Q You left the party, and what were your reasons?
MR. LA FOLLETTE: I object to the question because I feel that it is not material or relevant whatsoever.
THE PRESIDENT: The objection will be sustained.
Q Witness, from 1939 until 1941, you again returned into the service of the administration of justice, as you mentioned, against your will. I would like to know what tasks were assigned to you from 1939 until 1941, in which office you served? I did not understand that correctly this morning.
A I answered that already. In the judicial office of the Economy Division of the Police Department.
Q I thank you. Witness, if I understand you correctly today you are of the opinion, that you have repeatedly stated that before 1933, under the Weimar Reich Constitution, the independence of the Tribunals and of the judges was in effect theoretically and practically?
A Yes.
Q May I, therefore, ask you whether in this opinion of ours, you considered the criticism of your own party, the Socialist Democratic Party of Germany, this criticism of the German administration of justice?
A Yes, criticism was within the principles of the democratic state. The essential thing is how far criticism could lead to the abolishment of the independence, actually.
Q Do you know from your own memory, and as a member of long standing of the Socialist Democratic Party what the requirements of the Socialist Democratic Party were under the Weimar Reich Constitution toward the administration of justice, and do you still remember in what constitution these regulations are written down?
A You mean the constitution of the German Land?
Q I assume you do not remember, Witness?
A No.
Q I shall refrain from reading to you from the party program of the Socialist Democratic Party. Witness, in the direct and cross examinations you described the first measures of National Socialism against German administration of justice. You emphasized centralization. I ask you now whether, in case, centralization, the so-called Reich administration of justice would not have been carried out under the Nazi; that is, the Nazi had not carried it out but had maintained the administration of justice in the individual hands, would they not have had the same results?
A Centralization of the administration of justice, I have said that already repeatedly, it made it easier for National Socialism to achieve their aims.
Q Please excuse me, I have to say this to you for reasons of fairness because the approach I made is according to your knowledge of National Socialism. Even if they had maintained the administration of justice in the individual hands, would that have changed anything in the final results; that is what I am asking you?
A I do not believe so, but I said already it is important that the centralization make it easier. It would have been more difficult otherwise but in the nature of National Socialism, it would have been possible to, by way of the administration of justice over individual hands.
THE PRESIDENT: Now, that having been answered three or four times, let us have a different question.
Q Witness, in several connections we have discussed ordinary jurisdictions here and we have differentiated ordinary jurisdiction from special jurisdiction. I believe, however, that the opposition which we have done so far could have the fault, seen objectively, that a real picture of that which we call ordinary jurisdiction in Germany has not been painted; therefore, I may ask you, Mr. President, what does one understand in Germany by the term ordinary jurisdiction regular jurisdiction. This question is very difficult for you to answer. As for any one else, but you may understand I must put this question to you.
A Ordinary jurisdiction is the jurisdiction which by means of, which is granted by the constitution; and as for permanent regulation of legal procedure, there has been established -- this organization has been established by the constitution and organizes courts and according to whether all legal cases of a certain kind had the same value and are judged. If they concerned a certain group of people, and are brought before a definite legal authority and are decided by the legal authority.
DR. SCHUBERT: May it please the Tribunal I do not know whether in the American legal procedure it is permitted that an expert during the cross examination answers a question which has been submitted only the next day after he has thought it over again. For reasons of fairness I would like to ask the high Tribunal, to inquire of the Tribunal, therefore I repeat, is it permissible that an expert witness in a cross examination defers the answering of a very difficult question; that he postpones it for 18 hours?
MR. LaFOLLETTE: I do not know what the question was. I thought the witness answered the question and I thought he had been answering it all day and yesterday also. This last question I assume is an address to the court for the purpose of inferring that the witness is dishonest. I think that is a little out of the way in attacking the credibility of the witness, and I ask that the question be completely withdrawn.
THE PRESIDENT: I did not get the impression it was an insinuation against the witness. I am unable to say whether the witness has sought to defer his answer or whether there will be any difference. It seems to me to speak for itself. That question has been answered.
DR. SCHUBERT: The witness answered a question but the answer made it apparent that he could answer it only on the spur of the moment without necessarily thinking about it. If the formulation which he made, if he made that a basis of another question may I ask you whether the entire administrative justice, whether in as far as I know is unknown in America?
Q Witness, do you think that comes under ordinary jurisdiction?
A Yes, I do.
DR. SCHUBERT: May it please the Tribunal, I will now have to turn to another set of questions, and I would be grateful to you, also in the interest of the witness, if I would be permitted to continue my cross examination tomorrow morning.
MR. LaFOLLETTE: If your Honor pleases, I do not know what is going to happen tonight. I think this witness is a little tired. I was certain the Court would permit me to redirect examine this witness.
However, whatever we do we cannot finish tonight, but I do not know whether the cross-examination can or not.
THE PRESIDENT: It is not the last, I think Dr. Kuboschok wants to be permitted to examine the witness.
MR. LaFOLLETTE: Well, there seems to be three more.
THE PRESIDENT: Yes.
MR. LaFOLLETTE: It seems to me we have been at this long enough today and I certainly will be at it tomorrow.
THE PRESIDENT: It is apparent we cannot finish the cross examination tonight. However, it did seem to me desirable to complete the cross examination by this particular Defense Counsel, but it will take very much time so maybe that rule should not be followed. I do not suggest that the Counsel be permitted to proceed and that we go into something extensive. Probably we can inquire how much additional time the Defense Counsel will require.
DR. SCHUBERT: I estimate another hour.
THE PRESIDENT: We will recess at this time, but speaking for myself, the Counsel should be admonished that nothing like an hour's additional time will be permitted, and the Counsel should try to confine his questions to a much more limited time.
MR. LaFOLLETTE: May I just say this at this moment: I have attempted to be agreeable throughout this trial and to be fair. I realize the testimony of this witness, to some extent, affects each and every defendant in the dock, but when this experience is over, I hope either by agreement with the Defense Counsel or by some ruling of the Court, that there may be some method of designating people to do the cross examination for at least groups of the defendants in certain categories, and some limitation of time to be consumed. I certainly do not want to do anything which will deny any defendant a fair trial, but a constant extension of time by cross examination which repeats the same field, I do not believe serves to the best interest of the defendants. In fact, some defendants may be injured, as already appears today, by questions which are asked by other Counsel. It seems to me the defendants would be interested in working this out themselves in some way.
THE PRESIDENT: We will recess until 0930 tomorrow morning.
(The Tribunal adjourned until 0930 hours, 21 March 1947.)
Official transcript of the American Military Tribunal in the Matter of the United States of American against Josef Alstoetter, et al., Defendants, sigging at Nurnberg, Germany, on 21 March 1947? 0930-1630, Judge Carrington T. Marshall, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal 3. Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshal, have you ascertained if the defendants are present?
THE MARSHAL: May it please your Honors, all the defendants are present in the courtroom with the exception of Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: The proper notation will be made.
DR. CONRAD FERDINAND WILHELM BEHL - Resumed CROSS EXAMINATION (Continued) BY DR. DOETZER: (Attorney for Defendant Nebelung) May it please the Tribunal, may I continue the cross examination.
I assure you that by concentration, I shall try to finish the cross examination in a short period.
Q Witness, if during my questioning yesterday. If I was rather sharp in the manner of questioning, I ask you to regard that as a reaction of my being very tired, and to excuse me.
A I accept your apology.
Q As far as I remember, we had discussed the complex of questions regarding the special courts and the regular courts and we had finished this complex of questions. I repeat my question. As far as I remember, we had finished the complex of questions regarding special courts and special jurisdiction and ordinary jurisdiction courts in the direct examination by the prosecutor as well as during the cross examination. As far as I remember, and according to my conception, the organization of the courts was also discussed. I mean the question of the competence of the German tribunals of the local courts, of the district courts of appeal, and of the Reich Supreme Court on the one hand and of the special courts and of the Peoples' Court on the other hand.
In the same connection the question of the organization of the prosecutions was discussed in detail. May I ask you now what is the difference in German law between the aim according to which a German public prosecutor or a German judge is working, and whether this existed between the prosecutor and the judge according to the aims of the work of the prosecutor and the judge.
A The prosecutor was subject to the directives of the Ministry of Justice, which at the time of the republic, the principles were in according with "parliamentary principles, in contrast to the directives which were given after the real parliament was abolished in the Third Reich. The judge was, as I already said at the beginning of my statement, subject only to the law.
Q I thank you, witness. I would like to put the question in a more precise manner. Did the public prosecutor, as well as the judge, regarding the finding out of the truth, did they have the same task; the only difference was that one was bound by directives and the other one was independent.
A Yes, that is correct.
Q Therefore, the German public prosecutor must have regard to the subject matter as well as regarding the person of the defendant; he must have investigated everything which is charging the defendant as well as those things which would acquit him.
A That is correct. I remember a republic prosecutor from my time in Berlin who described the public prosecution in a rather exaggerated manner the most objective institution in the world I emphasize that this was an exaggeration.
Q Witness, we discussed the question what the German judge, according to the Weimar Constitution and the legal regulations was independent and free from all directives, or it was supposed to have been that way. During the cross examination you have stated that basically he was not bound by the decisions of other or higher courts. May I ask you, according to the Weimar Constitution, to what was the German judge bound?
A The laws.
Q I would like to ask you further, the Weimar Constitution says that the German judge is bound by the laws. Did that mean only a law promulgated in the regular manner, or did the judge also have to obey other legal observations which he had to make the basis of his decisions. I am thinking of the common law. If I understand you correctly, the German judge was bound by common law. In German legal life did common law play an important role in the German law system?
A No.
Q Was the conception of the highest German tribunals and the overwhelming majority of German lawyers under the leadership of Professor Gerhard Anschuetf, whom you mentioned, and who is known throughout the wo** Was the judge bound by the laws; was their conception that this fact mean the judge has to apply every law which has been promulgated in a regular manner?
A Yes, he has to test whether it is constitutional.
Q I did say regularly promulgated laws; then he has to apply it. I understand you correctly?
A Yes.
Q May I then leave this group of questions and go over to the People's Court. As far as I remember, witness, you described the People's Court as a special court.
A Yes.
Q I would not like to quarrel with you about this. However, I would like to ask you only this specific question: Whether this court was described as an ordinary court in the Law Gazette.
A The law which introduces it says *************************** of the procedure. The expression ********************I cannot find here.
Q Witness, may I help you perhaps. Perhaps you could look not at law of 1934 but at a later law.
A The Peoples' Court is an ordinary tribunal in the meaning of the laws, the constitution of courts.
Q. Witness, you expressed the opinion that the People's Court was created because possibly the Reich Supreme Court's infamous case regarding the Reich stag fire did not decide in the way in which the Nazi had expected it. In citing this, you intimated that possibly there may have been other reasons or points of view for the creation of the People's Court. Do you know of any suck reason?
A. I can only suppose what they were.
Q. May I help you. I would like to tell you that in theory and practice the fact that the Reich Supreme Court was the reviewing authority as well as the first instance in penal matters, and they were often attacked in this capacity or criticised , and not from only the people who were outside but even from men who were directly in positions close to the Supreme Court, and in very important positions. I would like to formulate my question in a precise manner. If the memoirs of the German Chief Reich Public Prosecutor, Evermaier, who is probably internationally known, his memoirs regarding his service to the law; if you will read then you may understanding why I have to ask you this question. Do you remember that Ebermaier stated just this fact; that he examined it extensively and that the serious doubts -- he pointed out the serious doubts which existed and which are due to the fact that a Tribunal of the highest authority, a review court as well as a court of the first instance, and which are due to the fact that both are review courts as well -
A. (Interposing) So, yes, I know the writings of Ebermaier, the memoirs. I would like to say something in regard to the People's Court, something in connection with the statement of the Defense Counsel ; that Evermaier, about whose personality I know from his son who is a very good friend of mine, and I know quite a good deal about it. In his criticism, that however thought of putting place of the Reich Supreme Court, a court with 3 lay judges, among whom there are high party functionaries of the Nationalist Socialist Party, which he rejected and representatives of the Wehrmacht, the armed forces, that is not the case.
It would according to Ebermaier's personality be absolutely impossible. I would also like to answer the question regarding the Ordinary Court, I would like to add a remark in connection with the statements made by the Defense Counsel. First, I looked for this discription, of course, in the law which introduces the People's Court; there, the description Ordinary Court cannot be found, but later on this expression was expressly introduced as a result of the fact which I have already often mentioned in the course of my examination here, namely, that the Nationalist Socialist liked to use a concept if it meant either the very opposite. I remind you of my statement regarding the involuntary liberties or if the National Socialist wanted to cover up something, which in actuality was different. In Accordance with this, I maintained my opinion, that the People's Court actually was a Special Court bound to the Party principles and acted as such and the Reich Supreme Court in its tasks of the authority of the first instance, the court of the first instance, the Reich court was depossessed. It is an expression which Anschuetz used.
Q. Witness, I thank you for the statement. However, my question referred only to the creation of the People's Court, and that serious doubts of population expression against the Reich Supreme Courts as a court of the ***** ***tance, *****ed, and that you will admit.
A. Yes, I admit that.
Q. Witness, may I put another question to you in this correction which has to be clarified. If I understood you correctly you wanted to state, by making the statement, only that two professional judges are only two, and that three lay judges are three, that is to say, one more; or perhaps you were of the opinion that in the People's Court the three lay judges could out vote the professional judges.
A. The People's Court decided from various judges. The decision from this fact resulted in the majority, and it consisted of number 5.
Q. Witness, may I help you. Do you remember from your activities as a judge that, regarding the question of crime and penalty there were other majorities used?
A. Two-thirds majority.
Q Do you believe that in the People's Court that was not done in the same way?
A. Yes.
Q. Witness, you stated the fact that German judges had to wear an insignia on their robes. You described this as a despicable act and the most despicable one for you.
A. Yes.
Q. This insignia which the judges had to wear, you described it as a Party insignia.
A. I have --
Q. (Interposing) Just a moment, may I continue?
A. Yes.
Q. Only so that the Tribunal may not be in error . I would like you to state your opinion on this.
A We are concerned with the so-called sovereignty insig nia , and when I characterised it, I said only that the Party symbol, the Swastika was the most essential part of it and that this was the sign of subjectivity of Party membership in a racial hatred. I did not say that the whole insignia, the so-called sovereignty was a Party insignia.
Q. Thank you for the explanation. Do you know a regulation according to which the judges were forbidden to wear their real Party insignia on their robes?
A. Yes, that is true.
Q. Thank you.
A. Again the tendency to cover up the reality As shown here for the Swastika was clear enough on the sovereignty insignia.
Q Witness, in another connection you answered to the question of the prosecutor as follows: "An objective basis for tho concept of the sound sentiment of the people was not known to me."
A Yes.
Q May I ask you whether this "not known to me" means the same--is equivalent to there not being any possibility and no attempt being made tho German jurisdiction and legal science?
A Yes, there was a tendency.
Q In order to clarify the objective concept and I meant to clarify it in an ethical basis, I would like perhaps to expand this question in order to help you by saying that do you know the most important German Commentary to the Penal Code? Did you have access to that or did the times of 1945 deprive you also of the possibility as it did many of us, to look into them?
A The important Commentary from the National Socialists time I did not see.
Q But you remember that there were attempts?
A. Yes, I do.
Q Witness, often during direct as well as cross examination there was mention made of the principle "Nullum crimen sine logo", no crime with law. However, I believe that one thing was not clarified yet. Therefore, I ask you what in this connection what did it mean for the German Legal Science and Legal Theory of practice? Tho words "lex or le e" mean?
AA legal loader described that.
Q That is an expressly promulgated law published in tho German Law Gazette, Reichsgesetzblatt?
A Yes.
Q There was thus no penalty according to common law which could be given in accordance with common law as, for example, in England?
A No.
Q There was also no possibility to punish a German because at earlier times perhaps a Court according to a law which was in effect at that time or according to the common law in effect at that time had punished the person?
A No.
Q There was also no possibility to punish a German according to the Hague Convention regarding land-warfare?
MR. LA FOLLETTE: I beg your pardon. I want to object because I don't believe it was in the province of direct examination. Will someone please read the question?
(Official Reporter reads last two questions and the answer)
MR. LA FOLLETTE: I object to that, your Honor. It wasn't brought out on direct examination. There's no question of it being in the law involved in this case before the Tribunal.
THE INTERPRETER: Would you please repeat your remark, Mr. La Follette?
MR. LA FOLLETTE: I am sorry. I said I object for the reason that it is a question entirely beyond the substance of direct examination and also is directed to the substantive law under which the Tribunal is sitting and which is an attempt to ask the witness -- requires the witness to answer a an expert on one of the questions of law which is the basis of this Tribunal's jurisdiction and under which it acts. In addition, I again reiterate that such matters were covered in direct examination.
DR. DOETZER: May it please the Tribunal, the Hague Convention regarding land-warfare is part of these laws which before 1933 were published in the Reichsgesetsblatt, the Reich Legal Gazette. The witness was called as an export in this connection. In the direct examination and in the cross examination the principle of nullum crimen sine loge was discussed. Now, I would like to request the Tribunal to grant me permission to ask the witness whether a German judge of pre-war times -- by this I mean the time before the First World War, could sentence a German in accordance with the Hague Convention regarding land-warfare.
THE PRESIDENT: The objection will be sustained. Provided the ruling did not go through the wires I therefore repeat; the objection will be sustained.
DR. DOETZER: Witness, you repeatedly pointed out that National Socialism undermined German justice, the German administration of justice. May I ask you in this connection whether you are of the opinion that the German administration of justice co--operated in this endeavor with the pleasure and affirmatively or whether the German administration of justice in order not to castrate itself in despondency and courageously fought against National Socialist efforts?
MR. LA FOLLETTE: I have to object to the question, your Honor. It was an objection, your Honor. I don't know whether it reached tho Tribunal.
THE PRESIDENT: Tho objection will be sustained.
DR. DOETZER: I have finished my cross examination.
DR. BRIEGER: Dr. Brieger for the defendant Cuhorst. Before I speak on my behalf perhaps I may take the liberty on commission and on the request of my colleague Marx, who is not present, to speak for his client Engert, to address a question on his behalf to the witness. I beg you to excuse me. Mr. Marx is here.
In order not to take up the time of the High Tribunal more than is necessary, I shall not ask the witness questions a out his personal character and development, with one exception.
BY DR. BRIEGER:
Q. Mr. President, if I understood, correctly, I gathered from your curri culum vitae that you studied in Berlin. Due to your vital interest in criminal law, I would assume that the famous German teacher of criminal law, Franz von Liszt, was your teacher.
A. Yes.
Q. Therefore, Mr. President, I may ask you the question as to whether you know that at the time you were studying, Franz von Liszt, in a most energetic manner and as an advanced fighter, represented the point of view that in penal measures professional and habitual criminals should receive special treatment, that is, that they should receive more severe penalties.
A. That is correct. That does not apply here, however, in regard to the death sentence, which finally, by the legislation of the Third Reich, was used as a penalty for the extermination of Germans.
Franz von Liszt, who was a great humanitarian and a representative of humanitarian behavior in the 19th and 20th century, would have blushed with shame at these statements about more severe treatment of ha habitual criminals; he would have blushed if that had been distorted in this manner.
Personally, as I know it -
Q. Witness, do you remember that Franz von Liszt, to other with Dr. Aschner, who was the president of to be district court in Berlin in 1910 published a book which is entitled. "Form of the Reich Criminal Code."?
A. Yes.
Q. Do you remember, perhaps, that in the same book one of the most important contributions of the co-publisher Mr. Aschner was in this treatment a penalties, and Aschner took the attitude energetically that the death penalty should be maintained?
A. Yes, the oath penalty was under discussion just in these years.
Also, Kahl was originally one of the people in favor of the death penalty, but in the course of his development, when he was an old man, he changed and became an opponent of the death penalty. How the development with Aschner was cannot tell you.
Q. In view of the personality of Franz von Liszt, would you not assume that it was not to be discussed with him?
A. The objectivity of Liszt in other matters, later to be discussed, answers this question.
Q. Witness, my colleagues have already discussed the third emergency decree several times. Therefore, I shall endeavor not to repeat these matters which were discussed by them. I shall regard the matters under other points of view since, in my opinion, they should not be separated from their politic content; that is, the emergency decrees cannot be separated.
One of my colleagues has already pointed out to you that this third emergency decree was signed by Josef Wirth. Witness, do you remember or do you know that after the murder of Rathenau, Josef Wirth, as German Reich Chancellor in the German Reichsta , held the Calo*y for Walther Rathenau who had been murdered stealthily? Do you remember in your capacity as representative of the Berliner Ta*eblatt, that from that moment on Josef Wirth was regarded as a fighter against reaction?
A. Yes, one of the prominent fighters.
INTERPRETER: Your Honor, would you please ask the defense counsel and the witness not to speak at the same time?
THE PRESIDENT: Defense Counsel, you should leave a little pause between the questions and the answers, so that the translator can properly translate matters, because she cannot translate when two people are talking *******. Please be a little careful.
DR. BRIEGER: May it please Your Honor, I shall take care of that.
BY DR. BRIEGER:
Q. Unfortunately, my colleague Dr. Schilf does not have the text of law with him today, but if I now point out that in this third emergency decree Josef Wirth makes his appearance as the Reich Minister of the Interior, I may therefore, first of all, ask you:
what tasks does the Reich Minister of the Interior have in Germany, as far as they are relevant here? To facilitate this, is it one of the most important tasks of the Reich Minister of the Interior to protect the inner security of the Reich, especially by means of the police?
A. Yes.
Q. If I bring out all this in connection with the fact that Josef Wirth was one of the early fighters against reaction, would you then assume, witness, that this emergency decree was a security measure against the reactionists, that is, against the Nazis?
A. Yes.
Q. Thank you.
Mr. President, may I ask you to explain to the Tribunal why, if the designation "emergency decree" is above the law, it is not called "law number so and so"?
** Because we are concerned with a decree on the basis of Article 48 of the Reich Constitution. This article 48 reads as follows:
"If, in the German Reich, public safety and order has been disturbed considerable or endangered, the Reich President may, for the restitution of ***lic safety and order, take the necessary measures, especially with the aid of the armed forces. He may intervene, and for this purpose he may temperarily take the measures mentioned in Article 114, 115, 117, 118, 124 and 153. The civil rights which have been laid down in these articles may then, or may partly be abrogated."
Q. In order to formulate it briefly, Mr. President, did the Government of Bruenin at that time have its basis in the confidence of the parliament or in the confidence of the Reich President?
A. In the confidence of the Reich President.
Q Thank you, Mr. President.
A. However, without the Reichstag -- that is, the parliament -- having any objection to the decree promulgated in accordance with Article 48.
Q. Mr. President, may I assume that the Spruchkammer, the Denazification proceedings against von Papen -- may I assume that you read about that?
A. In so far as it is possible, with the inadequate reports in the newspapers so far, yes.