A. Yes.
Q. Also, the Reich Prosecution was also bound by the instructions of the Minister of Justice?
A. Yes; in my opinion there was even a very close contact.
A. Witness, as any prosecutor, the Reich Prosecution also was bound legally to prosecute criminal actions. Was the Reich Prosecution also bound to filo an indictment if there was a suspicion, or was it necessary that in the investigation it had to be definitely proved that there was a punishable act?
A. No; in order to file an indictment it did not have to be definitely established that the defendant would be sentenced for certain. The reasons for suspicion did not have to be that compelling.
THE PRESIDENT: Dr. Grube, do you have a notion that this man is a defendant on trial? What he did isn't important at all. That line of questioning does not advance your defense.
DR. GRUBE: Mr. President, I am speaking of this question because the witness repeatedly -- well, at least once -- stated in his affidavit that indictments were filed oven though the act had not been proven.
JUDGE BRAND: I might venture one further suggestion, and that is that no all know that conclusive evidence of guilt need not be established before an indictment is filed. An indictment is the charge on which the evidence is later heard for the purpose of determining whether guilt is conclusive or not, and I think we understand that too.
BY DR. GRUBE:
Q. Well, let us go over to another point, Witness. Did the Prosecutor or the Reich Public Prosecution have the right to refuse filing an indictment because they did not agree tith the penal regulations which had been violated, that they did not approve of them?
A. No, for personal reasons the Prosecutor can, of course, not discontinue his activity.
Q. Did the prosecution or the Reich Prosecution have the right to refuse filing an indictment because it know that individual seantes of the court were used to issue especially severe penalties?
A. No. For that reason they could not refuse to file an indictment. That would have to be considered when they make their demand for sentence in their plea.
Q. Witness, you said before that in a German criminal proceedings the defendant is never examined under oath, neither can he give an affidavit.
A. No. No.
Q. The defendant in German criminal proceedings therefore has in any case the opportunity, the possibility to deny or to represent the facts differently without rendering himself liable for punishment?
A. Yes.
Q. In the German criminal proceedings there are also not any rules for evidence, definite rules?
A. Yes, evidence rules, which--
Q. Witness, I wanted to continue. Rules to the effect that the statements of the defendant or the accused, are considered to be true as long as they are not denied by another opposite proof?
A. No, there is no such rule. He is absolutely free to submit evidence.
THE PRESIDENT: Dr. Grube, if the Tribunal expected to remove to Germany to practice law, the points which you are developing might be instructive. But under the circumstances we hadn't thought of doing that, so this law lecture isn't even interesting to me.
Your line of questioning doesn't develop anything beneficial to the defense.
BY DR. GRUBE:
Q. I ask for permission to put only one more single question in regard to this point, and the question is concerned with, was and is the German Prosecutor forced to file an indictment even if the suspicion that a punishable act has been committed is based merely on circumstantial evidence?
A. Yes, according to the principle cf the free submission and evaluation of evidence, any evidence can be considered with the same probative value which the investigating official is granting it.
Q. Now let us go to another point, Witness, in your affidavit you mention also on Page 32 of the German document book, that is Page 2 of your affidavit, the decree regarding the punishment of Poles.
A. Yes.
Q. Could a Pole who left his place of work without permission be indicted before the people's Court even if he was not charged in the denunciation with having tried to establish connection with a Foreign Legion?
A. I cannot answer this question from memory without having the continent regulations before me. It is a question of competence.
Q. All right, witness. May I ask you, do you know for what delicts the People's Court was competent?
A. Exhaustively I cannot enumerate those delicts any more today. I, myself, only had to deal with treason and high treason. However, there were a number of other serious crimes all of which, as far as I remember, had a political background or a political basis.
Q. Just a moment, witness. May I show you the Competence Regulation, Paragraph 5 of the Competence Regulation of 21 February 1940. Did you read this regulation over?
A. Yes.
Q. Thus there are certain special types of crimes listed. Would you please enumerate then?
A. First, high treason, Paragraphs 80 to 84 of the Reich Penal Code. Further, treason, Landesverrat, Paragraphs 89 to 92 of the Reich Criminal Code. Third, attacks against the Fuehrer and Reich Chancellor, Article 94, Section 1, of the Reich Penal Code. Fourth, serious cases of damaging defensive means and endangering of the armed forces of friendly states paragraph 1, 5, of the decree to supplement penal regulations for the protection of the fighting forces of the German people of 25 November, 1939. Fifth, non denunciation of a planned crime, Paragraph 139, Section 2 of the Reich Penal Code, and as far as the intent of a crime which belongs to-
MR. WOOLEYHAN: One moment. Your Honor, I want to object to this whole business. In the first place this is already in evidence. In the second place, even if it weren't, it is defensive material for their case in chief.
THE PRESIDENT: I don't see how the reading of a statute has any possible bearing upon the cross examination of this witness relative to an affidavit. Dr. Grube, you may have a quarter of four to finish your examination and no longer.
BY DR. GRUBE:
Q. Witness, do you gather from this regulation that a general competence of the People's Court existed, or was the People's Court only competent in special cases?
A. The People's Court was competent for those crimes which are laid down in Paragraph 5 which I have just started to read.
Q. Thus it was competent only in these cases?
A. Yes.
Q. Could, then, an indictment before the People's Court be based on this statute against Poles?
A. Not according to Paragraph 5 which I have before me, not unless there was a delict which also violated a law in addition to the statute against Poles, which is enumerated here in Paragraph 5.
Q. Thank you. To that extent your remark on Page 2 of your affidavit seems to be not quite correct when you say there that another popular point of the Prosecution was to charge the accused who had fled from their place of work with the violation of the penal statute against Poles.
A. You have to understand this differently. The indictment was, of course, filed because of the delict for which the People's court was competent to judge, and in addition because of a crime according to the statute against Poles.
Q. But solely on the basis of the statute against Poles, solely because of loading, the place of work no Pole was sentenced by the People's Court, was he?
A. At least he could not be indicted. However, the People's Court could, once it had become competent through some kind of indictment, then also sentence the person if after--in the end only the delict against the penal statute against Poles remained.
Q. But the prerequisite for filing the indictment was always that there was treason or high treason present also?
A. Yes.
Q. Witness, in your affidavit you mention on Page-3, that is Page 83 of the German document book, 78 or 79 of the English, the case Stefanowicz.
A. Yes.
Q. May I ask you, were you present at this session of the People's Court?
A. No, at this session I was not present.
Q. From what then do you gather, witness, that the Prosecutor made the greatest efforts so that Stefanowicz would be convicted?
A. My statements in the affidavit are based on the perusal of the files of the case Stefanowicz which had been submitted to me.
Q. Witness, I have the file here. Can you tell me where in this file you could conclude that the Prosecutor made great efforts?
MR. WOOLEYHAN: One moment, please. I object to that question on the ground that the counsel has not established the fact that that was the same file that was shown to him previously, or if it was that it is complete as it was previously. No foundation had been raid for that question.
THE PRESIDENT: The objection will be sustained.
DR. GRUBE: Excuse me, Mr. President. I did not quite understand the objection which the Prosecutor made. It didn't come through very well on the translation. Could it please be repeated?
THE PRESIDENT: You may repeat it, Mr. Woolleyhan.
MR. WOOLEYHAN: I object to the question on the ground that no proper foundation has been laid by defense counsel to show that the file which he shows the witness and asks him to compare is the same file as the one he was previously shown and to which he refers in his affidavit.
DR. GRUBE: May I remark, Mr. President, I asked the Prosecution for the files which the Prosecution had in regard to all cases before the People's Court. One of the files which were given to me by the Prosecution is this particular file.
MR. WOOLEYHAN: I might inquire how I know it is in the same condition in which I turned it over.
DR. GRUBE: I did not make any changes in the file.
THE PRESIDENT: Dr. Grube, you have wasted a good deal of time in the course of your examination, and that is the reason why this tribunal was entirely justified in putting a time limit for the completion of your examination. Now if you find yourself in a position where you have some question in which you really were entitled to have answered, that is unfortunate for you. We will give you two more minutes; then this must be finished. But on that question, the objection is sustained.
DR. GRUBE: I have only asked for one single witness for cross examination, that is the witness Brem. I did not ask for any more witnesses.
EXAMINATION BY DR. GRUBE:
Q Witness, you thus did not take part in the session?
A No.
Q From the transcript of the session - this is not in the file - from the transcript of the session, can you gather how the prosecutor behaved during the session?
A I can not state that any more. At the time when the file was put before me, I read it through. Today, however, I can not remember this transcript any more.
Q Witness, do you know that in the German transcript of a court session, the plea of the prosecutor merely is put down; however, not his arguments?
A Yes.
Q From the transcript, you could thus not gather that the prosecutor made efforts?
A Yes, from the plea it could be apparent.
Q One final question. In your affidavit, on page 5 at the end you state that you had read the affidavit. Did you compose it yourself?
A No.
Q Who made it up?
A The interrogating officer, Mr. Einstein, composed it.
Q Witness, on page 1 there is the phrase: "Such cases were in the first instance investigated by the Gestapo."
A Yes. This is not the formulation which I used.
Q How would you say yourself?
A I must have said: "In the first attack, they were handled by the Gestapo."
Q In your affidavit, you used several expressions, like "Thierack's bloodthirsty judges", or "blood judges," or a sentence "which cries to heaven," "criminal laws," and so forth. Did these expressions originate with you?
A These expressions did not originate with me. It could only be that I used the last named expression.
Q Are these expressions in agreement with the opinion which you had until 1945 about the German administration of justice?
A These expressions are, if I may say so, in a rather flowery language. Basically, I consider then to be right. I even did so before too.
Q Now in conclusion, you state in your affidavit that the administration of justice had taken a course under Thierack's administration which was considered impossible by any objective judge.
A Yes.
Q Witness, if this was your opinion before 1945, why then did you not take the consequences and leave the service of the administration of justice?
A I considered it my task in the particular position into which I had been put to do my best and as far as possible to act as a brake wherever I considered it necessary. Thus, I tried always to fill my position which fate had entrusted me with, and in spite of the fact that I, in many cases, with inner reluctance followed the development, I tried to divert the excessive methods of the courts in as far as I was able to do so.
Q Witness, did you know more jurists who had the same opinion as you did?
A Yes.
Q Thank you. I have no further questions.
May I thank the Tribunal that I was allowed to continue my cross examination beyond the time limit set by the Tribunal. I ask to be excused if it was rather extensive, but as I said, this was the only witness whom I wanted to cross examine.
DR. SCHILF: Schilf for the defendants Klemm and Dr. Mettgenberg. May it please the Court, I have only a few questions.
THE PRESIDENT: To which particular affidavit will you direct your questions?
DR. SCHILF: My questions refer to the first affidavit of the witness: Exhibit No. 79, NG-316, Document Book 1-C; the German text begins on Page 81, the English on Page 77.
Q Witness, you stated what your professional positions during the last few years were. In these positions which you held, did you have sufficient opportunity to observe the practice of granting clemency pleas of the Reich Minister of Justice in order to judge it?
A No, I had this opportunity only to a small extent.
Q In your official position, did you have the possibility of observing the relationship of the then Minister Thierack with the president of the People's Court more closely and to judge it?
A I could do that only from the comparison of the moments which appeared in the literature.
Q That is only from the literature?
A Yes, only from the literature.
Q But you know that the former president of the People's Court, Thierack, then became Reich Minister of Justice?
A Yes.
Q Now in your affidavit on page 2 of the German text, you stated that after Thierack took office, the People's Court took on another line than at the time which Thierack was himself president of the People's Court. Is this sentence in your affidavit to be understood in that sense?
Q From the literature and from the fact that I found out about the sentences which were issued at the People's Court, I have made this statement in the affidavit.
Q So it is only a subjective conclusion that you drew?
A Yes.
Q Furthermore, in a few sentences you said a great deal as far as the fields are concerned regarding the policy of Thierack, that is the policy in regard to the administration of justice of Thierack, and that is regarding the guidance of penalties. May I ask you on what your personal experiences were based in order to be able altogether to make statements about the so-called guidance of penal execution?
A Those were based on the study of legal literature and on what I was told by colleagues about it.
Q Thus I understand you correctly that in your different official positions, you did not make your own experience, that is, experiences in the court or in the office; that you could not gather them?
A That is not saying enough. This picture which I made to myself was also confirmed by the things which I saw in my office.
Q In that case I have to ask you to report something about that to us because at the outset you said that the picture which you formed was composed from legal literature and what colleagues told you.
A Essentially , yes.
Q That seems to me not to be in agreement if you're talking about your own office.
Q It was as follows: I found out sporadically about sentences of the People's court and I saw that the People's Court during its first years when I found out about these sentences, that is during the first years of the war, that the People's Court pronounced considerably more lenient sentences than was the case later on, and likewise the penalties given at other courts were increased also. These are examples, therefore, which I saw in addition to the sources in the literature and other sources of information from colleagues, and through these I formed a picture which I put down in the affidavit.
Q Then I have to read a portion to you, literally, and have to ask you whether you still now would draw such a far-reaching conclusion, after you had to limit your personal experiences in this question considerably. I am reading on page 4 of the German text, about the eighth line from the bottom; the sentence beginning with the words "Nach Feingang." Page 84 in the German text, I quote: "After having received instructions from the Ministry, the Prosecutor informed the judge of it; after conclusion of the proceedings, the prosecutor composed a further report to the Reich Ministry of Justice which included the copy of the verdict and the basis for the opinion." Now comes the decisive sentence: "The judge had to reckon with remittance of such a report, and, therefore, would hardly have left such directives unconsidered." If I understand your affidavit correctly, that is supposed to mean that through the remittance of the sentence to the Reich Ministry of Justice could, pursue him in some way or another in a disciplinary manner.
A Yes, after the speech which Hitler gave in April, 1942, before the Reichstag, the decision of the government had been stated; that they wanted to take steps against any judge who was outside the desired policy.
Q In what manner was it to proceed against him?
A I do not remember the exact wording of the speech any more, but the meaning was obviously that the judge would have to count on dismissal, or disciplinary measures.
Q Disciplinary measures would that mean criminal proceeding too?
A I cannot say that any more because I no longer remember the wording of the speech any more so well.
Q When you made your affidavit on the 25th of October, 1946, did you still remember the wording of this speech, or, as you say here of the decision of the Reichstag; did you still have it in your memory then?
AAlso not any better than today.
Q In your affidavit, however, it says, and I quote: Page 5 of the German text, the third line; I only quote half a sentence; "Every judge who was politically unreliable to remove from office and to have him prosecuted by law." Do you want to maintain that today?
A I said already I cannot remember the exact wording of that speech any more. I don't know any more whether prosecution under law was talked about expressly.
Q You said already before that you were in the same situation on the 25th October, 1946, as you are today.
A Yes. In the conference with the interrogator at the time, I was under the impression that prosecution under the law was planned.
Q But at that time already you had doubts, or did you not have any doubt at that time?
A I did not have them at that time.
Q A final question. You also were discussing the so-called Guidance Discussions. In your affidavit you made a statement about them. You were associate judge of the Special Court, Nurnberg.
A Yes.
Q Thus, you could get a personal experience about it; is that correct, or not.
A No, I did not participate in any guidance discussions.
Q You were an associate judge in the Special Court?
A Yes.
Q Would, you please have the kindness to state the time approximately?
A Yes, it was from November, 1944 until April, 1945.
Q And during these four or five months there were no guidance discussions?
A Yes, there were some, but I was never present.
Q Several witnesses who have appeared here have said that the judges of the Special Court, of Nurnberg, also told their opinions to the Prosecutor. Can you confirm that from your experiences?
A No. In the cases where I was present, I could not state my opinion to the prosecutor.
Q We understand correctly. I am talking about the fact that the judge talked to the prosecutor.
A Yes.
Q Now, did you gather the opposite experience at the Special Court in Nurnberg that, namely, that the Prosecutor guided the judge?
A Yes, it was as follows: That the Presiding Judge was informed by the Prosecutor who was working in the session what intentions the prosecutor had of making; what intentions he had to make in his plea. That of course, was kind of guidance.
Q And from that you conclude in your affidavit that in this way, I quote: It was a peculiar forcing violation -
A Yes, in other words, it was a limitation of his independence.
Q We are clear that a limitation of his independence literally, and in the language terms something different than seduction -- than violence .
A Yes, the independence of the judge should, not be touched. If it is limited, then I consider that a use of violence.
DR. SCHILF: I have no further questions.
EXAMINATION BY DR. SCHWARZ: (Attorney for Defendant Petersen)
Q I only have questions on two points. Witness, in your affidavit you described your tasks as an investigating judge as consisting of finding out the facts in a case and to bring up, and to gather evidence against the accused. I now would like to ask you how, in what light did you see your activities in relationship to the investigations of the Gestapo?
AAs judge, one made the gathered experience that the police transcripts and records hate very different values, and it was in all cases necessary to examine these records as to their correctness.
Therefore, with the aid of available means, especially the interrogation of the defendant, and also frequently the interrogation of witnesses, I attempted to gain a picture in the interrogations as to how the matter had actually happened. The depositions, the records of the police, was for me in so doing only a sum of suggestions.
Q Witness, frequently it happened that during the trial the defendants denied confessions that they had made before the Gestapo during the trial.
A During the trial--
Q I am not quite finished. Was it not above all the task of the investigating judge to prevent this?
A Yes, this task was, of course, part of the finding out of objective facts in the case.
Q The investigating judge, or rather the institution of the investigating judge, was thus in a certain sense a control institution against the Gestapo.
A That is how I considered it; how I saw it.
Q Now, to another point. In your affidavit you mentioned the expression Thierack's blood thirsty People's Court Judges. Did you mean that in a general way, or were you thinking of a special group?
A I meant it generally speaking.
Q Which judges were you thinking of in particular?
A In so saying I meant to say that the jurisdiction of the People's Court seemed to me to be too severe; that was the content of this statement.
Q You were not referring to any special, definite judges?
A No.
Q Or did you mean to say that the lay judges at the Special Court were especially blood-thirsty?
A The role of the lay judges at the People's Court was, of course, for me not absolutely clear, but one thing was clear to me, that these lay judges who were high dignataries, partly of the party, partly of other state organizations, in political cases did not have the unprejudiced judgment as some one who was politically not some how connected with the existence of the Hitler state.
Q But you do not have any definite reasons for this?
A No.
DR. SCHWARZ: I have no further questions.
DR. DOETZER (For the defendant Nebelung): I ask permission to ask just a few questions.
BY DR. DOETZER:
Q. Witness, you know the defendant Nebelung whom I am representing?
A. No, I do not know him.
Q. Do you know any of the judges of the People's Court either, a professional judge or a lay judge?
A. I knew People's Court councilor Laemmle. I always met some associate judges and there is an associate judge of a professional nature and lay judges, but I did not have any closer contact with any of them.
Q. In how many sessions of the People's Court were you present?
A. I was present in a few sessions as a listener, and I believe twice I had been appointed by the prosecution as prosecutor in the sessions.
Q. During these sessions were the facts determined carefully?
A. In these sessions I could not notice that any essential important points were not discussed, in so far as the listener could judge it.
Q. Was the defense limited in its rights?
A. The pleas were usually somewhat short and without force in the cases in which I was present, but I cannot remember a case in which there was a limitation contrary to law.
Q. In your affidavit, at the end, you said that by the one-sided appointment to the Senates there was a predominate number of political dignitaries and, therefore, an objective decision of the case was made impossible from the very start.
A. Yes, that is the statement.
Q. I have not put a question to you yet, have I? How many jurists - judges - were on the Senat?
A. Three.
Q. If the question of guilt was divided, could these lay judges outvote these professional judges?
A. They could not outvote then because two-thirds majority was required.
DR. DOETZER: Thank you very much.
BY JUDGE BRAND:
Q. Mr. Witness, I should like to ask you a few questions which I think will not take more than two minutes.
Mr. Witness, from you affidavit, in connection with your interrogations to which you referred, you said this and I quote: "Many cases concerned mostly attempts to shirk compulsory labor and to escape to a foreign country." Do you remember that statement?
A. Yes, I remember it.
Q. I am interested to know what kind of compulsion you refer to in saying that it was -- cases of compulsory labor or who tried to escape, do you mean compulsion by law or in what manner do you mean the compulsion existed?
A. I mean the commitment through the Labor Office and other offices who were competent to form the commitments of labor.
Q. Laborers who were committed to specific jobs, you mean, and were required to remain on then?
A. Yes, they were duties for work which were compelled by the Labor Office.
Q. Thank you. Still referring again to your cases which you had made interrogations relative to, do you recall any cases of German citizens who attempted to shirk compulsory labor and tried to escape to a foreign country?
A. No, that did not fall within my sphere of work.
Q. Then, when you were referring to people who sought to escape from compulsory labor under the Labor Office, you were referring, I assume, to non-Germans?
A. Yes, it refers to those cases which during my interrogation Mr. Einstein had in front of him. Mr. Einstein had, if I may explain this remark, a number of files with him, and he asked me in regard to these files, and that is what my statements refer to.
Q. But your cases, if I understand you rightly, which involved attempts to shirk compulsory labor and to escape to a foreign country did not involve as defendants, German citizens and nationals, but some other people. Is that right?
A. No, they refer to foreigners.
JUDGE BRAND: That is all, thank you.
BY THE PRESIDENT:
Q. Witness, I would like to ask you one or two questions.
In your affidavit you refer to a regulation of the Reichstag of April 1942, which enabled Hitler to remove any politically unreliable judge from office and to have him prosecuted by law. Within your experience or within your observation or within your knowledge, do you know of any judge who was prosecuted after being dismissed from office for political unreliability?
A. I cannot remember any such case.
Q. Now, from your knowledge of German criminal law, what statute could be referred to as a basis for the prosecution of a judge after he was dismissed from office on account of political unreliability? Is there any statute under which you could claim an indictment against a judge on that ground?
A. Well, perhaps one could bring the indictment in connection with political regulations, penal regulations, but at the moment I am not informed as to how the legal structure could have been.
Q. You say there might be some penal regulations. Do you know of any penal regulation that would have any bearing upon such a case as that, meaning a case of a judge being dismissed from office on account of political unreliability?
A. No, that is not how it is. I mean the following: Perhaps in connection with a penal regulation which did not refer specifically to judges, the possibility could perhaps exist to construct an indictment but at the moment I cannot imagine how this reconstruction - how this would have been done.
Q. My point, particularly, is that political unreliability is a basis for a criminal prosecution. Is there any such thing?
A. Yes, a law on the basis of which a judge, according to the working of the law, could have been prosecuted because of political unreliability. Such a law, of course, did not exist.
THE PRESIDENT: Has the prosecution any re-direct examination? I beg your pardon.
DR. SCHUBERT (For defendant Oeschey): May it please the Court, I have no question to address to the witness, but it merely was pointed out to me that during my examination of the witness a mistake in the translation apparently took place, which seems to me to be important, so important that I want to clarify it immediately and in the presence of the witness. The witness said on the occasion of the case Jankovic, that is, of the Yugoslavian waiter who was sentenced to death without benefit of defense counsel, the witness said that the not-appointing of a defense counsel was a blemish (Schoenheitsfehler). As one of my colleagues told me, this word "Schoenheitsfehler" was translated merely with "mistake". The word "Schoenheitsfehler" means not a mistake in I the matter or in the form, but merely in the outside appearance. merely wanted to clarify this. It's a blemish.
THE PRESIDENT: I suppose there is no objection to the record showing Dr. Schubert's contention.
I am wondering at this time if we can get some idea as to who will be available in the morning so we can be looking up the documents.
MR. WOOLEYHAN: Your Honor, the Marshal gave me a list before we convened this afternoon and I will read it, and if the defense has any additions or subtractions, they can make them. The following affiants will be called: Baur, Kunz, Mayer, Escher, and Schroeder.
THE PRESIDENT: At this time the witness may be excused and we will now recess until tomorrow morning at 9:30.