Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Altstotter, et al, defendants, sitting at Nurnberg, Germany, on 20 March 1947, 0930-1630, Justice Marshall presiding.
THE MARSHAL: The Honorable Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United Statas of America and this Honorable Tribunal. There will be order in the court.
The PRESIDENT: Mr. Marshal, please ascertain that the defendants are present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendants Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: The proper notation should be made.
Before beginning further cross-examination, first of all, if the defense counsel are able to do so, we should like to have some indication as to the probable length of time to be consumed in further cross-examination.
DR. WANDSCHNEIDER: Yes, sir. Wandschneider for the defendant Dr. Rothenberger. For questioning this witness in cross-examination, I will need several hours; that is, until the noon recess, I will need several hours. But I hope by condoning my questions, to speed up the cross-examination.
THE PRESIDENT: The Tribunal wishes at this time to admonish defense counsel that the testimony of this witness so for seems to be of a general nature that applies to all defendants, and that this trial would be unduly prolonged if there was any covering of the ground the second time. We must, therefore, admonish counsel that the ground that has already been covered should not be again covered or repeated.
MR. LA FOLLETTE: May it please Your Honors, may I also ask the Tribunal to inquire whether after Dr. Wandschneider has completed his cross-examination, at this time, if any other defense counsel are able to say whether they are contemplating a cross-examination. That would give us more time or a better understanding of the length of time necessary.
The witness is a presiding officer of his own court, and while there is no disposition on the part of the prosecution or the witness to avoid any cross-examination, in order that he may advise the officers of his own court as to his probable return, he would like to know whether he can possibly get out today or tomorrow. His train for Schweinfurt leaves a 3:30. There will be some re-direct examination also, but we would like to know if there are any other defense counsel, after Dr. Wandschneider, who desire to cross-examine this witness. I Would appreciate the Court making that inquiry at this time.
DR. GRUBE: Dr. Grube for the defendant Lautz. I intend also to question the witness by way of cross-examination.
DR. ASCHENAUER: Dr. Aschenauer for the defendant Peterson. I also intend to cross-examine the witness.
DR. HAENSEL: Dr. Haensel for the defendant Joel. I have a few questions about two subjects which have not yet been covered.
DR. DOETZER: Dr. Doetzer for the defendant Nebolung. I also intend to cross-examine the witness at lenght. May I say for my colleage, Brieger, who is counsel for tho defendant Cuhorst, that he also intends to cross-examine the witness.
DR. SCHUBERT: Dr. Schubert for the defendant Oeschey. I also intend to cross--examine the witness, but I have only - few questions about subjects which have not been exhaustively covered before.
DR. KUBUSCHOK: Dr. Kubuschok for the defendants Schlegelberger and von Ammon. If the subjects about which I want to put questions have not been covered in the meantime by other defense counsel. I also will cross-examine the witness.
DR. ORTH: (Attorney for Defendant Altstoetter) I also have a few questions to put to the witness, which I will only put to him, if in the meantime, other colleagues have not cleared up the matter.
DR. KOESSL: (Attorney for Defendant Rothaug) I wish to make the same statement which my colleagues before me has made.
THE PRESIDENT:
I think I should observe at this time that the cross examination by Dr. Schilf has been searching and exhaustive, and it certainly applied for the benefit of all defendants. It appears to me to say that Joshua of old once said to his followers: "Choose this day whom you will serve." We will turn that around, I think, where there are so many attorneys desiring to be permitted to cross-examine, that it would not be out of place to ask them to choose who will serve them for the benefit of the others. Manifestly, if each of these attorneys should conduct an examination at only a part of the length as was used by Dr. Schilk, it would be certainly not an expeditious trial.
DR. WANCSCHNEIDER: (Attorney for Defendant Rothenberger) I am convinced that a repetition of questions is not in the interest of the proceedings, neither in the interest of the defendants.
Therefore, I shall try to put only these questions which from the special point of view of my client are necessary, and to bring these questions in a condensed form. I ask the high Tribunal to be permitted to begin my questioning.
CROSS-EXAMINATION BY DR. WANDSCHNEIDER: (Attorney for Defendant Rothenberger)
Q Witness, you said concerning your personal circumstances, when you were questioned, that until 1930; let me put it this way: May I ask why, in 1930, with forty-one years you left the civil service, the justice service.
A I left the Justice Administration because the position in the field of art and theater was offered to me in Berlin, and because my other inclinations could be used or combined in this position with the judicial, work, and such sort of activities; it was more to my liking.
Q Witness, then I am not mistaken to assume that you personally are greatly influenced by points of view of art and literature as far as your life and your philosophy are concerned.
A Yes, that is true that I am also interested in the point of view of art as far as my life and my philosophy is concerned, but that would not exclude at the same time I have a point of view of a jurist.
Q I did not come to that conclusion. In September, 1935, on the basis of the revision of the professional civil service ruling, if I remember correctly on the basis of paragraph 6 you had been relieved of your position, a provision which justified your dismissal. You were not dismissed on the basis of paragraph 4 of the law which referred to Nationally irresponsibility?
A That is correct.
Q You said furthermore that you also were a member of the Social Democratic Party and the Republican Judges League.
A Yes.
Q On the basis of your dismissal in 1935, did you receive your full pension during the ten years of your absence?
A. Yes.
Q You personally had no difficulties; therefore you encountered no difficulties because you belonged to the Social Democrat Party and the Republican Judges League, as far as your pension was concerned.
A No.
Q Witness, you said that from 1939 until 1941, you had been asked by Mr. Bredow to remain there; he wanted to hold you, you stated; is that true?
A It was Mr. Volk.
Q Oh, Mr. Volk. Were you then in the service cf the police force, or was it the police service?
A I was in the Department of Police.
Q At the beginning of the war, in 1939, was there a draft legislation, which forced everybody to enter into some branch of the administration?
A One had to register with the office where one last worked.
Q Was that the police office?
A Yes.
Q And on that basis of this fact you wont to the police in 1939?
A Yes.
Q Witness, you mentioned Dr. Jacobi in your examination, whom you have known for many years, and you said furthermore that you knew a book, you had a book by Dr. Jacobi here with you which you studied carefully. May I ask you to answer the question: What kind of an opus, a book, was this, as far as the content was concerned?
A It is a study of the administration of justice in Germany, before an after the advent cf the Third Reich -- before and during the Third Reich.
Q. When did that occur?
A It is not a publication, as such; it is just a study; a manuscript; a study.
Q Could one say that in your statements of the opus, in part statements of an expert, that you based your statements essentially on this unpublished study?
A The details of this study, which I have seen about ten days ago and which I mulled through, I have examined them; I have checked them on the basis of my own notations which I have made; I supplemented them, and the some total of that material was the basis for my statements, after examining the statements contained, the material contained in this study by *r. Jacobi.
Q You have stated that from 1930 on, until 1945, that is fifteen years you were not in the service of the administration of Justice any more. Do you believe that you, having been absent for fifteen years from the justice service, would be qualified to have an opinion or give a judgment about internal affairs of the service?
A I have already answered that question before I stated in detail that the development in that field, justice as well as development in the cultural, was observed by me very carefully; that I had clippings from newspapers; that I read publications of the Reich Legal Gazette; that I had conversations with former colleagues; and that thereby I could gain an impression of the development, that I could gain a, complete picture; I also stated that I gained information from publications, in the Deutsche Justiz, a legal magazine.
If one knows how to read between the lines, one can also gain a correct impression. I am sorry that I have to repeat that today again.
MR. LA FOLLETTE: May it please Your Honors, I believe that I didn't say anything yesterday regarding this question; I believe that I can state accurately that this witness on direct examination was restricted to his observations of the outward manifestations of the acts within the Ministry of Justice, and the decrees and laws which were published. I don't believe the witness has ever testified that he knew what went on between personalities or interdepartmental politics within the Ministry of Justice, and the last question I thought was directed as to why he could testify regarding matters within the ministry. That line of questioning is not correct because he only testified as to things he observed.
JUDGE BRAND: May I make one comment; my suggestion is not directed toward counsel; my suggestion is merely that the witness was in fact only repeating what he said yesterday, and that it was unnecessary for him to fully repeat it again what he said yesterday, and what is in the record.
MR. LA FOLLETTE: May I ask for some ruling on my understanding of his testimony, which would have a bearing upon the character of the cross-examination I don't believe that the witness has ever testified on direct examination that he knew anything about what went on within the Ministry of Justice; it was only as to questions which raised the inference or assumed the fact that I am raising the question.
DR. WANDSCHNEIDER: Excuse me, Mr. President, could I be permitted to say one more thing. I have finished my questions to this point. I only came to put that question before because I wanted to cover a new aspect which was essential for me to emphasize because the witness had only mentioned so far what he knew from the outside about things going on within the Ministry. As far as my client is concerned, it is most important what internal things went on in the Ministry of Justice, and to find out how far the witness was in a position to judge these, and my question to this point is finished.
MA. LA FOLLETTE: On that ground, I have no objection.
THE PRESIDENT: It appears that there is no other questions along this line, and, therefore, there is no objection before the Tribunal.
BY DR. WANDSCHNEIDER:
Q Witness, if I understood you correctly, before 1933 and certainly after 1933 you were a strong political opponent of the National Socialist Party.
A Yes, I always was that.
Q Do you believe that in this political attitude, which is a very good one, and which you have frankly stated, that you would be able to have an unbiased judgment of these questions, or do you think according to the standards which you have applied as a judge, yourself, when you questioned witnesses, do you consider it possible that an objective judgment on your part, by a definite political attitude such as yours, could be impartial?
A. As fay as I can base this myself, and referring to the texts which have been published, I do not believe that my attitude as that of an opponent of National Socialism would change anything and things which can be read quite clearly by everybody; they could not change it subjectively.
Q. Thank you, witness. Now, in this connection may I put the supplementary question in your testimony, you are not only concerned with texts themselves but also with your personal attitude and conclusions from the reading of these texts, sand as far as this is concerned, your personal judgment and your personal political attitude could not be quite excluded? May I ask you to answer that?
A. I believe any one who was not a definite adversary, everybody who was not a definite opponent of the Nazi could draw the same conclusion, and would have to draw the same conclusion from these texts as I drew.
Q. You said, witness, that the development, the training of the judges, the jurists and the system of justice after 1933 was definitely going in the opposite direction in which it went before 1933. My first question is the following: German legal development before 1933, starting from 1871 over a period which has been discussed here - was that development a continual one?
A. As far as essential principles are concerned, I would say yes. If one wants to compare it with developments which started after 1933, then, yes.
Q. You answered the question about the uniformity of legal authority before 1933, however, is it so that these legal principles and legal conceptions - isn't it so that they were changed by fundamental changes in the political conditions after the first world war * were they not touched by that? Therefore, if I may add they were touched particularly by the elements which tended to make questionable any continuous development of law or legal authority; that is, first by the contrast of the individual provinces, states of Germany - I remind you of the opposition between authority between North and Southern Germany after the first world.
war by a factor unknown to Anglo-Saxon law; that is, the many political parties which were more than 30, and as a consequence of that, the extraordinary destructive political conditions in the country. Is that correct? And, this is my question. Is it correct that by all these circumstances that in contrast to the general continuous development of law and legal authority until 1918, that in some parts there was a crisis as far as legal conditions were concerned, before 1933, which had to do with the confidence in justice - already before 1933?
A. It is accurate to say that after 1918, by various tendencies, by the individual states, individual states had governments which were carried by different parties; then the government of the Reich thereby had a certain crisis which arose. However, the principles stimulated by the Weimar Constitution, those parties and individual tendencies may have tried to scrap these principles, still in fact, these principles were not disturbed. The independence of the judges was maintained and guaranteed. Essential changes of legal thought such as, for instance, paragraph 3 of the Penal Code, and paragraph 170-A, during this time it never became active. One nay say that a considerable discussion, a heated discussion, and in parts also from the party could be seen to influence jurisdiction and the administration of justice, but at the same time there was a great deal of opposition against that, which after the seizure of power by the National Socialists was slackened more and more. Without a doubt there are problems, for instance, problems of administration of justice, which were discussed in a violent manner. I might remind you of the discussion of the death penalty. I, myself, by way of publication have maintained that I was against the death penalty. Much has been said about improving the Penal Code, that went back and forth, this discussion went back and forth. A draft made by Dr. Ebermaier, the former Reich prosecution, was debated but the basic principles of legal authority remained the same.
Q. I take it, witness, that you consider one of the essential principles of the constitution, the independence of the judges. I have just introduced to other points of my questioning; that is, the points of equality before the law, and security.
Is it true that those also stem from the authority of the constitutional state? That these two points are the basic conditions which you have described, were thoughts which, first, in 1933 were regarded as a difference of jurisdiction from the political points of view, that is, the Social Democrat or National Socialism; that these authorities would be discontinued in 1933? Is it true that many people at that time, even jurists, may have thought that from the point of view of equality and security before the law, National Socialist point of thought, could be the right one?
A. Whoever became acquainted with the thoughts of Hitler and his writing could have no doubt that National Socialist regime would have to come to inequality to establish equality before the law on the basis of their racial dogmatic theories.
Q. You believe, then, that this point of view of legal equality alone by the racial question had to be answered? That is in a negative way?
A. Yes, by this question alone.
Q. Witness, you said furthermore, when you were questioned, that the younger people among the jurists with whom you have come in touch by way of denazification procedures, that they stated that the majority of them had entered the Party under duress, under pressure, to be assured that they would not lose their livelihood. And, you said that many judges have told you the same or similar things. Do you believe on the basis of your human experience or do you not believe that statements of that kind, today in many cases, should be met with considerable criticism, considerable doubt because they ere statements of protection for rehabilitation?
A. I here again must repeat that I have also answered this question on the occasion when I said that in some of these cases it is only a statement for protection; it was the motive. However, in my experience and according to the conversations which I had with these people, that one could not say that of a large number of the cases.
I am here in a position to tell you about one of my experiences which might be of interest for this proceeding. In the district court of Schweinfurt the Board of Examiners by which the individual judges, officials, employees of that district, are examined on the basis of their personal data and interviews with them, that the Board stated that the so-called Action Engert, the defendant in that, for a half year, I believe, yes, it was in 1934, he was president of the district court at Schweinfurt, and in his opening speech, which I heard from people who actually heard the speech, he had said, "We do not have to have this God-damned humanism." That was quite clear to me and resulted in extraordinary pressure to the judges and officials of the district in order to force them into the Party, as was in other districts only during the years 1935 and 1937. The majority of the officials and civil servants, who without much further reason of personal enthusiasm or opportunity had joined shortly after the seizure of power where then in these other districts, that happened at this late date.
THE PRESIDENT: It seems that at least to myself that the answers of the witness are in the main a repetition of sentiments expressed at least once and I fear more than once in the course of his lengthy examination and cross examination. Now, this may not be altogether the fault of defense counsel. The questions that are propounded by defense counsel who now appears at the microphone, of course, are somewhat different than those which were propounds by Dr. Schilf yesterday but in the sense that they are a challenge to the soundness of the opinions of the witness it calls upon the witness to make these same statements in defense of the soundness of his opinions. Now, I realize that this is a very difficult matter to take care of but it must be apparent now, as it was apparent to me before we began our session this morning that we were bound to have too much repetition. Now, Dr. Wandschneider represents a defendant and he has duties to perform but the Court, of course, has a certain right, too, that I am sure Dr. Wandschneider will be able to observe. Try to do a little along that line, otherwise there will be further admonitions.
MR. WANDSCHNEIDER. I come now to another question and that is the following you said, witness, that Freisler was a typical example of National Socialist justice and you mentioned his statement of a neutral justice which should not be allowed to exist anymore. You mentioned Frank in a similar sense. Is it known to you that there were a good many jurists and there are, who were members of the party and who fought against it? Men like Freisler, and in official meetings of jurists expressed that opinion?
A. I have heard about that.
Q. Is it known to you that in a number of attacks -- serious attacks of judges and their judgments came from the Black Corps?
A. Yes.
Q. Also from Kreisleiters directly against judges and their sentences?
A. Yes, it happened frequently.
Q. Didn't you say yesterday that attacks against the judges were always channeled through the Reich Minister of Justice or did I misunderstand you?
A. No, I didn't say that.
Q. I have misunderstood you in that sense?
A. Yes.
Q. But you admit that direct attacks in a very definite form and directly from the party functioners, especially from the Black Corps were directed against the judges and against the sentences?
A. I say that I know of one case. Streicher in the Court in Nurnberg--the Jury Court in Nurnberg attacked the judge, not by mentioning his name but so clearly everybody know who was meant and that was no account of a sentence in which party functioners in connection with the corruption had been sentences. I believe it must have been in 1935.
Q. Yesterday you spoke about the Special Courts which you considered particularly dangerous as regards political justice and in this connection I meant to ask you whether you know that particularly during the last War the Special Courts according to their number and importance, were primarily occupied with purely criminal matters, that is to say for example, looting, black-out crimes, etc? Is that correct?
A. I could not apply a measure of comparison between these crimes and matters. However, as I have seen from sentences by Special Courts or some cases of common crimes and by applying the test against public enemies, there is a tendency or a color toward the political side, as far as the judgment even of common crimes is concerned.
Q. As an expert, witness, did you consider this political coloring in terms of emergency or relation? Did you now consider it as a natural consequence and an unavoidable consequence because naturally any crime or misdeed in normal times can just be judged as a misdeed whereas under extraordinary circumstances it has an entirely different importance of extreme danger to the State?
A. This may be true in a certain sense that daring extra-ordinary times a crime which finds a lighter judgment in normal times gains more importance by the uncorrect terms created by National Socialism, Volksschaedling, public enemies. I also remind you of the term of the certain sentiment of the people "Gesundes Volksempfinden" and similar ones. These terms have an additional meaning -- an additional coloring -- and in reality what is meant by it the attitude of the Gesundes Volksempfinden as exposed to National Socialism -
on the basis of the wrong slogan on which National Socialism built its' regime that the slogan that every German was a National Socialist, on the basis of this slogan the interest of the Nation was identified with the interest of the National Socialist Party. In doing so also the more severe penalties in emergency periods get a further political National Socialist aspect and coloring.
Q. Witness, in this connection I want to ask you whether independently of the prevailing political system the fact that penalties were rendered more severe during periods of emergency? Was it that more than that these penalties were given in a political sense without it having anything to do with the political shade of the Party?
A. I believe I have already stated that I do not necessarily consider this increase of severity of penalties in times of emergency a political factor. It doesn't have to.
Q. Thank you. I come to the next question now. What was the consequence of the impression of the Fuehrer Speech of April 1942? Is it correct that the impression of this speech was a catastrophic one?
A. Yes. Certainly among jurists throughout. It was considered a challenge and an atrocious insult to justice that judges only -- a person could be surprised -- astonished who expected anything different from Hitler.
Q. You stated -- you spoke about a decree of 19 October 1942 where mention is made of the direction of jurisdiction of administration of justice. Do you have this decree before you? Would you be so kind to take it up now?
THE PRESIDENT: May I inquire whether you are referring to the decree of April 27, 1942?
DR. WANDSCHNEIDER: The decree of 19 October 1942, Mr. President. That is a decree in which mention is made of the direction or of the steering of the administration of Justice, but which is not known to the Tribunal because it has not been submitted as a document yet, it was just mentioned by the witness.
THE WITNESS: I have here the files of the District Court in Schweinfurt, and in these files there is an excerpt.
BY DR. WANDSCHNEIDER:
Q. This decree concerns, as you have already stated, Mr. President, the direction of jurisdiction of the Administration of Justice in war-time, and you have stated it as an example for the limitation of the independence of the judges.
A. Yes.
Q. Now I should not like to argue about therms, "direction" --"lemkung" is "direction" -- "lenkung" , or "steering". One cannot speak about that, so I am concerned now with something else.
Granted that a direct on exists, we can only try to find out to what extent individual jurists reacted to this decree about direction, whether they increased the pressure on judges or whether, within the Administration of Justice, they counteracted that pressure.
In that connection, are you aware of, or do you know how the man who signed this decree considered his task, how he approached his task?
A. No; I could not say anything about that.
Q. Thank you.
Is anything known to you about the fact that from 1939 on there was a direct contact between the individual prosecutor and tho judge and it was proscribed officially ?
A. Will you please repeat that question?
Q. Do you known anything about the fact that I ready since 1939 a direct contact between the individual judge and the individual prosecutor was prescribed or desired or had existed?
A. I have not heard about that.
Q. In it as correct that, on the basis of the decree of October 1942, a direction of the Administration of Justice was seen to mean that the chief prosecutors should make contacts with the presidents of tho district courts, would you see in that an improvement compared to the point of view which I have mentioned before of 1939?
A. Did you say "improving"?
Q. "Improvement", os, a tendency towards improvement, because hero we are concerned only with general principles and not with a contact between judge and prosecutor.
A. As far as that does not go into the individual case, I would say "yes".
Q. You mentioned , in your testimony, the Fuehrer decree of 20 August 1942, which defines the authority, or which concerns the authority of the Reich Minister of Justice. In this decree of 20 August it is stated that to fulfill the tasks of the Greater German Reich, it is necessary to have a strong Administration of Justice. What do you understand it to mean, witness, if you do not consider the fact that Hitler was the one who demanded that strong Administration of Justice? What do you understand by that term "strong Administration of Justice," "Starke Rechtsplege"?
A. If I consider the individual words as such, then "strong Administration of Justice" can mean all sorts of things.
It may mean that the administration of Justice has to be carried out to combat certain influences coming from the outsdie; it may mean that it should be particularly severe. It has many meanings. There are many meanings possible according to the meaning of the term "strong" which, in the German language, can be used in many cases. It may have various meanings. But this is a purely theoretical discussion which I am making quite apart from this decree.
Q. Witness, this question is interesting for me, naturally, because those are not the words of Hitler, but of personalities who count. For that reason, I should like to supplement my question to ask you whether it isn't so that generally the term "strong Administration of Justice" has the emphasis on "Administration of Justice" and is not identical with the term of a more several Administration of Justice , which puts the emphasis on the "strong", or the "severe".
I have to repeat that this is more of a philological question, which I an prepared to answer and have already answered.
Q. In the decree of 20 August 1942, which, as we know was the basis for a reform of the law, it states that prevailing law can be disregarded, or existing law can be disregarded, when the reform of law takes place, Isn't it quite understood that deviations of previously existing laws occur? Isn't that a natural consequence?
A. In eases of a reform, of reforming tho law, as the name indicates, there is an intention to change existing law. In a constitutional state there are, of course, more or less strong guarantees that that cannot be done arbitrarily, but hero we are concerned with a sort of power of attorney given to the Reich Minister of Justice.
Q. And as to in what sense and to what extent that power of attorney was used, you couldn't tell us anything about that, could you?
A. No, but I assume -- and one has to assume -- that the immediate dismissal of judges was possible on the basis of that decree. It should be added to this, that after that speech by Hitler, which was an insult to administration of Justice, the Reichstag had closed up and that Hitler, as the supreme judge was in a position to dismiss judges.
Q. On the basis of the decree of 20 August 1942 -- In your opinion, was it possible on the basis of that decree?
A. Yes.
Q. In this connection you mentioned the decree of october 1942 about personnel measures for the reconstruction of the Administration of justice. Do you recall this decree which you have mentioned, witness ?
A. I could not say at the moment.
(The witness was shown a document)
A. (continuing) Yes, I know it. I don't know whether I mentioned it yesterday.
Q. From this decree, or rather, the draft of a decree, I should like to quote the following and put it to you, witness: "To facilitate the reconstruction of the Administration of Justice", it says here, "judge and civil servants in the Administration of Justice of the Reich may, until 31 March 1943, be transferred into a different office of the same category of pay, or into an office with the same possibilities of career but less pay, or into retirement, or into retirement with pension."
If such a draft was considered necessary in October 1942, was it possible then to be of the opinion that this dismissal of judges could already take place on the basis of the decree of August 1942?
A. According to the text of this decree, such as it can be seen here, this is possible because the Minister of Justice of the Reich could have deviated from existing lav and therefore also from guarantees existing for the judges.
Q. Is it known to you that this decree remained a draft, a draft only, and was not issued with legal validity, and do you know, could you tell us whether any dismissals took place?
A. That I don't know. The judges mentioned to me their serious concern that they could be dismissed on the basis of that decree.
THE PRESIDENT: We have reached the point to have cur usual morning recess and we will therefore recess at this time for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. WANDSCHNEIDER: May I continue with the cross-examination?
The Tribunal said the point which we discussed at the end was not quite clear. It referred to the transfer of judges for the reconstruction of the administration of justice. Here I referred to an order regarding personnel. It is an order of October, 1942. I pointed out that even though this draft of the order provided for the retirement of judges, this draft did not become the law. My question to the witness was whether he knew that it remained only a draft. He stated, if I understood him correctly, that he did not know whether it was an order having legal force or whether it remained only a draft. Moreover, the witness affirmed that he did not know whether a civil servant was actually ever transferred for those reasons.
A. I added, however, that judges were, on tho basis of the decree of August 1942, concerned with the fact that they might be dismissed.
Q. I would now like to go on to the next question. You said any now draft of Paragraph 2 of the Legal Gazette, Penal Code, regarding healthy feeling of the people and the discussion of the basic principles of the similar law was regarded by us as a deviation from proper legal thinking. Did I understand you correctly?
A. Yes.
Q. You added the other day when you were examined that it was foreign to German thinking to have analogous application of the law.
That is criminal legal thinking. Yes. It was foreign to German criminal legal thinking.
Q. I do not want to try, now, witness, this conception of yours by pointing to the opinion of the International Military Tribunal; I do not wan to destroy that conception because then the Tribunal would probably tell me that in the first opinion, it was already affirmed that the principle, nulla, poena sine lege, no crime without law, was a principle of general justice. It was recognized as such by the first International Military Tribunal.
Within the course of this cross-examination, I do not want to discuss this question because it would go too far afield from the actual subject under discussion.