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.
passed on this order from the Reichsstatthalter, however, to the General Public Prosecutor.
Q And you asked him to pass on Indictments in important cases to you?
A Yes, I asked him to pass on the indictments in important cases to me.
Q Now, in conclusion I want to mention a few brief exhibits which were submitted individually. First of all there is Exhibit 633. That is a memorandum submitted in 1942 by the Hamburg attorney, SchueterHasenfeld, in connection with concentration camps. There is a note to the effect that in accordance with your instructions this matter was not to be followed up any further. Would you please tell us what that note was about?
A That is a file from the Local Court, and it was not addressed to me. The file from the District Court of Appeals was not submitted. A Hamburg attorney makes a report to the District Court to the effect that a Frauelain Wetzel had seen that various prisoners had been hit in the face and that a man of sixty years of age had been kicked in the bottom, had fallen down and had then been kicked again, with the words, "I suppose you want to do some gymnastics", and been made to stand up again. Furthermore a tall SS-man was supposed to have beaten up a prisoner with an iron bar. As always, I immediately reported to the Ministry about these cases, either in a situation report or in an individual report, because the jurisdiction concerning steps to be taken in connection with ill-treatment in concentration camps, since 1939. when the SS and Police jurisdiction was established, which has been mentioned in this trial before, lay exclusively in the hands of this SS and Police jurisdiction and was dealt with in Berlin generally speaking. I also informed the local agency in Hamburg. That was Streckenbach, the Oberregierungsrat, Senior Governmental Councillor. In this case I did not report to him, as you can see from the file, because in the meantime he had been transferred away from Hamburg, and I didn't know his successor, nor did his successor have either the authority to take any steps.
All he could have done was to have made a report to Berlin. The regular courts had no jurisdiction for such matters.
Q. In Exhibit 634, it is mentioned that it was intended to appoint Dr. Ruether presiding judge of the Special Court. Would you comment on that, please?
A This refers to a meeting which was held soon after the outbreak of the war on the 13th of September, 1939; at that meeting the new plant for the distribution of work was discussed. At that meeting I stated that the Special Court in future would be the most important court. I said so because with the outbreak of the war all the waxeconomy laws which have been discussed here, the decrees against violent criminals, against public enemies, against offenses against the war economy, came into force. That was why the special court, even in the case of a minor offense, committed while exploiting the blackout, achieved special significance.
Q In Exhibit 588, which was also submitted in rebuttal, there appears your letter to Freissler, dated the 13th of June, 194l. That letter also deals with the special courts. Would you please tell us briefly what points of view you applied when you expressed your opinion on the question of the special courts?
A This letter dates from the year 1941. In the course of the war, in view of the orders issued by the Reich ministry of Justice to the effect that the Prosecution could indict every case before a special court, the extent of the jurisdiction of the special courts had increased tremendously. In this letter to Freissler I made a detailed suggestion for a considerable reduction of the jurisdiction of special courts, and proposed that for all penal proceedings under five years in a penitentiary the regular courts should become competent again.
The reasons I gave were two-fold. I pointed out that the special court should deal only with offenders who were particularly connected with wartime conditions, that is to say, that they were to deal with people who, without any conscience, ruthlessly exploited wartime conditions, and that they were not to deal with minor offenses. My second reason was that for the person who was convicted the fact that he had been tried by a special court meant a double burden. On the other hand he was sentenced to a heavier penalty due to the provisions of the wartime laws, and, on the other hand, there was also the moral burden which was placed on him by hating been tried by a special court.
Q In Exhibit 636 you spoke about the significance of women joining the National Socialist women's organizations, the N.S. V. , etc. Would you please tell the Tribunal what you have to say about that?
A This is an order by the Reichsstatthalter to the chiefs of all administrative agencies which I passed on to my courts. It shows that the Reichsstatthalter attached importance to the female official and employees joining the N.S. Frauenwerke or the N.S. Frauenschaft.
Court No. III, Case No. 3.
Q You also attached importance to their joining those organizations?
A Yes, I did, because the purpose and the aim of these organizations was exclusively to assist those mothers who on account of the work they did outside their homes were no longer able to take care of their own children properly.
Q In Exhibit 635 it is stated that you were a member of the Volunteer Corps. Would you please comment briefly on that exhibit?
A Exhibit 635 contains the address I gave in Hamburg before I left. That is when I was transferred to Berlin. It maintains the fact that in 1919 as a student I was a member of the Volunteer Corps and that I took part in the overthrow of the Communist putsch in Bahrenfeld. That is quite true. An appeal had been issued by Nosske, who was the Reich Defense Minister at the time. He was the first Reich Defense Minister under the Weimar constitution. He appealed to all students to defend the Weimar democracy against the Communist rising in Hamburg. However, we hardly ever want into action because in the meantime a Reich defensie corps, Littow-Verbeck by name, had entered; and we m?mb?rs of the Volunteer Corps pnly stamd by.
In this speech, or, rather, in a newspaper cutting, it is mentioned that I joined the Nazi party before the Nazis came to power. In my direct examination I pointed out that was wrong. My membership number was anti-datid.
Q Now, in the last document, Exhibit 589, Dr. Rothanberger, Dr. Hartmann is mentioned. He was an expert, referant, with the Gestapo.
We have already been interested in this question in connection with the examination of the witness Dr. Hartmann as to whether he might have been the one. Ain't you comment on this document, please?
A Exhibit 589 shows that after a communication received from the Reich Lawyers' League, which had its seat in Berlin, the attorneys Dr. Auert and Koffka in a protective custody case had received the following information from Dr. Hartmann who was a referent with the Gistapo.
Court No. III, Case No. 3.
One could see clearly, therefore, that all this happened in Berlin.
Q Was Dr. Hartmann in Berlin at that time?
A No.
Q When did he go to Berlin?
AAll this happened in 1935. Until 1942 Dr. Hartmann was in Hamburg.
Q Thank you, I have no further questions.
EXAMINATION BY THE PRESIDENT:
Q I should like to ask you another question, Dr. Rosenberger. One of the cases to which you referred related to an assault and beating of an inmate, I believe, in a concentration camp, by a police official with an iron bar. I want to ask you, was there any court of any kind anywhere connected with the Ministry of Justice or the administration of justice under the Ministry which had jurisdiction or could acquire jurisdiction to try the police officer for such an act?
A No, the law about the establishment of police and SS jurisdiction has been submitted here.
Q I have your answer. You answered no. If the same apt was committed by a police officer in the same manner in a public place on the street but not in a concentration camp, was there any court anywhere in the Ministry of Justice which could acquire jurisdiction to try that police officer for that act?
A Yes. I am inclined to assume--Oh, if it was a police official, if the offender was a police official, no. If the offender was a police official, the answer is no in that case; that is to say, after 1939, after the SS and Police jurisdiction had been established.
Q After 1939?
A Yes.
CROSS EXAMINATION BY MR. KING:
Q This morning, Dr. Rothenberger, in referring to the Jansen Court No. III, Case No. 3.case you said that you had received a long letter from someone complaining about the manner in which Judge Winzenzen had handled that case, and that you took up the complaints and as a result of these complaints you had Judge Winzenzen transferred.
Do you recall from whom that letter came?
A I believe it came from the SA Obergruppe in Hamburg.
Q That's all on that. Was the judge in a case required to take all defendants under oath?
A There is no obligation to take a witness under oath. It is left to the discretion of the judge.
THE PRESIDENT: You meant to inquire about witnesses, not defendants, didn't you?
MR. KING: Primarily I had defendants in mind; the witnesses, too, if he cares to apply his answer to them.
A Only the witness. The defendant in Germany cannot be taken under oath at all.
Q In connection with the Vaatje case-
A What case are you referring to, please?
Q The Vaatje case. I understood you, Dr. Rothenberger, this morning say that the chief public prosecutor in that case was not under your direction; that he was not an inferior of yours. You didn't mean to say that, did you?
A Oh, yes; oh, yes, indeed.
Q Well, let's have a look at that situation. The chief public prosecutor was under Drascher; is that right?
A No.
Q Well, whom was he under then?
A Dr. Schubert. The name of the chief public prosecutor who was alone competent for that was Dr. Schubert.
Q Who was Schubert's superior?
A Dr. Schubert's superior was Dr. Drascher; and Dr. Drescher's superior was the Reich Ministry of Justice. That state of affairs has Court No. III, Case No. 3.been in existence since 1935.
The prosecution and the are two public agencies which are entirely separate from one another.
Q Prior to 1935 the situation was different? Is that right?
A Yes, it was.
Q You were the superior prior to 1935? Is that right?
A Yes, I was.
Q Now, for a good many years, Dr. Rothenberger, it is a known fact that you were Kaufmann's legal adviser. I presume you don't undertake to deny that now. When did you become his legal adviser?
A I can't tell you for certain whether it was in 1936 or 1937. One should be able to see that from my personal file. I can't tell you exactly now when I became Gaurechtsamtsleiter.
Q I have seen the reference a good many times, Dr. Rothenberger, and in a good many places; and I've never seen any other date than 1931. Is that in accord with your best recollection?
A That's wrong. On my direct examination I testified that before 1933 I didn't even know the Gauleiter, I don't think I had even seen him before that time. The remark to which you refer, which is supposed to have appeared in a newspaper, that I had been his legal adviser since 1931, is incorrect. You can tell that from my personnel files. Unfortunately they have not been shown to me.
Q How do you know I can tell that from the personnel files then?
A Because I know for certain that in 1936 or 1937 I became the Gaurechtsberater; and therefore it must be in my personnel files.
Q Now, in 1931 you wrote an opinion, did you not, on the NSDAP in which Kaufmann was interested? You mean to tell me at the time you wrote that opinion, an opinion in which Kaufmann was interested, you never met him; never saw him; never heard of him?
A I never expressed my opinion to him on the Nazi Party.
Q Well, he was involved; he was part of the picture when that opinion was written, was he not, in 1931, the opinion which you yourself prepared?
Court No. III, Case No. 3.
A No. No, I know nothing of that, that he is involved in an opinion which I expressed. I made detailed statements as to what my contacts were with the Nazi Party before the seizure of power. I said that in my direct examination. I worked with the parliamentary committee in Hamburg; and I got to know Eiwuerden. Those were the only contacts I had with the Nazi Party before the Seizure of power.
Q Will you please tall me if there was a competent -- if there was a competent court to try police officials before 1933?
THE PRESIDENT: Before 1933 or 1935?
MR. KING: Before 1933.
A Yes, I am pretty certain that before 1933 when the police had committed punishable offenses they could be prosecuted, but from memory I can't tell you with certainty, but I definitely assume so; I definitely assume so.
Q But you don't know what court that would have been, I suppose.
A That would have been the regular courts.
Q Can you define that a little more closely to your best recollection? If you don't know, you aren't required to answer, but if you do, I would like to know.
A Well, I believe the penal code of 1871 laid down the provisions for such cases.
Q And you can't do any better than that on the definition?
AAs to which article in the code it is, unfortunately I can't tell you.
Q I wonder, Dr. Rothenberger, if you would look at Section 153, Paragraph 2 of the Code of Criminal Procedure, and perhaps it would simplify matters if you would just road that -- that reference to the discontinuance of the proceedings which you referred to, I believe, briefly this morning.
THE PRESIDENT: You mean the quashing by some person other than by the court?
MR. KING: Yes. This is the reference to discontinuing of proceedings; I don't know whether it is quashing or discontinuance.
Will you read that, Dr. Rothenberger, please?
A Contrary to the quashing of which I have spoken of by the head of the state, or prior to 1935, by the Reichsstatthalter -
THE PRESIDENT: Are you reading the exhibit?
A No.
MR. KING: Will you read Section 153, Paragraph 2, Dr. Rothenberger?
A In Article 153 it says the following: If the guilt of the offender who has committed a crime is slight, and if the consequences of his offense are insignificant, the prosecution, with the agreement of the district court judge, may refrain from filing an indictment.
Q And that Section 153, Paragraph 2, to your best recollection, Dr. Rothenberger, was effective -- say from 1933 on throughout the period prior to the war and during the war.
THE PRESIDENT: What is the answer?
A Yes, yes.
THE PRESIDENT: That is not the section to which you referred is it, Doctor, on the basis of which Gauleiters could quash proceedings?
A No.
THE PRESIDENT: No.
A No, that is a different section. I have referred to this article in connection with the Jansen case. This was the reason the court gave for discontinuing proceedings against Jansen and also for discontinuing the proceedings in the Karotz case where Oehlckers quite rightly refused to agree to this measure being taken.