Transcript, page 5039, German Transcript page 4955). Thierack in his capacity as Reich Minister of Justice was therefore deprived of his authority over the institution. Himmler and the Reich Defense Commissioner stepped into his place instead. Hanssen, the General Public Prosecutor with the Kammergericht, who was in charge of the institution as well as the director of the institution himself were legally subordinated as regional authorities to the Reich Defense Commissioner (Compare Klemm Exhibits 6, 7 and 8).
According to the testimony of the witness Herget (English Transcript page 9337 and the following, German Transcript page 8945) his office in Frankfurt a.d. Oder received the order for the execution from the Reich Security Main Office in Berlin. It was only this office which was in a position to give instructions to the Gestapo Office in Frankfurt a.d. Oder. The order itself could have reached the Reich Defense Commissioner. What part Hanssen may have had in this matter is not quite clear. The witness Herget only knows that allegedly there was talk about a General Public Prosecutor without his name being mentioned. Herget only assumes that it was Hanssen, although there were two General Public Prosecutors in Berlin. He also stated clearly that in his opinion - and as a member of the Gestapo Office Frankfurt he was particularly legitimized to do so - a General Public Prosecutor was not in a position to give any orders whatsoever to the Reich Security Main Office (Engl. Transcript page 9342, German Transcript page 8950). The statement, which was made by the Prosecution yesterday, according to which the command to the Gestapo in Frankfurt a.d. Oder had originated not with Himmler but with Hansen is out of the question. The witness Herget should know that better. Chief of the Reich Security Main Office was also Himmler. Himmler at that time was not only chief of the German police, but apart from other functions he was Chief Military Commander in the operational areas of the so-called Weichsel Army.
The Prosecution wishes to prove that the Reich Defense Commissioner had had no authority during the last days of the war to give commands. The Prosecution wishes further to prove that Stuertz too, as Reich Defense Commissioner of Brandenburg had not been able to give the directive in question to Hansen from the organization of the agency participating as it existed at that time. The Prosecution believes to be able to refer to Exhibits of Klemm. presented by myself, namely Nos. 6 and 8. It desires to gather from that that the Reich Defense Commissioner had issued no directives; it had not been authorized to issue any directives to the Supreme Reich agencies including the Reich Ministry of Justice. Furthermore, the Prosecution has failed to completely read the submitted exhibits 6 and 7 and to a certain extent 8m namely, to read them thoroughly. Otherwise, there is no doubt that the Prosecution would have found the provisions of Paragraph 4 in Klemm Exhibit No. 6 and also the paragraph bearing Roman five in Klemm Exhibit 7. It says there explicitly. I quote: "That in the operational areas an arrangement made for the executing authority was not touched thereby". Therefore, in both exhibits it says literally, both in references to the Reich Defense Commissioner as well as the appointment of commissioners as deputies of the Reich Defense Commissioners; Klemm Exhibit 8 also yielded with certain technical details and does not touch any arrangement made for the operational area. The submitted evidence clearly proves that the area to which Sonnenburg belonged had becone operational areas in the middle of January, 1945. Thereby all executive authority and commands were transferred to Himmler as the military commander in chief. The Reich Defense Commissioner was solely dependent upon his orders and directives. Based upon the decree on appointment of the Reich Defense Commissioner, which is Klemm Exhibits 6 and 7, he had the right to issue directives to all civilian agencies of his area. It is a fact, therefore, that the channels from the Reich Ministry of Justice, as supreme Reich agency was interrupted by declaring the area to be an operational area and was no longer subject to the Reich Minister of Justice, but exclusively to the Reich Defense Commissioner.
This is also proved by the statements of Eggensberger who spoke of a decree of the Reich Defense Commissioner Stuertz to Hanssen. It would have to be clarified how it was possible that Hanssen even mentions the name in the telephone conversation. This legal situation also conforms with the information Thierack gave to Klemm, namely, that Himmler in his capacity as military commander had placed the institution Sonnenburg under his jurisdiction and that he, Klemm himself, as Minister, had no longer anything to decide about Sonnenburg. Additional support to the correctness of Thierack's information to Klemm is given in the conference which Thierack held with his department chiefs on 31 January 1945 (Exh. 45) and in which he expressly stated that evacuations within the theater of operation are prohibited by military authority and that thus his jurisdiction had ceased to exist. Finally, this corresponds with the statement which Thierack allegedly made to Hecker when the latter called him, namely that Sonnenburg should defend itself. That was in conformity with what Thierack had made known to Klemm in the middle of January 1945.
When, on the other hand, the witness Hecker in his affidavit (Exh. 427) has stated that the Gestapo measures in Sonnenburg were based on an agreement between Stuertz, Hanssen and Klemm, according to a telephone note he made when he talked over long distance with Hanssen, then this statement is incorrect and irrelevant. Aside from the fact that Hecker could have no direct reliable information on the exact tenor of the conversation by phone since he himself was not a partner of this conversation, Hecker, when being crossexamined, was compelled to modify his statement to the effect that Effensberger's note supposedly read: "Klemm was informed in some manner". (English Transcript page 3070 and the following, German Transcript page 3032 and the following). The examination of the 15 0ct.
-M-BX-5-8-Sampson (Int. Steuer) witness Eggensberger, who had personally talked to Hanssen and who had made that note has already clearly shown that things were not as Hecker had claimed he had kept them in his memory.
Eggensberger has rather expressly confirmed (Engl. Transcript page 3084, German transcript page 3047) that Hanssen had talked to him about a decree of the Reich Defense Commissioner and this reference would, of course, correspond to the legal situation as already described by me and the development of the military situation.
It only remains to be clarified how it happened, that Hanssen in his long distance call with Eggensberger mentioned the name of Klemm at all. No direct proof has been offered that Klemm was actually informed or must have been informed of the events. Klemm has affirmed under oath that he has heard nothing of this matter. No witness can testify that Klemm had mentioned to him any knowledge of this matter. Neither is there a document in existence by which it could be proved that Klemm was informed. The only remaining circumstantial evidence is the telephonic message taken by the witness Eggensberger that Klemm was somehow informed. Hecker's confused report about his numerous telephone conversations cannot be utilized. From Hooker's statements it can only be gathered that he must suffer from lapses of his memory; nevertheless, that much can be gathered from it that Hanssen in talking to Hecker referred to a discussion which he had had with Klemm. This now is in conformity with Klemm's affidavit, according to which he had a discussion with Hanssen after the middle of January, however only on the subject that Sonnenburg has ceased to be under the jurisdiction of the Reich Minister of Justice, and was now placed under Himmler as military commander-in-chief and the Reich Defense Commissioner.
THE PRESIDENT: We will take our morning recess at this time until 11 o'clock.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. SCHILF: This conversation which I just mentioned did not at all touch upon the question of what should be done with the prisoners in Sonnenburg. It was strictly confined to the subject of the transfer of jurisdiction from Thierack to Himmler and that Himmler intended to include the institution into his operational defense plans. That Klemm could not have known anything, at that time that the Gestapo was supposed to cooperate in the evacuation of the institution is revealed by the fact that in one of Hecker's phone calls Thierack explained to the latter that the institution would not be evacuated, but would have to defend itself.
The mentioning of Klemm's name in this long distance call is there fore based only on the previous discussion between Klemm and Hanssen, the subject of which however, was only the transfer of jurisdiction from Thierack to Himmler. In this respect Klemm was of course informed. However, there is nothing to prove that Kleemm was informed of the order for execution by any office whatsoever.
It is now striking that Hecker, in his capacity as expert for the evacuation of penal institutions, apparently did not forward the telephon message which he received from Eggensperger. At least, he did not present it to Klemm, as he testified himself on the witness stand. If that had been the case, everything could have been clarified already at that time, since, due to the fact that the message contained Klemm's name at all, Klemm could have cleared up the matter with Hecker, with the other participants and also with Thierack. Neither has Hecker during his examination as a witness stated that he attempted to inform the Minister. Nor did he recall having discussed the further developments of the matter with anyone else except Eggensperger That can perhaps be explained by the fact that Hecker, at that time, also was of the opinion that the judicial authorities have ceased to have jurisdiction over the institution Sohnenburg and that the institution was under the jurisdiction of the Reich Defense Commissioner and the General Public Prosecutor, subordinated to him.
If Hanssen in his long distance conversation with Eggensperger only intended to inform the latter that Klemm was informed about the changes in command over Sonnenberg, then the mentioning of his name was justified. If, however, Hanssen's message to Eggensperger was meant to convoy that Klemm was informed of the intended executions, then it would have been a lie. From Eggensperger's testimony it does not become evident which of the two informations Hanssen intended to give to Enggensperger.
Eggensperger has also clearly stated the reasons for it. Inasmuch as Enggensperger could comprehend Hanssen's message in the latter sense he immediately received this message with the greatest suspicion. He immediately suspected that Hanssen pretended to him that Klemm has approved only in order to evade a debate over possible objections on the part of Eggensperger. To Eggensperger it was also clear that not Klemm in his capacity as State Secretary but only Thierack in his capacity as Minister should have been informed on this question. Eggensperger has further testified that, knowing Klemm's attitude, he could not think him capable of having discussed with Hanssen the intervention of the Gestapo, "English transcript page 3084 and the following pages). It is impossible to give an explanation as to which meaning Hanssen's message may have had to Eggensperger since neither Eggenspergor nor Hecker have talked to Klemm about the matter after this conversation.
Should it then not be clear what the meaning of Hanssen's message to Eggensperger was, that means about what Klemm was already informed? I shall proceed from the unfavorable alternative assuming that Klemm was informed that "prisoners should be turned over to the Gestapo". If we impute this meaning it remains to be explained how Hanssen could have made such a statement.
He received his instructions no longer from the minister but from the Reich Defence Commissioner. At the same time he attempted to be covered by the Ministry and thought that he could accomplish this best by simply telling Eggensperger that Klemm was informed. Thus he did not only cut off further questions but at the same time he reasoned that he had complied with his duty of reporting which was expected of him. Not only Eggensperger's own testimony (English transcript page 5321, German transcript page 5220) but also Hartmann's (English transcript page 9038, German transcript p. 8659) also Buchholtz's (English transcript page 3721 and the following pages, German transcript page 3683 and the following pages) as well as the testimony of Klemm, give a clear picture of Hanssen's character and person and how he must have conducted himself in this case. When differences occurred with his subordinate referents in the ministry, Hanssen disdained to discuss his affairs. In order to cut short objections of subordinate authorities, he was in the habit of referring to an approval of the minister or the under Secretary, already on hand. Since Eggensperger knew this, he was immediately suspicious when Hanssen mentioned the name of Klemm.
The witness which were mentioned just now unaminously call Hanssen an especially ambitious, cold and fanatical person, who did not want to have his plan crossed. Thus it was actually the best thing to disregard Eggensperger simply by referring to the knowledge of an official who was superior to Eggensperger.
Whether he approved of Stuertz's decision, whether he participated in any way in the mass-murder, or whether he believed to be unable to prevent anything, remains unclarified.
These deliberations too - provided that Hanssen's information to Eggensperger should apply to the second alternative - show that nothing can be taken for eliciting the truth from such an uncertain statement.
Therefore nothing remained of the assertion of the Prosecution, except things which the two witnesses Eggensperger and Hecker could know from hearsay only. In this connection, it is important to point out, that Hecker in his affidavit (Exh. 427) showed the things at first in a different light, but has been clearly refuted by the witness Eggensperger, who himself had had the talk with Hanssen. Nobody could give an indication whether the things of which Hanssen allegedly informed Eggensperger, actually corresponded to the truth. According to all the circumstances which became evident, it may have been possible that Hanssen intentionally expressed himself to Eggensperger in an obscure manner, so that only presumptions and vague conceptions of this complex of facts arose already at the beginning, that is during the conversation between Hanssen and Eggensperger.
According to the legal situation as well as with regard to the actual development of affairs, Klemm could objectively exert no influence whatsoever, because 2 weeks before the execution was carried out jurisdiction for issuing orders were changed in such a manner that the Ministry itself no longer had any authority to issue orders. Therefore it is unimportant to deliberate whether Hanssen wanted to cover himself completely by making this remark. According to the documents submitted by me, Hanssen was subordinated to the Reich Defense Commissioner. Thus he was covered sufficiently, if by any chance he wanted to exculpate himself from the murder in Sonnenburg.
As Klemm did not know anything at all about the affair (Statement Klemm English transcript page 5038, German 4954) he bears no responsibility whatsoever for this horrible act. I consider it my duty to establish that the attempt of the Prosecution to construe a joint knowledge or even a participation of Klemm with an inadequate circumstantial proof-namely the phone call between Hanssen and Eggensperger-was not only a complete failure, but that, under consideration of all cir cumstances, this affair could, on the contrary be clarified positively in favor of Klemm.
The Prosecution believed that it had additional facts for submitting its evidence in the Sonnenburg case. These were the directives of 17 January 1945 concerning the execution of death sentences which were signed by Klemm by order of the ministry (Exh. 530). The Prosecution believes to see in the regulation, which says that in case an execution cannot be carried out with the guillotine, it may be carried out by shooting by a detail of the Wehrmacht or the police, proof of the fact that these directives were actually applied here.
These directives have no connection at all with the Sonnenburg case. This is clearly evident from the statement of the directives had been drafted (English transcript.... German transcript page 6000) as well as from the testimony of the witness Eggensperger, who had practical knowledge about this matter (English transcript page 5310 and the following, German page 5210 and the following). The directives order, as is the case everywhere for the proper execution of all punishment imposed, in which manner, among others, a legal death sentence is to be executed, if a mitigation of the sentence has been refused in the clemency procedure. These regulations do not contain the slightest trace of a permission for police departments to shoot prisoners who were only sentenced to imprisonment. The directives were compiled by department IV for criminal jurisdiction that is by an entirely different department than the department V, which was competent for the Sonnenburg case. They do not contain any important changes with regard to the former legal position, they only took into consideration certain measures made necessary by the wartime conditions without one being able to see the slightest inhuman act in these regulations.
The additional document submitted by the Prosecution concerning the directives for the evacuation of penal institutions (Exh. 290), which could, per chance, be connected with the Sonnenburg case, also contains nothing which could incriminate Klemm.
If it is ordered in these directives that in case of the evacuation of the prison institutions prisoners may also be handed over to the police for execution, it is very doubtful whether these directives were issued at all by the Ministry of Justice. The usual heading "the Reich Minister of Justice" is missing on this document, there is no file number, no date and no signature. In order to prove a legality these prerequisites would have been required, as it proved by the circular decree which follows this document. In view of the significance and importance of this decree it has been signed by Thierack personally, and in its contents it clearly contradicts the mentioned sentences of the so-called directives. The two witnesses Eggensperger and Hecker, who were members of department V which was competent for this matter, stated under oath that they never saw these directives. Thus there is no other conclusion left but that this is a rejected draft of an official of department V or even of the department chief Engert himself. If this affair would at all have gone to the higher officials of department V than at the most Thierack himself would have been informed by Engert and directly so. Thus Klemm's statement under oath in which he states that he had no knowledge at all of these directives and the letter of 12 May 1945, cannot be doubted. He himself stated details, which support his statement (English transcript page 5036 aqq., German 4951 ssq.)
Neither can Klemm be reproached in any other respect, by saying that he violated any duties in connection with department V, which was subordinated to him on paper only it was not his duty to supervise the work of this department. Hecker, who worked for the longest time in department V stated that in practive, Klemm was not concerned with the work of this department (see statement Hecker, English transcript page 4832, German, page 4756). This corresponds with Klemm's statement (En glish transcript 5092, German page 4944). Insofar, as he concerned himself, out of definitely private initiative, with the two penal institutions (Bautzen and Rothenfeld) he exercised special consideration and charitableness in the issuing of orders (Statement Klemm, English trans cript page 5184, German page 5092, and statement of the witness Reichert Kl. Exh.
64).
Neither can a reproach be made on account of Exh. 300 concerning the food in the penal institution. Symptoms of collapse which increased considerably everywhere in Germany and also in the penal institutions as the end of the war drew nearer, cannot be charged to the responsibility of the Ministry of Justice. That these were only symptoms of the military collapse in Germany as far as these matters are concerned, and that prior to that the conditions in the prisons were definitively irreproachable is clearly proved by the statements of the witnesses for the Prosecution Erey (cross-examination to Exh. 494, English transcript page 3972, German 3992) and Schirmer (cross-examination to Exh. 272, English transcript page 3954, German page 3905 ssq.)
Thus it is not proved that Klemm violated the principles of humanity at all in this connection, moreover according to the defense documents quoted by me up to now, the contrary has been established.
V. If I turn to the question of the lynching of aviators as the next problem, it seems to be necessary to state what we know now about the development. Before the administration of justice was confronted with this problem at that time it was discussed by Hitler in the closest circle of his advisors in military matters and questions of foreign policy. (Exh. 108, 109). For the consideration of our case it is unimportant which facts concerning the actions of Allied aviators violating International law have been established at that time. (see statement Fritzsche, English transcript page 5216 ssq. German, page 5120 ssq.) The consequence of the discussion in Hitler's closest circle was in any case the order given by Himmler in form of a secret decree already in August 1943 to all police departments subordinated to him to the effect that the police should not interfere with so-called quarrels of the population with enemy aviators who had bailed out.
(K1. Exh. 68 a). It is correct that by this order the population was left free to apply lynch justice. Only on 30 May 1944; Bormann addressed all Gau and District leaders, also in a secret decree, in which he informed them of cases where lynch justice was already applied and where he talked about the fact that the people who participated in those cases were not to be prosecuted. The wording is in the past tense. (Exh. 109,110) The Justice Ministry saw a copy of this letter for the first time when it was submitted to it through the Reich Chancellory (Lammers); Lammers left it to the Ministry of Justice to inform now also the Courts and the Prosecution authorities. On this letter Thierack wrote in his own handwriting an order to the competent department IV of the Ministry, to draft a circular decree concerning the notification, but at the same time with the instruction to submit to him all cases for a decision by himself in order to enable him to examine whether a quashing in the sense of the clemency decree could be justified. In the meantime Goebbels had published his article in the "Voelkischor Beobachter'' (Exh. 417). In this article Goeggels threatened that a time would come when the Wehrmacht or the Statr would be unable to protect the shot down aviators against the lynch actions of the population. The affidavit Bejlowec (Exh. 440) shows that only a considrable time after this article of Goebbels, department IV issued the circular decree as a secret order. The original of this decree which was issued to the highest judicial authorities and to the General Public Prosecutors has not been submitted. Neither did Klemm ever see it. He only acknowledged Thierack's order to the effect that department IV was to issue such a decree (see statement Klemm, English transcript pages 5050 sqq. German pages 4964 ssq.
and English transcript page 5148, German, page 5056). The statement of the witness Hagemann shows furthermore that there existed the possibility that the final wording of this decree, as it was submitted to the subordinate offices by department IV, did not mention, at all the purpose of the duty to report, that is the examination for a possible quashing. (Statement Hagemann, English transcript page 9304, German page 8914). That prior to the notification of the Minister by Lammers a "criminal" prosecution did not take place - as Bormann informed his Gauleiters - is in any case not correct in this wording. It may correspond to the actual facts of the case only insofar as, on account of Himmler's order to the police of August 1943, the police, apparently from this time on, totally refrained from reporting such cases or from passing on any information in this respect to the authorities of the administration of justice. Only on account of the fact that Justice authorities had no knowledge about these matters was it possible that no criminal prosecution took place and not because the authorities of Justice on their part did not carry out their duties. Prior to the decision of Bormann of which the Ministry was informed by Lammers, no reports of cases where lynch activity was not prosecuted, were submitted to the Ministry and definitely no such cases were quashed by the Ministry. This is also confirmed by Exh. 252 and by the lists of reports, the thorough examination of which showed that not in one case discussions to that effect took place in the Ministry. It is possible that Bormann was of the opinion that similar to Himmler, Justice authorities too had decided on a similar decree for their subordinated departments. But this was not the case. Lammers being aware of the actual connection informed Justice only later on and Thierack also gave no instructions equal to Himmler's orders, namely to refrain from criminal prosecution, but he ordered a special duty to report, so that he would be able to decide on the cases himself. Already by demonstrating the objective side of the case the conclusion may be drawn that for the authorities of Justice the commission of a war crime or a crime against humanity is to excluded.
Inasfar as killings of bailed-out allied aviators took place after the issuing of the circular decree by Thierack no authority of justice could meet the participation clause mentioned in Control Council Law No. 10. The Prosecution attempts to construct such a participation, by trying to accuse Justice of an incitement to murder by indirect actions namely on account of the fact that Justice did not prosecute those persons who become guilty by committing such acts.
But this could only be in question if the Justice authorities had assured the perpetrator, in a way known to them, that they would not prosecute the punishable action before he committed it. An instigation, connected to the action like cause and effect, could only then be considered. But even an existing intention not to prosecute such actions could not be made accessible to large circles of the people.
It follows unequivocally from the affidavit Bejlowicz (Exh. 44O) and the deposition of Hagemann (Transcript Engl. page 9308, German page 8917) that the subaltern offices of the Ministry actually treated the circular order as secret. Only the highest offices of the justice in every district were informed at all, and it is out of the question that large circles of the people could know of this secret order. It was an internal affair limited to a narrow circle. The way the judicial authorities acted could consequently for this reason never be connected causally in the sense of the regulations of the Criminal Law to cases of lynching which happened later. Any crime against humanity and the laws of war is moreover still excluded in our case by the circumstances that it is impossible to start from the fact that the Justice authorities were willing at all to stop the criminal prosecution against the German population. If the circular order issued as final contained literally 15 0ct-M-FL-7&8-11-Cook (Int.
Hahn) the addition that "for the purpose of examining the discontinuation" reports should be made.
Thus this means something absolutely different from what the Prosecution believes to be able to assume, Himmler's ordinance to his police and Bormann's ordinance to his highest party functionaries was taken very seriously by these authorities. They actually wanted to suppress entirely the criminal prosecution of such cases. There have also become known details from the deposition of the witness Hagemann as to how police and party offices stood up against the justice authorities.
I, now, interpolate No. 30. As yesterday's final plea shows the Prosecution intends to construe something entirely different from the testimony as the witness Hagemann heard it and construed it, and as it is quoted from this testimony in it's final plea, and I quote from the final plea:
"He, that is Hagemann, one evening had Kluettgen with him for dinner. Kluettgen, at this passage in the transcript, - it is on page 9309 of the English text, - however, said the following, and I am comparing the note to this passzge on account of the statement made by the Prosecution in their final plea, which I fail to understand entirely and I quote:
"I asked the legal adviser of the SA if possible to ask Kluettgen to come to see me. To begin with Kluettgen had been working in the District of Brandenburg, but later he was transferred to the Aachen District, and there he had to deal with transportation questions. One Saturday he came to see me at my apartment, when he was at Duesseldorf in line of duty. I was at home and sick, I talked to him on that occasion, but I was not very favorably impressed by him."
And in reply to a question of defense counsel?
"Q.- Did you not have the opportunity to arrest Kluettgen immediately", he replied:
"A.- No, I did not have that opportunity. I was alone in my apartment, on that Saturday in question and I did not have any weapon at my disposal".
I do not have the time here to deal with the further discrepancies of the Prosecution testimony on the witness Hagemann. His testimony is especially supported by the files of the Military Tribunal at Dachau which arrived within the last days and which I could introduce as Exhibit 82. The details reported there speak distinctly for themselves. The report of Public Prosecutor Steiner of 20 September shows with what energy he tried to arrest the perpetrator for two murders and bring him before the Senior Public Prosecutor at Kleve.
I now quote the Steiner Note. It is document book No. 10, supplement, English Text page 13: "The Public Prosecutor Steiner has gone to Duesseldorf and there on the 21st of September he made a personal report on the case. The Reich Ministry of Justice and as far as I know the Ministerial Dirigent in question from Dusseldorf were informed of the decision and they shared the view that proceedings against Kluettgen must be carried out and a warrant for his arrest must be issued.
This Public Prosecutor also tried to get a warrant For arrest through the Wehrmacht.
The notice of the Public Prosecutor van der SMISSEN of 23 September 1944 shows also that the Ministry of Justice took the position that the proceedings against KLUETTGEN should absolutely be carried out. The letter of the Senior Public Prosecutor KLEVE to the Chief Public Prosecutor Daessoldorf (that was the witness HAGEMANN) mentions a communication of the Kreisleiter (county leader) of KLEVE that he stood by his refusal although the interrogation should take place on the "order of the Peich Minister of Justice". It also follows from the other documents submitted in KLEMM Exhibit 83 that the Ministry and the Public Prosecutors concerned tried at that time immediately and with emphasis to prosecute the guilty persons in opposition to the party and the police authorities. It follows unequivocally from the affidavit WILKERLIN (KLEMMExhibit 66), the affidavit PRFISER (KLEMM Exhibit 69) and also from the depositions of HARTMAN on the witness stand (Transe. English page 9016, German page 8656) and MITZSCHKE, (Trans. Engl. page 9318, German page 8926 and the following page that the Ministry was in no case willing to simply put up with the practice of the police and the party officials. It endeavoured on the contrary to completely clarify every case and also to be enabled to proceed regularly through this. KLEMM can also claim credit for even having been most active in this respect. He gave the special order to the witness MITZSCHKE to make the Chief Public Prosecutor in Munich prevail upon the police to render the reports on the facts (Transe. Engl. page 9316 and the following pages, German page 8924 and the following pages). Neither do the notes of the witness HEIM show anything different (Exh. 529). It is expressly written there that in this case "a report on the action on the part of the police must absolutely be submitted". HEIM noted there especially that this was the decision of the State Secretary KLEMM. The following reason do s not belong to the instruction by itself. HEIM expresses by it only what he wants to be understood as special reasons on the basis of a discussion with MITZSCHKE personally. MITZSCHKE deposed as witness that the order given to him by KLEIM was absolutely unequivocal and was supposed to comprise all cases in which Lynch justice had taken place.
But for the reasons given by HEIM it is decisive in what position the administration of Justice was placed against the powerful functionaries of HIMMLER and BORMANN. The general mood in the high st offices did not permit the Ministry of Justice to issue any ordinance at all which openly stated the contrary of what was wanted by the police and the party. On the other hand it was impossible to let the small Public Prosecutors in the provinces fight without any prospect for success against the all--powerful police and party mechanism. The Ministry had to be able to support it with its authority, which in itself was not very strong. If the individual Public Prosecutor wanted the police to carry out a criminal prosecution or at least to obtain files, he could do so best by demonstrating the necessity of a regular closing of the proceedings and pointing out at the same time that tho possibility for a discontinuation existed under the legal regulations. HEIM's notes as well as the order by THIERACK must be appreciated under these actual and psychological conditions. According to tho legal position the possibility also existed theoretically of discontinuing the proceedings in special cases. This follows from the regulations concerning clemency matters (Gnadonordnung) according to which the had of the State - later also the Minister of Justice as his delegate - had the right, under certain legal, exactly defined conditions to discontinue proceedings. (cf, KLEMM Exh. 38a to No. 18 of the regulations concerning clemency matters - Gnadonordnung).
"It cannot be denied that there arc cases imaginable, in which the Justice could rightly have discontinued the criminal prosecution against German perpetrators. But the prosecution did not submit a document from which it follows that such a, discontinuation through the Minister actually took place. It is therefore impossible to re-examine the individual cases in which THIERACK used his right to clemency.
And this would be necessary in order to deduce from it, reproaches against any official of tho administration of Justice, for cases such as the one described by the witness FRITZSCHE (Tr. Engl. page 5216 and the following page, German page 5120 and the following page) would perhaps have justified such a granting of clemency by discontinuation.
VI. As to the issuing of the decree on the Martial Courts of the year 1945 KLEIM acknowledged that he worked on it together with others. The Prosecution believes that it can consider this ordinance an instrument of the dictatorship of the party and SS which could be used to got rid of political opponents without having to observe any limitations. It especially seems to believe that the proceedings were lacking in all the most primitive rules of procedure. It obviously assumes further on that the Court decree introduced new norms with regard to material law. This conception is in contradiction to the history of this decree's genesis, the meaning, object and also the wording and the practice of the decree on the Martial Courts. As tho witness KRITZINGER deposed in his affidavit (KLEIM Exh. 68) and as KLEIM himself demonstrated by describing some individual cases (Transe. Engl. page 5065, German page 4980) it was on the contrary just tho objective of the decree on the Martial Courts, to prevent a wild party and SS justice and to make it impossible. Cases had become known in which district leaders (Gauleiter) and other higher party functionaries had for instance dared to have officials fleeing before enemy troops shot or hanged. The situation already showing the symptoms of the collapse must not be driven towards chaos. A legal allowance for the circumstance that the normal functioning of the Administration of Justice was not possible any longer, for the reason alone already that the connection to the central offices was severed. A solution could be found only by creating a Martial Court which corresponded to Military law and stated from the same conditions and premises. Of course the procedure had to be regulated in a more liberal way.
After all it could not be observed in the individual case whether precepts of criminal procedure as e.g. the rules for the serving of summons or its time limits could be adhered to under the given local conditions. But it goes without saying that this did not give the Martial Court the privilege to proceed arbitrarily to the defendant's distinct disadvantage. It remained bound to the basic principles of the German criminal procedure and had to pay attention to them. Nor did the decree on the Martial Courts contain any now specified evidences in regard to substantive criminal law. If the decree speaks of the necessity to pass sentence on actions which endangered the population's determination to fight it expresses in this only the circumstances, that actions other than those of this kind could not be judged by a Martial Court at all. It was therefore a regulation which limited the precepts of the Criminal Code. Whether the case in question was to be considered as such a ease at all was to be decided according to the criminal laws already existing. The defendant OESCHEY deposed in his testimony (Trans. Engl. page 8714 and the following pages, German page 8350 and the following pages) that the practice actually proceeded that way. There was in any cases as KRITZINGER and KLEHM attest, no doubt when the decree on the Martial Courts was created, that no new material criminal law should be introduced by it. The precept of the Par. 4 contained only a restricting limitation of the competence for the gravest cases Just as no aggravation of the material law by the decree on the Martial Courts took place so should also the defendant not be robbed of his fundamental right to defense by it.
"It is certain that the party element was at a distinct advantage by the insertion of the lay members of the court into the decree on the Martial Courts, however it would have been beyond the powers and possibilities of the administration of Justice to exclude it completely because the position of the administration of Justice was more under-mined in the Third Reich. It follows from the KLEIM Exhibit 68 that the party desired to play first fiddle to a greater degree still, than the decree on the Martial Courts permitted.