AYes, there were two more.
QAll right. Then who else reviewed the case? This court of appeal, you say, of whom was that made up?
AThe court of appeal consisted of two Estonian lawyers who were there, not together but separately, to deal with such cases where the persons concerned or the members of their families had made applications for release. This caused a new investigation of all cases which had been applied for and there were, of course, a great number. The procedure was here as follows: the applications were handed in -
QHow many persons reviewed the case?
AIn the central office, one person; and apart from that, in the reviewing section, again the persons in the subordinate offices. Sometimes it was the same ones who had already taken part in the previous procedure, but partly different persons as well.
QThen this court of appeal only consisted of one person?
ANo, the court of appeal consisted of two Estonian lawyers.
QAll right. Then we have had eleven and two more. That makes thirteen.
AYes, Your Honor, but of these two lawyers each one dealt with cases independently. Therefore one should not add two persons here but only one.
QWell, that is the reason I said "one"; so, that makes it twelve.
AYes.
QSo that before anyone could be executed, twelve people had to be assured that he was worthy of execution?
AYour Honor, it was not like this that all twelve had to be of the same opinion. It was possible that a few of the persons were in favor of executions, and others were in favor of internment. But all of these twelve persons, at least the first eleven, took part in the making of the decision.
QWell, then, at least eleven people had to pass upon a man's case before he could be executed in Estonia?
AYes.
The application for release, which I mentioned, which were also called "Mercy Applications", were handed in constantly - a great number of then to the chief of the Estonian administration, to the chief of the German civilian administration, the German general commissar, and to the agency of the German Security Police. All such applications were now sent to the court of appeal which existed within the German Department 4 and consisted of these two lawyers. The court of appeal reviewed the case very carefully. May I leave out here the details as to how this was actually done? In any case, all original documents were consulted again.
THE PRESIDENT:I am sure that Mr. Glancy will not object to your leaving out the details.
THE WITNESS:The conclusion was that an opinion of the court of appeal was made out whether the application for release could be granted or not. In many cases, the application for release was made on the fact that the family was in great financial difficulties. In such cases, it was seen to that the Estonian people's welfare board, that is the general welfare organization, looked after the family. I believe that is a sufficient answer to your question. BY DR. VON STEIN:
QWitness, you have now given us a detailed description of the entire procedure. Is it now your opinion that everything was done, as far as humanly possible, that could be done in order to avoid wrong decisions?
AI was convinced at the time, and I still am now, that owing to this very careful procedure, I did everything in order to avoid mistakes, as far as possible. BY THE PRESIDENT:
QWere all these safeguards given to Jews?
AThe question of Jews has nothing to do with this complex of questions.
QOh, yes, it does. A man could be arrested, and he happened to be a Jews Now,was he given the same consideration as everybody else?
AWhen the Jews were interned, I did not take these measures.
QI am not speaking of the internment of a Jew. You, yourself, pointed out in one of the reports where , out of a certain number, 50 were Jews. And then you said, "But these Jews had committed some other crime." Now, a man is arrested for resistance, let us say, and he happens to be a Jew. Is he given all these safeguards, and is his case reviewed just as many times as everybody else's?
AThese 50 Jews, which you just mentioned, come under the measures in the district of Dorpat about which I said and explained that I was not responsible for them.
QYou know nothing about that?
ANo, I do not know anything about these 50 Jews because they were not under my responsibility.
QNow you have given us a very long detailed account of how these reviews are made. Now, did that cover all of Estonia?
AYes.
QAnd is Dorpat in Estonia?
AYour Honor, I said expressly on two occasions that this refers to the time from the first half of October. Only at that time was I in a position to decide on measures throughout Estonia and only then did I give the order.
QWell, let us suppose that someone is arrested and charged with a crime, and he happens to be a Jew. Now is he given all the care and consideration and thought that you have indicated is given to someone before he is finally executed?
AYour Honor, a few Jews - a figure which I cannot name - were also examined according to this procedure very carefully.
QAnd eventually executed?
AIn as far as the same applied to them as in the other cases, yes.
QSo that the fact that he was a Jew in no way impeded the guarantees and safeguards which you have described?
AYes, Your Honor, but this only refers to the time before the period when through instructions by superior officers, a general execution of the Jews in Estonia had been enforced.
QI am speaking of this very involved procedure which you have outlined to us, and I only ask: if the defendant happened to be a Jew, was he also given the same care and thought and consideration as someone who was not a Jew?
AYes, until the time when the general execution was enforced by superior agencies.
QAnd during the time that these reviews were taking place, prior to the order which you just mentioned, the Germans who passed upon the cases were aware of the Fuehrer Order, were they not?
AYour Honor, I said already on Friday that I did not announce the Fuehrer Decree to the sub-commando leaders under my charge. Department chief 4 did not know the Fuehrer Decree. I said this expressly on Friday.
QNone of your commandos knew of this order?
AOnly one, namely, my deputy, as I explained on Friday, but I did not give him the order telling him to carry it out; I only informed him about it -- that this decree existed -- but that I would do everything in order to avoid that I and my commando would have to carry out this decree.
THE PRESIDENT:The Tribunal will be in recess for 15 minutes.
(A recess was taken.)
13 November 1947_M_MSD_9_1_Ninabuck (Lea)
THE MARSHAL:The Tribunal is again in session.
THE PRESIDENT:The Tribunal desires to make an announcement with regard to tomorrow's session. The Court will convene at the usual hour of 9:30 and will recess at the usual 12:30 hour, but it will have no session in the afternoon. Tomorrow afternoon there will be no session of Court.
Dr. Von Stein, before you take up thecontinuation of direct examination, I would like to ask the witness another question about a situation which was presented this morning.
EXAMINATION BY THE PRESIDENT:
QWe supposed a case of the Mayor of a town in Estonia, a Communistic Mayor, who had lived up to all the rules of Communism, and then the Germans arrived and he was arrested and he was tried, and we understand that you said that if that's all they had against him, that he was a Communist, then he would be released.
AIf he didn't do anything else than what the President has just said, then he would not be released, but he would be interned. However, he would not be executed.
QOh, I thought he would be released outright?
ANo.
QHe would be interned?
A AMayor is, after all, such an important personality that first of all he would have to be interned if he was a convinced Communist.
QWell, would he be interned for a certain period of time or indefinitely?
AThat depended on the individual case. There was such a thing as internment for the duration of thewar or internment for one year or two years or half a year.
QWell, what would be the sentence of this man, a convinced and proved Communist, who had been the Mayor of a town in Estonia, still a Communist; what would be his term of imprisonment?
13 November 1947_M_MSD_9_2_Ninabuck (Lea)
AHe would be interned for the duration of the war.
QAnd with the understanding that he would re released at the termination of the war?
ANo, your Honor. That was not up to me to decide what would happen at the termination of the war. I always told the officials here in this area we could make no decision with regard to security police matters. We could not make permanent decision. I mean decisions for the end of the war.
THE PRESIDENT:You may proceed.
DIRECT EXAMINATION (Continued) BY DR. VON STEIN:
QWitness, I would like to add to this, was the internment of a Communist Mayor the result of a sentence or was it a security measure?
AIn this case which was just discussed here, it was a security measure.
QWitness, when and for what reason did such a procedure as you have just mentioned develop?
AI already said that this procedure was set up in the first half of October, that is, around the 10th or 15th of October, 1941, when the conditions in Estonia became stabilized. The reason for setting up this procedure in this fashion, together with directives which covered about three or four typewritten pages, was that a great number of qualified Estonians were at our disposal, lawyers, and civil servants, as well as authorities of the Estonian administration, who were employed in such tasks. Thus the conditions here were quite different from those in the other areas in the Soviet Union which had been discussed previously.
QWitness, before October it was not possible to keep such directives. Was this the result of the military situation?
AYes, before October there were only the directives to undertake arrests and to undertake executions only in exceptional cases when there was danger.
QAnd at the time when combat was still being carried on in Estonia, 13 November 1947_M_MSD_9_3_Ninabuck (Lea) was it impossible to maintain such directives?
ANo, at that time there was no independent Estonian administration in this form.
QYou spoke of thespecial objectivity of this procedure. Was the task of these police authorities limited only to finding out what was of disadvantage for the individual concerned?
ANo, not at all. It was the express duty of these police authorities to investigate everything objectively and thoroughly, even that which was favorable to the indicted man, and to bring all proof which the man who was charged was requesting. That was what was writeen in those directives and it was repeated by me orally during general conferences of Estonian policemen and during individual conversations which I had with Estonian police officials.
QDid you yourself make judgments in individual cases?
AThree times I had the chief of Department 4 submit to me his documents, and in these three cases I made the final decision which otherwise, according to the directives, was the job of the chief of Department 4.
QHow many individual cases were concerned here?
AThere were about 25 persons involved in these three cases. Among them were six death sentences.
QWhat kinds of cases were these in which the death sentences were imposed?
AThese were clear cases of espionage within this repeatedly mentioned Communist underground movement, and of volunteer functionaries of the NKWD in which cases it was clearly proven that they were a constant danger to security for the German Army, and that furthermore they had participated in a responsible manner in killing Estonian citizens on the part of the NKWD in which cases these killings, in the opinion of the Estonians, had happened without any crime.
EXAMINATION BY THE PRESIDENT:
13 November 1947_M_MSD_9_4_Ninabuck (Lea)
QWitness, now if these six people had killed Estonians and these Estonians had committed no crime, that was out end out murder so now why are you taking up the time of the Tribunal telling us that you reviewed their cases and showed that they had been resisting and that they were a threat to German security and so on? That was just a case of murder, wasn't it?
AYour Honor, these cases were investigated in this manner.....
QWell now, please tell me, had these men committed murder?
ASome of these six cases yes.
QHow many?
AI cannot remember today how many of these six cases were espionage cases.....
QNow, you sentence six men to death and you don't recall what you sentence them to death for?
AYes.
QYou don't recall? Do you or do you not recall why you sentenced them to death?
AI do not remember every case of the six cases.
QYou do remember these six cases?
ATogether, yes, but not the individual case.
QNo, Very well, yesterday you told us in the most painstaking detail what you did when you were in Pleskau. You went there, all the people you saw, whom you talked with, where those places were located, that you went to the river and washed yourself and shaved yourself, and gave us all those details on an inconsequential business as you tried to make us believe it was. Yet you do not recall why you sent sixpeople to their death; is that right?
AYour honor, yesterday you asked me what I did in Pleskau.
QAnd you toldme in great detail, didn't you?
AYes.
QNow I ask you why you sent six men to their death and you cannot even recall what it was about, much less the detail?
AYour Honor, I said I can remember that these were cases first of espionage....
QNow, you tell me in each case -- there were six of them -- one by one why you sent these people to their death. Number 1.
AI cannot do that.
QNumber 2.
AI cannot do it.
QNumber 3.
AI cannot do it in every -
QNumber 4. You cannot tell us why you sent these six people to their death?
AI can say that these six people were sentenced because of espionage and because they were functionaries of the NKWD, but I cannot say how many of these six were spies and how many were functionaries of the NKWD.
QSo the reason they were executed is because they were functionaries and members of the NKWD?
AAnd furthermore because as I have already said, they participated in killing of Estonians.
QNow, how many of these six participated in killing of Estonians?
AYour Honor, I cannot remember this.
THE PRESIDENT:You may proceed, In Von Stein, DIRECT EXAMINATION (Continued) BY DR. von STEIN:
QWhen these cases were submitted to you do you know of any incorrect statements or forgery in them?
ADuring my entire period of service in Estonia forgeries never become known to me.
QWas a forgery theoretically possible?
AThey were theoretically possible to the same extent and in the same manner as anywhere in the world. Any type of documents could be forged by people who were not supposed to fool with them. Practically it was the way I have explained it, that ten to eleven Estonian officials in three to four different agencies were concerned with such -
MR. GLANCY:Your Honor, the prosecution objects for the same reason as it has before. It is merely repetition and reiteration. I think this ground has been fully covered.
THE PRESIDENT:Why are you going into this again, Dr. von Stein?
DR. von STEIN: I now come to the affidavit of the defendant in which he mentions a different opinion.
EXAMINATION BY THE PRESIDENT:
QIn these six cases, witness, All the eleven people pass on the facts with all the reviews that you have spoken of?
AYes.
QAnd you reviewed all those deliberations, did you?
AIn these six cases I understood the function which otherwise was the responsibility of Department Chief 4.
QYes, and you reviewed all the papers and all the deliberations?
AAs far as they had been written in the German language, yes.
QOh, well, were there some documents there that you didn't read?
AThe documents in the Estonian language and which were added to this, these documents I did not read because I do not know the Estonian language.
QAnd you don't know what was contained in those documents?
AI do not recall for the reason that in the meantime I had to read a large amount of reading matter, and therefore I do not have any concrete recollection of these six cases.
QWell, you couldn't read the Estonian documents?
ANo.
QYou only reviewed the case insofar as it was presented in German?
AYes.
QYou approved the executions in these cases?
AYes.
QHow soon did the executions take place after you had read all the deliberations?
AThere was no definite regulation for this. They could take several months.
QSo you went six people to their death without having read some documents which were submitted either for or against them?
AAll that was for or against them was written down in the German language in detail, with four signatures of reliable.....
QBut you didn't read the Estonian documents?
ANo.
QNow, these Estonian documents could have proven them innocent couldn't they?
ANo, your Honor.
QHow do you know; you didn't read them?
ABecause the summary which had been made up in the German language gave a survey about the contents of the documents.
QIt didn't occur to you to say that when I first asked you the question, did it? When I asked you whether you read the Estonian documents, it didn't occur to you to then say that the summary had been translated, into German?
That didn't, occur to you, did it?
APardon me, your Honor, but all the Estonian documents were not translated, but, as I have already stated, the said judgment, reason for the judgment, and motivation.
QWell then, there were some documents which you did not read?
AThe Estonian documents I did not read.
QYes, and you sent six people to their death in spite of the fact that there were documents in the files which might have established their innocence?
AThey could not establish their innocence, your Honor, because all important matters were contained in the summary.
QWell, how do you know whether they were important or not? You didn't read them. They were in the Estonian language.
AThe officials who participated in this were considered as reliable lawyers and professional soldiers.
QYes. So then you were merely passing upon what somebody else passed upon, and not on your own initiative and your own deliberation. You merely approved what somebody else had done because you had faith in them?
AI trusted the people who worked on it, yes.
QYes, so therefore your reading of these papers and these documents was a mere formality because you merely took the opinion of those who had preceded you?
AIt was not a formality because it would have been imaginable that I was of the opinion after what had been submitted to me, that an internment would have been sufficient.
QYes. Then we come back to the original proposition which I put to you that there were documents in the files which you did not read.
AYes.
QAnd these people were sent to their death, even though there were documents submitted for or against them which did not even have the benefit of an understanding perusal by you, the supreme authority?
AWhat was in those documents had to be contained in the summary of the essential points, which I did read.
QYes. It didn't occur to you to say that when I asked you that question about five minutes ago, did it? This just came to you as you deliberated in your mind as you were speaking?
AMay I ask what question? I didn't get this.
QThen I first asked you whether you had read the Estonian documents, you said no. I asked you if you knew what was in those documents, and you said no. Then, after many other questions had been put and answers had been given, then it occurred to you to reflect upon that and then you said that you had read a summary: is that right?
ANo, your Honor, this can be gathered from the description of the procedure which I have described before the recess.
QSo therefore you stood upon the procedure, not upon your review, but on the fact that ten or eleven people had passed upon this beforehand, or ten?
ANo, this was not always followed, but in some cases the suggestions of these eleven people were not approved.
QWell, let us just terminate this discussion with one more question. You do not remember what these six people had done in order to be sent to their death. You cannot tell us today what each one had done?
ANot what every single individual did.
QAll right, did you make a report on these executions?
AThe fact that these six people were executed was mentioned in the next monthly report to the Einsatzgruppe.
QYes. Now those were the only six executions which you ordered while you were in Estonia?
AYes.
Q.And in which year did they occur?
A.In the fall of 1941.
Q. 1941. Now, that was six years ago, wasn't it?
A.Yes.
Q.And all these six years you never gave any thought to these six executions, and, therefore, couldn't recall why they were sent to their death; why these people were sent to their death.
A.Your Honor, in the six years I have seen and read such a great number of documents, and had so many impressions that the recollection of the individual cases no longer exists.
Q.But these were the only six that you, yourself, ordered executed.
A.Yes.
Q.And although you studied the record, and although it was your act eventually which sent them to their death, and although these were the only six people in the whole world that you ever sent to their death, yet, you cannot tell us now, with all this time for deliberations, and with all the time you had to prepare for your case, why they were killed.
A.Your Honor, I said they were killed either for espionage activity or as functionaries of the NKWD. Other than those two categories were not among these six; that I remember definitely.
Q.They were sent to their death because they were communist functionaries or belonged to the NKWD?
A.No, pardon me. There were two groups: there were two types of people among them. One type was persons who were convicted of espionage. I don't know whether there were one, two, three or four. The others were people who were voluntary functionaries in the NKWD. and in this capacity they were criminal participants in the killing of Estonian citizens.
Q.So there were two categories; you don't remember who fell into either category.
A.No, I don't remember whether one or two or three fell into one category.
Q.That is as much as you can tell about the crimes committed by the six people who were executed?
A.Yes.
THE PRESIDENT:You may proceed. Dr. von Stein. BY DR. VON STEIN:
Q.Witness, were all essential points contained in these motivated suggestions of sentence which would show what sentence would have to be imposed?
A.Yes, I already said that the procedure had to be absolutely objective, and all exonerating circumstances had to be mentioned too, and were mentioned in the summary.
Q.You just said that the Estonian documents were not read by you because you did not know the language. Did you discuss the suggestion of the judgment with the Estonian officials who read these documents?
A.No, I have.....
THE PRESIDENT:What was that answer. Repeat the answer.
A.What question? BY DR. VON STEIN:
Q.My last question was the following: Whether you as a man did not know the Estonian language discussed with the authors of the judgment the matters of the judgment and about what the judgment was arrived at, and about the contents of the documents on which the judgment was based?
A.I did not discuss with these people these concrete six cases, but I often spoke with them about the thoroughness of the procedure; and about what would have to be considered when arriving at these judgments; and what the summary would have to have in them.
Q.Witness, if you were in doubt whether the judgments proposed were correct, didn't you discuss them with the authors?
A.If I had had any doubts about it, this would have certainly happened.
THE PRESIDENT:Dr. Von Stein, I must congratulate you an insisting upon your leading questions until you get the answer which you desire. Now, it was very obvious that your other question was a leading question. Didn't you discuss this with the Estonian home guard and with the judges. You know, that is a leading question. You practically suggest to the witness what he is to answer. If you say to someone: Now, didn't you discuss with someone when you were in doubt as to what you should do, his answer inevitably is going to be yes. He would have to be a fool to say no. So, that is known as a leading question, and you know a leading question is not permitted. BY DR. VON STEIN:
Q.Witness, we now come to a statement in your affidavit, of the 21st of April, 1947, in Volume III-A, Exhibit 102, Document NO-2891, page 100 of the German text, page 73 of the English text. Your affidavit twice mentions the fact that forgeries were not completely excluded, were not completely out of the question. Please comment on this.
A.These statements are not based upon the statements by me, but on the fact that the interrogating officer attached great importance to putting these statements about the distortion, the forgeries, into this.
MR. GLANCY:If it please the Court, I believe that the defendant had ample opportunity previously; in fact, this, morning, to explain all this. All this is cummulative.
THE PRESIDENT:What do you say about that, Dr. Von Stein? Can you offer a new phase of this situation which would justify the re-questioning?
DR. VON STEIN:Your Honor, I wish to withdraw the question, and I shall take up another question about the same affidavit. BY DR. VON STEIN:
Q.Witness, how is it that in the same affidavit when discussing this procedure nothing is mentioned about a judgment commission and about the directives issued by you about establishing the individual guilt?
A.I wanted all these things to be contained in the affidavit, and I mentioned them to Mr. Wartenberg, and I asked him that the directives issued by me, the way I have described them this morning, be taken in, and as I have already described them a long time previously to other interrogating officers -
MR. GLANCE:I think the affidavit speaks for itself, sir. He makes the observation here before he signs it: I have had the opportunity to make alterations and corrections in the above statement. I made this declaration voluntarily without any promise of reward: I was not subjected to any duress or threat whatsoever. I think this is the highest and best evidence.
THE PRESIDENT:We will permit the witness to offer any explanation which he has on this matter.
A.I had the opportunity to make changes in this affidavit: I also had the opportunity to take in two additional sentences, but I did not have an opportunity to add anything more than those two sentences; and the statement which I had to sign here speaks only of changes and of corrections, not of additions. Mr. Wartenberg said expressely in answer to my request, that I would have such opportunity very shortly-I thought this would be in April or May--to mention all this exactly. Therefore, I had prepared it in my cell in order to give it to him, and I still have this; but he did not call for me again. I no longer had an opportunity to make these additions. BY THE PRESIDENT:
Q.Well, witness, you actually made up four affidavits, didn't you?
A.In April only one affidavit was made, the one that I have before me. The others are of November, 1945. At that time we did not speak about these things.
Q.Well, why didn't it occur to you when you wrote up the other three affidavits to tell this very important item?
A.In these affidavits in November, 1945, we did not talk about communists at all. The statements were not made out by me, but the prepared text in November, 1945, was brought by Mr. Wartenberg; and in November, 1945, to a lesser extent than here, the possibility existed to make changes. I could not touch upon the subject of communism in Estonia when talking to Mr. Wartenberg in November 1945 if he does not even ask me for it.
Q.Well, it never occurred to you, even though you are a lawyer, in preparing four affidavits to add the very simple statement that no execution was ever performed without the case having been duly tried, duly reviewed, and duly passed upon by supreme authority.
A.Your Honor, this thought occurred to me and for almost half an hour I discussed this matter with Dr. Wartenberg, asking that he permit me to add all this, but he did not permit it.
Q.Well, why couldn't you, when the affidavit was finally given, back to you to sign, add that very simple statement. You could do all that in one sentence.
A.Your Honor, it was not permitted. Mr. Wartenberg took it upon himself to figure which auditions and corrections he would allow and which corrections he would not allow. Such corrections were typewritten in the office of Mr. Wartenberg.
THE PRESIDENT:Dr. Von Stein, did you question Mr. Wartenberg on this particular subject when he was in court?
DR. VON STEIN:No, your Honor. At that time I did not have the defense of Sandberger.
THE PRESIDENT:Well, who was his counsel at that time?
DR. VON STEIN:My colleague, Dr. Mandry.
THE PRESIDENT:Did he question Mr. Wartenberg?
DR. VON STEIN:I do not know, Your Honor: I cannot give you any information.
THE PRESIDENT:Very well; proceed. BY DR. VON STEIN:
Q.Witness, what instruction did you give about the manner of carrying out the executions?
A.The instructions were for an absolutely militarily correct carrying out; end letting them keep on their clothing.
Q.Were you present during executions?
A.No, I didn't consider this my duty. They were carried out by the Estonian home guard, under the command of an Estonian officer; a German official from Department IV was present as a witness.
Q.You said that you supervised the activity of Department IV as an inspector. Do you remember any definite individual case?
A.An individual case which I remember especially well was the following. I was addressed about it by a high German official. A respectable Estonian citizen, lawyer by profession; his name was contained in the list of my D agents which was found the and of September in the NKWD building. Thereupon he, of course, was arrested. When about six to eight weeks my attention was drawn to this case by German official. The case had not been known to me previously. I asked the director of the Estonian police and the following story came out: This personality had already been released again. The case stood as follows: He was actually an agent of the NKWD; therefore, he was justly listed in that list, but he gave the following facts: That he had been forced to participate in that activity as an NKWD agent, and that in case of refusal he would have to suffer great disadvantages; and he assured that he did not make out any reports which would be of disadvantage to other people. We could not prove this because his superiors in the NKWD were not there at the time; but he was known as a respected national personality. Thereupon, he was released becaused it could not be proven that as a forced NKWD agent he had done anything which would have injured others.
Q.Witness, in view of the lesser communists you have already said that these were released after their cases had been reviewed. Who decreed these releases?
A.Investigations of arrest took place currently, and the activity of the board of pardon also led to releases. Amnesties were undertaken on the occasion of national holidays; in February and August 1912; always of several communists who were less incriminated such amnesties were decreed by the Chief of the Civil Administration in Estonia, by the General Commissioner.