Q Was your Office in such a position so that you were able to observe inmates both in the plant and going to and from the concentration camp?
A From my room I could not see that sort of thing. Otherwise, I always saw the inmates who worked in the plant whenever I visited the plant.
Q And you visited the plant until the time you left, in April, 1945?
AAt that time the plant was nearly entirely destroyed.
Q Well, did you visit it though, such as it was operating? Was it operating then, were inmates working there?
A Yes.
Q Did you visit all the other plants of DEST during the year 1945?
A No, that was impossible because transportation was extremely confused.
Q What plants did you visit in 1945?
AAs I remember it, I went to Neuengamme and Flossenburg, and St. Georgen. I am not quite sure about the last one. That might have been by the end of 1944.
Q Did you notice the horrible physical condition of the inmates in 1945, as depicted in the motion picture which you saw as an exhibit in this case?
A The films I saw were not like the scenes I saw myself.
Q You observed no general physical deterioration among the inmates working for DEST in 1945?
A We had our difficulties with feeding them, of course, but the conditions shown in the film, I must repeat myself here, I never saw myself.
Q Well, forget the film. Did you notice a general deterioration in physical condition in 1945 among the inmates? Yes, or no.
A Yes, I saw a deterioration, but not on a large scale.
Q That is all.
THE PRESIDENT: Any other questions by defense counsel?
DR. FROESCHMANN (Counsel for Mummenthey): May it please the Tribunal, may I compare the photostatic copy and the document in my document book?
Mr. President, I have no further questions to put to the witness after this cross-examination.
THE PRESIDENT: Very well. Questions by other defense counsel?
The witness may be removed by the Marshal.
(Witness excused)
DR. BELZER (Counsel for Sommer): May it please the Court, the Prosecution yesterday, in their cross-examination of witness Mummenthey, submitted an affidavit by somebody called Sanner. This was Exhibit 621. As this affidavit makes one assertion concerning the duties of defendant Sommer, I would like to ask the Court for permission to cross-examine Sanner. He lives in Munich and can come to Nurnberg any time at all. It is particularly paragraph 44 of this affidavit I am concerned with.
THE PRESIDENT: The Defendant Sommer is not mentioned in paragraph 44. Oh, there are two paragraphs 44. Just a minute.
DR. BELZER: Yes, quite.
THE PRESIDENT: In view of the accusations in paragraph 44, you may have leave to call this witness Sanner for cross-examination. Will he come as a free witness at your request?
DR. BELZER: Yes, he is a free witness. He is at large and lives in Munich. I only want to cross-examine him.
THE PRESIDENT: Well, you have the Tribunal's leave to call him as a witness.
DR. BELZER: Then I would like the court's permission, possibly, to ask the defendant Sommer on the witness stand once more and examine him on this point. The Prosecution have had this document since 25 April of this year. Defendant Sommer was on the witness stand four weeks ago. The Prosecution would have had full opportunity to put this matter to him at that time.
THE PRESIDENT: You need not argue the point, because you will have leave to call Sommer to the witness stand, of course.
DR. BELZER: I know for certain that the prosecution has a number of documents in its possession which were signed by Defendant Sommer. Defendant Sommer, in my presence, was examined on the contents of one of those documents, be were concerned there with orders by Defendant Sommer to the labor allocation officer of a concentration camp concerning the listing of inmates under a certain condition of a list which was to be submitted twice a month. I would like the Prosecution to be asked to submit the documents which they have in their possession, because these documents will confirm what Defendant Sommer himself has said on the witness stand, namely, that he only signed documents which were concerned with office routine and reports only where allocation of inmates was part of the office routine concerned in the monthly reports.
Mr. McHANEY: If the Tribunal please, as I understand the procedure, any defense counsel can request the Tribunal to produce any document, the existence of which they know about. They must sufficiently identify the document so that some reasonable search can be made for it. I know of no procedure which prevents the defense counsel from requesting all documents bearing the name of Sommer or Pohl or anybody else. I know nothing about what defense counsel is speaking of, but I suggest he make his application and we will have time to look into it, if we do have it.
THE PRESIDENT: He is speaking of particular documents which were shown to the defendant in the course of an interrogation.
Mr. McHANEY: If he will file his application and identify the documents, we will have the Prosecution staff concerned with this matter I know nothing about it -- look into it, but if he will file his application they will look into it, and, if they exist, we will produce them -
THE PRESIDENT: Counsel, file the usual application for the production of these documents and the court will aprove it.
DR. BELZER: To clear up this point, I might add that at that time I asked the interrogating officer what the documents were, what numbers these documents had. The number which was given to me was incorrect. I investigated the matter and I have attempted to get out this document, but I was unable to do that, because the number I was given was not correct.
THE PRESIDENT: Well, you can refer to the documents as the ones which were shown to the witness in a certain interrogation. That will identify them.
The next witness who is listed is Dr. Max Winkler in defense of Bobermin, is that right?
DR. FROESCHMANN (Attorney for the Defendant Mummenthey): May it please the court, as counsel for Mummenthey, I have told the court that I wanted to produce one more witness called Plumberg. I shall forego calling this witness. Witness Winkler is a witness for Defendant Bobermin and he will only be called on behalf of Bobermin.
As far as my own case is concerned, it has come to a close as far as the examination of the witness is concerned. What is still lacking is documentary evidence, and, as the court has been so kind, it has been possible to have all my document books completed and I have just been informed the department concerned is just about to put the documents together into one book, so I would be in a position to submit this documentary evidence and thereby complete my own case, which I think would be in the interest of all of us, but that will not be possible this morning. I can only do so at two o'clock.
THE PRESIDENT: You may file your document books whenever they are ready, Dr. Froeschman, this afternoon, or whenever they are finished. As soon as your document books are filed your defense is in, is complete, is that right?
DR. FROESCHMAN: Yes, indeed, and I can submit the document books this afternoon to the Tribunal.
THE PRESIDENT: Very good. Now do you want the Witness Winkler, Dr. Gawlik?
DR. GAWLIK: May it please the court, I could call the witness Winkler immediately, but I don't know whether -- I don't want to interrupt the case of my colleague Froeschmann, because he wants to submit his documentary evidence this afternoon, but that, of course, is entirely up to the court's ruling.
THE PRESIDENT: No, go ahead with Winkler, Dr. Froeschmann can submit the document books later. In fact, all he wants to do is to file the books, is that right, Dr. Froeschmann?
DR. FROESCHMANN: If the Tribunal please, it was my intention to just submit the books to the court without reading them, but that is, of course, not possible. They will not be ready before two o'clock. Therefore we have to interrupt.
THE PRESIDENT: Well, whenever your books are ready you merely want to submit them to the Tribunal.
DR. FROESCHMANN: Yes, quite. May it please the court, it is my intention to read this or that document from my document books to the court, or, at least, extracts from them, because, after all, I submit these documents instead of calling witnesses, and I think therefore, the over-all impression of Mummenthey will only be complete if I can read extracts from this or that document.
THE PRESIDENT: All right. Bring in your document books as soon as they are ready, Dr. Froeschmann. Go ahead with your witness, Dr. Gawlik.
DR. FROESCHMANN: Very well, your Honor.
DR. GAWLIK (Attorney for Defendant Bobermin): I shall therefore now open the evidence in behalf on my client Dr. Bobermin and by permission of the Tribunal I should like to call as a witness, Dr. Max Winkler.
DR. MAX WINKLER, a witness, took the stand and testified as follows:
THE PRESIDENT: Witness raise your right hand and repeat after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
THE PRESIDENT: Now you may be seated.
DIRECT EXAMINATION BY DR. GAWLIK:Q.- Witness, please give your full name.
A.- Max Winkler.
Q.- Tell the court briefly about your curriculum vitae.
A.- I was born on 7 September, 1975. I went to secondary school, then to a technical school. I became an official of the post office and then I became a municipal official. I became a burgermeister of Kraudenz and after the surrender of the City of Kraudenz after the first World War I went to Berlin. I had been elected the democratic deputy of the Prussian Constitutional Assembly. I worked in Berlin as an economic consultant of the Reich Government. This comes into the position of a trustee until the final collapse of the Reich.
Q. Witness, do you know anything about the legal aspects of the seized brick works in the incorporated Eastern territories?
A. Yes, they were administered by the Eastern German Building Material Company.
Q. On what is your knowledge based?
A. I was in charge of Main Trustee Department East in Berlin.
Q. How long were you in that position?
A. From the moment it was established in October 1939 until the collapse.
Q. Were the brick works in the incorporated Eastern territories seized or were the owners compensated?
A. I know nothing about a seizure. It is possible that some brick works were sold to somebody but then this was done on behalf of the man who actually sold them.
Q. Witness, will you please make a pause between the question and the answer. Who said that the works were to be confiscated?
A. These brick works were confiscated as almost all economic enterprises and private properties of Polish nationals were confiscated. First of all the military commanders pronounced something to be confiscated quite generally. Then the trustee agency was established which was done by a decree of 5 October 1939 at which time the right to confiscate was transferred to the Main Trustee Department East.
Q. How was it that the Main Trustee East administered these things?
A. The order which I have just named, the one of 5 October 1939, about the establishment of the Main Trustee Agency East about the administration of the economic objects.
This agency received - -
THE PRESIDENT: You want to say something, Dr. Gawlick?
DR. GAWLICK: I am just told that the word "confiscation" has been used, as a translation of "Beschlagnahme". Confiscation as we said before, should be translated by seizure. That means simply that it has actually been taken. In other words, the whole transaction has become distorted because the interpreter, although I talked with him in this connection, continues to translate "beschlagnahme" confiscated, but this is incorrect. The Court had ruled that it should be translated "seizure".
THE PRESIDENT: The record will indicate that where the word "confiscation" was used the word "seizure" will be submitted although the distinction, as a matter of fact, is not altogether clear. At least, the translation will be correct.
We are trying to learn the difference between "seizure" and "confiscation". It seems to us that when property is taken and kept and the owner is not paid for it that it doesn't make much difference whether you call it seizure or confiscation. The owner gets nothing and he never gets his property back. You might even inject a third term call it larceny.
DR. GAWLICK: If your Honors please, in the case of confiscation the property is taken away. I no longer own my property. If my watch is being confiscated I will never see it again. I have had it. If the watch is being seized by somebody, the Police, or somebody takes it, puts it down somewhere, and after some time when the seizure has been rescinded I can go and fetch my watch from the agency which has seized it.
I continue to remain the owner of the watch.
THE PRESIDENT: Even if you never get it back you still own it?
DR. GAWLICK: I continue to be the owner of the watch, yes, and I have a legitimate title under civil law. I still own the watch legally. The only difference is, that I am not allowed to wear the watch in my pocket. The seizure must be followed by a decision on the seizure - the seizure is only a temporary measure. Under German law something is seized if you don't know who actually owns the things the two persons disputing the article must fight a battle and the one who is the legal owner gets the article back. In war time the matter was that the owners of the brick works were not there - they had fled in most cases. The owners remained the owners as far as the legal titles were concerned and in order to maintain law and order because the population needed bricks and the workers employed there needed work the enterprises were seized but their owners still had full rights as the witness will testify to us in detail.
THE PRESIDENT: And it was in the case of the seizures that a trustee was chosen?
DR. GAWLICK: Yes.
THE PRESIDENT: The trustee hold the property for the owner ?
DR. GAWLICK: Yes.
THE PRESIDENT: In case the owner lived and returned?
DR. GAWLICK: Yes. The trustee represented the owner, so to speak.
THE PRESIDENT: Yes, of course, the owner doesn't know that but the trustee is to preserve the owner's rights in case he ever dares claim the property?
DR. GAWLICK: Yes.
THE PRESIDENT: All right, now we understand everything.
BY DR. GAWLICK:
Q. Witness, please continue how it came about that the Main Trustee Department East came to administer these things?
A. At the beginning of October Goering called me to see him in his capacity as head of the Four Year Plan. He told me that as troops were about to leave Poland the economic life there had reached a state of confusion and chaos was about to reign. He wanted to establish an agency which should, if possible, bring order to these matters, bring back the economic life in a normal sense, and should take care of the most essential requirements of the population. He wanted to establish a trusteeship agency which would administer, on a trusteeship basis, these things. I asked him thereupon whether it was planned to have compensation given for the property of private persons if it should be taken away from them. Goering answered this in the affirmative. Then when on 5 October a directive was issued, namely, that the Main Trustee Department East should be established one passage said the compensation for civilians was being reserved.
Q. Was the seizure and the administration done for the purpose in order to maintain law and order in the incorporated Eastern territories?
A. According to what Field Marshal Goering told me that was the purpose of his order. He wanted to achieve thereby that a normal and orderly condition should be brought back which had disappeared because of the military situation, flight of the population, and other military events.
JUDGE PHILLIPS: While you were trustee was any owner of private property that was seized ever paid for this property, either as rental or value of the property?
A. No, not yet. It was planned for a later period of time. Actual payment was not yet done but the profits from the whole of the economic enterprise were booked to the credit of the man concerned were deposited with banks in order to pay out the money later on.
BY DR. GAWLICK:
Q. Where were the owners of the brick works?
A. When the War broke out, many of the Poles left the country. I always assumed that the owners of the brick works had also fled when the war broke out.
Q. What measures were taken in order to guarantee security? That is to say, to secure the property of the brick works?
A. As in almost all cases in the case of the brick works a commissar was appointed as the administrator and he had to acquaint himself with the duties of a normal commercial manager. He had to continue to run the brick works, had to report about what was being done, and to make accounts. That this was done in a proper manner was seen to by specially appointed auditors.
THE PRESIDENT: This is a good place to stop, Dr. Gawlick. Before we recess this is your witness. This is your witness. Will you give him some instructions before two, or before we come back, to pause between the question and the answer. Take him in the corner and tell him what you really mean, will you?
DR. GAWLICK: Certainly, Mr. President.
THE MARSHAL: The Tribunal will recess until 13:45 AFTERNOON SESSION (The hearing reconvened at 1350 hours, 7 August 1947.)
THE MARSHAL: The Tribunal is again in session.
DR. GAWLIK: Your Honor, I would like to say the following: In order to show the direction which my presentation of evidence is taking, I want to show just what I want to prove in examing this witness. I want to show that the brick works in the annexed Eastern Territories were not disapproriated but that they were only temporarily seized. This was a measure to which every occupying power is entitled in order to maintain the public order and peace and security. In connection with what I have already stated this morning I would like to give you the following example. If an occupying power needs a building in order to billet its soldiers, or if it needs that building as living accommodations, then that particular building has to be seized, and the owners are not allowed to use it during the time it is occupied. However, the owner still has certain rights with regard to this building. I want to show that is exactly what happened with regard to the brick works.
MAX WINKLER - Resumed DIRECT EXAMINATION - Continued BY DR. GAWLIK:
Q Witness, can you consider the seizure of the brick works, can you compare it with a legal measure which is actually being taken now also?
A Yes. The occupying power by virtue of law No. 52 in the case of numerous persons have also carried out their seizure in the name of this occupation. This did not make any decision mandatory if these buildings were to be returned to the owners again or whether any compensation is to be paid for them.
Q Just how, what brought about Pohl's appointment as General Trustee of the Brick Works?
A The Chief of the Department of Economics told me about the matter, and he informed me of the fact that representatives of Obergruppenfuehrer and Ministerial Director Pohl had declared themselves ready to take these brick works under general custodianship. I then had a discussion with Pohl and he was accompanied by his collaborator. On that occasion he told me that with these brick works he wanted to meet the urgent requirements for the army and purposes of repair. I then heard through commissioners who were appointed by Pohl, and I had no misgivings about the taking over of the brick works into custodianship and I agreed with them.
Q In what form were these enterprises taken over?
A They were not taken over formally. The trusteeship agency, because of the large extent of the objects which were suddenly taken over, was unable to do that. The local trusteeship agencies and the government authorities who had to collaborate in this matter within the provinces probably turned over these brick works to the commissioner of Pohl.
Q Were any accounts kept in this case?
A Yes, accounts were kept insofar as constant reports were given, just about the financial state of affairs, but no final accounting was carried out as yet.
Q Were auditors constantly supervising the administrations of the brick works?
A Yes, these enterprises were supervised, and as far as I can recall an auditor was charged with the task of auditing all the enterprises which had been taken over by Pohl. He constantly submitted his reports to the Department of Economics, and then I would hear about the contents of these reports as far as the most important items were concerned.
Q Were the enterprises of the Eastern German Construction Material Enterprises exploited?
A I don't think so. After all, it is for the first time now that I hear that these enterprises should have been exploited at all.
Q In what condition were the enterprises when you took them over, or when you turned them over to the Eastern German Construction Material Enterprises?
A I can answer you this question, in general they were in the condition in which the former owner had left them behind, or they were in the condition in which they had been left behind after the war operations had passed.
Q What do you know about the fact whether on the part of the Eastern German Construction Material Enterprises investments were carried out?
AAfter the enterprises were handled on the custodianship basis I was informed by Pohl, I was requested by Pohl, by one of his employees, to furnish capital for the enterprises because no cash existed in these enterprises and they were unable to operate these plants without sufficient capital. I then gave a loan to Pohl's administration which amounted to at least twelve millions, and as far as I can recall there may have been one or two million more, and within the time limit of one year this loan was used up. When further requests were made I stated that I was unwilling and unable to grant any additional loans. I now stated that I had to demand that now the loan should slowly be repaid. The amounts were fixed by me so that there would be sufficient and had to be sufficient for the production in one year. I had the impression at the time that for the administration of Pohl the certain difficulties had arisen and that he was trying elsewhere to get the necessary funds. I believe that I personally advised him to ask for the aid of the Reich Ministry of Finance, and in this way to found an enterprise belonging to the Reich, and then with the Reich I would be better able to negotiate about the loans for the Reich. I then negotiated with the Reich Ministry of Finance in the sense that I stated that I would have to see some repayment of my previous loan, and I could not furnish any additional loans.
The negotiations finally led to the result that the Main Trusteeship Agency in the East got back the loan and that Pohl was able to continue to administer these enterprises. Whether on the part of the administration of Pohl the first loan from the Main Trusteeship Agency, and whether the funds were used from it for new investment, or whether this took place later on from funds which had been furnished from some other agency, I don't know. However, I do know that considerable investments were made with regard to the brick works.
Q Was any compensation of the former owners planned if the enterprises were to be disappropriated or if they were to be utilized otherwise?
AAll the appropriate legal regulations applied to these cases. That was the decree of the 5th of October, 1939, about the establishment of the Main Trusteeship Agency in the East, where it is stated that the compensation for private persons was being planned by virtue of the decree about the administration of Polish private property of the 17th of September, 1940. It is specified that the decision about the compensation was to be reserved for the time being.
Q What measures were taken in order to secure the compensation of the former owners?
A The Main Trusteeship Agency from the very beginning ordered its bookkeepers to have a card index file about every individual enterprise, and if possible the bookkeepers were to establish a file and a separate account for each individual plant. Through this medium whatever happened of importance was entered in this manner. The profits which were drawn from the enterprises and the profits for enterprises which were used remained in the administration of the Main Trusteeship Agency for the East, and the funds were placed into banks and later on they were kept with the Reich Main Treasury so that it could be available to the Main Trusteeship Agency for the East at all times.
Q What amount existed at the end of the war for the compensation of the owners of plants which had been taken over?
A We had 1.6 billion marks in the account with the Reich Main Treasury. It was accounted there for the Main Trusteeship Agency.
Q Were any brick works of the Eastern German Construction Material Company used under a custodianship basis?
A I can't give you any precise details about that, but I can recall that several - I think up to five - were used so that they could be turned over to Baltic Germans for brick works which they had lost.
Q When these transactions were to be carried out, where the profits from these sales would they have been secured in the manner in which you have just described?
A Yes, that is certain. Naturally this would have happened and it actually has happened in that way.
Q Did Pohl seize any enterprises as the trustee?
A I don't know that. He didn't have the right to do that, and actually he had no reason to do that because after all the enterprises were generally seized.
Q Did the defendant Dr. Bobermin, seize any enterprises?
A No, he didn't have the right to do that. No, he did not have the right to do that and as far as I know he didn't do it.
Q Of what agency was the Main Trusteeship Agency in the East a part?
A The Main Trusteeship Agency in the East was an agency of the Four Year Plan.
Q What was the character of this agency?
A It was founded for a certain purpose. It was established in order to handle the administration in the territories under military occupation, in all the areas which were taken over by the German Reich. And also to see to it that the economy there was maintained and was operating smoothly. For this purpose, the agency had some authority under civil law.
Q Was the Main Trusteeship Agency an organization of the SS?
A No.
Q Was this agency subordinated to Himmler?
A No.
Q Was the Main Trusteeship Agency subordinated to an agency of the SS?
A No, because it was only subordinated to the Four Year Plan.
Q Did the Main Trusteeship Agency have the tasks to support the SS?
A No.
Q Did the Main Trusteeship Agency place any emphasis on the fact that it was to be administered by the SS?
A No.
Q Will you please comment on the question why the owners of the plants which had been seized did not yet receive any compensation?
When was the compensation to be paid out?
A The war with Poland was not over yet, and after all the former owners had not returned as yet; and any legal or administrative measures in order to settle the matter once and for all could not bet be taken. Requests for compensation in many thousands of cases which would have been received by the Trusteeship Agency normally, but these requests were not passed on to me, so that in general we maintained the point of view that the settlement of the question of compensation could only be received after a peace had been concluded.
Q Were you arrested by the British Military Government?
A I was arrested on the 10th of August 1945 at Flensburg. Early in November from the camp at Neuengamme I was sent to the highest interrogation camp in the British Zone at Bad Mendorf.
Q During what period of time were you imprisoned?
AAltogether, I have been in confinement from the 10th of August 1945 until 7th of January 1947.
Q Within the Main Trusteeship Agency for the East, was your field of work clarified in detail in the course of the interrogations?
AAll of my fields of work, and in particular with regard to the Main Trusteeship Agency in the East were discussed in numerous interrogations in Bad Mendorf. They were clarified to the extent as the British interrogating officials considered it necessary. I was told frequently that some other inquiries had come from London, and then I had to answer these inquiries in writing or orally.
Q By virtue of the results of these interrogations, were you released by the British authorities?
A Whether I was released as a result of these interrogations, I don't know. I can only state that the interrogating officials told me in August 1946 that they had now completed their interrogations, and that the decision would have to come from London. In October, I asked the interrogating official what was to happen to me now, and at that time he answered that he did not believe that any charges would be raised against me. However, he also told me that he had not received any reply and a few days later, on the 3rd of November 1946, I was transferred to the discharge center at Fallingbostel, and on the 17th of December I was informed of the fact that I was to be released. And the date of my release was to be the 7th of January 1947.
Q Since that time have you been at liberty and how long?
A I was at liberty until the 14th of July. I was arrested in my apartment by an American officer.
DR. GAWLIK: Your Honor, I have no further questions.
THE PRESIDENT: Any questions from any defense counsel? The prosecution may cross examine?
CROSS EXAMINATION BY MR. KEMPNER:
Q We were talking together, Mr. Winkler, some days ago, is that right?
A Yes.
Q Did you tell me on that day that you were shocked about the killings of Jews and Poles in the East?
A Yes. When I heard about that, I was extremely shocked.
Q Did you tell me on that day that you reported and talked to various people about the shocking things which happened in the East?
A Yes, after I heard about these things, I talked about them with friends; and I was expressed the fact that I was extremely shocked.
Q You talked about these things with delegates of the Foreign Office, for instance, isn't that true? The German Foreign Office.
A No, I cannot recall that at all. In the camp at Bad Mendorf, I was together with the legation counsel from Sweden, and I certainly must have discussed these matters with him.
Q No, I am referring to your talk with various people were you complained back in '43, '42, '41, and 1940 about these terrific killings going on in the East.
A No, I can't give you the exact time, but in 1940 and 1941 and also in '42 and '43, I certainly did not have any knowledge of these matters.
Q What was the first time you learned about these murders in the east?
A Towards the end of the war. It must have been approximately toward the end of 1944/
Q You knew a man in Germany, Heilmann-- H-e-i-l-m-a-n-n Ernst Heilmann?