit.
Q That is all I want to discuss in connection with that document. Concerning correction of sentences, you have already made some remarks in the beginning, Dr. Rothenberger.
A May I just refer to pages 35 and 35-a. These pages show that material was forwarded to the Reich Minister of Justice currently.
Q. Dr. Rothenberger, would you please comment now on Exhibit 591, also a rebuttal document. It is concerned with the case where you stated that under certain circumstances it would be right to let a person go off without further punishment after his or her protective custody. Will you please explain what you mean by that?
A Exhibit 591 is a file note made by one of my referents. That file note refers to three separate reports which unfortunately are not attached. As far as I can remember this is what happened: It was an occurrence of the year 1934. After the seizure of power, of course, there was an increasing number of cases of so-called malicious acts - cases of statements made against the new regime, As a rule, the police took these people into protective custody. After they were interrogated they were turned over to the Special Court - that is, the files. The Special Court - and that is already known here at first had to bring about a directive, an instruction by the Reich Minister of Justice and the Deputy of the Fuehrer before it could institute the trial.
At that time when so many cases occurred, that took several months. My suggestion, which was put down by the Referent here, was to the effect that in the case of the so-called "small gripes" - that is, the cases of less importance, that protective custody imposed previously by the police on these people should be sufficient so that these people should not have to wait for many months for a trial through which they would still incur a punishment.
Q All right. Now, the case we want to deal with next is Exhibit 592, a letter by an attorney in Hamburg to the Reich Bar Association in Hamburg. What did you have to do with the cases mentioned in this letter - also arrests by the Gestapo after sentence had been pronounced?
A I only have the English translation hero, but I can see from it that this is a letter from an attorney in Hamburg to the President of the Bar Association, of the year 1943. That is at a time when I was no longer in Hamburg. Of the cases which are mentioned there, there arc two cases where, after the sentence had been pronounced, the Gestapo is said to have arrested these people, I do not know anything at all. First of all, because that letter was not at all directed to the District Court of Appeals; secondly, because in 1943 I was not in Hamburg; and thirdly, because but one case which is said to have been pending in 1934 and 1935 occurred at a time when I was not yet President of the District Court of Appeals. I do not know these cases.
Q Dr. Rothenberger, it has just been pointed out to me that an error occurred. You said that the Special Court has to bring about the decision by the Deputy of the Fuehrer through the Reich Minister of Justice. Is it true that it was not the Special Court, but the Prosecution?
A Yes, the Prosecution had to do that, - not the court itself.
Q Now, we come to the next case - the case of Jansen, which was discussed in detail in rebuttal. It is Exhibit 598. Will you please comment on this case Jansen?
A This exhibit also up to now is available to my counsel and myself only in the English translation and it is quite incomplete. There are only excerpts from the file, and particularly the very long and extensive opinion in the case Jansen - if I remember correctly there were 45 pages - unfortunately is not included. But on the basis of that file, just the same, I have a certain recollection of that case. It occurred in 1934/1935. The then Defendant Jansen was a well-known SA Leader in Hamburg. I did not know him personally. In 1931 or 1932 - I cannot be sure about that - for committing a political attack on a Communist he had been sentenced to seven years in a penitentiary. And then in 1933, covered by the political amnesty he had been released. That fellow Jansen, at the end of 1934, on New Year's Eve, had a fight with a former political opponent, Dreika; and before the Judge Wencenzen who has been heard here as a witness, a case was pending on behalf of that fight.
Q Dr. Rothenberger, the case is known here in its main lines. I am just interested to know for what reason you raised an objection against the Judge Wencensen because that is the essential part here.
A The Local Court president had told me already during the trial that considerable difficulties had arisen, that is, between the judge, the defendant, and the witnesses. That was why I had sent one of my Referents to the trial, in order to report to me what was going on. And after the sentence had been pronounced, I received a wrong complaint about the manner in which the triad was conducted by the judge when sentencing. And among other points - I do not remember at all the reasons given - it was stated, and that can also be seen from the files available here on page 18 of the English translation, that for several times the Judge had reproached the Defendant and the witnesses that they had acted in a Jewish Talmudic manner, which at that time, of course, was considered an insult to an SA man.
And the second technical objection which was raised against him and which I remember because it can be seen from the file -- otherwise I do not remember the other occurrences in connection with that case -on behalf of the manner in which he conducted the trial; that he did not take the witnesses of the defendant under oath - whereas he did take under oath all witnesses of Dreika who had acted here as a co-plaintiff. Whenever I received such a complaint about the manner in which a judge conducted a trial, I was obliged to request an explanation in writing, and since -- on the basis of the report which my Referent gave me - I thought that these complaints were justified, I reproached Judge Wencenzen. Thereupon, I was requested to see to it that the judge be removed from his position. I considered that wrong and unjustified and going far beyond the necessary and, therefore, I suggested - because he had come into suspicion of not having been objective in this trial -- that he be transferred from penal cases to handling civil cases. This was not intended to be nor was it a punishment for a judge. I just considered it appropriate to remove him from the danger zone into which he had gotten as a criminal judge.
Q And what happened to the Jansen case in the retrial? Can you tell us something about that, in connection with the statements made by the witness Skok?
A The Witness Skok?
THE PRESIDENT: Tell what happened in the second trial.
A (By the witness) As can be seen from page 24, no, page 23 of the file, the case, upon request by the prosecution, was discontinued. The reason given was that Greilkar? Dreika? had stated that he had no further interest in having these proceedings continued, and because the guilt of the defendant be insignificant and the physical consequences of the attack were of no importance.
THE PRESIDENT: Is that the case in which the SA man ordered his subordinates to vacate his place of business -where they beat up the proprietor at the place of business?
A (By the witness) No, no, that case we are still going to discuss.
THE PRESIDENT: Which case is that?
A (By the witness) That is the case of a political fight with a political adversary, Greilkar. If the Witness Waldo stated the assumption that he had been transferred to a different chamber on account of that case, then that is, first of all, incorrect; and secondly, would have had nothing to do with it. I believe that also the Witness Waldo, just as every other judge, would have discontinued proceedings, after Greilkar had made that statement.
Q We are now coming to the Karots case, Dr. Rothenberger - the Karots case which was also brought up by the Prosecution. It is Exhibit 590. Will you please discuss that case?
A Karots on the Reperbahn, that is an entertainment place in Hamburg, got into a conflict with the police official of the Security Police (Schutzpolizei). Before the case came to the Prosecution, Karots, in the presence of the commanding officer of the Security Police, apologized expressly for what had happened. He also apologized to the president of the police in Hamburg personally. That is how the case came to the Prosecution, at that stage, and the prosecution demanded - considering these facts, the facts of the apologies - that the case be discontinued and the Defendant Karots not be prosecuted. That can be seen from page 1 of the file. Judge Oelkers, who was heard as a witness, refused to give his consent to discontinue that proceeding. That consent was mandatory according to the legal provisions.
Q Did Oelkers speak to your deputy Letz about that case?
A Yes, the witness Oelkers has stated that Herr Letz, upon instruction from me, had told him that he absolutely approved of the Witness Oelkers opinion as a judge, but that, considering negotiations between the injured person and the injurer, he thought it was better if that case would not come to trial.
THE PRESIDENT: What is the date of that case?
A (By the witness) April 1939 - August - no, March -March/April 1939.
(Continuing) And as can be seen from this file, taking that into consideration, Letz talked to the judge of the next higher influence, told him about the facts, about which the judge had not been informed, because it could not be seen from the files, and then the judge of the second instance had consented to have the case discontinued taking into consideration that that agreement had been established between the injured person and the injurer.
THE PRESIDENT: When did this provision, to which you referred as a rule of law, take effect? I refer to the provision that the consent of the court was required for a dismissal of a case.
WITNESS: As far as I remember, that is a very old provision from Paragraph 153 of the Penal Code of Procedure of the year 1879.
THE PRESIDENT: In any event, it was in effect in 1933 and 1934, too, was it?
WITNESS: Yes, yes; yes, indeed?
THE PRESIDENT: Was it in effect at the time when as you said you were required to dismiss the case against the Party man who caused some one's arm to be broken? You remember testifying, that you had to carry out the instructions of the Reichsstatthalter to quash the case. Did this rule, to which you have been referring, apply to that time and occasion?
WITNESS: No, no, Mr. President; that is an entirely different thing because, in the case where the man had broken the arm, The Reichsstatthalter made use of his authority to quash a case - an authority which he had by the law, without consent of the judge; whereas here it is a question of a dismissal by the prosecution.
THE PRESIDENT: Well, that is what I am getting at. In the case where Kauffmann instructed you to quash the case in which abuses had been perpetrated against a man resulting in his arm being broken -- what was the law there which required you, in your official position, to quash the proceedings because the Gauleiter and Reichsstatthalter had ordered you to do so?
WITNESS: The so-called quashing authority for a case used to be with the Parliaments, and in 1933 it reverted to the Reichsstatthalter, of Germany, the Reich governors.
THE PRESIDENT: What statute was that? What decree?
WITNESS: I could not give you the date by heart, Mr. President; it must have been immediately after the seizure of power. I could look it up. And that authority reverted to Hitler after 1935, after the centralization of justice. Hitler in 1935.
THE PRESIDENT: You were a judge in that case, were you?
WITNESS: No, no.
THE PRESIDENT: What were you?
WITNESS: I was not a judge at that time. I was justice senator, and was subordinate to the Reichsstatthalter; he was only my superior. I was not a judge.
THE PRESIDENT: What was your duty with reference to that case, before the Reichsstatthalter told you to quash it?
WITNESS: I could not quash it. I had not the right to quash a case. Only the Reichstatthalter had the right.
THE PRESIDENT: What did you have to do with the case prior to the Reichstatthalter's order?
WITNESS: That can be seen from the document.
THE PRESIDENT: Tell me what it was, please!
WITNESS: The General Public Prosecutor made the inquiry of me, whether the case should be carried out, and since the Reichstatthalter had called me to come to see him, and told me that he intended to have the case quashed, I, as his subordinate, had to forward and carry out the order of the Reichsstatthalter.
THE PRESIDENT: Just a moment. I will give you plenty of opportunity to correct any errors that may be made. Your orders were, I think, to carry out orders of the Reichsstatthalter?
WITNESS: -- Who gave his orders in the name of the Fuehrer.
Q What the functions of the Judge in that case, was he helpless?
A The case had not yet come to the Court. When the case is quashed by the Chief of the State, or by the Reichstadhalter at the time, then the case does not come before the Court at all, that is to say, it is not before the Court.
Q There had been no charges made?
A No charges made. No charges made.
THE PRESIDENT: I understand that, thank you.
Q When you say "quash" you refer to proceedings prior to filing of the charge, and when you refer to dismissal, you refer to proceedings after the filing of the charge. Is that your terminology?
A Yes, yes. Quashing is before, and dismissal is later.
THE PRESIDENT: I understand.
THE WITNESS: Yes, yes.
BY DR. WANDSCHNEIDER:
Q Dr. Rothenberger, what reasons did you consider the decision of the case correct from the legal point of view?
A That decision made by the second instance, that is to say, giving its consent to the dismissing of the case, I considered it correct for one because the injured person and his superior agreed to it, secondly because the defendant himself had apologized explicitly, and also because the accused had no previous conviction, and it was a matter of a private argument, and the case did not seem important to me warrant that he should be punished by the Court and that he should lose his job as an official in the Reich Propaganda Office.
Q The prosecution submitted three cases from the time after the centralization of justice which were connected with you and where dismissals of cases are supposed to have taken place. Karots is one case.
Will you comment on the case of Vaatje, which was also submitted in rebuttal by the prosecution. That is also a case that Dr. Oelkers mentioned who was heard as a witness here. Do you remember that case?
A Yes, Vaatje was accused for a violation against traffic regulations, he had driven too fast, and when he was stopped by the traffic officer he got away.
THE PRESIDENT: He got away after knocking the policemen down, didn't he?
A No, he did not oush him down. He did not run anybody over. He went to fast, he drove to fast.
THE PRESIDENT: Well -
THE WITNESS: There is a law against that.
THE PRESIDENT: Is this man who hit a policeman with his first, and knowked him down, or is this another case?
THE WITNESS, No, no that is not the case. That is a violation of the traffic regulations, but the serious thing is that he got away, Fahrer-Flucht, drivers flight. During the trial Arends called me on the telephone, he was the secretary of the Hamburg Administration, nit a Party officiao, and asked me whether it was not possible to dismiss the case, because it was certainly not important enough. I refused to interfere, and told him he should wait for the sentence.
BY DR. WANDSCHNEIDER:
Q Was it tried, the case?
A Yes, it was tried, and Vaatje was sentenced by the witness Oelkers.
Q Did you speak to the witness after that, and when?
AAfter the sentence was pronounced I received a complaint by Kehre the Police President, a complaint about that sentence. I told the witness Oelkers explicitly that I agreed with the sentence, and he had also confirmed that statement of mine. I did not react in any way on that complaint.
Q And did the Police President complaint to the judge?
A Yes, I just mentioned that.
Q What did you do about it?
A Nothing.
Q That is to say, you did not do anything about the complaint?
A No, nothing at all.
Q And what happened thereafter?
A Reichstadhalter Oelkers called in again after the sentence had been pronounced, and asked me whether it was not possible to pardon the man. I told him that I was not competent to do that, that was a matter for the Senior Public Prosecutor, who was not under my jurisdiction. He then approached the Senior Public Prosecutor, and the Senior Public Prosecutor discussed the case with me, sometime later, and told me that Arends had suggested me as one to revoke the statement on the indispensibility of that man to be a soldier, that is, if one will let him become a soldier. He was a relatively young man, and under the circumstances it might be possible to obtain or to consider a conditional pardon of the sentence. About the conditional pardon I agreed. It was a relative trifle case and a sentence of a short duration. I think it was three or five months, I am not quite sure, and such decisions were made also in the case of people who were not party members by the Senior Public Prosecutor.
Q Dr. Rothenberger, therefore, was it your opinion that a man if he would be sent to- the front would be treated more correctly than if he would go to prison? Was that your opinion and was that the general opinion?
A Yes, concerning the nature of the offense, I think it was justified.
Q Did he go to the front?
A Yes, he became a soldier at once, and was also seriously injured.
Q How many minor cases where here in Hamburg altogether per year, according to your knowledge?
AAbout twenty-five to thirty thousand a year. I know because I had about twenty-five or thirty public prosecutors, and every one had to handle about one-thousand two hundred cases.
Q Now when you had cases in this connection, what other possibility existed for conflict between Party and Administration of Justice where you had to intervene?
A Counsel, that brings is to a new document, doesn't it?
Q No, not as yet. That document deals with the case of Kommerowsky.
A Kommerowsky, no, that is document NG-594, that is Exhibit 594.
Q Well, let us discuss 594; then.
THE PRESIDENT: Mr. Wandschneider, you ask your next question and the witness will answer whatever question you ask.
BY DR. WANDSCHNEIDER:
Q Will you please discuss Exhibit No. 594; Kaufmans's directives, relative or concerning the Party and Administration of Justice?
A Defense counsel asked me about the interference by the Party into the matter of Administration of Justice during all these years, and my answer was that apart from these apparent interferences, on the part of the Party other interferences were made impossible by directives on the part of the Gauleiter of Hamburg; one is from 1936, as the witness Fischer testified, and the other was submitted by the Prosecution, which is Exhibit No. 594.
Q Can you tell us briefly what that directives contains?
A The letter is from 3 December 1936, the letter was addressed to the President of District Court, and also letter of 9 December 1933, showed that upon my suggestion the Gauleiter issued a prohibition, that the Gauleiter offices were to get in touch with the courts directly on any questions whatsoever, giving his reason that an impression should not be made by any one to influence the courts.
I should like to base it essentially on these two directives by the Gauleiter, that courts in Hamburg did not have to fear any interferen ce. If any suggestions were to be made by the Party in Court matters; then according to that directive, they had to turn to me.
Q Were there any other difficulties which arose between the Party and the Administration of Justice as a result of political evaluation?
A That also can be seen there in the document submitted by the prosecution in NG-594, the letter of 8 September 1938.
THE PRESIDENT: We will recess until 1:30 this afternoon.
(Whereupon recess was taken to 1330 hours, 24 September 1947).
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 24 Sept, '47)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
DR. WANDSCHNEIDER: Thank you.
BY DR. WANDSCHNEIDER:
Q: Dr. Rothenberger, you have not discussed one case which Dr. Oehlickers described here, which relates to the affair of the Reichsstatthalter Kaufmann in 1936 or '37, an intent to quash a case. Would you tell us please what exactly was that case, and what you had to do with it?
A: I myself knew nothing about that case until now, when the witness Ochlickers here testified that the Reichsstatthalter's office had asked for some files, via the office of the District Court of Appeal, in connection with a case, where an Inn proprietor of which was a social democrat, had been damaged in some way. The witness further testified that the Reichsstatthalter had sent a message to the effect that he intended to suggest to Hitler that the proceedings be quashed.
THE PRESIDENT: When you are testifying, Dr. Rothenberg and the record shows how an Inn was damaged, why don't you be frank about it, and tell us what the facts were, if you are prepared to do so, instead of saying it was damaged in some way. What did you really mean?
THE WITNESS: I don't know....
THE PRESIDENT: What does the record show?
THE WITNESS: Unfortunately I have not yet received the transcript, and, therefore, I don't know exactly what it says in the transcript. I don't know in what way that Inn was damaged.
BY DR. WANDSCHNEIDER:
Q: What did you have to do with the case?
THE PRESIDENT; You are prepared to testify about it, are you?
THE WITNESS: Yes, I am but unfortunately I have not got the transcript of what the witness said.
BY DR. WANDSCHNEIDER:
Q: Did the matter go through your office?
A: Yes.
Q: The Reichsstatthalter wished to quash the proceedings. I believe when you spoke about the term "quashing" before, you did not make yourself quite clear. Will you please tell us what quashing means as compared with discontinuing proceedings?
A: It is the right of the head of the State to quash proceedings from the beginning until the end, that is to say he may quash proceedings at any stage. That right in Hamburg formerly was exercised by parliament since tho year 1353, it was the Reichsstatthaltcr who exercised it, and, on 1 February 1955, that right was transferred to Hitler for tho whole of tho Reich. I have examined that again.
Q: Now I am passing on the Komerowsky case, that is Exhibit 597. This is an order, a communication from President of District Court, Korn, in connection with the law agains Poles. Please comment on that document.
A: May I first of all continue to talk about NG--595, where we were interrupted by the lunchtime, I am referring to the case of political unreliability.
Q: Yes, will you tell us about the matter of political unreliability?
A: Concerning the question of political unreliability, in NG-594, I have not yet made any comments. That concerns tile question that courts frequently wore compelled to examine the question of political reliability of an Individual.
That question arose in the case of offenses against the malicious Acts Law, settlement of debts, appointment of guardians, appointment of executors and so forth. In such cases there was a possibility that great conflicts might arise between the Party and the courts because the Party took the view that the courts were bound by the opinion expressed by the political agencies, and that the courts did not have the right to request that actual evidence be submitted to them, as to why an individual might be politically unreliable. So as to prevent the political agencies from exercising any pressure on the court, in connection with these questions, I issued an order which is contained in NG-594, in the letter dated 8 September 1933, in that I stated that the right to express a political evaluation was exclusively the right of the court, and secondly, that a general opinion as to whether an individual was politically unreliable was not sufficient for a decision by the court to be based on it, but that actual evidence had to be produced, so as to give the court an opportunity to examine the matter. In or or to eliminate these difficulties, I in my order further stated that if there was a difference of opinion, the political agencies were not allowed to approach the courts, but were to approach no personally, so as to local avoid differences of opinion.
Q: Now tell us briefly whether in principle and, generally speaking, proceedings were instituted and carried out against Party members?
A Yes, in all the years in which I was in office in Hamburg all proceedings against party members, with the exception of the three who have been mentioned here, were carried out. I could give you quite a few names, but some of the witnesses have already done so.
Q I am now passing on to Exhibit 597 which I mentioned before. This is the Komorowski document where the President of the District Court Korn expressed his opinion on the law against Poles. Would you please comment on this document, Dr. Rothenberger?
A In the letter dated 6 May the President of the District Court says that at a meeting of judges which was held the day before, that is to say on the 4th of May, he had emphasized that severe measures were to be taken against Poles and that on the basis of a judgment which is attached here, where a Pole who had committed sexual offenses on children had been sentenced to two years in a penitentiary. The witness Waldo expressed the supposition - no, no, I beg your pardon, it was the Witness Timmerman who said that he assumed that this matter had been discussed at a preview or a review which I attended. However, that is wrong. The preview and review method was ordered by me on the 4th of May, that is to say only one day before, and on the day in question neither a preview or review was held as yet. This was merely the personal opinion of the President of the District Court, Korn.
Q In your view did the law against Poles play any part in Hamburg at that time?
THE PRESIDENT: Didn't you ask him that question in your original defense?
DR. WANDSCHNEIDER: No. Originally the law against Poles was not discussed here. The question only came up in redirect examination, in rebuttal.
A Naturally it was in force in the whole of the Reich, but in of effect in Hamburg, as far as I know, the question of the law against Poles never arose.
Q (By Dr. Wandschneider): The subject of that decree, was it ever discussed in the preview or the review!
A Never, and even this individual case has nothing to do with the law against Poles. Therefore I had no opportunity to express my view on that question. The reason was that Hamburg is a large city and is situation in the northwest of Germany, and that, therefore, only a very few, if any, Polish workers from the eastern territories were in Hamburg.
Q Were you otherwise anxious to obtain several, sentences in political cases?
A I believe in my direct examination I testified to that and said that was not so.
Q Do you moan to say no?
A Yes, my answer is no. Several times in writing Freisler I listed a number of cases. In a request dated 18th May, I asked for these cricisims to be made available here but unfortunately they have not been received. I never took any steps in connection with that cricicism.
Q Was that criticism exercised in '42 and '43?
A Yes, most of that criticism was exercised in those two years.
Q Would you now please comment on Exhibit 587, Dr. Rothenberger? That is a letter from Reichsstatthalter Dr. Kaufmann addressed to you. It is a report on special court cases.
AAt the beginning of the war Kaufmann became-Reich Defense Commissar for Military District 10. In that capacity he was given the right to request information from all adminisrative agencies. As far as I remember, it was at my suggestion that he transferred that right to me in relation to special court cases. I was interested in that matter so as to avoid assistants who had nothing to do with the Administration of Justice dealing with such special court cases.