TRANSLATION OF DOCUMENT NG-395PROSECUTION EXHIBIT 74
REPORT FROM THE PRESIDENT OF THE COURT OF APPEAL IN HAMM, 7 JULY 1942, CONCERNING THE ALARM AMONG JUDGES CAUSED BY HITLER’S REICHSTAG SPEECH OF 26 APRIL 1942, AND CERTAIN ACTIVITIES OF THE GESTAPO AND THE NAZI PARTY AFFECTING LEGAL MATTERS
REPORT FROM THE PRESIDENT OF THE COURT OF APPEAL IN HAMM, 7 JULY 1942, CONCERNING THE ALARM AMONG JUDGES CAUSED BY HITLER’S REICHSTAG SPEECH OF 26 APRIL 1942, AND CERTAIN ACTIVITIES OF THE GESTAPO AND THE NAZI PARTY AFFECTING LEGAL MATTERS
The President of the Court of Appeal
File No. 3130 I
To: The Reich Minister of Justice,
Berlin W 8
Hamm (Westphalia), 7 July 1942Telephone 1780-1786
Subject: General situation, Decree of 9 December 1935—Ia 110/2
Enclosures: 2 copies of the foregoing report.3 copies of a report by the senior judge of the local court [at] Haltern, of 22 June 1942.
1. The Fuehrer’s speech at the meeting of the Reichstag on 26 April 1942 has, as far as the administration of justice is concerned, caused alarm among the judges of my district. Uncertainty in the administration of justice was threatening, since the Fuehrer’s reproaches—except in the Oldenburg case, particulars of which were, however, not given either—were held in general terms, and the question on what reasons the Fuehrer based his reproaches could not be answered. As soon as possible, I called together the judges of the court of appeal and informed them, and through the presidents of the district courts, the judges of their courts, and of the local courts that I, too, did not know the reasons for the Fuehrer’s reproaches, but that it was the duty of all of us to examine ourselves earnestly as to the extent to which he was to blame; the judges were to continue to do their duty and were to hold themselves responsible to the Fuehrer and to their own conscience; the sentences passed by the courts of this district have always been severe, except for some cases, and this standard should be kept up in the future. It has been reported to me that my words have had a calming effect; the administration of justice in this district continues to proceed along the proper lines, and according to my observations the standards of sentences have remained the same.
Among the population, the Fuehrer’s critical remarks about the administration of justice have given rise to spitefulness aswell as to sympathy for the profession of the judges. At the moment the matter is hardly talked about, but it has not been forgotten. Above all, it is painful for the judges that the number of persons is increasing who do not believe that the judges pass unbiased sentences. In my opinion, endeavors must be made to restore the confidence of the people in the unprejudiced administration of justice. At any rate all things have to be avoided which could further that impression. I have asked the attorney general to take measures to prevent the sentence demanded by the prosecution from leaking out previously. It is quite natural that if it becomes known before the trial that the prosecutor will demand the death sentence with the approval of the Ministry of Justice, it will easily be believed that the judges are prejudiced.
According to my observations, information about the sentence which the prosecutor will propose with the approval of the Reich Ministry of Justice, is disturbing to the judges, even if mentioned only in the course of conversation, which is understandable on account of the authority of the Ministry of Justice and the position of the judges. Even old, experienced judges find their unprejudiced state of mind upset. But according to my observations, the judges are absolutely ready to accept general directives and to follow them in the administration of justice. Therefore, I think it highly desirable that the directives which are issued at the conferences of the presidents of the courts of appeal in the Reich Ministry of Justice as well as those given some days ago at the meeting of the attorneys general in the Reich Ministry of Justice should be submitted in writing to the presidents of the courts of appeal for the information of the judges. I think this will greatly assist the administration of justice.
2. The number of death sentences passed within the area of this court of appeal shows the following development. There were—
The increase is due to wartime conditions and to the extension of the sphere of the death sentence by the law of 4 September 1941. Of the death sentences passed this year, 6 were passed for offenses against war economy, 10 for sexual offenses, 8 for crimes of violence, and 20 for theft.
On an average, 5 to 6 weeks elapse between the pronouncing of the sentence and the execution.
3. Since last May, police officials have appeared frequently in the criminal court in order to report to their superior office aboutthe proceedings. The president of the district court at Dortmund has reported the following cases to me:
“(1) In the middle of May 1942, a habitual criminal was tried before the criminal court and was sentenced to death. A Kriminalsecretaer [detective] of the local criminal police attended the trial as an observer. He told the president himself, and expressly pointed out during the trial, that the Reich criminal police office had instructed him by teletype to attend. I heard that this criminal police official telephoned the prosecuting attorney before the trial and told him that he could imagine why he had been sent. The official had a conversation with the prosecutor during the deliberation of the court. During this conversation he declared that the police would have no reason to take action if an order for security detention would be made. He indicated that his presence was connected with the speech of the Fuehrer. I have neither spoken to the prosecutor nor have I had any reason to ask for a written statement. For the president who informed me vouches for the truth.“(2) At the end of May, a trial was held before the criminal court against another criminal who was condemned to death. An official of the criminal police was summoned as a witness. Before the opening of the trial this official submitted to the court a letter from the Reich criminal police office, in which the local police authorities were requested to inform that office of the result of the trial—especially whether the demand for the death penalty, which was to be expected, had been complied with—and of the mitigating circumstances mentioned in the court’s findings in the event that a punishment other than the death penalty be awarded. Unfortunately, the president failed to take note of the exact contents of the letter. The official attended the proceedings after having been interrogated in the witness box.“(3) At another trial held before the criminal court, at which the death sentence had been demanded but was not passed, a criminal police officer who had been summoned as a witness took the court’s findings down on a sheet of paper.“(4) An SS member in uniform, holding the rank of a sergeant, attended a trial before the Special Court in which, among other persons, the wife of a Landrat was involved. He asked for permission to be present at the hearing and said that he was coming fromKasselon behalf of a police or security authority.“(5) An official of intermediate rank of the local secret State police office participated as observer at another out-of-towntrial of the Special Court lasting several days. No further details are known.“(6) A detective from Bochum participated as witness at the trial of a juvenile perpetrator by the Special Court in Bochum. He compared the penalty imposed by the Special Court with another penalty—a term of imprisonment for many years—allegedly imposed the day before by the penal chamber at Bochum upon a juvenile perpetrator (because of poisoning?). On this occasion he remarked, with regard to the sentence handed down by the penal chamber, that the police had but to examine whether there was a motive, in order to interfere. This remark was made after the trial.”
“(1) In the middle of May 1942, a habitual criminal was tried before the criminal court and was sentenced to death. A Kriminalsecretaer [detective] of the local criminal police attended the trial as an observer. He told the president himself, and expressly pointed out during the trial, that the Reich criminal police office had instructed him by teletype to attend. I heard that this criminal police official telephoned the prosecuting attorney before the trial and told him that he could imagine why he had been sent. The official had a conversation with the prosecutor during the deliberation of the court. During this conversation he declared that the police would have no reason to take action if an order for security detention would be made. He indicated that his presence was connected with the speech of the Fuehrer. I have neither spoken to the prosecutor nor have I had any reason to ask for a written statement. For the president who informed me vouches for the truth.
“(2) At the end of May, a trial was held before the criminal court against another criminal who was condemned to death. An official of the criminal police was summoned as a witness. Before the opening of the trial this official submitted to the court a letter from the Reich criminal police office, in which the local police authorities were requested to inform that office of the result of the trial—especially whether the demand for the death penalty, which was to be expected, had been complied with—and of the mitigating circumstances mentioned in the court’s findings in the event that a punishment other than the death penalty be awarded. Unfortunately, the president failed to take note of the exact contents of the letter. The official attended the proceedings after having been interrogated in the witness box.
“(3) At another trial held before the criminal court, at which the death sentence had been demanded but was not passed, a criminal police officer who had been summoned as a witness took the court’s findings down on a sheet of paper.
“(4) An SS member in uniform, holding the rank of a sergeant, attended a trial before the Special Court in which, among other persons, the wife of a Landrat was involved. He asked for permission to be present at the hearing and said that he was coming fromKasselon behalf of a police or security authority.
“(5) An official of intermediate rank of the local secret State police office participated as observer at another out-of-towntrial of the Special Court lasting several days. No further details are known.
“(6) A detective from Bochum participated as witness at the trial of a juvenile perpetrator by the Special Court in Bochum. He compared the penalty imposed by the Special Court with another penalty—a term of imprisonment for many years—allegedly imposed the day before by the penal chamber at Bochum upon a juvenile perpetrator (because of poisoning?). On this occasion he remarked, with regard to the sentence handed down by the penal chamber, that the police had but to examine whether there was a motive, in order to interfere. This remark was made after the trial.”
4. As the attorney general has already reported to the Reich Ministry of Justice, the Secret State Police recently did not commit two civilian workers from the Ukraine who had shot a forest keeper in the Dortmund district court area to the court for prosecution, although the court had issued a warrant for arrest and the Special Court was prepared for an immediate conviction. They were hanged later on by the secret State Police. Furthermore, it was reported to me by the local court at Haltern that on 19 June 1942 a Polish laborer was hanged in its district by the police because he was said to have had sexual intercourse with a German woman. I enclose a copy of the report dated 29 June 1942. If the rumors are true that the Fuehrer has transferred capital jurisdiction to the police to this extent, it would be desirable to inform the judges and public prosecutors of this arrangement through official channels, as it is assumed that the police are engaged in unauthorized and unlawful activity. Publications in the daily newspapers give the impression that these were executions of sentences which had been legally imposed.
5. The office of racial policy [Rassenpolitische Amt] of the NSDAP issued a treatise on “National Socialistic policy with regard to foreigners” for official use by the Party of which I received confidential information. It contains regulations for marriages between Germans and members of other nations which are of importance with regard to the exemptions of foreigners from the marriage clearance certificates which are subject to the approval of the presidents of the courts of appeal. I propose to ask the office of racial policy to submit this treatise to all presidents of the courts of appeal. Applications for exemptions from marriage clearance certificates have assumed large proportions within my district. The procedure which I have adopted is in accordance with the principles of the treatise “policy with regard to foreigners.”
6. The district of this court of appeal has been very disturbed by air-raid alarms at night during recent months, until about two weeks ago. Air raids occur only occasionally now, keeping within moderate limits. In a number of places the Wehrmacht has started employing male inhabitants to replace the antiaircraft personnel. Older age groups have been trained for this purpose in daily courses from 1900 till 2200 hours. 15 officials and employees of the court of appeal have been detailed for this.
[Signed]Schneider
TRANSLATION OF DOCUMENT NG-417PROSECUTION EXHIBIT 23
SUMMARY BY DR. CROHNE OF THE REICH MINISTRY OF JUSTICE CONCERNING GOEBBELS’ SPEECH TO THE MEMBERS OF THE PEOPLE’S COURT, 22 JULY 1942
Report on the Speech of Reich Minister Dr. Goebbels before the Members of the People’s Court on 22 July 1942
Reich Minister Dr. Goebbels stated at the outset that he had been asked by President Thierack to address the members of the highest German court of justice. He had gladly complied with this request. What he had to say had a special political aspect owing to the Fuehrer’s approval of his comments, the draft of which he had submitted to the Fuehrer.
The civil servants of the administration of justice had, owing to the nature of their work, always been subject to public criticism. Also today decisions of the courts were criticized and called alien to the spirit of the German people. One must not reply to the reproach that justice had failed by protesting that always only certain cases of wrong decisions had been singled out and the great number of the good and correct judgments had been disregarded. We are dealing here with a principle, i.e., of a wrong attitude of many judges who could not redeem themselves from their old ways of thinking. The one-sided teaching at the universities is to be blamed for it to a considerable extent and also the fact that the judge lived secluded in his professional surroundings and knew too little of life itself. Decisions alien to the spirit of the German people had, however, very detrimental effects especially during wartime. All must be done to remedy the situation before it is too late for the administration of justice. No professional men except the judges had heretofore had the guaranty of being irremovable. Even generals could be removed. A powerful state could not renounce the right to remove officers unsuitable for their office because of inaptness or other reasons. This had toapply to the judge as well. The idea of the irremovable judges he went on to say, originated in an alien intellectual world, hostile to the German people.
The Minister then referred to individual judgments that nowadays were unbearable. He cited in the first instance the case of the Jew Leo Sklarek. (In the Minister’s speech stated by error is the case of “Barmat.”) He could not understand that this notorious Jewish profiteer, who after his emigration to Prague had been a spy, had only been sentenced to 8 years’ penitentiary (the judgment of the People’s Court of justice of 16 April 1942 was delivered for having incited to commit high treason, based on paragraph 92 of the Penal Code). The judgment which the court of Eichstaedt had delivered, in the case of a man killed in action in the East having been insulted, was also untenable. A woman upon receipt of the news of his death who had uttered, “Thank God,” had been acquitted by reason of impossible justification. The Minister also referred to Moelder’s letter.
While making his decisions the judge had to proceed less from the law than from the basic idea that the offender was to be eliminated from the community. During a war, it was not so much a matter of whether a judgment was just or unjust but only whether the decision was expedient. The State must ward off its internal foes in the most efficient way and wipe them out entirely. The idea that the judge must be convinced of the defendant’s guilt must be discarded completely. The purpose of the administration of the law was not in the first place retaliation or even improvement but maintenance of the State. One must not proceed from the law, but from the resolution that the man must be wiped out. The criminal must know beforehand that he will lose his head, should he assault the foundations of the State. These drastic measures must not be left to offices outside of justice but are the duty of justice. The big sacrifices of life which must be made by the best part of the people during the war give us a special reason to treat the offender with all ruthlessness. We must bear in mind that during the winter 1941–1942 every criminal had better billets in the prisons than 3½ million German soldiers. Today we have an entirely different conception of certain offenses which in normal times would not have been considered serious at all, but are now regarded as deserving death penalty; (theft during an air-raid alarm, robbery of handbags during black-out hours, and heavy penalties in cases of listening to foreign wireless stations this action being mental self-mutilation). Justice ridiculed itself by placarding summons to missing persons prior to their being pronounced dead, as everybody knew the missing person in the East or even in any enemy’s country could not report at all.
In this connection the Minister went on to speak about the Jewish problem. He went on to say that if still more than 40,000 Jews whom we consider enemies of the State could freely go about in Berlin, this was solely due to the lack of sufficient means of transportation. Otherwise the Jews would have been in the East long ago. The officers of justice must recognize their political task also while attending to the Jews. To feel sorry for them would be a blunder. It was an untenable situation that still today a Jew could protest against the charge of a president of the police who was an old Party member and a high SS leader. The Jew should not be granted any legal remedy at all nor any right of protest.
In his final comments the Minister pointed out again that the State must apply all means to ward off its foes at home and abroad. During a war it was therefore necessary that the idea of the expedient decision took the first place in justice. The people had to be possessed with the will of absolute self-maintenance. He recalled the words which the Fuehrer had said on 30 January 1933 to him on their way from the “Kaiserhof” to the Chancellery of the Reich upon entering the chancellery, “Nobody will ever get me out of here alive.”[254]
After this speech President Thierack expressed his thanks to the Minister for his fundamental comments and said that the Minister had greatly assisted him once before and asked him to repeat his inspiring and directing instructions also in future.
[Typed] [Signed]Dr. Crohne
23 July
TRANSLATION OF DOCUMENT NG-071PROSECUTION EXHIBIT 98
SECRET REPORT OF THE CHIEF OF THE SECURITY POLICE AND SD, 3 SEPTEMBER 1942, CONCERNING “THE CONTROL OF PENAL JURISDICTION” AND THE REACTIONS OF JUDGES THERETO
SECRET REPORT OF THE CHIEF OF THE SECURITY POLICE AND SD, 3 SEPTEMBER 1942, CONCERNING “THE CONTROL OF PENAL JURISDICTION” AND THE REACTIONS OF JUDGES THERETO
5 September 1942
[Stamp] Reich Chancellery
The Chief of the Security Police and of the SD Office III
Berlin SW 11, 3 September 1942Prinz-Albrechtstrasse 8
[Stamp] Secret!
Personal—Submit immediately
Reports from the Reich No. 314
1. To be secretly submitted to the attention of the Reich Minister.
[Initial] L [Lammers]
10 September
2. Circulation—Cabinet Counsellor Dr. [illegible]Cabinet Counsellor v. StutterheimCabinet Counsellor Dr. Ficker
3. To be filed.
Berlin, 5 September 1942
This report is strictly for the addressee personally and contains news material transmitted unreviewed in order to retain its character of fresh news.
ADMINISTRATION AND LAW
Reports on the Control of Penal Jurisdiction
Under the impression made by the Fuehrer’s Reichstag speech of 26 April 1942 and by the general criticism of penal jurisdiction, the former leadership of the Reich Ministry of Justice[255]had, according to additional clauses already previously existent, been persuaded to reinforce the so-called control of penal jurisdiction. This control consisted in an extensive participation of the Ministry and of the supervising judicial officials, and presidents of the district courts of appeal and of the district courts in the sentencing-activity of the individual criminal judge on the principle that, especially in criminal cases with a political implication, the judge must receive assistance when pronouncing a sentence. Actually, it involved then a substantial extension of the already existing consultative obligations of the public prosecutor to the Ministry and, on the other hand, the introduction of a consultative obligation in the relations of the courts to the Ministry as well. According to numerous reports from the whole territory of the Reich, these measures have met with an extremelydissentient reception among juridical circles. The complete break with the hitherto prevailing conception of judicial independence which the control of penal jurisdiction means, is said to have been, to a certain extent, very unfavorably commented upon within the judiciary. In certain cases, this is even said to have led to outspokenexpressions of opinion against the National Socialist State which allegedly wished to suppress judicial independence in order to surrender justice to a right of control by political offices. The origin of this attitude on the part of certain judges in this respect is always the conventional conception of judicial independence according to which the judge was exclusively subordinated to the written law and therefore did not need to follow any directives even of the most general character, that may be issued by the administration of justice with reference to any precise line of conduct in jurisdiction.
Politically enlightened judges havelikewise, according to the reports, viewedthe control of jurisdiction with misgivings. In this, they have indeed not so much perceived a danger to judicial independence, for it was clear to them that its implication up to now, namely, exclusive subordination of the judge to the law, has been deeply altered to suit the National Socialist juridical philosophy, as in the fact that the obligations to the National Socialist ideology must have precedence over the obligations to the law if jurisdiction was not to be in opposition to the political objectives of the nation’s leadership. Since the execution of law in the National Socialist State has importantpoliticaltasks to fulfill, a certain influence on the judges must be made possible in the form of instruction on important political viewpoints which the individual judge cannot grasp outright by himself.
As reported, however, these judges have likewise given an unfavorable reception to the method of control of penal jurisdiction, for it amounts only to an attempt with inadequate means to solve from a wrongly selected principlethevery problem posed to the administration of jurisdiction, namelythe uniform political and ideologicaladjustment of the judge.
The intention of the administration of justice to gain influence on legal jurisdiction through the channel of the Ministry and the presidents of the district courts of appeal and of the district courts was therefore doomed to failure. The indispensable prerequisite for the possible success of such a gain of influence would have been that the officials exercising the control base their action on a unified political principle. As shown by experience, however, this has by no means been the case.
On the whole, the objective pursued by the leaders, who have been at the head of the Reich Ministry of Justice so far, in introducing the control of jurisdiction in orderto reducethe far from negligible number ofwrong sentences, can only be reached under certain conditions. Indeed certain sources of error have been removed with great difficulty. Without active handling of the basic problem of the political and ideological adjustment ofthe judiciary itself, a real improvement [Gesundung] of the execution of law cannot be expected in the long run.
The following example extracted from a series of similar cases is characteristic of the situation created by the introduction of the control of jurisdiction.
Roaming about at night at his place of domicile for several months, a Polish civilian workman stole from gardens and dwelling places money, numerous articles of underwear and clothing, as well as other articles of daily utility. As the competent special court established, he had carried this out under cover of the black-out.
In line with provisions, introducing reporting as a duty, the president of the competent district court of appeal had brought the case by telephone to the knowledge of the Reich Ministry of Justice. In its reply to the telephone message the Ministry advised the following day that the death penalty would probably not be deemed necessary for the Pole. That in any case the public prosecutor would receive explicit instruction before opening of the court hearing as to the penalty which should be asked against the Pole. The Ministry thereupon instructed the public prosecutor to propose 10 years of particularly rigid confinement in a place of detention. The court ruled accordingly.
As reported, the hypotheses under which this verdict took place, as well as the degree of the sentence itself, met with lively criticism on the part of politically awake lawyers. On the one hand it caused concern that by the direction of the administration of justice in such a manner the judge might from the outset be relieved of personal responsibility for his verdict. In as much as in a very great number of cases it becomes known to the court that the public prosecutor is being supplied with instructions regarding the application in criminal proceedings, it merely needs to comply with the request of the public prosecutor, thereby evading embarrassment which might possibly result from mistrials through reference to the concept of the Ministry. On the other hand, the case as described illustrates that the success of such a control stands and falls with the persons to whom such control is entrusted. If confusion prevails in the Ministry itself as to the line which the administration of justice should follow in regard to the Pole, there naturally is no guaranty that mistrials are excluded through the concept of control. The verdict in the case under consideration must be considered a faulty judgment; because under prevailing conditions there is no justification for the leniency which it expresses on behalf of a Pole who commits crimes under the cover of the black-out.
In connection with this and a series of similar cases reports of judges whom this development fills with serious concern stressed over and over again theneedfor informing thejudiciary about the great goals of the leaders of the State. At the present time there is but a comparatively small number of judges who make an earnest endeavor to analyze the State political necessities as such, and the political foundation of the administration of justice. Unfortunately, it has so far been a fact that any civil servant in the administration who has just passed his second state examination in law has been more fully informed about the political goals of the State leaders and the political opportuneness than perhaps any president of a senate.
Also, this circumstance should be recognized as an important reason for the failure so far experienced in the administration of justice. Consequently, there exists a greater need than ever for bringing the judges much closer to the problems of State leadership and of State necessities as they arise newly all the time due to the war.
In the opinion of others, the former heads of the Reich Ministry of Justice likewise failed to fully realize their intent of remedying the lack of judgment of some judges in the case of decisions on penal cases with political aspects by controlling the administration of justice. It was said that in meetings held in the Ministry, the presidents of the district courts of appeal had been instructed to explain in official meetings to the judges under their jurisdiction how serious the situation is which is now encountered in the administration of justice, and in that connection to discuss examples for faulty verdicts, among other things also dealing with such which the Fuehrer himself has criticized. Some of the presidents of the district courts of appeal and of the district courts had discharged this task in such a manner that they manifestly refrained from expressing an opinion of their own, thereby making known that they themselves held a different opinion. This led to increased insecurity on the part of many judges.
An extension of report requirements yielded in some districts results along similar lines. It was partly made compulsory for judges at local courts, for example, to report every case of even moderate import to the president of the district court who on his part passed it on to the president of the district court of appeal and he to the Ministry. In some districts every judge at the local court was held to make a report each session on all cases which had come up. According to another report all judges of a district court of appeal had met to consult on a verdict which a judge of the local court was about to pronounce.
Going by the Fuehrer’s criticism of some individual verdicts, the Ministry occasionally makes reference as to the Fuehrer’s opinion in principle—so it is reported—in regard to certain delinquencies, urging upon the presidents of the district courts of appeal to acquaint their judges with the Fuehrer’s attitude as it more or less was assumed to be. This, too, resulted, in part, in completely confusing the concepts of the judges. To cite an example, a verdict was discussed at a meeting of the presidents of the district courts of appeal held in the Reich Ministry of Justice, according to which a woman, whose child had fallen into a vessel of hot water while playing and scalded itself fatally, had been sentenced to 6 weeks of imprisonment. The Fuehrer criticized that case because the loss of the child was hard enough a punishment for the mother and that, therefore, court proceedings reflected the concept of justice in form but were not in harmony with the natural concept of justice. When this case was passed on by the presidents of the district courts of appeal and of the district courts to the court judges, it was, in part, understood to mean thatin principleit was the Fuehrer’s intent that women should be punished very mildly only.
The following case is cited as an illustration of the practical result of an interpretation of the Fuehrer’s will along such lines.—A woman had planned to give to the judge, who was considering a civil complaint made by her, a parcel with foodstuffs, a few days before the case came up in court for a hearing. Thereupon, the judge initiated court action against her because of an active attempt to bribe a judge. Bearing in mind the purported will of the Fuehrer that mild sentences should be imposed upon women and using such will as justification, the instruction was given that the woman was not to be punished at all. Only at a later date was this instruction modified in that it was ruled that a small fine was to be paid.
In connection with these and similar cases it is reported that it is a very doubtful principle to bring to the knowledge of the judges what is merely the purported or assumed will of the Fuehrer. Naturally this is bound to lead to constant conflicts for the judge. Considering things from all angles it is evident from the numerous reports which have come to hand that the so-calleddirecting of the administration of justicemet with but alimited amount of the successat which it had aimed. Aside from the numerous doubts which arise as a matter of principle,the amount of work involved to make this directing practically possible is not commensurate with results so far achieved. Compulsory reporting, which met with a considerable amount of criticism by the public prosecution even before introduction of the directing policy, hasbeen considerably increased after the introduction of the directing policy and now extends even to the presidents of the district courts of appeal and of the district courts. This is said to have brought about a very considerable delay and burden in work which can neither be reconciled with the simplification and acceleration nor with the number of personnel at this time still available to the judiciary. Over and above this, the duty to submit reports has considerably paralyzed the power of decision and readiness to assume responsibility on the part of the judges, in as much as in many instances they are relieved of responsibility by other instances, as a result of which they feel to have been deprived of their essential task as judges.
EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[256]
DIRECT EXAMINATION
*******
Dr. Kubuschok(counsel for defendant Schlegelberger): I am now starting on a new group of questions. Do you wish me to start on it before the recess?
The prosecution charges you with directing the administration of penal law through the Reich Ministry of Justice. Please state your views.
Defendant Schlegelberger: Concerning these questions, we must differentiate between the position of the public prosecutor and that of the judge. The public prosecutor is an administrative agency dependent upon the instructions from his superior agencies. The judge is responsible merely to the law and his own conscience and judgment. The question to what extent and under what prerequisites the prosecutor has to report to his superior agency has been laid down in administrative regulations. The more important the individual question, the higher the agency the opinion of which is requested. It has therefore always been a matter of course that the importance of penal cases according to the case itself, or according to the punishment which is to be expected, has to be reported to the higher authority. I notice the suggestion was approved and an instruction was issued, an instruction which as far as it concerned a matter which was being dealt with at the trial always had to be interpreted in such a way that in the last analysis the public prosecutor had to make his decision dependent on the course of the trial. In 1939 Guertner—I myself had no part in these matters at the time and I don’t knowwhat part Freisler played—pointed out to the public prosecutor that they should see to it that a great difference between the demand for a sentence of the prosecution and the actual sentence pronounced by the judge be avoided.
[Recess]
Q. Witness, we were discussing the guidance of the administration of criminal justice. Please continue with your explanation.
A. Before the recess I had referred to a decree by Guertner which required a constant connection with the courts in order to avoid a discrepancy between the plea of the prosecution and the final verdict. May I continue on this point?
I should like to assume that this decree or this order finds its definite reason in the fact that at that time a large number of new laws had been promulgated for which precedence in sentences did not exist and could not exist. Only gradually it was possible, with regard to these laws, to form a firm foundation based upon sentences and opinions of the supreme judicial authority. Frequently, therefore, surprises occurred if the prosecution in applying the law had a definitely different position from the opinion of the Tribunal. The purpose of that decree was to avoid this ambiguity as far as possible, and to reduce these differences to the least possible measure, also concerning the extent of punishment, which depended on the findings of the court. That quite apparently, as a matter of course, could only be achieved by a conference before the trial. The reports submitted by the prosecution, by the president of the Kammergericht on 3 January 1942, and from the same year by the president of the district court of appeals at Hamm, revealed that some misuse had taken place. It is stated there that the prosecutor after the presentation of evidence—that is to say, during the proceedings—had pointed out to the court what sentence with the approval of the Ministry he would demand, and in so doing created the opinion in the court that he expected that sentence and that penalty.
From this report can be seen that the presidents of the district courts of appeal quite rightly considered this behavior a misuse. The report by the president of the Kammergericht I had not seen until now. I do not know what steps were taken after that report was received by Freisler. Maybe this is a case again, one of these cases, where important matters had been neglected by him.
The report from the president of the district court of appeal at Hamm I remember very clearly. I had made up my mind to put this matter on the agenda of the next meeting of the presidents of the district courts of appeal. These meetings had the express purpose to discuss such questions which had been raised in the reports. Owing to the fact that I left my office soon thereafter,there was no longer any opportunity for me to carry out these intentions.
Q. The two reports you mentioned were submitted by the prosecution as Document NG-445, Prosecution Exhibit 73 and Document NG-395, Prosecution Exhibit 74 with the Documents NG-505 and 508, Exhibits 71 and 72.[257]The prosecution also charges you with having influenced the jurisdiction of the judges. I ask you to state your position with regard to these documents.
A. In the course of the examination today I was compelled on various occasions to explain to what degree the Party intended and tried to wrest various fields from the administration of justice and turn these competencies over to the police. In July 1941 that question was especially acute because there was an attempt to take away from the administration the prosecution of Jews and Poles. The opposition based its arguments on sentences which revealed a certain ignorance on the part of the judges of conditions of actual life. Under any form of government one has heard complaints about the fact that the judges were far removed from the facts and experiences of daily life. In the old Reichstag there was hardly any debate on matters of justice without these complaints, and such complaints naturally coming up during the war and in the course of many events the complete changes of all conditions of life and national economy found plenty of nourishment. It was the duty of the central agency to acquaint the judges with such general points of view and to demonstrate to them what the influence of temporary conditions and recent conditions would have to be upon the policy of criminal law. Apart from that, one had to be vigilant against that danger which I have described, namely, that certain fields of the administration of justice could be wrested from them.
At that time sex crimes of Poles were very frequent. The reason for that could possibly have been that these laborers who had been brought into Germany, in many cases, came into a living community with the families of the employers, that the husbands were usually at the front, and that the Poles themselves, that is, the greater part of the Poles themselves were in Germany without their families. The ground for sex offenses, therefore, was conditioned by these elements, and some judges did not recognize that.
In the documents submitted by the prosecution one case is mentioned which was tried before the Penal Chamber Lueneburg. It is the case of a sex crime committed by a Polish agriculturallaborer. That defendant was granted extenuating circumstances, because, and I quote, “He did not have the same restraint toward female co-workers as a German agricultural worker would.” That opinion apparently was untenable. The Reich Supreme Court sharply rejected it. It was also very dangerous at the same time, because if reasons of that kind had become known to Hitler there would have arisen a new grave danger to the entire administration of justice. Therefore, I saw cause to find a different job for this judge who apparently was not aware of prevailing conditions. Cases of this nature and many others which may not have been quite as wrong but could have made a certain impression gave cause and reason for a type of propaganda which promised a great deal of success and that made me write that letter of 24 July 1941 to the court authorities in the provinces where I pointed out that in the cases of definitely criminal elements a sexual crime as a rule should be considered according to the legal provisions and regulations as a crime to be punished with death. The actual documentary background for that letter is to be found in the document of the prosecution. Therefrom one can see in what cases the police may have corrected the sentences by the judges, and one cannot overlook the fact that such frequent interventions on the part of the police to improve on the sentences by the judges represented a signal for the much desired event of taking over the power to punish by the police, and the man in charge of the Ministry conscious of his duty had to take that into account.
Document NG-508, which my defense counsel has mentioned, is the reproduction of a passage from a Hitler speech concerning the administration of justice; it was a speech before the Reichstag; and that concerned in general the necessity of severe punishment in times of war; and according to my duty I brought this speech to the attention of the judges.
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Q. In Document NG-102, Prosecution Exhibit 75,[258]you made the suggestion for a confirmation of sentences by the presidents of the district courts of appeal. Under what circumstances did you make that suggestion?
A. This suggestion to have the sentences by the courts confirmed is in close causal connection with this practice of transferring prisoners to the police.[259]Hitler’s Reichstag speech of April 1942 left no doubt in my mind that these interventions would increase, and my suggestion was to the effect that Hitler shoulddelegate the right, the prerogative which he reserved for himself, to the Ministry of Justice and to the presidents of the district courts of appeal. If this had been achieved, the whole matter would have remained in the hands of the administration of justice, for even the applications for nonconfirmation according to my draft were supposed to be made by the attorneys general who in turn had received instructions from the Ministry.
My letter in regard to this question of confirmation shows again what means I had to use. I could not reveal the real reason if I did not want to be unsuccessful from the very beginning. Bormann, however, in this case saw through my reasons. In a letter from Bormann to Lammers, Bormann writes, this attempt was again a confirmation of the will of the administration of justice to keep these matters in their own hands, as, for example, the question of analogy [analogy provision of article 2, Reich Criminal (Penal) Code], or the extraordinary objection or the nullity plea; but in the Ministry of Justice there was not the will to apply these means with the necessary severity. Above all, Bormann saw clearly that if my draft had become law, Hitler’s right of intervention would have been destroyed with one stroke. All the presidents of the district courts of appeal were supposed to pronounce their decisions in Hitler’s name, and if they had confirmed in the name of Hitler, Hitler could no longer have attacked their opinion. If I may use a common expression, I can say that Bormann, the fox, did not fall for the trap. In that connection, perhaps, I may point out two things. Lammers’ remark in the document shows that I refused to have the Party drawn into this confirmation procedure basically. Furthermore, the document shows how I had to go about such things. These confirmation sentences existed in the case of military courts, that is also in the case of air force courts which were subordinate to the Commander in Chief of the Air Force, that is Goering. Thus, I could count an understanding for my suggestion in the case of Goering, and, therefore, I secured his support through a special oral report on my suggestion.
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CROSS-EXAMINATION
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Mr. LaFollette: Doctor, I would like to go back, now, to Prosecution Exhibit No. 75, which is Document NG-102. Briefly that was the series of letters and correspondence beginning in May 1942, which contains your proposed method of handlingclemency matters after Hitler’s speech of 26 April 1942. Do you remember?
Defendant Schlegelberger: Yes, it is a question of confirming the sentences.
Q. Yes. On 6 May 1942, you wrote Dr. Lammers—addressed the letter to Reich Minister Dr. Lammers—
“Dear Sir:“During our last conversation, I already told you that I intended to propose to the Fuehrer the introduction of a confirmation of judgment passed; a plan to which you agreed.”
“Dear Sir:
“During our last conversation, I already told you that I intended to propose to the Fuehrer the introduction of a confirmation of judgment passed; a plan to which you agreed.”
I am leaving out a sentence; I don’t think it is necessary. It’s in the record here.