The management of the industries was allegedly supervised by members of the staff "W", the chief of which Hohberg had been, Hohberg was alleged as adviser of the Generaldirekter Pohl, to have had the direct supervision over the directors of the DWB and the enterprises under their control.
This representation does not correspond to the facts according to the evidence. When Hohberg, in 1940, came to the DWB, in order to work as a certified accountant and adviser of the management of the enterprises, the DWB-Konzern did not yet exist. What Hohberg did find, was a great number of economic enterprises of many business branches, which worked entirely independently, for the greatest part under the management of SS-leaders, and which had no organisatory connection to one another A part of the companies was excessively involved in debts, and neglects from a bookkeeping organisatory, tax - and price viewpoint. The requirements of an orderly businesslike management of the companies was only deficiently fulfilled, Hohberg knew of the fact that in the beginning 3, at his withdrawal 6 out of 40 enterprises employed prisoners. If Hohberg intended as directive to bring the enterprises into a shape of being capable of examination, then first of all the commercial mismanagement which he found, and especially the disorder in the accounting system of the enterprises, had to be abolished. In this connection the defendant had nothing to do with questions regarding prisoners.
Hohberg did not have any influence on the establishment of enterprises or undertakings. According to Hohberg's statement, 20 commercial companies were newly founded during his activity as certified public accountant, among them three in which prisoners were employed. These 3 prisoner enterprises had already previously existed, however without having the legal form of a commercial company. Upon Hohberg's suggestion these 3 prisoner enterprises without legal form were provided with a legal commercial form, for example, Textil - und Lederverwertungs GmbH. From this moment on, the capital substance of these enterprises was withdrawn from the arbitrary grasp of the SS.
The providing of this for did not have any influence on the employment of prisoners.
If we consider the fact that the three enterprises, put into a legal commercial form had already previously existed to the same extent, not a single company with the goal of employing prisoners has been founded during the activity of Hohberg.
Hohberg also had never to decide whether and in which way prisoner were to be used. Not once was he consulted regarding the decision of a question of prisoner allocation, nor questions of creating and financing of new enterprises within a company already existing and employing prisoners, for example Dest or DAW.
Hohberg never exercised a supervision over directors of the DWB and the subordinate enterprises which exceeded his supervisory activities as certified public accountant, and would have placed him in the position of a superior. This results from the document NO.-3*** Exh. 698, in which Pohl expressly declares that the Office Chiefs and Main Department Managers, working in the DWB-Konzern, are from a disciplinary standpoint, without any exception subordinate to him personally.
The documents, presented by the Prosecution, can not refute Hohberg statement. If the defendant was at all in any way consulted regarding the new founding of companies, then questions of financing, form of the company and occurring questions were exclusively involved.
The documents presented by the Prosecution in this connection, contain the minutes of negotiations which were conducted for the construction of a factory for the purpose of the utilization of clinker from the Hermann-Goering-Works at Linz. From these documents the Prosecution tries to gather that Hohberg was the instigator for the delivery of raw material by the Hermann-Goering-Works, and allotting of the task to the WVHA of building the factory and of making available KL-prisoners for the plant. However, these assertions of the Prosecution are refuted by the contents of the documents presented by the Prosecution themselves as well as by Hohberg's statement.
As clearly results from the Doc. NO 1913 Exh. 394, the plan of the construction of this plant, which later was not built, was based on an agreement between Himmler and Goering, which was forwarded as an order to Generaldirektor Pleiger of the Hermann-Goering-Works and to Pohl as Chief of the WVHA. Pohl gave Schendorf the order to conduct further negotiations, after he himself had got in touch with Pleiger. He reserved to himself a decision. This results from the facts, as Hohberg testified as witness, that on the document is a handwritten remark of Pohl reading: "I will work the plan through myself". The remark on the document NO 1915 Exh. 396, that Hohberg was "federfuehrend" in the matter and should "keep Pohl informed", means no more than that Hohberg, in as much as he was at all consulted, should keep the minutes and report to Pohl, as he indeed twice did.
The real negotiations were conducted by Schonderf without Hohberg. That Hohberg was at times used as Pohl's reporter does not involve him because it is a part of the normal duties of a certified accountant, to assist as an adviser regarding questions of new establishments where the form of the company, financing and tax questions are concerned. This activity however, does not have any connection with the founding as such, and especially not with the question of prisoner allocation. This results from the document itself, according to which as a result of the negotiations with Schondorf, three projected contracts were discussed during one discussion in which Hohberg participated. The contract regarding the prisoner allocation, however, was not among them. Therefore Hohberg neither had anything to do with questions regarding prisoner allocation, nor did he assist Mr. Pohl or the other participants in considering this question. As Hohberg states in his testimony, he could not exercise any influence regarding the question of prisoner allocation simply because this allocation had already been agreed upon in principle with Pohl, on the basis of an agreement with Goering. That Hohberg did not participate in anyway authoritatively, results furthermore from the affidavit of the Generaldirektor Pleiger, negotiating for the Hermann-Goering-Works, in which he declares **** he does not know Hohberg at all and therefore can not have negotiated with him.
Likewise, it can not be assumed from the document of the Prosecution NO 1916 Exh. 397, presented in the same connection, that Hohberg participated in discussions regarding prisoner allocation, and this applies to its financial aspect as well. Hohberg reports in this document to Pohl that the participation of the WVHA in this enterprise from a financial standpoint, would be senseless, unless the HermannGoering-Enterprises would agree to deliver a part of the turnover to the "Lebensborn". Hohberg declares in this connection that he was the recording clerk, and that the document contains the result of the negotiations. He had as a certified public accountant, only pointed out the fact that under given circumstances, the Hermann-GoeringEnterprises wanted to reserve the right to always syphen off the prof according to their own judgment. The objection regarding Lebensborn did not originate with him. By the way, this document dissuades from carrying out the transaction.
Neither has the project been carried out so that, already seen from this viewpoint no punishable action could have been committed, because, according to the Control Council Law No. 10, there is no punishable participation in an attempt, but only participation in an accomplished offense.
Also the other documents presented by the Prosecution cannot prove the accomplicity of Hohberg in the slave labor program. Similar to the case "Schlacke-Linz" are the discussions, which took place between the WVHA and the People's Car Plant (Volkswagenwerk) Fallersleben. They aimed, in execution of an existing written command by Hitler, at the construction of a foundry with the use of concentration camp prisoners, also ordered by Hitler, in the plant of the works. Pohl called Hohberg by telephone to this discussion, without his knowing in advance the subject of this discussion. However, to all intents and purposes he did not participate in the discussion. His presence was necessary, in order to be available in case questions of a ****** cial, price- or tax-nature arose.
Questions regarding the use of prisoners were not discussed during this negotiation, either, as results from the memorandum. Kammler transmitted the minutes of this negotiation to Hohberg only because, Hohberg was present during these negotiations. The defendants record of the negotiation was not passed along. They were out-dated by Kammler's remark. Aside from discussion, Hohberg was never again consulted regarding the question Fallersleben. Nor does he know of the further development of the matter.
In a report by Kammler to Pohl regarding discussions with State Councillor Dr. Schiebdr concerning the transfer of armament enterprises to the concentration-camps, Kammler, who did not know anything of the organization of the DWB-Konzern, falsely designates Hohberg as compete for negotiations regarding prices. The conclusion of the Prosecution resulting herefrom, that Hohberg was also concerned with these questions and had discussed them with Dr. Schieber, is according to the statement by Hohberg and the affidavit presented by Schieber incorrect. Schieber declares that it is not at all possible in view of the nature of the object of discussion, that he or one of his collaborators negotiated with Hohberg regarding this subject. Hohberg himself has credibly stated that there was no necessity at all to use him regarding this subject, but that Kammler, because he did not have sufficient knowledge of the German laws concerning prices, and starting from false suppositions, had referred to Hohberg's competence.
If I now turn to the contents of these documents of the Prosecution, which refer to the questions regarding the pay for the prisoners, it might seem at the first moment as if it were difficult for the defendant Hohberg, to invalidate the reproach of having participated in the exploitation of prison labor and the slave labor program on the whole.
And just here we have to deal with a typical example, of how next to a field of activities punishable in itself, there may exist an activity which is not punishable by the Penal Law.
The document NO 1035 Exh. 405 contains a letter of Hohberg to Pohl, in which he discusses the amount of the prisoner's compensation to be paid to the Reich by the enterprises of the DWB, and proposes to Pohl to increase them from 0,30 to 2,50 RM. The difference between O.30 RM and the prisoner's wages to be paid, should be currently collected at the SS-Wirtschafts-Verwaltungs-Kauptant and put, totally or partly, at the disposal of the "Lebensborn". By this, the assertion of the Prosecution seems to be justified, that the entire economic activity of the SS aimed at the enrichment of the SS by the use of criminal methods, and the obtaining financial means for the execution of further crimes. And yet, the defendant is able to exonerate himself beyond any doubt.
It is the task of a Certified Public Accountant to check the different balance columns of the companies as to their correctness and check at the same time adherence to price--stop regulations. An examination of the amount to be paid to prisoners is necessarily bound up with the check of the different balance columns as trustworthily explained by Hohberg. The low rate of 0.30 RM for each day's work by a prisoner had to be objected to as incongruously low by the Certified Public Accountant Hohberg as the acceptable amount paid to the Reich for work done by prisoners amounted to more in any case. To this was added the fact that due to the exceptionally low rate of pay the SS enterprises gained a large non-substantiated headway economically, in comparison with the other economic enterprises. Hohberg was unable to ratify the balance of the Certified Public Accountant without having corrected the amount remitted to the Reich for prison labor.
If he wanted to do so anyhow, then he had to succeed in raising the prisoners' pay beforehand. According to his statement he tried unsuccessfully for 1 ½ years to have the prisoners' wages raised. Final he used a trick and tried to inveigle Pohl into raising the wages, by proposing to put the difference between the 0.30 RM to be paid to the Reich for every prisoners day's work and the actually charged rate at the disposal of the Lebensborn society.
It was actually well known to Hohberg as an old financial specialist of revenue and price laws, that according to rules and regulations of the war economy decree and tax-law, practically the entire proceeds of the middlemans profit would go to the Reich leaving nothing to the Lebensborn. This is certified by the opinion of a respected tax-export. It seems that Pohl noticed the devilish intent in this very quickly, considered the matter as unfit for discussion and threw Hohberg's proposition into the wastepaper basket.
Apart from the fact that this Hohberg proposition was never realized and that Hohberg never could have made himself thereby an accomplice in crime one could never speak of prisoner exploitation at the instance of Hohberg, even if his proposition had been carried out. For in so far as the prisoners did not receive wages anyhow due to a legal ruling by the Reich it was absolutely a matter of indifference to them how much the enterprise had to pay to the Reich for the prison labor. The prisoners would have received no more anyhow.
The Reich was authorized to pay the amounts or part of these received to the prisoner in form of wages. The Reich hired them out and received their wage payments. The defendant as Certified Public Accountant had no influence on the fact that the Reich paid wages to the prisoners. It was merely his task to see to it that the Companies kept their payments to the Reich, as the agency hiring them out, at a suitable level. As a result of raising the prisoner-payments from 0.30 RM to an adequate level, desired by the defendant, the Reich was for the first time in a position to pay wages to the prisoners. Hohberg can not be made responsible for the fact that the Reich did not do so anyhow. Hohberg's concern was that of tax-advisor namely that a Company fulfils its tax obligations. The tax-advisor is also not responsible for the way the Fiscal Office manages the taxes receive.
If it had been a case of paying the prisoners suitable wages, the defendant would have been the first one to do so with his strong social inclinations. But he was not one of those to decide this and had no personal nor official connections with this agency of the Reich.
Not in order to further exploitation of Prisoners did Hohberg have to concern himself with the question of payments for prison labor, no, only because to him as Public Accountant it was a legal duty to see to it that payments made for expenditures of the Reich, - and such was the making available of prisoners kept by the Reich to the Companies - showed up correctly in the balancesheets of the companies.
With regard to the question of prisoner employment it to be said in summarizing, that Hohberg hold no position in organization of the German Economic Enterprises (DWB) nor did he set in any capacity which provided him with influence on the direction and management of the economic enterprise and therefore on the allocation of prison labor. For this reason it is out of the question to speak of criminal responsibility of the defendant in regard to planning and accomplishment of the slave-labor program.
I now come to a new chapter.
It seems obvious that the Prosecution believes itself capable of proving by different documents that Hohberg participated in the pillaging of private and government property in occupied territories. But the prosecution was unable to present proof to this effect. It is a question of furniture factories for sale in the Government General in Document NO-1034 Exh. 444 A. A criminal act of the defendant Hohberg with regard to the furniture factory has not been proved by his telephone conversation with his former fellow college student Dr. Pfeiffer, because this concerned a normal purchase which was never realized.
The documents NO 1021 Exh. 448 as well as NO-1015 Exh. 451 are also unsuited to bring about the proof desired by the prosecution Hohberg had, as he trustworthily stated nothing at all to do with the Russian brickyards nor with the Klinker Cement with regard to the acquisition or lease of new plants in the Government General. This correspondence was based on the fact that Pohl during a conference, as was his habit, put a letter into the hand of Dr. Hohberg who was obliged by contract to attend conferences with the request for dispatch to the agency in charge.
The next chapter is headed "The Reinhard Action".
Defendant Hohberg is furthermore accused of having cooperated in planning and accomplishment of the so-called Reinhard-Action and in the establishment of the Osti.
It is unnecessary to discuss the events comprised in the socalled Reinhard-Action. The facts of the case as explained by the prosecution cannot be generally repudiated in regard to the Reinhard Action. But the prosecution has been unable to prove, that the defendant Hohberg had any knowledge of this Action apart from the fact that he participated in it. The defendant Vogt arrived back from his examination in Lublin only in the middle of June 1943 and Pohl and Frank gained better information about the Reinhard Action only due to his report. Quite some time elapsed before the result of this examination at Lublin was evaluated and the examinationreport presented. But on the 30 June 1943 Hohberg had ceased to act in his capacity of Certified Public accountant for the German Economic Enterprises already so that it is practically impossible for him to have gained any knowledge about the Reinhard-Action.
The defendant also stated trustworthily that apart from the name, he had never heard anything about the Reinhard-Action. This conception "Reinhard", was during his activity at the German Economic Enterprises (DWB) only used in connection with the so-called Reinhard-Action. According to relative information gained from Frank, Hohberg was of the opinion that the Reinhardfunds concerned property capital carrying the name of Under Secretary Reinhard then active at the Reich Finance Ministry. This opinion of his was more firmly confirmed due to the fact that he knew from Frank that Reich capital was involved in the Reinhard-funds and that due to his activity at the Reich Finance Ministry he know the tasks and importance of Under-Secretary Reinhard very well.
The letter of the Klinker Zement G.m.b.H., Posen, addressed to the German Economic Enterprises (DWB) Exh. 451 presented by the prosecution in which this conception of the Reinhard-Action is mentioned cannot refute Hohbergs explanation. As there were hundreds of actions at that time connection of Reinhard's name with the conception of an action did not seem noteworthy at the time. The letter was addressed to the German Economic Enterprises (DWB). But from the connection in which this conception of the Rein hard-Action is used it cannot be deduced that the receiver of this could picture for himself what was really behind this action. Dr. Hohberg states, that he did not consciously register this conception mentioned once in the letter in his mind and that he was not concerned with the matter mentioned in the letter. With the companies managed by Dr. Bobermin, he had no connection anyhow as certified by Bobermin in a most conclusive manner. The Reinhard-Action was treated as a top secret of the Reich within the Economic and Administrative Main Office (WVHA) as shown by documents offered by the prosecution and concurring testimony of witnesses so that only the circle of persons directly and officially connected with it, could and did receive notice of it.
But according to his tasks as Certified Public accountant of the German Economic Enterprises Hohberg could never become a member of this circle. The transactions concerning the Reinhard funds were treated openly without any remark as to their confidential nature in so far as matters purely of the nature of commercial law permitted. In view of the fact that no blame can be attached to the defendant in regard to his knowledge about the Reinhard-Action nor as to the origin of the money deposited in the Reinhard funds, all document presented by the prosecution in this connection lose their value as evidence in regard to the defendant Hohberg.
From Document NO 554, Exh. 448 A it becomes evident that Hohberg negotiated with the co-defendant Frank. These negotiations aimed at the redeeming of several credits given to SS companies by the Red Cross from the Reinhard funds. The letter to Frank dated 7 June 1943 confirms Hohberg's opinion that in the case of the Reinhard funds it was a question of regular Reich capital, for in this letter Frank is required to remit 8 million RM as part payment "of the intended Reich credit". After the long drawn out unsuccessful credit negotiations of the German Economic Enterprises with the Reich Postal Ministry, Hohberg naturally enquired of Frank where this suddenly available money came from. Frank merely stated, that it was a question of Eastern-money and property of the German Reich of which Frank together with the Reich Minister of Finance were able to dispose. From the text of the later concluded loan agreement between the German Reich and the German Economic Enterprises it becomes evident that it was simply a question of a loan by the Reich (compare Document NO 3722 Exh.
689).
Hohberg did dedicate himself most intensively to the appropriation of credits from the Reinhard funds as soon from the document. This zeal was based on his intention to further the financial predominance of the Reich in the German Economic Enterprises in order to separate these enterprises from the SS by all means with regard to capital and power politics and place same under the jurisdiction of a Reich ministry on which the SS would not be able to exert any influence. As trustworthily stated by Hohberg it was further his aim to see to it that money coll by the Red-Cross did not come under the management of the SS. Neither do the documents offered in regard to the repayment of Red-Cross credits made at the insistence of Hohberg offer one single shred of evidence for the fact that Hohberg knew the true source of the money in the Reinhard-fund. Frank maintains that he had no exact information himself. How could Hohberg then who had no official connections with Frank have gained such information!
Neither can the conclusion be drawn from the prosecution's document NO 1039 Exh. 384 that Dr. Hohberg was informed about the real character of the Reinhard fund and thereby about the Reinhard-Action. The defendant had presented the documents with the remark "Unfinished work of Staff" to the business manager of the German Economic Enterprises according to the habit of a Certified Public Accountant, at his resignation on entering the army, as a recommendation. Under number 17 the following has to be pointed out:
"The contract between the Reich and the German Economic Enterprises with regard to the loan from the Reinhardfund has to be established yet in a written form." The defendant merely knew that Reich capital was involved in the Reinhard-fund. In order to make liquid assets of this loan one was forced to conclude a loan agreement between the Reich and the German Economic Enterprises. The possible inference that this remark is proof of the defendant's knowledge in regard to the actual source of the Reinhard-fund is therefore in no way justified.
Now there is an entirely new chapter.
Hohberg's participation in the Reinhard-Action had neither been proved by the documents referring to the founding and development of the Osti. For Hohberg had no in the founding and development of the Osti. At a conferee with Pohl to which he had suddenly been called unprepared, Hohberg had, as he states himself, only heard the following in regard to the reasons for the founding of the Osti:
Pohl had received orders from Himmler to make an inventory of machines and stocks lying in empty factory buildings in Warsaw and to utilize same as trustee for the benefit of the German Reich. Approximately at the same time an agreement had been reached between Globocnik, Pohl and Himmler to the effect that a number of enterprises in the Government General as far as administered by Globocnik without legal authority, were to be placed in charge of Pohl and that for this reason a new company was to be founded. It was Himmler's plan besides, to transfer several shut-down Warsaw plants to Penjatewa or somewhere else and operate them within the frame-work of the Osti itself.
THE PRESIDENT: Dr. Heim, we are going to take a recess.
You have had just an hour and we are going to take five minutes for the interpreter's voice to recover. We will resume at 4:30, and then you will conclude at five o'clock. We will take five minutes recess now.
THE MARSHAL: The Tribunal will recess for 5 minutes.
(A recess was taken).
THE MARSHAL: The Tribunal is again in session.
DR. HEIM (ATTORNEY FOR DEFENDANT HOHBERG): Then follow statements about the Osti. That portion of the argument concerning Hobberg's attempt to discontinue his activity as an auditor, I shall ask the Tribunal to take judicial notice of, by reading them. I shall continue on page 56 of the German text in the middle.
As the evidence, in accordance with my demonstration so far, has shown, the defendant had no part with what constitutes here the subject of the indictment. Already at the beginning, Dr. Hohberg, in his urge to recognize the true fact of the SS, had managed to inform himself about circumstances and doings in concentration camps. He had, therefore, while still engaged in his position known about criminal acts in concentration camps.
Has Hohberg now become punishable by not preventing these crimes, although he had knowledge of them. Criminal responsibility is to be assumed only if Hohberg had the possibility and power to prevent these crimes. The defendant had this opportunity exactly as little as the common man in German. He had no rank or position whatsoever in the machinery of the state or in the Party organization, which would have given him the possibility successfully to oppose these crimes.
To what extent were the actions of the defendant consistent with his knowledge and beliefs?
In the beginning he had little cause. The Inspectorate of the concentration Camps, till 1942, was no part of the WVHA. Whatever disagreeable accounts of treatment of inmates came to Hehbergs ears, they were not based on accurrences in enterprises employing inmates, but had happened in the concentration camps. Hohberg was busy enough trying to direct, by suitable proposals, the unlawful conditions in the concerns into orderly channels which confermed with commercial law. As a consequence he refused to gave the balance confirmation certificate to all those companies, mostly users of inmate labor, the balances of which were incorrect, especially regarding the amount of inmate labor compensation to be paid to the Reich.
During the time that Dr. May was employed in the DWB Concern, Hohberg had no cause to relinquish his position as creditor. For Dr. May had induced Pohl to put through a great social program, the socalled "Heimatgestaltungsprogram" (home improving program), which conformed exactly with the trend of social ideas of the defendant. Inmate labor was positively excluded in this program.
Because of his firm stand against Party and SS, the defendant, already at this early date, took care that the DWB Concern could not be used to finance any plans of the SS. To begin with, he caused the administration of DWB to make all property which had no legal form, into commercially registered companies, e.g. DAW Dachau. Then, it was no longer possible for the SS to use up the capital without violating strict rules of commercial law, e.g. the so-called "Closed year".
But Hohberg went further yet. He induced Pohl to increase the capital of the Holding Company DWB out of undoubted Reich funds, such an extent that DWB, which was till then a Party concern, now had a capital stock majority held by the Reich. This was of decisive significance as the Party and the Reich-Treasure of the NSDAP, Schwarz, gave the SS a free hand in the administration of the so-called enterprises, and this state of affairs was bound to charge whenever these companies, then falsely designated as SS enterprises, became the property of the Reich. From then on Pohl, in his administration of the Concern, was bound to observe the ordinances then in force regarding the administration of Reich concerns. It was impossible for him in his position as partner of DWB, which he held from then on in trusteeship for the benefit of the Reich, to dispose of the profit in favor of SS purposes, after the capital had be increased to 16 Mill. RM(l7 May 1943), the Reichsfinanzminister (Reich Secretary of the Treasury), had exclusive control of capital and profit of the entire concern. I would have liked to see Himmler's fact had he realized the result of Hohberg's activity, since he himself, used to speak so proudly of his SS-undertakings.
The anti-Party attitude of the defendant took on a new radical trend as a result of a trip to Poland in June 1942 with Dr. May, the firms group head of the wood working plants. It was based on personal impressions gained in the neighbourhood of concentration camps and resulted in manifold reactions.
Next came the efforts of the defendant to get away from the SS environment by being drafted into the army. As his so-called draft deferment was caused by Pohl, a general, the recruiting office was ready to draft the defendant into the Air Force only after Pohl had cancelled the deferment.
When he did not succeed at once in being drafted in to the army, the defendant tried with his energy to get in contact with active circles of resistance. In spite of the greatest efforts he did not succeed as well as he wished. But he was at least introduced to an indistrialist by the name of Passmann, where members of several active anti-fascist circles of resistance, above all officers of the High Command of the Army Forces, met with more or less regularity to exchange experiences, places and news. The person of Herr Passmann was especially interesting his professional and social connections brought him constantly in contact with high-ranking generals and ministerial offices. In this circle the defendant unreservedly exposed the criminal way of treatment of Jews and political prisoners and, according to Passmann's own treatment, contributed to the information of a series of people who were victims of the attempted open revolt of 20 July 1944.
Not only in this circle , but also in front of other reliable third persons, did the defendant carry on his anti-Nazi propaganda. He informed influential persons of the economic life of the men constituting the economic background of Himmler by obtaining a list of the circle of friends of the Reichsfuehrer, the so-called Keppler Circle, and by passing it on as a warning so to speak. He decided stand against the SS system and the National Socialist regime expressed itself through manifold revolutionary propaganda in front of third persons.
The defendant, however, was not satified with the mere remocal of the DwB concern as a financial source of the SS. With means he strove for the actual removal of this huge economic asset from the sphere of politics of the SS and its transfer to the Reich.