DR. FRETTERSDORF: (for defendant Joel): May it please the Tribunal: The Document is probably not to be understood without further explanation. The prosecution has stated that it came from the defendant Joel, who, at the time, was Chief Prosecutor. The defendant Dr. Joel was at that time in the Ministry of Justice and had the rank, the position, of a Chief Prosecutor. He was sent by the Ministry of Justice in 1939 to Nurnberg in order to investigate the irregularities in cases of corruption and to report to the Ministry about these cases, about cases which had occurred concerning non-Aryan property, and its handling by Party Offices. The Document which has just been presented by the prosecution is the report of investigation by the defendant Joel to the Ministry of Justice. The defendant Joel included in this report of investigation, the reports from the Nurnberg Real Estate court official.
MISS ARBUTHNOT: Document NG-616 is offered as Exhibit 370.
THE PRESIDENT: The document will be received in evidence.
MISS ARBUTHNOT: The next Document, 1643-PS, appears on pages 240 through 263 of the English; and 250 through 281 of the German. This is a file containing correspondence, and so forth, concerning establishment of the District Auschwitz, and the selection of allocated property to be excluded from the bulk confiscation of land from the Main Trusteeship Office East for purposes of the Waffen-SS at Auschwitz. Copies of two of these letters were submitted to the Ministry of Justice. On page 243, after a listing of the types of property which will be confiscated, near the middle of the paragraph under the number 6, we find the statement:
"It has to be considered that it is impossible to find out under which jurisdiction each one of these many thousand lots come. The Reich Minister of Justice fortunately has already taken into account this fact why his directive of 23 May 1943 concerning the establishment of land registers in the districts of Auschwitz and Kronau by which it is made possible to open a new land register in simplified form for the greater part of the land registry communities within the sphere of interest of the concentration camp Auschwitz.
It remains only to enlarge this decree accordingly."
The directive to which reference is made here as having been issued on the 23rd of May 1942 was a directive issued during the time the defendant Schlegelberger was in office.
THE TRIBUNAL (JUDGE BRAND): Could you tell me the date of this letter on the first page? It is not legible in my copy. 29 November -
MISS ARBUTHNOT: 1942, I believe is the date of that.
THE TRIBUNE (JUDGE BRAND): Thank you.
MISS ARBUTHNOT: Document 1643-PS is offered as Exhibit 371.
THE PRESIDENT: The document will be received in evidence.
MISS ARBUTHNOT: The next document, which is NG-589, appears on pages 264 through 271 of the English Book; and pages 282 through 289 of the German. This is a file on correspondence concerning the withdrawal at the direction of the defendant Rothenberger of the benefits of the forma pauperis law granted to a Jewish plaintiff.
THE PRESIDENT: Did you say 589?
MISS ARBUTHNOT: Document No. 589, at page 264, beginning on 264; at the bottom of page 264, the last paragraph, we find in an excerpt from the documents concerning this case, the statement that;
"In a lawsuit between a German national and a Jew, I consider the settling of a dispute by a compromise settlement in court, inadmissible for political reasons. The German national as party in the lawsuit, pursuant to his clearly defined legal standard derived from his political schooling since 1933, can expect that the court will decide the case by a judgment, that is, take a conclusive attitude towards the dispute on hand. What is expected is a decision which was arrived at not from purely legal points of view, as a result of a legal train of thoughts, but which is an expression of the way in which national socialist demands concerning the Jewish question are realized by German administrators of justice.
Evading this decision by a compromise might mean encroaching upon the rights of a fellow-citizen in favor of a Jew. This kind of settlement would be in contradiction to the sound sentiments of the people. I therefore consider it as inadmissible."
THE TRIBUNAL (JUDGE BRAND): May I interrupt you again, please.
MISS ARBUTHNOT: Yes, Your Honor.
THE TRIBUNAL (JUDGE BRAND): I take it from your reading of the second line of the paragraph that you just read, that the English Document Book is not a correct translation? The Document Book refers to the settling of a dispute "by legal measures" -- should that be changed?
MISS ARBUTHNOT: I think that it should, your Honor; the corrected copy of the book which I have deletes "legal measures" and inserts the words, "a compromise settlement in court".
THE TRIBUNAL (JUDGE BRAND): Thank you.
MISS ARBUTHNOT: On page 266 of this document, which is page 284 in the German Book, is a letter signed by the defendant Rothenberger, dated February 13, 1942. This letter states:
"With regard to the pending case Prenzlau against Behrens and Lundin I do not intend to approach the Economic advisor of the Gau for the time being, seeing from the documents that the ultimate beneficiary of the claim, the son of the plaintiff, emigrated in the year 1938 and his property therefore surely confiscated. I fail to understand why the court granted forma pauperis rights to the assignee, a Jew, without first consulting the authority for sequestration of property. The cession most probably will be meaningless as it was transferred in trusteeship by the son to the father shortly before his emigration."
The remark or note appearing on page 267 of the English refers to "The Senator". This reference is to the defendant Rothenberger.
On page 270, which is 289 in the German, we find another letter signed by Rothenberger, returning the documents to the president of the District Court at Hamburg. In this letter Rothenberger states:
"With his circular ordinance of 5 March 1942, with which you are familiar, the Reich Minister of Justice has annulled his circular ordinance of 23 June 1939, stating that the granting of the forma pauperis right to Jews could be taken into consideration only in such cases where the carrying out of the lawsuit is in the common interest. In consequence therefore I consider it adequate that the forma pauperis right granted to plaintiff Prenzlau be cancelled.
"Please have this taken into consideration by the court in a form which you deem appropriate."
The Circular ordinance which is referred to here, is dated 5 March 1942, which was issued while the defendant Schlegelberger was in office.
NG-589 is offered as Exhibit 372.
THE PRESIDENT: The document will be received in evidence. The time has arrived for our morning recess, so we will therefore take a recess at this time for fifteen minutes.
( A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. DOETZER (Counsel for Defendant Rothenberger): May it please the court, I ask you to excuse me for not having immediately stated my position inregard to the reading of the document, Exhibit No. 372.
During the recess, since the translation came through very badly, I tried with the help of the German court reporter, to examine the statements of the prosecution. Since in the German transcript too, the statements of the prosecution, were recorded only incompletely, I ask you, in regard to the statements of the Prosecution were recorded only incompletely, I ask you, in regard to the statements of the Prosecution, to be allowed to make the following statement:
Insofar as I understood it, the statements of the Prosecution at the beginning of the document under discussion here referred to point of view the defendant Rothenberger is supposed to have uttered. From the excerpt on the first page of this document, however it seems to be apparent without any doubt that the parts which the Prosecution read were not statements made by Rothenberger but opinion which the Gauwirtschaftsberater, the Gau Economic advisor, represented. Under the special circumstances I believe that I have to make this statement.
MISS ARBUTHNOT: The counsel for the defense is correct in that the statement is contained in documents which have other references to Rothenberger and which were in the possession of Rothenberger, inasmuch as he made references to the files in that case.
THE PRESIDENT: Proceed with the document.
MISS ARBUTHNOT: The next document, for purposes of maintaining continuity in subject matter , I would like to refer you to NG 392, which appears on Pages 331 through 334 of the English book and 351 through 356 of the German. This is a letter from the defendant Rothennberger to the defendant Schlegelberger, dated 5 January 1942, which states, among other things, on page 333 under the Roman numeral VII, We find the statement:
" The Lower Courts do not grant to Jews the right to participate in court proceedings in form pauperis. The district court suspended such a decision in one case. The refusal to grant this right of participation in court proceedings in form pauperis is in accordance with todays legal thinking. But since a direct legal basis is missing the refusal is unsuitable. We therefore think it urgently necessary that a legal regulation or order is given, on the basis of which the rights of a pauper can be denied to a Jew."
On page 334 of the English book you will note that there has been a typographical error, in that the signature on the page appears as Schlegelberger. This should be Rothenberger. Inasmuch as the letter was addressed to the defendant Schlegelberger, it is an obvious error.
Document NG 392 is offered as Exhibit 373.
THE PRESIDENT: It will be admitted in evidence.
MISS ARBUTHNOT: We now turn back to page 272 of the English and 290 of the German. This is document NG 081, which is the Gestapo indictment against general Elias, the prime Minister of Czechoslovakia, for preparation of high treason, for favoring a hostile power, during the war, or inflicting damage. Document NG 081 is the Gestapo indictment against general Elias, the prime Minister of Czechoslovakia, for preparation of high treason, for favoring a hostile power during a war, and for failing to inform the authorities of plans of high treason. The indictment is dated 29 September, 1941, this document will be later linked with various defendants, There is no reference in the document itself to any of the defendants here, but by later argument it will be linked to them. I would like to offer NG 081 as Exhibit 374.
THE PRESIDENT: The document will be admitted in evidence.
MISS ARBUTHNOT: The next document NG-147 which appears on Pages 280 through 322 of the English, and Pages 301 through 341 of the German, is a copy of the verdict rendered in the case against Prime Minister Elias by the People's Court on the first of October 1941. Elias was sentenced to death for favoring the enemy and for making preparations for high treason and was deprived of his civil rights. His property was confiscated and he was charged the cost of the trial. It will be seen from the document that the trial of General Elias was held in Prague, Czechoslovakia. None of the defendants here are mentioned in this document; however they will be later linked with it.
DR. DOETZER: Dr. Doetzer for the defendant Nebelung. With reference to the reasons for the submission of this document, the prosecution has explained that later on some of the defendants will he linked with this document. I believe that it would be appropriate if already at this time the prosecution would state to which ones of the defendants this document will be linked.
MISS ARBUTHNOT: The prosecution docs not desire to make such a statement at this time. However, we assure the Court that the document will be linked with the defendants by later argument and documents.
THE PRESIDENT: To make any order of that kind by the Tribunal would be an interference of the order of truth and therefore we will leave it to the discretion of the prosecution.
MISS ARBUTHNOT: The Document NG-147 is offered as Exhibit 375.
THE PRESIDENT: It will be admitted in evidence.
MISS ARBUTHNOT: The next document which is NG-767 appearing on Pages 323 through 328 of the English book and Pages 342 through 348 of the German, is a letter from the Ministry of Justice dated January 20, 1939, with respect to the application of the law for the protection of the German blood and the German honor in the Sudeten-German territories. The letter gives instructions with regard to the application of this law; reports to the Ministry are necessary; also it shows the necessity for agreement of the Minister of Justice and the Minister of the Interior if penal proceedings are directed against a foreign citizen.
It also discusses proceedings against women for race defilement, and the necessity for forwarding to the state police copies of verdicts of the sentence when it is passed and the date of the release of a prisoner. Although it is not here stated in this document what the purpose of notifying the police of the date of release of a prisoner was, we find in other documents, particularly 701-PS, which was Exhibit 268 from Book IV-A, that the purpose of such notification was in order to allow the police to pick up a released prisoner for further confinement in concentration camps.
On Page 326 of the English book, we find that a copy of this letter was submitted to the Chief Public Prosecution, Klemm, and on Page 327, we find that it was to be circulated in Departments III, III-A, and III-B. Underneath, in the first column near the bottom of the page, we find: Dr. Joel -- initialed by him; further down, we find: Klemm -- and his initial. In the second column, we find: Dr. Mettgenberg and his initial.
Document NG-767 is offered as Exhibit 376.
THE PRESIDENT: The document will be received in evidence.
MISS ARBUTHNOT: The last exhibit in Book V-D is Document NG-766, which appears on Pages 328 of the English and 349 of the German. This is a letter to the Ministry of Justice from the Attorney-General at Posen, dated December 11, 1931, concerning proceedings in cases of race defilement. The letter reads:
"In the course of legal practice some doubts have arisen as to whether and to what extent illegitimate intercourse between Jews and residents of German or kindred blood in the occupied Eastern territories is punishable.
"According to Paragraph 2.5 of the Law for the Protection of German Blood and Honor, punishment for 'racial disgrace' is based on the supposition that the person of German blood is a 'German Citizen.'
Regarding the citizenship of the residents of German or kindred blood in the occupied Eastern territories, Paragraph 6 of the Decree by the Fuehrer and Reich Chancellor of 6 October 1939, says that they will become German citizens 'according to regulations which are to be issued.'
"These regulations, however, have not yet been issued to the intended extent. Solely for the acquisition of German Citizenship by foreigners of German descent, the Minister of the Interior issued a decree of 25 November 1939. According to this regulation, foreigners of German descent (including next of kin to be specified) who up to 1 September 1939 possessed citizenship of Danzig became German citizens on this date. The others who up to 26 October 1939 possessed Polish citizenship or who were stateless after the loss of their Polish citizenship until 26 October 1939 and who at the time were inhabitants of Greater Germany including the occupied Eastern territories, became German citizens by 26 October 1939. Although this regulation was issued only provisionally, subject to a final regulation by law, I see no objection to applying it already now for identification of citizenship in cases of race defilement and consequently to take action in the relevant cases according to Paragraph 5 of the Law for the Protection of German Blood and Honor, if the offenses were committed after 1 September 1939 or 26 October 1939, respectively.
"Failing instructions to the contrary. I intend to instruct the Senior Public Prosecutors of my district accordingly."
On the original of this document, although it is not shown on the English translation, we find the initial of the defendant Joel.
THE PRESIDENT: Can you tell where in the document that appears?
MISS ARBUTHNOT: It is near the end of the letter, over at the left-hand margin.
MISS ARBUTHNOT: Document NG-766 is offered as Exhibit 377.
DR. SCHILF (Attorney for Defendants Klemm and Mettgenberg):
May it please the Tribunal, in the German document book, on the second page of this document, on the left-hand margin next to the text, under number three, of the remarks, there are some abbreviations, and also the name of Ministerial Dirigent Dr. Mettgenberg. It has not been stated by the Prosecution that the statement made in the German text is contained in the original or the photostat; it also has not been said that Dr. Mettgenberg's signature appears on it, since the photostat is now before me and I also do not find the note which is contained in the German document book; and, therefore, I would like to ask the Prosecution whether they would like to link this document in any way to the defendant Mettgenberg. If that is not the case, we would eliminate the name Mettgenberg from our German document book.
MISS ARBUTHNOT: On the English translation of this document, we do not find the name Mettgenberg, and the Prosecution has not attempted to link the defendant Mettgenberg with this document.
THE PRESIDENT: We find the letter "M" there, and we wondered if later that would be claimed that might refer to Mettgenberg.
MISS ARBUTHNOT: I don't believe so, your Honor. In the original does not appear Mettgenberg's initial.
THE PRESIDENT: While you have the German photostat with you, I wonder if your could give some more definite location of the name Joel.
MISS ARBUTHNOT: Perhaps one of the Defense Counsel could do it better than I, because I can't place it with the English.
DR. FREDERSDORF (Attorney for Defendant Joel):
May it please the Court, in order to clarify the initials, may I say that the margin of the document contains the regulations, Ministerial Dirigent so and so, and Dr. Ministerial Director Joel, with request for information: thus, a number of gentlemen of the Ministry were given this document merely for their information, and they initialed it accordingly; that is the only connection which these persons were concerned, among them the defendant Joel had with this affair.
From the English version this is not clearly apparent.
MISS ARBUTHNOT: The initial on the original appears at the bottom of page 2, which would be just above the insert notation; page three of the original, 330 of the document book.
THE PRESIDENT: I wonder whether it appears where the interrogation point is found in the English?
MISS ARBUTHNOT: Where the interrogation points is found?
THE PRESIDENT: There is an interrogation point before the name "Meyer".
MISS ARBUTHNOT: No, I don't believe so, your Honor.
THE PRESIDENT: It is on the right hand side of the page, apparently.
MISS ARBUTHNOT: It is on the left-hand side of the page, but it appears on the bottom of page 2 of the original.
THE PRESIDENT: At any rate, apparently Dr. Haensel (Dr. Fredersdorf) does not deny that there is an initial there of Joel.
DR. FREDERSDORF (Attorney, (Assistant) for Defendant Joel) May it pleases the Court, actually the initial of the defendant Joel are on the document, who thereby said that he got the information.
THE PRESIDENT: Very well.
MISS ARBUTHNOT: Document NG-766 is offered as Exhibit 377.
THE PRESIDENT: It will be admitted in evidence.
DR. FREDERSDORF (Assistant Counsel for Defendant Joel):
May it please the Court, may I again point out that the remarks in the marginal notes on the document, and this is something that is not very clear in the U.S. version, that it is only a circulation, which means that those names are listed there, that they were asked to take motive of the information, so that there will be no misunderstanding from the English version of the text.
MISS ARBUTHNOT: Mr. Wooleyhan will proceed with the presentation now.
MR. WOOLEYHAN: May it please the Court, under the provisions of Article 9, Ordinance 7, we now offer for judicial notice the official State Reports on War Crimes of two of the United Nations:
namely, Czechoslovakia and Poland. We similarly offer the Hague and Geneva treaties on the Rules of Warfare. Only certain portions of these reports and treaties are offered for judicial notice, and these portions will be read into the record, if the Court so decides, under precisely the same circumstances as those agreed to by Defense Counsel regarding reports on Nazi legislation presented some days ago.
DR. SCHILF (Attorney for Defendants Klemm and Mettgenberg) May it please the Court, for clarification I would like only to ask the Prosecution to explain whether this will only be submitted for judicial notice, whether only those parts which are read into the record will be submitted to judicial notice or the entire reports; for, if the entire reports are submitted for judicial notice, we would have to insist for at least one document in the English text to be given to us.
Moreover, this would facilitate matters considerably for the Defense, for excerpts taken out of their context and read do not make it possible for us recognize the entire meaning if we cannot read the other parts of the government reports, that is, if we do not obtain them. Therefore, may I request as to the effect that, first of all, the Prosecution should state whether only the parts that will be read will be given judicial notice; and secondly, we ask the gentlemen of the Prosecution to be so kind, if it is possible, to give, to make available for us the copies of the two government reports.
MR. WOOLEYHAN: To Dr. Schilf's first question, I have already answered that. The Prosecution only offers for judicial notice those portions of the State Reports which we read; secondly, with regard to an English copy for the benefit of the Defense, of each of these reports which, at the Defense's convenience, can be consulted by them if they have any fear that we have lifted something out of the normal context.
THE PRESIDENT: There seems to be a little difficulty on the understanding on the bench. I would like to know if the Defense is asking for a German translation or merely the English copy.
DR. SCHILF: English.
THE PRESIDENT: It would seem then that that adjusts the entire matter.
MR. WOOLEYHAN: We begin with the official state report of the Slovak government, prepared by Colonel, Doctor Ecer.
JUDGE BRAND: Excuse me, but will each of the members of the Tribunal receive a copy of this as we do in the case of exhibits?
MR. WOOLEYHAN: Your Honor, pursuant to the rules which Your Honors have promulgated, we are prepared to file with you at the conclusion of the presentation one copy. We can get you more copies of one of these exhibits, but we only have one of the other.
JUDGE BRAND: All right.
MR. WOOLEYHAN: It is the purpose of the Prosecution to take the one copy that is to be delivered to the Bench and file it with the Secretary General, in the archives, so that it will be there for our permanent use. We anticipate handling it in the same way as we did those other reports that were given to the Tribunal for judicial notice some days ago... We will file them with the Secretary General or with the Tribunal, whichever you wish.
THE PRESIDENT: Do you have enough copies to do both?
MR. WOOLEYHAN: No, your Honor, that is the problem. They are rather elaborate and voluminous reports.
THE PRESIDENT: They would be of no value to the Court, and therefore, no value to the proceedings if they are to be kept down in the Secretary General's office where we would not have access to them at all times.
MR. WOOLEYHAN: Perhaps I should, after the presentation, file the copies with the Tribunal, then.
This Czecho-Slovak State report was prepared by Colonel Dr. Ecer, Plenipotentiary Czechoslovak representative on the United Nations War Crimes Commission. The report is signed, London, September 29, 1945. We invite the Court's attention first to pages 88 through 96. This portion of the report is entitled, "Criminal Court at the People's Court." Quoting now from the report:
"The Czechoslovak republic was not only occupied but entirely annexed by the German Reich. The resistance of the Czechoslovak people against this annexation was fought by various means. The People's Court was one of the instances which was charged with the suppression of all, even the most insignificant activities, aiming at the liquidation of this state of affairs created in violation of international law.
"The People's Court was created by an enactment of 24 April 1943, by the Ordinance of 14 April 1939, signed by the then Reich Minister of Justice Dr. Guertner, and on behalf of Reich Minister of Interior. The People's Court jurisdiction was extended to the "Protectorate."
"The number of Czechoslovak citizens sentenced to death by this court during the occupation is so far only partly known. Investigations carried out up to now brought to light 445 death sentences alone which were executed without exception.
"More than one reason can be shown that the German Reich did not acquire by her illegal occupation of the Czechoslovak republic, the right due the belligerent power occupying enemy territory during a war. In this report, however, we are going to deal exclusively with that part of the activities of the German court in Czechoslovakia. The illegality of which is indisputable. We restrict ourselves, therefore, to that part of their activities which are beyond the rights connected with the occupation bellica.
"An examination of the sentences passed by the People's Court shown again and again that even the most insignificant acts which certainly could not endanger the military security of the German Reich or "other legitimate interest occupying power" was considered criminal and punished with death. That the taking up of mere trifles and their inhumane judgment explained to a great extent the great number of death sentences passed by the People's Court.
"We do not think that the German Reich could claim in Czechoslovakia the rights which international law conceeded to belligerents occupying enemy territory. But, we wish to deal in this report only with the jurisdiction which would be illegal even if the German Reich had the rights.
Indisputably illegal are the sentences passed by the People's Court on high treason. It is not merely because high treason can only be committed by persons owing allegiance. The People's Court had more than once qualified and punished with death acts of Czechoslovak citizens which aimed solely at the removal of the State created by the annexation of the republic, and did not interfere with the 'legitimate interest of the occupying power.' It is quite clear that the German criminal legislation was not entitled to protect a state illegally created as that created by the annexation, and that a jurisdiction which Draconically punishes an activity aiming at the removal of that State, does not find any basis in international law.
The sentences passed by the People's Court on high treason, which punished Czechoslovak citizens in exceptional cases with many years of penal servitude, but as a rule with death, are to be considered as the case may be, 'illegal restriction of personal liberty or as murder'.
"B - Special Courts "The jurisdiction of the Special Courts was considerably more diverse and extensive than that of the People's Court, and the terrorism eminating from them incomparably more intensive.
"Five Special Courts were set up by a Reich decree in the territory of the Czechoslovak republic. The Czechoslovak law, like the law of other European nations, allowed the trial of criminals in summary courts as an exception. Only in cases of danger to the State from outside, and under extraordinary conditions of similar importance the suspension of ordinary criminal procedure and transfer of jurisdiction of certain crimes to summary courts could be justified.
"It was left to the German legislators to set up in the territory of the Republic summary criminal courts, namely, Special Courts, as a permanent institution, and, moreover, to transfer to them the greater part of the jurisdiction in the criminal matters, certainly the most important ones.
"The competence of the Special Courts and provisions to be applied by them were laid down in a great number of Ordinances and Decrees. And, a great number of these ordinances and decrees violated the principles considered irrevocable by all civilized nations. Again and again we see that they disregarded the principle, nulla peona sine lege.
"Thus the Ordinance against violent criminals, dated December 5, 1939, provides the death penalty for offenses which up to the time of its coming into force, were punishable only by imprisonment, and lays down its retrospective forces in another section.
More or less common to all provisions administered by the Special Courts was, however, that the threat of penalties were in no reasonable proportion whatever to the offense. All of them were barbarous excessive. Perhaps the most excessive provisions applied by the Special Courts is contained in the Ordinance of the Reich Protector of Bohemia and Moravia, on the defense against support of acts hostile to the Reich, dated July 3, 1942. Remarkably enough this Ordinance is so-called Gezietszonenrecht, that is to say, it did not take effect in the German Reich, but only in the Protectorate. Pursuant to the first section of this Ordinance, one who gave lodging or any other help to a person whom he knew or according to circumstances could assume that he or she was engaged in acts hostile to the Reich or who omitted to notify the authorities in time, was punished by death. According to another section of that act, circumstances in the meaning of the section just read are given, especially in case the perpetrator is aware of the fact that the person concerned was not registered with the police or did not possess a valid identity card.
"No provision was applied more often by the Special Courts then Section IV of the Ordinance against Destructive Elements, which laid down that whoever deliberately abused the extraordinary conditions created by the war, committed some other offenses which were in excess of the ordinary maximum penalty be sentenced to penal servitude up to 15 years or life or death, if the popular feeling of the people called for it because of the particularly heinousness of the offense.
"Other crimes were considered amongst those, even the slightest infringement against the numerous emergency regulations concerning economy control. A great part of the sentences passed by the Special Court were death sentences butchers who may have sold but small quantities of meat, under the counter, and against bakers who supplied individual customers with bread off the ration. Death sentences for selling clothing or cigarettes on the black market, and even on the occasion of an insignificant overcharge beyond the controlled ceiling price.
These sentences, too, appeared criminal on account of their excessiveness. Moreover they were not jurisdiction but terrorism because the penalties they pronounced were not prescribed by law, but were decided upon arbitrarily by the judge.
It was up to the judge to examine first of all whether in view of the particularly beinousness of the deed, or sound popular feeling of the people asked that the ordinary maximum penalty should be executed. As to the sound popular feeling of the people is not a certain fact which can be established; there was no reliable standard to help to decide whether it was necessary as an individual case to exceed the ordinary maximum penalty.
"The number of sentences passed pursuant to these and similar provisions could so far as be ascertained have incomplete legality.
"The investigations carried out up to now which cover the period up to and including the first half of 1943, have revealed 704 death sentences alone which were executed without exception.
"We have chosen that the German police had the power to commit arbitrarily anybody to a concentration camp, that is to death. It is almost incomprehensible why the Third Reich was not satisfied with this one instrument of terrorism, but in addition unleashed the criminal court and relieving them from all legal barriers empowering them to impose in every case brought before them an inappropriate penalty or even death. The atrocities committed by the court may have been surpassed by these of the SS. If so, the essentially distinguishing feature is the lack of publicity."
THE PRESIDENT: Have you finished one document yet?
MR. WOOLEYHAN: I have finished a chapter of one document.
THE PRESIDENT: It might be a proper time to take our noon recess. We will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 23 April 1947.)
THE MARSHAL: Persons in the courtroom will please find their seats.
The Tribunal is again in session.
MR. WOOLEYHAN: Before we resume the natter interrupted by the noon recess, we would like to inform the Tribunal that - mainly for the convenience of defense counsel - of the fact that at the completion of this material which is being offered for judicial notice, which means, roughly, an hour from now, the prosecution will call as witness, General Rudolf Lehmann. We had intended to inform defense counsel of that fact this morning but somehow it was overlooked. In any event, notice was duly filed on the 21st of this month and the notice stated that we would call General Lehmann at any time after the 22nd.
Continuing with the Czechoslovakian State Report. The last portion of that report, to which we invite the Tribunal's attention, is found on pages 103 and 104, which is part of the chapter entitled "Standgerichte", which previously in this trial has been translated "Emergency Civilian Courts Martial". With reference to these "Standgerichte" the Czechslovakian State Report says the following:
"To sum it up, it may be said that the wholly inadequate qualifications of the judges end the impossibility of rejecting even an obviously prejudiced judge make it questionable whether the institution we are discussing is one which, measured by the standard of civilized nations, can be described as a 'court'. And, do the proceedings before the Standgerichte merit the name 'trial'? To recapitulate the main points, we have already referred to the exclusion of the public. The restriction of the rights of the defense was a worse feature. Even an experienced counsel would have found little opportunity for exercising his role at these entirely irregular trials. But that little opportunity, too, was withheld from the accused. There was no rule which provided that the accused must be represented by counsel at a trial before the Standgerichte, and in practice, according to our information, accused persons have never been so represented.