When the administration of justice was centralized, certain offices of judges were downgraded. Here at the district court of Nuernberg, for example, the department chiefs who had had the rank of local court directors [Amtsgerichtsdirector], overnight, and only because the administration of justice was being centralized, were downgraded by one grade. That was done without it being their fault in any way. Naturally that caused a tension, and naturally the people whom it affected were very much annoyed. They came to see me and told me about the matter. As far as I remember they were not Party members, they were of the older generation, and they said that they had been treated in a way in which people should be treated only if they had violated service regulations. I then gave a precise account of the occurrence, made a report, and drew attention to the fact that such treatment of officials was untenable. To begin with, Berlin was against taking any interest and they used the well known slogan, “The interestsof the people have to take precedence over the interests of the individual.†However, by again and again digging away at the matter, we succeeded in solving the problem in a way which was satisfactory to everybody concerned.
That was, for example, one of the duties with which we had to deal.
Q. As Gaugruppenwalter for the judges’ and prosecutors’ groups, did you have an office of your own?
A. I neither had an office of my own nor a staff of my own. I merely had my chair and my two hands. The work that I had to do there I did as an individual, and as a rule I wrote it out with my own hand. I then submitted the matters to the Gauwalter.
Q. Did you wear a uniform in that capacity?
A. Except when I was in the army, all my life I have never worn a uniform.
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Q. What offices were asked about the political attitude of a judge and a prosecutor, and who made out the final qualifications?
A. Political qualifications were exclusively made under the responsibility of the competent bearer of the sovereignty, that is, the Kreisleiter or the Gauleiter. For these questions they had a so-called Kreis personnel office, or Gau personnel office. When a so-called political qualification of a civil servant was to be made, these offices addressed inquiries to offices where the civil servant or official concerned was known; that is to say, if he was a member of the NSRB, they addressed an inquiry to the Gauwalter of the NSRB, or in another instance to the competent office of the Civil Service League, or to the Ortsgruppe, local group of the Party, or to the SA, or SS. The answers to these inquiries were then gathered at these offices and from there, if necessary, by reviewing or examining the facts that were reported the so-called political qualifications report of an official was made out. This political qualification report was made out because the supervisory offices of this civil servant by provisions of the law were obligated to form a judgment on this question with the intervention of the Party.
Q. How did this develop in your case, and according to what principles did that proceed?
A. That was an affair which caused the least difficulty. The Gauwalter gave the slip that had been sent in by the competent Party office to the Gau group administrator who was competent for that official. That was I, myself, in the case of inquiries regardingjudges and prosecutors, as long as I was entrusted with that function. I then returned the slip after it was filled out to the Gau administrator again, who on his part then reported to the Party office.
It is important to know here that according to an express order a man who was a Party member was not permitted to be judged as politically unreliable as long as a Party disciplinary proceeding had not been carried out against him because of some established facts.
During the time of my activity in regard to that function, it is of significance that at that time almost all judges and prosecutors were members of the Party on account of the well known action on 1 May 1937.
Q. Did you hear of a case in which a judge or a prosecutor was described as politically unreliable? And if so, what happened to that man?
A. In my time I did not hear of such a case. The declaration which we made in every case had the following stereotyped contents: “Circumstances which could raise doubts as to the political reliability of the person concerned did not occur.â€
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Q. The witness Elkar said literally, and I quote, “As far as I know, the relations between Zimmermann, Haberkern, and Rothaug were very close.†(Tr. p. 2896.) [Page 374, herein.]
How did you come to know Zimmermann, and what were your relations with him?
A. I have already pointed out that it was only in the course of 1940 that I met Zimmermann by accident when he was at the Blaue Traube.
Q. How often did he attend sessions of the Special Court when you were presiding judge, and do you know why he attended those sessions?
A. I cannot remember one single case when Zimmermann attended one of my sessions. However, it is possible that he attended at the case of Schmidt-Fasel, which has been discussed here several times.
Q. As to Haberkern, you have already testified that quite by accident, as a young assessor, you met him in 1926 and that for many years you had no contact with him. How and when did you hear that Haberkern was in Nuernberg?
A. That was in connection with the National Socialist change-over in 1933. In those days his name often appeared in the newspapers,and that was how I discovered that he was in Nuernberg and that he played a political role.
Q. You have already said that you did not resume contact, not even when against your will you were transferred to Schweinfurt. You have also given us your reasons. When and how was it that you renewed your relations with Haberkern?
A. It was in 1938 as far as I recollect. One day Haberkern rang me up and asked whether I was that Rothaug who in 1926 had stayed in his home. I told him that I was that man, and he was very pleased and asked me to come to see him and his wife. They were the owners of the Hotel Blaue Traube, Nuernberg. I told him that I would go to see him some day, and one day I did go to see him. That was how I came to the Blaue Traube.
Q. What were Haberkern’s offices in Nuernberg and the Gau Franconia?
A. He was Gau inspector, the leader of the Hotel and Restaurant Association, and he was also an Ortsgruppenleiter. I believe he was the Ortsgruppenleiter of the old city.
Q. Through this function did he have any contacts with your official position as judge?
A. No. The Gau inspector, according to his official duties, has to take care of internal matters of the Party. As a leader of the Hotel and Restaurant Association all he could have done was to find me some rooms for my summer holidays. I had nothing to do with his local group [Ortsgruppe] because I belonged to a different group.
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Q. Witness, did the Party offices in Party affairs have their own legal consultants?
A. In this connection, one must point out that every Party office, even the Ortsgruppenleiter, the leaders of the local groups, had their own legal offices. I had nothing to do with that matter.
Q. When were matters concerning legal questions brought to you?
A. Only if simultaneously they affected the interests of the NSRB, and even then only if they affected the interests of the Gau Group for judges and public prosecutors.
Q. Did the Gauleitung take any interest in the general administration of justice?
A. I never noticed that the Gauleitung of Franconia ever took any interest in the development of the legal situation.
Q. Did the legal situation play a decisive part in the Gauleitung?
A. I never noticed anything of that sort.
Q. At the table at the Blaue Traube that has been mentioned here so often, were there ever any discussions which have been laid down previously?
A. May I summarize my statement and perhaps say for the last time that I went to the Blaue Traube with the same intentions that other people had when they went there, and with which other people are in the habit of going to other pubs. As for conferences with agendas, they weren’t held there for the simple reason that that would have been parliamentary. I met other people there, too, but I didn’t meet anybody who went there with any political aims.
Q. Were official matters discussed there?
A. Not official, though Party matters were discussed there; but there, as I think happened in those days at every table in every pub, political things were discussed, and the war was discussed. If somebody were to ask me today what we talked about, I would not be able to give an account of even one trend of ideas that we discussed there.
Q. Did you ever go to Haberkern with your own affairs, that is to say, to get any of your own wishes of a personal nature fulfilled?
A. I never bothered Haberkern on any matter of that kind.
Q. Do you know whether other people from your entourage asked Haberkern for his help on their own behalf?
A. I heard that they did.
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Q. When the witness Ferber[229]mentioned the doubts which the Reich leadership harbored for your political reliability, he said that the SD took an interest in your remaining at Nuernberg. From the account of the witness Elkar, English transcript, page 2888, [page 369, herein,] we know that approximately in May 1940, you were called to a conference which was attended by Doebig, Bens, and the SS section leader, Friedrich, and that in that way you got into contact with the SD. What was the topic of those discussions when you joined in?
A. That matter was rather different. To begin with, Elkar came to me at my office. Then Obersturmbannfuehrer Friedrich called and also a Standartenfuehrer whose name I no longer remember.All those three men belonged to the SS. Those three men told me that they had come to call on me because they wanted to introduce themselves to me, and they wanted to try and establish good relations between their office and the administration of justice authorities.
Conditions in general were then discussed, in particular the fact that the administration of justice in certain press organs, above all the Schwarze Korps, was being subjected to continuous attacks. They considered that state of affairs undesirable, all the more so as they also knew that those articles were generally written on the basis of one-sided information. They also asked for my opinion as to what I would think of all questions which arose here in Nuernberg concerning the administration of justice, if they were to be dealt with to start with on a lower level before a report was made on a higher level. I thought that was a good idea. They asked me whether I would care to be the mediator. I suggested district court of appeals and the general public prosecutor since as it was, they had told me that they intended to call on those officials, too.
I would like to point out that the three of them had only called on me because Elkar had brought them along. As you know Elkar had been with me for training as a Referendar. At that time I had no idea what the SD was about, and what its functions were. The conference with Doebig and Bens was along the same lines and both men saw the point and agreed that it was quite a reasonable plan which had been submitted to them. They suggested that it might be a good thing to let these matters be dealt with through me because the cases which occurred with me were cases which were to be treated later.
I would subsequently be asked to attend that conference. I, myself—and I think it would have been the same with every human being—couldn’t imagine, or anyway, couldn’t imagine very well what was going to happen at that conference. That was the basis on which developments went along.
Q. What was Doebig’s attitude to Friedrich’s wishes?
A. I believe I have already answered that question. As usual, he was in favor of cooperation.
Presiding Judge Brand: May I ask you a question. It wasn’t entirely clear what you meant in your testimony. You suggested that investigations on a lower level should take place before the higher level. Investigations of what—what kind of matters?
Defendant Rothaug: Investigations is not the word I meant to say. I wanted to say that by negotiations, matters which concernedthe administration of justice were to be settled on a lower level.
Q. What kind of matters—which concerned the administration of justice?
A. What we had in mind was attacks which within the sphere of the Party were made against the administration of justice. I can illustrate that by an example.
Q. It is not necessary now. No, I understood you to act under this suggestion as an intermediary. Was that your word?
A. That I was to become the intermediary?
Q. Yes, between what parties or what groups?
A. Between the SD and the administration of justice.
Q. Yes, and then you said since these matters are all matters to be dealt with by me afterwards, it was reasonable that you should be the intermediary. Did you refer to legal matters?
A. That concerned matters—cases which might be brought before me or which were already pending before me. Matters in which those agencies were interested for reasons of criminological developments, but they were not interested in the individual case as such, in its treatment, or in the decision.
Q. And what was the lower level where the matters were to be first discussed?
A. The main difficulties which arose and which gave cause to discuss this matter at all were made from up above—from a higher level. A report was made on some occurrence or other to the SD; the SD passed the matter on to Berlin; from there it was passed on as a rule without having been settled or even examined to the press where it caused a great deal of sensation.
Q. Was this lower level, to which you refer, the local representatives of the SD?
A. Yes, naturally.
Presiding Judge Brand: Go ahead.
Dr. Koessl: Now, Witness, tell us please, what was to be prevented by the discussions, the report to the higher level; what was it—was it that things were to be clarified after the higher level had dealt with it?
Defendant Rothaug: One cannot state all that in one reply in such a general way. With these questions it always depended on what the individual case was like; what the attending circumstances of the individual case was like; and it depended uponwhat the aims and object of the participants were. Without going into the matter of the individual case, it is impossible to give an objective answer.
Q. The witness Doebig said, “It was only a great deal later after I had left Nuernberg that I heard for certain that Rothaug worked in the SD.â€[230]Later, Doebig stated that he remembered that the SD Leaders Friedrich and Elkar paid him a visit, but that he could not remember the subject which was discussed. Anyhow, he had never given an inference that the administration of justice would cooperate with the SD. (Tr. pp. 1865–1866.) What position did Doebig take?
A. I have already answered that question when I said that Doebig was altogether in favor of settling matters in that way.
Q. How often would Elkar call on you in the subsequent periods?
A. He said on Saturdays, and that makes it sound as if he had come every Saturday, but that is quite out of the question. He came on some Saturdays, but sometimes weeks passed or months until he came to see me again about some matter or other. As was the case with many other things that were organized within the sphere of the Party, they dragged on and finally nothing much was done.
Q. What did Elkar tell you during these discussions about the functions of the SD, regarding the state of the Party?
A. He told me, and I think that was probably right, that the SD as we saw it was an institution of the nature of an official agency; that is to say, it was an organization of the police type; its activities and functions can best be described as an agency that gathered the opinions of the people; one intended to find out what the people really thought on official measures taken by the government, that is to say what they thought about laws, about judgments, about other administrative measures, etc. Those reports were then to be evaluated and passed on the competent Supreme Reich Authorities to enable them in their governmental transactions and measures, to remain aware of the thoughts of the people. In all these reports therefore, what mattered was not to find out who the people were who were critical and undesirable, but on the contrary, the intention was to find out what people were really thinking; and therefore, it was undesirable and prohibited to prosecute in any way an individual who stated his opinion in this connection. That was roughly the scope of the functions of the SD.
Q. In the English transcript at page 2912, the witness Elkar mentioned the official character of the SD. I am showing you a book, and would ask you to tell the Tribunal what the title is.
A. The book is entitled Ministerial Gazette [Ministerialblatt]; it was issued by the Reich Minister of the Interior; it was published in 1938.
Q. Please turn to page 1906. At the right hand corner you will find a circular decree by the Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior, dated 11 November 1938. Please read out section 1 of that circular decree.
A. Under the heading police administration, it says, “Collaboration of the authorities of the administration with the SD was the subject of the Reichsfuehrer SS (SD) circular decree by the Reich Ministry of Interior, dated 11 November 1938.†Then, there is a file note. Then—“one: The SD of the Reichsfuehrer SS (SD), as information organization, intelligence organization for Party and State, has to work in particular in support of the security police and has to fulfill important duties. The SD thereby acts on the instructions of the State. That necessitates close understanding and cooperation between the SD and the authorities of the general and internal administration. In reply to inquiries by the SD, information has to be imparted therefore to the same extent as if inquiries had come from a government authority. The official agencies of the SD, in the same way, are under obligation to reply to inquiries of the general and internal administration.â€
Q. Witness, what were the motives for which you met with Elkar and discussed matters with him?
A. The main cause was that he knew me from his former training period.
Q. You may continue.
A. I said Elkar knew me since the time when he was in training, because he was assigned to me. He was by nature a very faithful person, and at the time when he was not yet with the SD, I was connected with him by purely human relationships. That is how it came about that at that time, after he had taken up service with the SD and a connection with the administration of justice and the SD was sought, he came to me first for I was known to him; and that is how in the subsequent period the entire relationship was purely a matter of comradeship. This is shown best perhaps by the fact that one day Elkar informed me that he would probably be transferred to the RSHA in Berlin for further training. Thereupon, I told him that in that case I would alsodiscontinue my activity because I would not start all over again with a new man.
Q. What descriptions did Elkar give you about the further handling of the SD reports in Berlin?
A. He said that the information which I gave him—which was usually an opinion on problems which were connected with the collection of comments from the people—he would incorporate into his reports. These reports in Berlin would then be divided according to whichever participating Reich agency was interested and put at the disposal of those offices.
Q. Did you have an insight into questions and tasks which were outside of the administration of justice?
A. I did not gain any insight into those questions.
Q. Did Elkar tell you anything about the activity of the SD Einsatzgruppen in the east?
A. No. I only found out about that now.
Q. Did Elkar speak to you about the so-called final solution of the Jewish problem by extermination, execution, or gassing?
A. No word was ever spoken about this. I do not believe that Elkar was informed about matters of that kind either.
Q. Did Elkar tell you about individual SD Fuehrers being entrusted with special tasks, as for instance, the feigned attack on the Gleiwitz radio station, or similar undertakings which were the subject of the IMT Trial?
A. Matters of that kind were not discussed among us. The examples you have cited became known to me only here in Nuernberg in the course of this trial.
Q. What was the basic line of your conversations with Elkar, or the basic topic?
A. As I have already stated, the conversations were mainly on problems which were raised by opinions which were gathered from the population. That then led to problems of a general nature, for example, the general development of wartime criminality in one field or another.
In general, that was the direction in which our conversations developed and that was also the aim of such conversations.
Q. Could everything be said in such conversations without restrictions?
A. I believe that that was the only possibility at that time in Germany where a person could say exactly what he was thinking; and the reason for that is because, in this connection in particular,only the truth was at stake for they were interested in finding out what the population was actually thinking in regard to certain events, measures, laws, speeches, judgments, etc.
Q. Do you know in what form these reports were forwarded?
A. That is not known to me; I never read such a report.
Q. According to Elkar’s testimony you directed your attention to the development of criminal and penal proceedings. (Tr. p. 2890.) What ideas did you represent?
A. I believe I have already stated my position on that question. I do not remember a great deal in detail regarding what was discussed at that time. One question, for example, which interested us and which demonstrates how we came to speak about these matters and what opinion we represented is the question which was frequently discussed in this trial, and that is the contact of the prosecution during the trial with the court because of the application for penalty. Opinions from circles of lawyers and judges and from the prosecution were gathered for this purpose at that time. I myself represented the opinion that this problem grew into a problem only because it was treated in a wrong manner on the part of the administration of justice. The entire question could be solved by a small remark in the “Deutsche Justiz,†namely, by pointing out that the law does not provide that a formal application has to be made, and therefore it would have been sufficient to instruct the prosecutors to refrain from a formal application for penalty and to be satisfied with adducing the evidence and then stating the reasons which spoke for and against the defendant. With that, the entire excitement and fuss which was caused by the formal application for penalty could have been avoided.
Q. What reason did you give for this suggestion?
A. The reason which I have just explained.
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Q. Elkar alleges that you had also talked about pending trials and had discussed also the facts as well as the legal situation and future judgment. (Tr. p. 2891.) Was the name of a defendant ever mentioned as long as trial was still pending?
A. The names of defendants never played any importance in these conversations. The manner of expression was general. The individual cases, as such, were of no importance at all and their outcome even less so. It is possible that in the most infrequent cases—as an example of a definite criminal deed, in order to demonstrate, for example, the method of the consequences of thiscrime and to use it in the discussions of general questions, that an individual case was mentioned, but not in a single case was it like this that Elkar ever was interested in a certain pending trial or even wanted to get information about the final outcome in advance; such an evaluation was not possible in practice at all for the decision could be given only on the basis of the trial after it was concluded. Thus, Elkar’s activity was not aimed at such a goal.
Q. By mentioning an individual case, did you ask for the opinion of the RSHA in order to find a basis for the political evaluation of the offense?
A. Never. I had no connections whatsoever to the RSHA. Moreover, such a method even in the Third Reich would have been an absolute impossibility, and it was never alleged that this occurred.
Q. Did you, in any individual case, receive an instruction from the RSHA or a recommendation to direct the trial in a certain direction under a certain point of view, or to pronounce a certain definite penalty?
A. This, too, was never alleged so far. Such a procedure, too, would have been an absolute impossibility. No office would have dared to suggest anything of that nature even.
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Q. We started with your relationships to the SD. On what formal basis were your relationships with the SD? Were you a member of the SD?
A. I was never a member of the SD; I don’t know either whether there was such a thing as a membership in the SD; or, whether the people were assigned to the SD from the SS. Only during this trial did I hear that there was such a thing as an actual membership in the SD. At that time I assumed that it was an institution of the nature of an official agency, the personnel for which was appointed by the SS. I never made any application for any membership in this institution; I never signed anything.
Q. Elkar says that in 1940 you had taken an oath as collaborator of the SD; that is in the English transcript at page 2896. Did you take an oath?
A. I can say this with absolute certainty, that I never took an oath in that connection. The possibility exists that it was called to my attention that matters which I found out in connection with such conversations were supposed to be kept secret. However, I do not have the slightest recollection of this either, so I cannot imagine that I was approached on this matter in a solemn ceremony.It is a fact, in any case—and this is why the people who worked for me also knew about these occurrences—that the matters which were discussed there, without exception, I believe, I had also discussed with them and among them. Thus, I had no thought of violating any secrets or any pledges of secrecy.
Q. What was the status called that you had with the SD?
A. In former times I never worried about that because for me it was not a question of practical importance as to what I would be designated as, since I had agreed to hold conversations of the type that I used to carry on with Elkar. Thus, in former times, there was no need to have some kind of a rank for that, or whatever you want to call it.
Q. Did you ever become a member of the SS?
A. I was never a member of the SS.
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PARTIAL TRANSLATION OF NG-715PROSECUTION EXHIBIT 112
EXTRACT FROM LAW, 16 SEPTEMBER 1939, AMENDING REGULATIONS OF GENERAL CRIMINAL PROCEDURE, MILITARY CRIMINAL PROCEDURE, AND THE PENAL CODE
EXTRACT FROM LAW, 16 SEPTEMBER 1939, AMENDING REGULATIONS OF GENERAL CRIMINAL PROCEDURE, MILITARY CRIMINAL PROCEDURE, AND THE PENAL CODE
1939 REICHSGESETZBLATT, PART 1, PAGE 1841
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Part 2
Extraordinary Objection [Ausserordentlicher Einspruch]
Article 3
Extraordinary Objection to final judgments [rechtskraeftige Urteile][231]
(1) Against final penal sentences the Chief Reich Prosecutor at the Reich Supreme Court can file an objection within 1 year after the sentence has become final, if, because of serious misgivings as to the justness of the sentence, he deems a new trial and decision in the case necessary.
(2) On the basis of the objection, the special penal senate of the Reich Supreme Court will try the case a second time.
(3) If the first sentence was passed by the People’s Court, the objection is to be filed by the Chief Reich Prosecutor at the People’s Court, and the second trial is to be held by the special senate of the People’s Court. The same applies to sentences of courts of appeal in cases which the Chief Reich Prosecutor at the People’s Court has transferred to the public prosecutor at the court of appeal, or which the People’s Court has transferred for trial and sentence to the court of appeal.
(4) If there is a connection with a case which is under the jurisdiction of the military courts, the proceedings can be transferred to the jurisdiction of the armed forces by agreement between the Reich Minister of Justice and the Chief of the High Command of the Armed Forces. On the basis of the objection the case will then be decided by the special senate of the Reich Supreme Military Court (art. 410b of the Military Code of Criminal Procedure).
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Fuehrer Headquarters, 16 September 1939
The Fuehrer and Reich Chancellor
Adolf Hitler
The Reich Minister of Justice
Dr. Guertner
The Chief of the High Command of the Armed Forces
Keitel
EXTRACTS FROM THE TESTIMONY OF DEFENDANT LAUTZ CONCERNING THE EXTRAORDINARY OBJECTION[232]
DIRECT EXAMINATION
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Dr. Grube(counsel for defendant Lautz): When, in effect, did you assume your office as Chief Reich Prosecutor at the People’s Court?
Defendant Lautz: Due to illness, I only assumed office on 20 December 1939, in Berlin.
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Q. * * * Witness, first of all what general remarks do you have to make on the subject of the extraordinary objection?
A. The extraordinary objection, which was introduced in 1939, was based on a bill which had already been drafted. The purpose was to be able to correct obvious mistakes in judicial decisions, and thereby to effect uniformity in the practice of the courts.[233]
Q. In article 2, section 3 of the law of 16 September 1939, it says: “Against final criminal sentences, the Chief Reich Prosecutor at the Reich Supreme Court can file an objection within 1 year after the sentence becomes final, if, on account of serious misgivings against the justness of the sentence, he deems a new trial and decision in the case necessary.†In paragraph 3 of the same section, it says, “If the first sentence was passed by the People’s Court, the objection is to be filed by the Chief Reich Prosecutor at the People’s Court, and the second trial is to be held by the special senate of the People’s Court.†According to this, one should assume that the two Chief Reich Prosecutors were those who had to decide whether an extraordinary objection was to be made or not. Please comment on this.
A. This assumption would be incorrect. According to all the regulations and the constitutional basis of this law, it was without doubt that such a far-reaching statement could be made only by the head of the State for the government, because the extraordinary objection repealed the sentence which had been pronounced, and returned the case to the stage at which it was before the trial. Thus, if an extraordinary objection was raised, a new trial had to take place as if nothing had happened before. Therefore, through internal instructions, it was assured that the two Chief Reich Prosecutors, the one at the People’s Court and the other at the Reich Supreme Court, could raise an extraordinary objection only by virtue of an order of the Minister of Justice as the representative of the leadership of the State. And this is not expressed in the law because according to the German conception of a trial, the Minister of Justice cannot make any direct statements in a trial. The two Chief Reich Prosecutors, therefore, made these statements, as I said, only from case to case on orders of the Minister, which as a rule, were even issued so unequivocably that the statement which had to be made, with the reasons for it, was in each case prescribed to the Chief Reich Prosecutors. Thus, the Chief Reich Prosecutor just as the other authorities, for instance, the attorneys general or the presidents of the courts were notprevented, if they thought that there was a cause for it, from suggesting on their own to the Minister of Justice that he should issue such an order.
Q. Witness, the material decision as to whether an extraordinary objection should be raised or not was thus made in the Ministry?
A. The material decision was made exclusively by the Minister of Justice. That is, only he personally made it on the basis of a report made to him by his Referent personally. In particular it was like that; in case of every decree issued by the Ministry it had been assured that either by the signature of the Under Secretary or the Minister, or the division chief, it was made clear that the decision had actually been made by the Minister in this case.
Q. Did you ever raise an extraordinary objection without having an order from the Minister?
A. That never happened.
Q. You just said that the two chief Reich prosecutors as the officials, as supervising authorities of the administration of justice, for example, attorneys general, presidents of the courts of appeal, etc., had the right to suggest to the Minister of Justice that he should issue an order to raise an extraordinary objection. Did you make use of that possibility?
A. I only did so very infrequently on my own initiative. I still remember a few cases in which sentences pronounced by the senate presided over by Freisler were concerned. We wereper senot very much inclined to attack sentences pronounced by our own court by such a legal recourse. However, Minister Thierack, though not much inclined to admit objections, occasionally could be made to do so in cases presided over by Freisler. The cases which are pertinent here, I may perhaps describe briefly. The first Senate of the People’s Court in one case had condemned a person to death because of treason. The facts were as follows: The defendant had transferred a model 38 machine gun into the hands of the enemy; he had obtained the machine gun and given it to an enemy agent. The enemy had known about this machine gun for a long time because they had captured many of these machine guns on the battlefield. Thus, only attempted treason could be the case, and the indictment was filed in that manner. Nevertheless, the Senate passed the death sentence. Here the extraordinary objection was permitted. A second case was a death sentence against a member of the Protectorate, the opinion of which consisted of three-quarters of a page by Freisler. In this case I suggested that this was not an opinion at all, since from the facts one could not find out at all what the defendant had done; and because of thislegal mistake the extraordinary objection should be allowed. This extraordinary objection, therefore, was permitted.
Q. Witness, could the defense suggest an extraordinary objection?
A. Yes, the defense counsel could do it, too. The contents of such petitions frequently showed that pure clemency reasons were used by them as arguments in favor of an extraordinary objection, and not basic legal questions. In such cases it was suggested to them that they make a clemency plea. But, if the extraordinary objection was based on such grounds that there was a hope that it might succeed, I submitted it to the Minister of Justice and supported it. However, and I have stressed that here before, it was very difficult to get Thierack to allow extraordinary objection to be made in favor of a defendant.
Q. May I interpolate a question? Were you, as chief prosecutor, the competent official who had to deal with such extraordinary objections?
A. No, no, that was the Chief Reich Prosecutor of the Reich Supreme Court at Leipzig.
Q. Can you tell us something as to whether extraordinary objection was made frequently?
A. During the early part of the war, when the extraordinary objection was introduced, that is, until approximately 1942, it was a very infrequent occurrence. It was altogether the exception that it was made. From that time onward, however, their number increased slowly, but I cannot even give a rough estimate as to the number of extraordinary objections that were ordered. Originally, the Ministry of Justice, if a report was made by me as to whether an extraordinary objection was to be made—for example, in the case of a sentence passed by the court of appeals—originally the ministry was agreeable to my using again and again the phrase that the sentence gave rise to misgivings on some points, but these points were by no means of such a serious nature that the unusual recourse of the extraordinary objection should be used. That became different only when the new chief of Department IV of the Ministry of Justice, Ministerialdirektor Vollmer, assumed office. I asked him about this one day, and inquired from him how it was that these days the Minister more frequently ordered an extraordinary objection to be made. In reply he said, since the Fuehrer decree of August 1942, Thierack had all authority in the field of the administration of justice and, therefore, in the sphere of the extraordinary objection, too, he had more scope than hitherto.
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PARTIAL TRANSLATION OF DOCUMENT NG-715PROSECUTION EXHIBIT 112
DECREE OF 21 FEBRUARY 1940 CONCERNING THE NULLITY PLEA
1940 REICHSGESETZBLATT, PART 1, PAGE 405
Decree concerning the jurisdiction of the criminal courts, the Special Courts, and additional provisions of criminal procedure of 21 February 1940.
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Part V
Nullity Plea [Nichtigkeitsbeschwerde] of the Chief Reich Prosecutor
Article 34
Prerequisites of the Nullity Plea
The Chief Public Prosecutor may lodge a nullity plea with the Reich Supreme Court against a final judgment of the local court, the penal chamber of the district court, or the Special Court, within 1 year from the date of its becoming final, if the judgment is unjust because of an erroneous application of law on the established facts.
Article 35
Decision on the Nullity Plea
(1) The nullity plea is to be filed in writing with the Reich Supreme Court. This court will decide thereon by judgment based on a trial; with the consent of the Chief Reich Prosecutor it can also reach a decision without a trial.
(2) The Reich Supreme Court can order a postponement or an interruption of the execution. It can order a warrant of arrest already before the decision on the nullity plea. Outside of the trial, the penal senate, composed of three members including the president, decide thereon. Article 124, paragraph 3, of the Code of Criminal Procedure remains unaffected.
(3) If the Reich Supreme Court reaches a decision based on a trial, articles 350 and 351 of the Code of Criminal Procedure apply accordingly. The president can order the personal appearance of the defendant.
(4) If the Reich Supreme Court quashes the contested sentence, it can make its own decision on the case if the facts found bythe contested judgment are sufficient for this; otherwise it will refer the case to be retried and newly decided upon to the court whose sentence is quashed or to another court.
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Part VI
Final Regulations
Article 40
Validity in the Protectorate
This decree is also valid for the German courts in the Protectorate of Bohemia and Moravia.
Berlin, 21 February 1940
The Plenipotentiary for the Administration of the Reich
Frick