In no case was there talk of the necessity of passing sentence of death. Furthermore, it is not stated that the Chief Reich Public Prosecutor at the People's Court was directed to enter the special objection with regard to sentences of imprisonment. It is only pointed out that this ought to be examined by him. As a matter of fact, the extraordinary objection was not entered in any of the cases mentioned in the guidance letters. There is therefore nothing to be discovered in any respect which could be identified with a crime against humanity.
XI. The Indictment made no accusation against my client that he had supported illegalities where civil cases were concerned. During its hearing of witnesses, however, the Prosecution submitted documents Exh. 452, 453, 457, 460 with which they associated KLEMM. The latter adopted his attitude to all these documents as witness in his own case. (English protocol p. 5074 onwards, German transcript p. 4986 onwards). All doubtful questions were therewith cleared up and it only remains to repeat something in this respect.
The Prosecutor also submitted Exh. 348 against my client, a circular of HIMMLER'S concerning the removal of posters, in which Jews had been forbidden entrance to places of business and hotels. In this circular it was alleged that such indications were no longer necessary as there were no longer any Jews resident in the Reich territory. The Prosecution wishes, probably, to draw the far-reaching conclusion from this, that KLEMM knew already at that time of the extermination of the Jews and of the conditions in the concentration camps. I must refrain from going into general details concerning the actual knowledge of the general public in Germany at that time, concerning the fate of the Jews and the conditions in the concentration camps. I should only like to point out that the witness FRITZSCHE into whose ministry all news converged about which the German public was informed - and the officials of the ministry knew no more - gave detailed Court No. III, Case No. 3, demonstrations as to the cunning methods of secrecy under which the highest leaders of the Reich concealed their crimes (English protocol page 5208, German transcript Page 51l4 onwards), also in this connection (KLEMM Exh.
15) and affidavit MORGAN (PETERSEN document No. 107 and No. 111). It is not shown by any one of the documents submitted by the Prosecution that KLEMM heard anything more about the true fate of the Jews than the other officials in the Administration of Justice. KLEMM described in the witness box what he knew of the conditions in Theresienstadt (English protocol p......., German transcript p. 4931, English protocol p. 5181, German transcript p. 5089, English protocol p. 5194, German transcript p. 5100). He learnt less in his short visit to LEITMERITZ than, for instance, the witness MIETHSAM, who was active for months in LEITMERITZ in the vicinity of Theresienstadt (English protocol page 4880, German p. 4805). The Prosecution leveled no reproaches at these witnesses in this respect. I also refer you to the depositions of the witness HARTMANN in this connection (English protocol p. 9051, German transcript p. 8670). Neither had KLEMM received any knowledge of the measures for evacuating the Jews in Holland, especially of the proceedings which have been reproduced in Exhibit 605 and onwards (cf. deposition KLEMM English protocol p. 9383 onwards, German transcript p. 9868 onwards). Like millions of other Germans and by reason of the distorted methods of propaganda he was free to believe indeed that the Jews were isolated towards the East, in special towns, but he did not know that the intention was to exterminate them and that to a large extent they had actually been exterminated. Such deductions can never be made in KLEMM's disfavour from the exhibits. As I have already mentioned above, KLEMM cannot be brought into any sort of association with measures taken against the Jews by any offices whatsoever. Only that would be of relevance to the Court...
At the end of my statement I wish to go into further detail concerning a single point which is of importance in judging KLEMM as a person.
Court No. III, Case No. 3.
The Prosecution has confronted my client with a speech which he delivered in Weimar on 3 and 14. February 1944. In this speech, KLEMM stated that he had, when taking over the post of State Secretary, no program of his own, considering himself rather the first aide of the minister (Tr. p. 5157 of the English text, p. 5065 of the German version). It appears that the Prosecution means to infer from this that KLEMM thereby publicly professed to be an adherent of THIERACK's policy and acts. The statement as such is not to be considered particularly significant. It was in line with his standing within the bureaucratic structure of the ministry (cf. JOEL Doc. Book I No, 1, quotation of article 52 a of the standing orders of procedure within the Reich ministries). Still, the words used by KLEMM have a certain special implication, and this is the only reason for dealing with them at this juncture. They concern his relationship to the party and ought not to be taken out of this context. As a matter of fact, KLEMM protested against the insinuation that he had been transferred to the Reich Ministry of Justice as an expoment of the party, a rumor which the witness ALTMEYER, too, thought fit to mention in this court. It was this assumption which KLEMM wanted to keep at a distance. In fact, he hereby kept the party and her tendency for total power at a distance. It implies, therefore, a profession of the conception that justice was not to be directed by the party, which rather speaks in KLEMM's favor and was even courageous. It is the profession of a policy of justice in the sense of a state ruled by law. And the evidence clearly shows that such a profession was in line with KLEMM's attitude. The witness HARTMANN also gave an illuminating description of how KLEMM managed, after taking office as State Secretary, to amend the ways of rumor mongers in the ministry. (cf. HARTMANN, Tr. p. 9022 of the English and p. 8641 pp. of the German version). The affidavits of KLOPPER (KLEMM Exh. 34), ENCKE (KLEMM exh. 35) and MUELLER (KLEMM Exh. 36) also show in detail that KLEMM, when serving at the Chancellery of the Party, considered himself a representative of the administration of Justice and upheld its interests when conflicting with Court No. III, Case No. 3.those of the party.
The proceedings before this court of justice have destroyed the legend that KLEMM was an exponent of the party. The assumptions of the prosecution -- which completely misunderstands KLEMM's activities in the Party Chancellery and which holds him responsible for matters quite outside of the scope of his activities in the justice group III c, have been proved to be absolutely wrong.
It is true that he has - as FRANKE has correctly put it "exploited" his connections with the Chancellery of the Party. (Deposition FRANKE, Tr. p. 9275 of the English and p. 8856 of the German version). He did exploit them but for the purpose of further protecting the administration of justice and law from party interference. Whenever difficulties arose with the Party Chancellery, KLEMM was approached, and he succeeded in many cases in safeguarding the interests of justice by personal negotiations. The deposition of the witness MIETHSAM is important in this connection. He stated that KLEMM used his influence in favor of an objective personnel policy (Tr. p. 4882 of the English and 4806 of the German version). In this respect, I may also refer to the deposition of the witness STAGEL (KLEMM Exh. 61), and particularly to that of WILLERS (KLEMM Exh. 59), furthermore to those of WILKERLING (KLEMM Exh. 59), KRIEGEL (KLEMM Exh. 63 a), BRUNO (KLEMM Exh. 63 b), and FROBOESE (KLEMM Exh. 12). This very large number of depositions shows that this was not a question of isolated cases, rather it proves the persistent endeavors of KLEMM. How far KLEMM was from being abjectly obedient to the party, can be seen most clearly in that of his fields of activity in which he did most of his practical work, namely the department II of the Ministry, which dealt with the question of the new generation of the legal personnel. The statement of the witness WOGATZKY (KLEMM Exh. 75) discloses unambiguously that during the period, in which KLEMM headed the department, party training and party education were not stressed. Similar to his attitude on this subject, he also considered efficiency, rather than party membership, when dealing with personnel policy, a field in which THIERACK left him Court No. III, Case No. 3.in independent charge.
Apart from KLEMM's own deposition on this subject, I may refer to the suggestions made by him on these subjects in the meeting of department heads on 3 March 1944 (Exh. 45). His personnel policy was in contradiction to that of the party and of THIERACK.
This by itself is sufficient to refute the conception that KLEMM could have been the "confidant" of BORMANN. The rumor monger ALTMEYER is the only person who believes in this assumption. Those witnesses who really had inside knowledge such as KLOPPER (KLEMM Exh. 34), .ENCKE (KLEMM Exh. 35) and MUELLER (KLEMM Exh. 36) hare stated that, the relationship between the two was merely official in character and that they did not have private intercourse with, and did not like, each other. HARTMANN - who was better informed than anybody else on the relationships of KLEMM, when State Secretary, to other persons, was in a position to point out that the two men never met and neither were any letters ever exchanged between them. (Tr. p 9041 English, pp. 8661 pp. German version).
Similarly, with regard to the relationship between KLEMM and THIERACK it is again the witness ALTMEYER, who alone sees them in a suspicious light, not having been able, though, to produce any real facts as a basis for the conclusions he allegedly reached even at that time. For a long time, an official relationship had in fact existed between the two men. But the difference of their characters alone prevented any intimacy and any agreement in decisive questions. Those witnesses who had known KLEMM closely knew him as a man imbued with the feeling of good comradeship, given to emotion and open to reasoning. THIERACK's character has been rightly described unfavorably by all persons who have commented on him before this court. The witness HARTMANN, who was KLEMM's aide and who had, in this capacity, real inside knowledge of personal factors, gave us a description of them as they really were: he said that the difference of temperament led to tensions and disagreements between the two, and that KLEMM was not a willing tool of THIERACK. (cf. deposition HARTMANN, Tr. Engl, p. 9041, German p. 8661 pp.)
Court No. III, Case No. 3.
KLEMM's remark styling himself the first aide of THIERACK did, therefore, not mean a confirmation of THIERACK's attitude toward many questions, but it meant confirmation of the purpose to be an assistant in the service of justice, not the blind tool of a minister.
Your Honors, do pass judgment on KLEMM by the standard of his own actions. Don't allow your judgment to be darkened by the acts of a BORMANN and a THIERACK. Their deeds were not his. If the proceedings in this court have made this clear, my client may hope for a just sentence.
Based on the considerations stated above, it is my task to ask you to acquit KLEMM on all courts r
THE PRESIDENT: I should like to have counsel put on their earphones for a moment The agreement which was made with the approval of the Tribunal, and in which the spokesman for the defense participated and in which he stated that he agreed, was that a lump sum of time should be awarded to all of the defendants and that they would divide that time among themselves.
I wish to ask if any agreement has been made for the division of time.
DR. SCHILF: Your Honor, we have worked it out exactly how long our pleas will take.
THE PRESIDENT: Are you up to schedule?
DR. SCHILF: I hope so. I shall hear after lunch whether I have managed to stick to it but I should like to point out that the plea for my client Mettgenberg is very short and, therefore, I can save the time there that I spent on my other client, Klemm.
THE PRESIDENT: We are somewhat apprehensive lest an imposition might be created not only upon the Court but upon some of the later defendants. We have computed the period of time which can possibly be allowed and have added the extra time which we are consuming during noon hours and shorter recesses and it seems that there Court No. III, Case No. 3.may be a vary serious difficulty if the time is consumed by the first arguments and than the last defendants to argue the case come before the Court with a plea that they have not been given a full opportunity to argue their cases.
I again caution counsel to arrange their time so as to be fair to all of you. It is up to you, in accordance with the agreement which has been made and which was announced in open court.
We will recess until 1:30 this afternoon.)
(A recess was taken until 1330 hours.)
AFTERNOON SESSION The hearing reconvened at 1330 hours.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Do you propose reading 82 pages to us?
DR. GRUBE: I propose, in the time available to me, to be able to finish, but before smarting with my final plea may I express two requests to your Honors?
I have two parts of my written final plea, independent of these statements, which I already submitted to the Tribunal some time ago in English translation and in duplication, and will you permit me to refrain from reading these two parts and to have them filed for the record?
THE PRESIDENT: They may be filed. The Tribunal will examine them.
DR. GRUBE: Apart from that, will you please permit me the following: In my final plea there are many references to items of the English transcript. Will you please permit me that I refrain from reading these portions of the transcript and that they also be incorporated and taken into the record?
THE PRESIDENT: That may be done. That involved a further problem which we have given some study to. Apparently some of the defense counsel wi.ll be making their arguments at a time before the translation of those arguments is available in English. In that event, I suggest that the interpreters be authorized again definitely, in the interest of the defendants, to check and revise their interpretations which are made in the booth against the translation when it is completed or against the electrical transcription so that the transcript of testimony will be more accurate than, perhaps, the original interpretation would be.
I assume that counsel for the Defense will desire that. If there is no objection they will be authorized to make suck corrections or revisions as may be necessary prior to the publication of the transcript.
You may proceed.
DR. GRUBE: In my case, however, the translation was already submitted as far as I know.
Mr. President, your Honors?
First requisite for answering the question, how far the defendant Lautz can be held responsible for the facts submitted to the Tribunal by the Prosecution is the determination of the fact what functions within the legal administration were assigned to him.
The prosecution at the beginning of the trial, has submitted to the court the "Information about the basic principles of German Justice". When presenting the indictment orally, the prosecution referred to that exhibition. (Tr. 37). Near the end of that information it is stated verbally: "Criminal prosecution in matters before the People's Court and the Special Courts as well as before the ordinary courts was the task of the Reich Chief Public Prosecutor. The defendant Lautz was Reich Chief Public Prosecutor."
The prosecution has obviously been under the impression that there has been only one Reich Public Prosecutor in the German Legal Administration and that he, as highest authority of the penal prosecution authorities, was a member of the Reich Ministry for Justice. This can be the only explanation for the fact, why the defendant Lautz has been charged in different counts of the indictment, directed exclusively against the Reich Ministry of Justice, with responsibility for these matters, together with employees of the Ministry.
The evidence has clearly shown that this conception of the prosecution is false.
Lautz, as Reich Chief Public Prosecutor, was the chief of the prosecuting authorities at the People's Court, from 1 July 1939 until Germany's defeat. In this capacity he neither belonged to the Reich Ministry of Justice, nor did he have any authority over the prosecution of other criminal courts, or over the penal institutions of the legal administration. His task was exclusively to introduce criminal prosecution in those cases for which the People's Court was the competent authority, as explained in my exhibits 23, 32 and 33.
Lautz was, as shown in my exhibits 154 and 155, neither the superior of the other prosecuting authorities nor was he entitled to issue directives to them. Not only the prosecution witnesses Behl and Brom, but also Lautz himself explained the situation to that effect. (Tr. 5790). That was in accordance with the laws prevailing until 1945. And that is also the reason the for the fact that the prosecution could not show any evidence which was suitable to connect Lautz with incidents which were beyond his jurisdiction.
I can save myself the trouble of discussing here all prosecution documents which refer in their content to the Reich Chief Public Prosecutor at the Reich Supreme Court. I have discussed them with the defendant Lautz during his interrogation as witness and may therefore refer to pages 5781 and following of the English record.
The defendant Lautz therefore had nothing to do with the criminal prosecution of other criminal courts, especially the Reich Supreme Court and the Special Courts, contrary to the conception of the prosecution, If the German Public Prosecutors could at all be hold co-responsible for the sentences of the courts, this responsibility, as far as the sentences which were pronounced by the People's Court and only following indictments submitted by Lautz.
Why such a responsibility cannot exist, I will have to prove later.
Before I approach this basic subject, I would like to be permitted to discuss a few facts of crimes with which the defendant Lautz is supposed to have been connected and with which he is therefore charged.
The charges in counts 12 and 24 of the indictment are undoubtedly directed, as shown by their wording, against the Reich Ministry of Justice. Just the same, however, the defendant Lautz in addition to 4 employees of the Ministry is also held co-responsible. The prosecution, however, did not show any proof for the fact that Lautz participated in the legislature referring to the annexation and occupation of Czechoslovakia, Poland and Franco. But Lautz denied such a participation during his interrogation (Tr. 5783). His statement is supported by the fact that Lautz docs not appear in any of the submitted documents, referring to legislative discussions of the Reich Ministry of Justice.
The prosecution exhibits 77 (NG-412, I C 86), 220 (NG-671, III J 2) and 346 (NG-548, V B 73) do not refute the statements of the defendant Lautz. It can only be seen from exhibit 77 that Lautz, upon request of the Ministry dutifully reported about individual cases of treason, pending at his office, and of which the Ministry had to be informed in connection with the conferences which the ministry had with other agencies, concerning the new issue of some decrees referring to treason.
If Lautz in section E of his situation report (exhibit 220) declares it desirable that the penal provisions of par. 90 d and 90 c referring to treason by negligence should be intensified, this action was based upon his experiences with the jurisdiction of the first senate of the People's Court.
He explained this fact during his interrogation, showing an especially tragic case (Tr. 5788).
As he convincingly showed, he intended to cause a decrease in the number of death sentences through his suggestion. Nobody could blame him for that. And, similarly, nobody can consider such a suggestion as a participation in legislation; because suggestions like that were normal activities of all German authorities.
The report of the defendant Lautz to the Reich Minister of Justice (exh. 346) as, in any case, nothing whatsoever to do with legislation but refers to a question of interpretation of an existing law. The decision of this question was beyond the competence of the defendant Lautz, because facts were concerned which could only be criminally prosecuted if a direct order to this effect from the Reich Ministry of Justice has been issued. This, too, was explained in detail by Lautz during his interrogation (Tr. 5787, 6007 and following). As the document itself shows, Lautz did in no way approve of and accent the conception of the Reich Leader SS, shown in the report.
I wish to interpolate here. Moreover, this referred only to a very small number of cases. In the same manner correspondence in Exhibit 362 had nothing to do with legislation. The document clearly shows that this refers to elimination of printing technical difficulties.
In connection with measures of the Reich Ministry of Justice, the defendant Lautz has consequently been charged, in counts 15 and 27 of the indictment, of having participated in the Euthanasy program and the sterilization legislation. Here, too, the prosecution failed to submit material, justifying their charges. They could not do so, because, Lautz, as stated before, never worked at the Ministry and because the execution of this measure as well as the prosecution of certain delicts, committed in this connection, did not fall under his jurisdiction as Reich Chief Public Prosecutor.
This is also proven by the documents in volume: VIII A, submitted by the prosecution. Several denunciations can be found there, referring to Euthanasia, addressed to General Public Prosecutors, and several reports of General Public Prosecutors addressed to the Reich Ministry of Justice, but no letter from the department administered by Lautz. He himself expressly stated at this point that he was not called upon to participate in these measures, and had nothing to do with them (Tr. 5784). He has stated that the circular decree of the Reich Ministry of Justice, dated 22 April 1941, prosecution exhibit 392 (NG 265, VIII A 58/59), was sent to him for information only, as shown by its wording, that he did not understand it and that he, upon his inquiry at the Ministry, had received an insufficient reply, on the ground that the matter was not of his concern.
The same goes for the charge in counts 18 and 30 of the indictment. The criminal prosecution because of killing of enemy pilots who had made an emergency landing was not within the jurisdiction of the Reichsanwaltschaft at the People's Court. Lautz, therefore, could not have participated in the dismissal or postponement of such criminal procedures. It is therefore not at all suprising that the prosecution did not submit any evidence to this count. He did not know anything about these matters. (Tr. 5735).
Also the fact that Lautz, in counts 14 and 26 of the indictment, has been declared to be co-responsible is based upon a complete misunderstanding of Lautz' position and competence. The incidents with which the Reich Ministry of Justice were charged there - illegal executions, removal of a socials, etc. - do not concern the defendant Lautz. The evidence in this respect has shown the following:
Penal sentences were carried out by the prosecuting authorities assigned to the individual criminal courts, i.c. by the Reichanwaltschaft for the People's Court; may I, at this point, refer to par. 2 of the decree concerning the execution of punishment, to my exhibit 131 (L-173, II B 49). In sentences involving imprisonment, these activities of the Reichsanwaltschaft were limited to making provisions, for the transfer of a condemned person to such penal institution as previously chosen by the Ministry by general decree. From that point on, the prisoner was subject to the authority of the administration of the penal institution, The penal institutions, however, were neither supervised nor administered by the two Reich Chief Public Prosecutors, but the local General Public Prosecutor was their supervisor and the Reich Minister of Justice their Chief-Supervisor. Not Lautz, but these authorities decided the treatment of the prisoners, particularly the work that was to be done; they regulated the mail and visitor problem, and they also decided his transfer into another penal institution; the Reichsanwaltschaft at the People's Court did not have any chance to exert any influence in this matter. This is proven by my exhibits 133 (L-174, II B 65) and 134 (L-268, II B 60) and the witnesses Doebig (Tr. 1830), Hecter (Tr. 4835, 4848/49), Eggensberger (Tr. 5313) and Lautz (Tr. 5944) who expressed themselves to the same effect.
The assignment of the condemned person to the proper penal institution, however, was not the task of the defendant Lautz at the Reichsanwaltschaft. It was done by socalled "Rechtspfleger" (administrator of Justice), under the supervision of prosecutors and department chiefs who worked on that particular case. This was also confirmed by Hecker (Tr. 4855 and following) and is proven furthermore by the prosecution exhibits 134 (NG-597, III A 151/163), 267 (NG-614, IV A 76) and 266 (NG-598, IV S), concerning such matters; they do not show any signature of the Defendant Lautz, and cannot show such signatures because he had never seen them.
Court No. III, Case No. 3.
Since the penal institutions did not come within the field of competency of the Reich Public Prosecution and since Lautz had neither a right nor the duty to supervise them or to give them any directives, the Prosecution naturally could not produce any document or other piece of evidence proving that Lautz or his office issued any orders, with regard to the inmates of penal institutions, especially orders in connection with the handing over of inmates to authorities outside of the judiciary branch. Lautz and his office, especially, had nothing to do with the carrying out of the infamous agreement between Himmler and Thierack of 19 September 1942 which is contained in the prosecution exhibits 38 and 39 and which was aimed at the handing over of Poles, Jews, asocial elements and gypsies, sentences to imprisonment, to the Secret State Police. This is clearly evidenced through prosecution exhibit 268. It is the so-called Eichler decree issued by the Reich Ministry of Justice of 21 April 1943 ordering the handing over of Poles and Jews to the concentration camps of Auschwitz and Lublin, The decree is addressed exclusively to the General Public Prosecutors and also to the authorities responsible for the prisons. The Defendant Lautz was not even informed about that decree. In addition to that, the Prosecution exhibits 38, 39) 134 and 267 prove beyond doubt that the preparation and execution of that action was arranged by the Reich Ministry of Justice in direct dealings with the penal institutions. The authorities of Public Prosecution and thus also the Defendant Lautz did learn about that handing over of those prisoners to the Gestapo. While in the witness stand, Lautz, however, stated that he did not know about the purpose of that transfer, which was annihilation through work, until he learned about it during this trial. There is no doubt that this is correct. This purpose has been kept so very secret by Thierack and his closest collaborators, that not even the witness Hecker, as he stated under oath, knew about it, although Hecker was that official in the Ministry who was in direct charge of having the agreement of 19 September 1942 between Thierack and Himmler put into Court No. III, Case No. 3.practice.
Neither did Lautz have anything to do with the events which, as stated by the prosecution, occurred in some penal institutions, e.g. Sonnenburg, when the enemy approached. No documents or statements by witnesses were brought in to incriminate the Defendant on this point.
There is also no proof for the statement that for any other reason the Defendant Lautz delivered any person to the Gestapo, or that he was aiding and abetting such a measure. The Prosecution seems to have intended to prove this through exhibit 537, which it presented to the Defendant during the cross-examination. Lautz, however, was in a position to clear up the actual facts from the document itself.
In the case of Kurrass also two Jews had been taken into protective custody by the Gestapo, completely independently of the legal proceedings. The Gauleiter and the Chief of the Security Police in East Prussia had agreed in case that the defendants indicted in the legal proceedings were sentenced to death, to execute those two Jews at the same time. Lautz had heard about this matter through the report of the Chief Public Prosecutor of Koenigsberg and duly passed it on immediately to the Reich Minister of Justice by letter of 11 December 1944. Lautz did this expecting that the Reich Minister of Justice would veto the intention of the Gauleiter. Prosecution exhibit 537 does not prove either that the agreement made by the Gauleiter and the Chief of the Security Police was actually put into practice, on the contrary, page 2 of that exhibit seems to justify the assumption that this was not the case. At any rate it is obvious that Lautz had nothing whatsoever to do with the treatment of those two Jews.
Through the book of prisoners of the penal institution Ebrach, exhibit 271, the prosecution proves that the Reich Public Prosecution at the People's Court did not transfer any prisoners illegally. The entries in that book go up to spring 1945; they show that none of the 74 people convicted by the People's Court, who were kept at Ebrach was handed over to the Gestapo. Lautz is no more responsible for the Court No. III, Case No. 3.happenings in penal institutions and for the transfer of prisoners than he can be held responsible for the executions which, according to the statement of the prosecution, were carried out illegally.
It was the lawful duty of the Reich Public Prosecution at the People's Court to execute legally valid death sentences of that court.
It corresponded in this respect to the duties of any public prosecution of a district court, as proved by my exhibit 131. The prerequisite for the execution in each individual case was, however, that 1. ) the head of the State or the Minister of Justice, authorized by him, had denied to make use of his right to grant pardon, and that 2. ) the Minister of Justice had then given the express order to carry out the execution.
May I refer here to my exhibit 129.
According to article 13 of the code of pardon in prosecution exhibit 278, the public prosecution, regardless whether there was a clemency plea or not, had to present every legally valid sentence together with all documents and all statements concerning the question of clemency to the Minister of Justice. The Minister of Justice, through a formal decree, informed the public prosecutor of the decision of the head of the state concerning the question of clemency. In case where the head of the state refused to grant pardon the decree was accompanied by the express order to now carry out the sentence. This decree, an example of which can be found in prosecution exhibit 137 listed all the details of the carrying out of the execution as far as they were not regulated by general directives. Only after receipt of that decree the public prosecutor had to order the rest. His duty to examine was, as proved by my exhibits 132 and 165 were limited to the questions, whether the execution order emanated from the competent authority, whether it was couched in the prescribed language and whether our own competency was established.
These provisions applied to the defendant Lautz without any Court No. III, Case No. 3.alteration until the collapse, with the sole exception that, according to a general decree of the autumn of 1943, pardon reports were to be considerably shorter.
Lautz followed the regulations with meticulous care; he never ordered, as he testified here expressly, death sentences to be carried out without having been charged to do so in proper form. Nor has the Prosecution offered any proof for his having acted differently. This applies especially to the incidents at Ploetzensee from 7 to 9 September 1943 and at Brandenburg on 20 April 1945.
With regard to these incidents at Ploetzensee, from exhibits 286 and 288 and the complementary statements of Lautz during his examination the following picture emerges.
Contrary to Lautz's proposal to transfer the condemned prisoners to Brandenburg, Minister Thierack had ordered a mass execution. Lautz was passed over though a great number of the condemned people of the People's Court came under this order; all of the measures were carried out under the immediate direction of the Ministry of Justice. Lautz and his office had to restrict themselves to carrying out the execution of 34 convicted people for which an execution order in the legally prescribed form had been at the office for several days already. This is shown from the report of General Public Prosecutor Hansen of 25 September 1943 in Pros. Exh. 288. It is, therefore, absolutely understandable for Lautz in his letter of 9 September 1943 in Pros. Exh. 286 to have declined, vis a vis the Minister of Justice, any responsibility for the incidents at Ploetzensee, especially for the execution of various condemned persons without waiting for their clemency to be decided on, and thus to have voiced his criticism of the measures taken.
Nor can Lautz be incriminated by the execution at Brandenburg on 20 April 1945. He knew that a number of people who had been sentenced to death by the People's Court and whose clemency pleas and hand files had already been submitted to the Minister, had been held - and this is corroborated by the statements of Havemann of 10 April 1947 - at Branden Court No. III, Case No. 3.burg for weeks, in part even for months.
In spite of this, he did not undertake anything to hasten the decision of the Minister on the execution of the sentences. According to Lautz's testimony here, it evidently was General Public Prosecutor Hansen, under whose supervision the Brandenburg penitentiary was, who approached the Minister with the result that Thierack now decided on the clemency pleas and issued the execution order for about 30 of the condemned persons in the legally prescribed form.
Before turning to the activity of the defendant Lautz in People's Court criminal cases, I may be allowed to make a few basic remarks on the position on the German Prosecutor.
The German judicial system has considered it to be one of the exclusive functions of the State to prosecute punishable offenses. Apart from minor exceptions it does not concede any individual citizen any influence on criminal proceedings. This applies to the institution as well as to the conduct of criminal proceedings. Following the example set by the French, the State made use of the Prosecution Authorities in the discharge of this duty. These are bound by law to investigate every offense of which they get knowledge, and to investigate, and to make an indictment in case there is adequate reason for suspicion. The prosecution authorities thus proceed according to the socalled legality principle. This principle has only been ignored in a few cases specified by law in favor of the discretionary principle.
Above and beyond this, the German State has always made sure of its influence on the administration of criminal law by an hierachical structure of the prosecution authorities and by imposing on them the duty to follow the general and specific directives of their departmental superiors. In order to be in a position, at any time, also in individual cases, to issue orders deemed necessary, the Ministers of Justice, before as well as after 1933, had imposed upon the prosecution authorities the duty to report on a wide number of subjects. To quote an example of every single case brought before the People's Court No. III, Case No. 3.Court, the Indictment had to be submitted to the Minister of Justice, and it had to be done early enough to allow him to intervene effectively in the proceedings.