(English transcript page 797):
"Q: Is it correct that the Special Courts and the People's Courts did not have anything to do with Civil matters?
"A: Yes. They had nothing to do with civil matters.
"Q: Is it correct that the civil proceedings, since 1933, were not at all changed in any direction which could be described as typically National Socialistic or contrary to the National Socialist World Order or ideology?
"A: That is correct in as far as the institution of hereditary health courts is not considered.
"Q: Did you determine whether the civil jurisdiction was used for the establishment of the National Socialist regime?
"A: No. I did not have any particular experiences in that respect. I did not make any experiments."
This opinion of the witness for the prosecution BEHL is confirmed by Al. Exh. 3, Al. Doc. 73, page 20 - paragraph 3 - (Affidavit PRITSCH).
Documents exhibit 481 NG-702 and exhibit 484 NG-783 submitted by the Prosecution, do not indicate any activity of defendant ALTSTOETTER in the field of criminal law. In this case he only acted as messenger for transmitting the wishes of the chief commissioner for the Triest area to the Ministry.
This is apparent from:
l) Interrogation of the defendant ALTSTOETTER as witness on 16 September 1947 (English Transcript page 8909)
2) Al. Exh. 1, Al, Doc. 23, page 56 - here page 62 (Affidavit STAGEL) Statement LAUTZ on 28 July 1947 (English transcript page 5975).5. The People's Court and the Special Courts were not concerned with cases of civil law.
ALTSTOETTER had only to deal with these courts as far as organization and planning within the frame-work of the Office for Reformation of the Constitution of German Courts was concerned. He advocated the abolition of these courts and was successful in achieving that this should come into effect after the war. Al, Exh. 3, Al, Doc. 77, page 42 (Affidavit BERGMANN II) Al, Exh. 1, Al. Doc. 7, page 74 - especially page 75 paragraph 3 (Affidavit FECHNER) V Defendant ALSTOESTER did not commit criminal actions of any kind nor did he participate in any such actions.
1. Department VI was on principle not concerned with Nacht & Nebel matters. It was the criminal department that dealt with these matters. In paragraph 2 of the decree of 6 March 1943 - prosecution exhibit 319, document NG-269 - the civil department merely took care that, in accordance with the law regarding vital statistics, information on cases of death and birth were given to the registry offices, also in regard to these prisoners; and in paragraph 3 safegruaded the drawing up of legally valid wills by NN prisoners. Then dealing with those questions the department was neither informed of the Fuehrer decree nor of the nature of NN matters. Neither before nor afterwards did it ever have anything to do with NN matters.
Dr. VOGEL declares in Al, Exh. 3, Al. Doc. 76, page 39:
"As I in any case had not learned anything about the nature of NN -prisoners, I deem it possible that I reported on it to Herr ALTSTOETTER, As department VI was only competent for the items of the directive that appertained to civil law, the officials concerned in that department had, in my opinion, no cause to pry into the principals which caused the criminal department which alone was authorized to communicate with the outside on the subject, to propose such a directive. The general ruling that an agency cooperating on a secret matter should only be informed on it as far as unavoidably necessary for the handling of theri special subject, even prohibited such investigation."
The witness for the prosecution SUCHOMEL, who himself was employed in the departmen dealing with NN matters, stated in his reply to a question of the prosecution when being interrogated on 27 August 1947 (English transcript page 7776):"Q: Did you know about the Nacht and Nebal-decree in 1943 and '44'?"A: About that decree I heard only quite by chance when once for a few days I had to be deputy for the Ministeriall Director.
The designation "Nacht und Nobel" decree, I did hear, but what it was all about I did not know to that very day.
"Q: But had it excited any curiosity - the tern "Nacht ana Nubel" in you, you would have felt free to ask any other member of the Ministry of Justice just what they meant, wouldn't you?
"A: To interfere with secret matters, I avoided most carefully. I have already emphasized once that in every office, including mine, there were posters to the effect that secret matters should be told only to those officials who had to deal with those matters, and it all pointed out expressly that violations would be tried u* the regulations regarding treason and would be punished accordingly. Therefore, it was understandable that I avoided interfering in any matters that did not concern me."
If, according to this statement, even the witness SUCHOMEL as member of the department for penal cases was not informed of the nature of NN mattters, although the term "Nacht und Nobel" had struck him, how much less then could the defendant ALTSTOETTER be informed who had nothing to do with penal matters.
The supposition of the prosecution that LTSTOETTER was informed on the nature of NN matters by dealing with the circular decree, is by no means well founded.
In this connection witness SUCHOMEL declares on 27 August 1947 (English transcript page 7779):
"A: I could answer that question only with an assumption, and I must say it is difficult for me when I am testifying here under oath to utter mere assumptions for which I have no real basis; for I, myself, as I have stated before, heard about it, read theNacht and Nebel Decree once superficially and read about NN prisoners being transferred somewhere else from the Rhine or from somewhere, I read this NN decree only briefly.
I don't recall its full contents any more, and therefore I must say, I can also not answer whether the contents of this decree was necessary in order to make any regulations about matters of wills. I don't know that."
From the contents of paragraphs 2 and 3 of the ordinance of 6 March 1943 it is apparent that for its uniform wording a knowledge of the NN decree was not essential and it follows from the statement of Referent Dr. Vogel, quoted above, that the department actually had no knowledge, The same also follows from the statements:
a) of the defendant Mettgenberg in the witness box (statement of 1 August 1947, English transcript page 6361):
"A. May I correct you counsel? It is not a letter but a circular decree, a circular decree which treats a number of questions. Within the Ministry the procedure is as follows: Every department examines only those questions and is responsible only for those which concern its sphere of business, questions which are at the same tine dealt with in such a decree and belong within the sphere of activity of another department are not covered by that signature."
Furthermore (Transcript of 1 August 1947, English trasc. page 6316):
"Q. Witness, did you ever officially or unofficially speak about NN cases with the defendant Altstoetter?
A. No, I do not recall any conversation with Altstoetter about NN cases, neither during the course of my official duties nor outside of it.
Q. Did you ever inform Altstoetter about NN cases officially in writing?
A. In writing I did not give Altstoetter any information either."
b) of defendant Ammon in the witness box (statement of 4 August 1947, English transcript page 6434):"Q. Witness, did you ever officially or unofficially discuss with the defendant Altstoetter the Fuehrer decree or the NN case?
A. Not before the surrender.
Q. Did you, in writing, inform Altstoetter about the nature of NN cases?
A. No."
and in his affidavit of 17 December 1946 - Exh. 337 - NG 486 - Document Book VI - page 164:
"All leading officials of Departments III, IV and V in the Ministry of Justice should have been familiar with the NN complex."
From this it is to be concluded that von Ammon was also convinced that the chief of the Department VI was not familiar with the NN complex.
Al. Exh. 1, Al. Doc. 18, page 32 (Affidavit Willers) Al. Exh.
1, Al. Doc, 19, page 40 (Affidavit Schoetensack) Al. Exh.
1, Al. Doc. 23, page 56 (Affidavit Stagel) Al. Exh.
3, Al. Doc. 73, page 20 (Affidavit Pritsch) Al. Exh, 4, Al. Doc.
21 - paragraph 3 - (Affidavit Hinrichs) In addition to these it is stated in a number of further affidavits that, to the best of the writers' knowledge, nothing was known about NN matters in Department VI.
2. The prosecution cannot rightly accuse Altstoetter on the basis of Exh. 460 - NG-891 - Doc. Book V Supplement. Altstoetter has stated - and this is confirmed by the expert opinion of Professor Dr. Leo Raape of Hamburg whose affidavit is available as exhibit 3, Al, Doc. 82, page 60 and who is a recognized expert in this field - that the decree of the Minister for the Interior of 15 June 1944 and especially the circular decree of 15 November 1944 signed by Altstoetter on behalf of the Reich Minister of Justice are fully in accordance with German law and in particular with International Civil Law and that these decrees did not alter the legal position in any way, especially not to the detriment of either the unmarried mother nor her illegitimate children. Therefore, after the decrees were issued, the legal position remained the same as before.
For details I refer to the following:
a) Altstoetter cannot be made responsible for the decree of the Minister for the Interior of 15 June 1944. The directives given in it are addressed exclusively to the authorities subordinate to the Ministry of the Interior which have nothing to do with the Reich Ministry of Justice.
For the instructions contained in it only the Reich Minister for the Interior was competent. In as far as the Reich Ministry of Justice was asked to cooperate, it was the Department for Juvenile Law (Department III) which was competent. This dealt with Juvenile welfare matters (its chief was witness Suchomel).
Compare the plan for the distribution of work of department III, Prosecution Exhibit 510, NG-988, document book supplement I, page 6.
b) As far as the scope of the decrees is concerned, the Protectorate is to be excluded, since it was not subordinated at all to the Reich Ministry of Justice, In the socalled annexed Eastern territories however, it was the German and Austrian civil codes respectively, which in accordance with Polish Law were applicable to illegitimate children up to 1939. After the incorporation of these territories into the German Reich these same codes remained in force in accordance with German Law.
Compare Bergmann, International Law of Marriage and Filliation (1939-1940) in Exh. Law 4, Al.Doc.97.page 45) Compare Boschan, E uropean Family Law (1937) in Exh.
4, Al. Doc. 98, page 47.
Compare Tomforde - Diefenbach - Webler, "The rights of the illegitimate child and its mother, at home and abroad (1935) in Exh. 4, Al. Doc. 99, page 48
c) Whether anyone did or did not possess, or had lost the citizenship of a foreign nation, or whether anyone had acquired German citizenship, were problems outside the scope of Altstoetter's work.
d) Finally it should definitely be emphasized that Altstoet ter did nothing else but to draw the attention of the guardianship courts to the existing law as enforced by the decree He did not create a new law nor did he enlarge the scope of German law.
The right of unmarried mothers to put their case before the guardianship court remained quite unimparied. The accommodation and care of the children was no business at all of the Reich Ministry of Justice or the guardianship courts.
3. In matters concerning Jews there are no grounds whatsoever for even the slightest supervision that ALTSTOETTFR acted unjustly.
Neither did ho commit such actions nor take part in any. a) The interrogation of the defendant ROTHENBERGER on 17 July 1947, English transcript page 5446, as well as the interrogation of ALT STOETTER proved that Department VI did not participate in the drawing up of the 13th Ordinance to the Reich Citizenship Law - prosecution Exh. 112 - NG-715 - Doc. Book II.
If Department VI would have had the least to do with the ruling contained therein regarding the sequestration of Jewish property, Ministerialrat REXROTH and Ministerialdirigent STAGEL would have dealt with this matter.
In regard to Ministerialrat REXROTH Dr. BREITHAUPT states (A1. Exh. 1, Al, Doc. 22, page 54):
"I remember having discussed this after the promulgation of the order, with Ministerialrat REXROTH.....He pointed out to me, that Article 2, Paragraph 2 of the decree contained an error in editing since it mentioned dependency claiments, i.e. persons who were entitled to alimony from a deceased Jew. This is legally impossible since in accordance with the Civil Code the obligation to support ceases with the death of the benefactor. This fault was attributed by REXROTH to the fact that he was not consulted as the authoritative referent of Division VI in formulating the draft for the decree."
The declaration of Ministerialdirigent Dr. STAGEL is along similar lines - Al. Exh. 1, Al. Doc. 23, page 59.
The sequestration of Jewish property ordered by the 13th Ordinance to the Reich Citizenship law was solely a police-measure for which the Ministry for the Interior is responsible.
The law of inheritance and the eligibility of the Jews to inherit were impaired neither by the Reich Citizenship Law nor by the 13th Ordinance. In the civil law procedure for the establishment of heirs neither the relevant provisions contained in article 2353 and following of the German Civil Code, nor the rulings concerning probate matters were altered in any way by the 13th ordinance.
The courts therefore could, as before, establish Jews as heirs and issue the so-called inheritance certifificates.
If the material extent of the inheritance was restricted by administrative rules, this has nothing to do with the civil side of the law relating to inheritance as is clearly shown by the above affidavit STAGEL Al. Exh. 1. Al. Doc. 23, page 59 in the case of ColloradoMansfeld. The reversion would no longer have been legally possible if the previous Jewish heir had not been heir by law.
In actual fact the courts could therefore enforce the existing law of inheritance whenever such cases were brought before the court.
Accordingly, ALTSTOETTER cannot be made responsible for the 13th ordinance because he had nothing to do with this legislation nor with its execution. Nor did the courts operating under him take any part in putting this legislation into practise.
In this connection reference is made to Al. Exh. 3, Al. Dec. 73, page 20 - paragraph 9 - (affidavit FRITSCH) Al. exh.
3, Al. Doc. 79, page 49,- paragraph II - (affidavit RUEHL).
In 1944 Department VI was requested to prepare a carrying-out ordinance to the 13th ordinance concerning the Reich Citizenship Law.
It was because of the opposition shewn by Department VI, and in particular because of the negotiations which the Ministerialdirigent Dr. HESSE, the person dealing with the matter conducted on the order of defendant ALTSTOETTER behind the back of the Reich Minister of Justice THIERACK, with the Referent of the Reich Ministry of the Interior, who was personally known to Dr. HESSE, that this carrying-out ordinance did not become law; on the contrary the ministry of the Interior issued a carrying-out ordinance on its own, without contacting the Reich Ministry of Justice. This ordinance did not, however, affect the laws concerning inheritance.
b) The Prosecution submitted against ALTSTOETTER the following documents:
as Exh. 457 the document NG-666 in the supplementary volume V as exh. 451 the document NG-636 in the supplementary volume VIII " " 453 " " NG-900 " " " " VIII All these documents refer to matters which are connected in some way or other with the so-called origin-controversy concerning Jews and persons partly Jewish.
ALTSTOETTER's interrogation (see transcript page 8896 and following) shows clearly that the measures which he laid down in this order - submitted to the court - can in no way be called criminal or offences against humanity. At the same time it has been established that the law suits concerning questions of origin are not an invention of the Third Reich, but originate in the provisions of the German Civil Code and the Code of Civil Procedure of 1900 and that, since that time, lawsuits to establish legitimate of illegitimate origin have always been brought. Naturally, Jews also could make use of this facitlty to establish their actual origin. Al. exhibit 4, Al. document 91, page 21 (affidavit HINRICHS).
Ministerialdirigent Dr. STAGEL, who heldped to shape the orders submitted, has commented on this question:
Al. Exhibit 3, Al. document 75, page 34 - paragraph 2, 3 and 4 and above all in Al. exhibit 4, Al. document 89; page 8, and proved that these regulations whenever Jews were involved in suits concerning questions of origin, benefited the latter.
In this connection it should be noted that there was no need for a Jew to be present as witness when the blood test was taken because this test could also be made elsewhere or the blood of the person in question could be taken on the spot and send up for the test as happened in the case of soldiers serving at the front.
It is well known that the blood group test can only give "negative" evidence, in other words difference in the blood groups prove that there exist no relationship.
If, in this manner, it was established that the plaintiff could not possibly be a descendant of the defendant there was no longer any need for a hereditary-biological examination by comparative witnesses. They were needed only in those cases where parity of the blood groups seemed to indicate a relationship (that means Jewish origin). If such a hereditary-biological examination did not take place, this evidence of the "possible origin" to be introduced officially - had to be dropped and the proceedings could only be carried on on the basis of other evidence produced by the plaintiff (testimony in particular of the mother etc.). These are, of course, always in favor of the plaintiff. For this reason the decree of the Reich Ministry of Justice exhibit 453 of 3 June 1944, paragraph 2 - rules as follows:
"Even if the hearing of the Jews may in many cases help to frustrate the intentions to conceal their descent, reasons of the security police demand to desist therefrom."
From this it is quite obvious that the fact that Jewish witnesses could not be neard was actually of advantage to the Jewish plaintiff.
It is therefore established:
aa) There have been controversies about the question of the origin, and plaintiffs in this matter ever since 1900.
bb) This legal step was always open to Jewish descendants, but not intended as a means for carrying out anti-Jewish legislation.
cc) ALTSTOETTER can in no reasonable way be made responsible for the Jewish legislation (Nuernberg Laws) of the Third Reich. He was in no way associated with it.
FINAL PLEA ALTSTOETTER A dd) The same applies to any security measures taken by the Reich Ministry of the Interior, that is, by another authority.
ee) The fact that the calling of witnesses was made difficult was actually of advantage to persons of Jewish origin in aryanization proceedings.
c) The Bureau of Racial Policy (Prosecution document exhibit 142 NG-410 Document Book VIII A and Prosecution document exhibit 432 NG-789, supplementary volume I), which had been esatablished in Department VI of the Reich Ministry of Justice, had nothing to do with the Jewish legislation. This legislation for Jews was on principle in the hands of, the Reich Ministry of the Interior.
MEINHOF's so-called Bureau of Racial Policy was an independent institution in as rar as it had been created, for the whole ministry. In this respect MEINHOF was subordinate to Department II of the ministry. Apart from questions relating to hereditary-biological science MEINHOF concerned himself in Department VI with legal questions relating to marriages between nationals of different states. (Removal of obstacles to marriage).
The correctness of the statements made by the defendant with regard to this problem (interrogation of 15 September 1947, English transcript page 8859 and following) is apparent from:
Al. exhibit 1, Al document 10, page 89 (departmental disposition dated 12 June 1943) Al. exhibit 1, Al. Document 23, page 60 (affidavit Dr. STAGEL) Al. Exhibit 1, Al.document 7, page 74- paragraph 12 -(affidavit FECHNER) Al. exhibit 1, Al.document 9, page 91 -paragraph 4 -(affidavit v.d. OSTEN) Al. exhibit 3, Al.document 75, page 33 -paragraph 5(affidavit STAGEL) Al. exhibit 4, Al.document 94, page 32 (affidavit HINRICHS)
d) That ALTSTOETTER personally was in no way prejudiced against Jews, that in fact he refused to accept the National Socialist racial ideology, is among others proved by:
Al.exhibit 2, Al, document 49, page 57 and following (affidavit GEALACH) Al.exhibit 1, Al, document 2, page 22 and following (affidavit GENANDT) Al.exhibit 3, Al. document 68, page 1 (affidavit BUSOLD) A1.exhibit 3, Al.document 79, page 49 -paragraph II/1 - affidavit, RUEHL) This is further proved by the testimony of the defendant KLEMM of 11 July 1947 (English transcript page 5090):"Question:
Do you remember that THIERACK once required Department VI should issue a special regulation in regard to divorces between Jews and Aryans which were to the disadvantage of the Jews, and what was ALTSTOETTER's attitude in regard to this request?
Answer : This too was one of these plans of THIERACK which was foiled only by the resistance offered by ALTSTOETTER and also to delay in the treatment."
4. ALTSTOETTER rejected on principle and in each individual case with the utmost determination all demands made by the Party to reorganize the law in terms of National Socialist ideology as well as all attempts at interference with the application of the law or all attacks on the independence of the judges. ALTSTOETTER's primary aim, as chief of the "Office" for the preparation of the reorganization of court procedure, was to protect the application of the law and to guarantee the independence of the judges, enlisting the help of science in this struggle between the Administration of Justice and the Police.
Al.exhibit 1, Al. document 23, page 61 (affidavit Dr. STAGEL) Al. exhibit 1, Al. document 24, page 83 (affidavit Dr. KERN)
a) The draft of the Law concerning the Treatment of Asocial Elements was absolutely unjust, ALTSTOETTER attacked it and, behind the back of the Minister and acting against the latter's instructions, he prevented it from being enacted, as he condemned it for moral reasons. This Law concern ing the Treatment of Asocial Elements had been requested by HIMMLER, and THIERACK had given his consent. (Prosecution doc. PS-654, exh.39, Document Book I b paragraph 7 - ).
The counter-effects which ALTSTOETTER's actions had, are proved by affidavits and testimonies, for instance, these of the witness SUCHOMEL in his testimony of 27 August 1947 (English transcript page 7774 and following). Al. exh.
1, Al. doc. 23, page 60 (affidavit STAGEL) Al. exh. 2, Al. doc. 31, page 8 (affidavit GRAU).
Al. Exh.2, Al. Doc. 32, page 10 (Affidavit FICKER) Al. Exh.
2, Al. Doc. 33, page 12 (Affidavit LEHMANN) and the statement of ALTSTOETTER when in the witness box on 15 September 1947 (English transcript page 8863).
b) ALTSTOETTER maintained the same attitude in regard to the ordinance governing Party responsibility because it favored the position of the Party as compared with that of other authorities and other organizations and because it tied the courts to party-political certificates of conduct. It was due to his efforts that this ordinance governing Party liability did not become law. (See prosecution document NG-889, exhibit 435 supplementary volume I).
In this connection the following is also relevant:
Al. Exh. 1, Al. Doc. 6, page 70 (Affidavit DERMIETZEL) and, in particular, Al. exhibit 3, Al. doc.
81, page 56 (Affidavit Dr. BERGMANN) and the statement of ALTSTOETTER in the witness box on 15 September 1947 (English transcript page 8866).
c) ALTSTOETTER never allowed any interference in the application of the law.
Al. Exh. 1, Al. Doc. 3, page 46 (Affidavit HORNIG) Al. Exh.
1, Al. Doc. 23, page 56 (Affidavit STAGEL) Al. Exh.
1, Al. Doc. 5, page 67 ( Affidavit STEPP) Al. Exh.
1, Al. Doc. 6, page 69 (Affidavit DERMITTZEL) Al. Exh.
3, Al. Doc. 79, page 49 (Affidavit RUEHL) Al. Exh.
2, Al. Doc. 30, page 4 (Affidavit ENKE) Al. Exh.
3, Al. Doc. 73, page 20 (Affidavit PRITSCH) Al. Exh.
3, Al. Doc. 71, page 14 (Affidavit BESTA) Al. Exh.
3, Al. Doc. 74, page 30 (Affidavit VOGEL) In the case Friedrich the defendant ALTSTOETTER even prevented Hitler's intervention in a pending affair.
By doing so ALTSTOETTER ignored a Fuehrer order which he considered to constitute a violation of the law.
In this connection see ALTSTOETTER's statement of 15 September 1947 (English transcript page 8872) and KLEMM'S statement of 11 July 1947 (English transcript page 5088).
Al. Exh. 4, Al. Doc. 93, page 28 (Affidavit EBERSBERG)
d) In the same way as he did not tolerate any interference with the application of the law, he also vigorously advocated the independence of the judges:
See:
Al. Exh. 1, Al. Doc. 27, page 96 (Affidavit FRIEDRICH) Al. Exh.
1, Al. Doc. 7, page 74 (Affidavit FECHNER) Al. Exh.
3, Al. Doc. 75, page 42 (Affidavit BERGMANN) Al. Exh.
3, Al. Doc. 73, page 20 (Affidavit PRITSCH) Al. Exh.
3, Al. Doc. 74, page 30 (Affidavit VOGEL) The defendant KLEMM also, when in the witness box, confirmed that ALTSTOETTER's attitude was entirely in favor of the rule of law.
(English transcript page 5088):
"Q. Witness, what attitude did the defendant ALTSTOETTER have principally on legal questions, in reports to you or to Minister THIERACK:
A: I already indicated that before that it was Herr ALTSTOETTER in particular who most energetically represented his point of view against THIERACK and he was constantly interested especially in having the law abiding idea preserved and that no interference into the competency of the adminitistration of Justice was to be taken or that we even gave it up voluntarily."
VI.
In order to properly characterize ALTSTOETTER's position tho following should be added:
1. Although the Third Reich's legislation regarding hereditary health was in itself controversial, ALTSTOETTER, for ideological reasons, did not approve of the extent it had assumed in the actual law and soon after he had entered the Ministry of Justice he effectively worked for the number of proceedings to be reduced with the intention of donsiderably restricting the scope of this legislation after the war.
There is no particular need to stress the fact that he had no knowledge of any misuse of this legislation to promote Nazi-Socialist tyranny and that he likewise never heard of individual cases where the law had not been applied properly.
In this connection reference is made to:
Al, Exh. 2, Al. Doc. 37, page 23 (excerpt from Reich Ministry Gazette No. 37 of 15 September 1944) Al. Exh.
2, Al. Doc. 38, page 25 (Affidavit KRIEGER) Al. Exh.
2, Al. Doc. 39, pago 30 (Affidavit REINHARDT) Al. Exh.
2, Al. Doc. 40, page 34 (Affidavit BUFF) Al. Exh.
3, Al. Doc. 68, page 1 (Affidavit BUSOLD) Al. Exh.
3, Al. Doc. 73, page 30 (Affidavit STAGEL) 2. In the case of the "Statute Frenchmen" ALTSTOETTER, against the sentence pronounced by a court and against the original view of the Minister, succeeded in saving these Frenchmen, who were under death sentence, from being executed because he most energetically insisted on the observance of international law.
ALTSTCETTER had just taken over Department VII which was competent for these matters. This can be seen from: Al. Exh. 1, Al. Doc. 7, page 74 - paragraph 9 - (Affidavit FECHNER) and Al. Exh. 3, Al. Doc. 78, page 46 (Affidavit WOLFF).
3. It was often usual in the Third Reich that whenever vacancies were filled Party membership and Party merits were considered in the first place, and professional skill and experience were of secondary importance Party merits and attitude towards National Socialism were of little consequence in ALTSTOETTER's personnel policy. It was only knowledge and experience which he considered. The following affidavits give convincing proof of this:
Al. Exh. 1, Al. Doc. 18, page 31 (Affidavit MILLERS) Court, III, Case III Al. Exh.
1, Al. Doc. 23, page 56(Affidavit STAGEL) Al. Exh.
1, Al. Doc. 6, page 69 (Affidavit DERMIETZEL) Al. Exh.
1, 1. Doc. 9, page 91 (Affidavit von der OSTEN) Al. Exh.
1, 1. Doc. 34, page 14 (Affidavit v. BRUENNECK) How he assisted officials in difficulty for political reasons, is proved by Al. Exhibit 2, Al. Document 36, page 20 (Affidavit Baptist Lentz).The former Ministerialrat LENTZ, at present employed as Director of the Central Administration of Justice in the Soviet Zone of Occupation, declares:
"One day I...was transferred from the Personnel Department to the Civil Law Department as I was considered politically unreliable. When I reported to Herr ALTSTOETTER, I fully informed him of this state of affairs, and as far as I know I also pointed out to him, that I had to expect further measures. ... Herr ALT STOETTER replied, that he was prepared to take me over completely into his Department, he would know, how to protect me against further political attacks."
The present Bavarian. Prime Minister Dr. Hans EHARDstates (Al. Exhibit 2, Al. Document 25, page 16):
"In autumn of 1944 Herr ALTSTOETTER therefore asked me, whether I was prepared to accept this post of Presiding Judge of a Senate. I was all the more surprised at this inquiry, because Herr ALTSTOETTER knew, that I was no Party member and had no intention to become one and that the NSDAP considered me politically unreliable owing to the part played by me as Public Prosecutor at the hitler trial."
This incident is particularly confirmed by the evidence of witness MIETHSAM, dated 8 July 1947, English transcript, page 4883:
"The problem was, that at that time the position of a Senate President at the Reich Hereditary Farm Court had to be filled and the right for nomination or appointment was with the Reich Ministry of Food and Agriculture.
ALTSTOETTER, who was in charge of the Department where among other things the law concerning hereditary estates was to be dealt with, intervened at that time concerning the appointment for that position. Although he had nothing to do with personnel matters as such, he suggested, and supported the idea, that the then Sanat President with the District Court of Appeals at Munich, EHARD, who is now Prime Minister of Bavaria, should be nominated for that position . . . .
However, it was pointed out to me that there might be difficulties because EHARD had been assistant prosecutor in the Hitler trial of 1924 - and was in disfavor since that time with the National Socialists, Apart from that, he had been, a member of the Bavarian Pooole's Party before 1933, and was still not a member of the Party."
Court, III, Case III Page 4890:
"Q .... Did ALTSTOETTER himself iniciate that recommendation?
"A. I believe that it was on his initiative.
Q Did he push the support for EHARD with great energy, even after he started to encounter difficulties?
A I was frequently informed by our chief director LEETZ that ALTSTOETTER time and again brought up the suggestion concerning EHARD and did not tire of doing so."
In this connection further reference is made to:
Al. Exh. 3, Al. Document 73, page 20 - figure 4 and 5 - (Affidavit PRITSCH) Al. Exh.
3, Al. Documnet 74, page 30 (Affidavit VOGEL).
V II.
1. In investigating the question whether ALTSTOETTER is builty on count IV of the indictment, having been honorary leader of the SS "Ehrenfuehrer), it must first be stated that Ehrenfuehrer were not "official members" of the SS.
It is of importance for the interpretation of this question, that Major FARR representing the prosecution against the SS before the International Military Tribunal in answer to Judge BIDDLES question declared that as members of the SS are considered persons who had taken the oath and whose names appeared in the lists of membership as members of the General SS of the SS Death's Head Units or the WaffenSS.
Compare ALTSTOETTER Exhibit 2, Al. Document 57, Page 83 (German only) The prosecution at the time therefore considered the taking of the SS oath, was a condition for membership, Thus it follows that, "official members" in the sense of verdict of the International Military Tribunal are only such members who had taken the SS-oath.
This interpretation is also in agreement with an order published in the news-sheet of the Bavarian State Ministry for Special Tasks, dated 8 August 1946, where it is stated also that Honorary Leaders. (Ehrenfuehrer) were not leaders(Fuehrer) or sub-leaders (Unterfuehrer) of affiliated organization of the NSDAP (which includes the SS). Al. Exhibit 2, Al.Document 55, page 80 - figure 2 16 0ct-M-TB-12-8-A-Sampson(Int.
Sauer) Court, III, Case III Al. Exhibit 2, Al. Document 52, page 67 (Affidavit WUNDER) contains information on the conception of an Honorary Leader.
This concerns a document introduced during the IMT trial and setting forth the position of Honorary Leaders. From it can be deducted that the Honorary Leaders did not take part in the SS-service, that they were not trained as SS-members, that, as a rule, it was not even necessary for them to prove their aryan descent and that in 1938 Honorary Leader were requested for the first time to assist at the swearing-in of the SS -recruits and, to take the oath themselves; but no control was exercised, however, with regard to the administrationof the oath.
Affidavit Gottlob BERGER (Al. Exhibit 2, Al. Document 53; page 74) runs along the same lines.
A shorter definition of Honorary Leader is provided by the collective decision, of the permanent legal council with reference to the uniform interpretation and application of the Denazification Law in the U.S.Zone. dated 20 August 1946 which reads:
"Honorary Leader are persons who although authorizes to have this title and to wear the appropriate uniform had no official authority and also carried out no activity corresponding to their rank."
Compare Al. Exhibit 2, Al. Document 56, page 82 ALTSTOETTER who never served in the SS, not even for one minute, who minut never had taken the SS oath, who never was present at a roll-call or , SS-rally, and, as will be shown later on, wore no SS-uniform, not even when visiting HIMMLER by order of the Minister, who had no official authority and had never been active within the SS in any way, can, therefore, not be classed among the "official members" who must be considered part of a criminal organization according to the verdict of the International Military Tribunal.
2. When examined the defendant ALTSTOETTER explained in detail how he became an Honorary Leader of the SS, not out of sympathy for the SS or on his own initiative but merely by accident, Landshut being the home town of both, HIMMLER AND ALTSTOETTER.