Chapter 53

TRANSLATION OF DOCUMENT NG-351PROSECUTION EXHIBIT 132

SECRET JUDGMENT OF FIRST SENATE OF PEOPLE’S COURT CONCERNING TWO POLES, 21 MAY 1943, AND DIRECTIVE OF MINISTRY OF JUSTICE TO DEFENDANT LAUTZ CONCERNING THE MANNER OF CARRYING OUT THE EXECUTION OF ONE OF THE DEFENDANTS

9 J 190/420

Copy

1 H 110/43

SECRET!

In the Name of the German People

In the case against—

1. the porter Paul Stefanowicz, from Berlin, born 5 January 1922 in Olyka (District of Rovno),

2. the laborer Franz Lenczewski, from Berlin, born 1 August 1924 in Sandec (Government General), Poland, at present in custody pending trial for treasonable intent, et cetera, the People’s Court, First Senate, on the basis of the session of 21 May 1943, in which the following participated as judges:

as representative of the Chief Reich Prosecutor [the defendant Lautz]:

Local Court Judge Dr. Pilz,

found:

As Poles, the defendants harmed the interests of the Reich by leaving their places of work in Berlin in August 1942 and going to the Reich border, with the intention of remaining in Switzerland until the end of the war.

The defendantStefanowiczis therefore condemned to death.

The defendantLenczewski, since he acted under the influence of Stefanowicz, who is mentally greatly superior to him, will receive a sentence of 8 years in a penal camp, and the period of custody for investigation will be included in this term.

Findings

Both defendants are ethnic Poles, were formerly Polish citizens, and on 1 September 1939 resided in the former Republic of Poland.

Both defendants reported for work and were assigned to work in Berlin; Lenczewski in April 1941 in a chocolate factory, Stefanowicz in January 1942 at the Neukoelln hospital.

Of the two defendants, Stefanowicz makes a much more intelligent and bold impression. He belongs to the Polish intelligentsia, which is the stronghold of the Polish spirit of resistance. Consequently in March 1942 shortly after he began his work, he left his place of work and attempted to flee to Denmark. He was arrested in Flensburg, however, and after 2 months in a labor reformatory camp he was returned to his place of work in Berlin. There he was noted for his anti-German attitude. According to his own statement, the nurses threatened that his attitude would bring him into the concentration camp one of these days. It was Stefanowicz who persuaded the codefendant Lenczewski, who is nearly 2 years younger and was at the time the deed was committed barely 18 years old, to leave his place of work and escape with him to Switzerland in order to live a more comfortable life there. They agreed to escape on 2 August 1942.

On that day they left Berlin and went via Augsburg and Innsbruck to Landeck/Tyrol. From there they went on foot toward the Swiss border, with the intention of crossing the border secretly. In the mountains, however, they suffered from bad weather, and on 6 August 1942 they were arrested by a customs patrol in See (Tyrol), very close to the Reich border.

The prosecution assumes that the defendants had the intention of joining the Polish Legion. Both defendants, however, have denied this from the beginning and maintain that they merely wanted to get better working conditions in Switzerland. The assumption of the prosecution is doubtless supported by the fact that members of the former Polish State who wanted to join the legion have frequently been arrested at the border under similar circumstances. On the other hand, no evidence has been presented that the defendants were in contact with such circles. As for their personality, neither of them gives an impression of a fighter but rather an effeminate one, and the fact that they merely wanted to go to Switzerland in order to live a better life there, could not be disproved.

Nevertheless, as Poles, both of them have harmed the interests of the German Reich by their conduct. For they were assigned to work in the Reich, and in total warfare any loss in this regard harms the interests of the Reich. They were aware of this fact, especially since they intended to remain in Switzerland permanently and thus to deprive the Reich of their work for the entire duration of the war (crime under art. 1, par. 3 of the Regulation on Administration of the Penal Law against Poles and Jews in the Incorporated Eastern Territories of 4 December 1941 (Reichsgesetzblatt 1, p. 759)).

The law provides the death penalty for this offense, as a rule. Only in less severe cases can a prison sentence be imposed. The case of the defendant Stefanowicz is not a less severe case. As already emphasized, he belongs to the Polish intelligentsia, which is the stronghold of the spirit of resistance. From the very beginning he failed to adapt himself to the order prevailing in the Reich and once before made an unsuccessful attempt to escape to Denmark. He is also responsible for the fate of his codefendant Lenczewski, to whom he is mentally far superior. He was therefore given the death sentence. On the other hand, in the case of the defendant Lenczewski, who did not make a very independent impression during the trial, who was very young at the time the deed was committed, and who succumbed to the influence of his mentally superior friend, a sentence of 8 years in a penal camp was considered sufficient. The period of custody for investigation was included in this term.

Under the law, the defendants have to bear the costs of the trial, since they have been convicted.

[Signed]Laemmle

[Signed]Dr. Schlemann

25 May 1943

Carbon copy

The Reich Minister of Justice

Berlin, 7 August 1943

IV g 10a 4910 c/43 g

Urgent—Secret

The Chief Reich Prosecutor with the People’s Court,

Berlin

personally or to his deputy in office

Reference GJ 190/42g 30 July 1943

Enclosures:

Referring to the proceedings against Paul Stefanowicz who was sentenced to death on 21 May 1943 by the People’s Court, I send you a fair copy and certified copy of the decree of 5 August 1943[375]with the request to take the necessary steps with the greatest possible speed. The executioner Reichhart is to be entrusted with the carrying out of the execution. As to the delivery of the body to an institute according to article 39 of the Reich Ordinance of 19 February 1939, the Anatomical Institute of Munich University is to be taken into consideration.

Please refrain from publicity, either through the press or through posters.

By order

[Typed]Dr. Vollmer[376]

PARTIAL TRANSLATION OF DOCUMENT NG-457PROSECUTION EXHIBIT 201

OPINION AND SENTENCE OF THE NUERNBERG SPECIAL COURT, WITH DEFENDANT OESCHEY AS PRESIDING JUDGE, 29 OCTOBER 1943, BY WHICH TWO FOREIGN WORKERS WERE CONDEMNED TO DEATH[377]

Beg. f. H.V. Sg No. 256/1943

[Stamp]

The sentence is effective and must be executed.

Nuernberg, 3 November 1943

The Chief Registrar

of the Office of the District Court

Criminal Division

[Signed]Ramsenthaler

Chief Court Clerk

Sentence

In the Name of the German People

The Special Court

for the area of the Nuernberg District Court of Appeal at the Nuernberg-Fuerth District Court in the criminal case against Kaminska, Sofie, farm laborer in Uffenheim and 1 other person charged with a crime under part I, section 4 No. 1 of the Penal Ordinance for Poles and Jews, at a public session on 29 October 1943 attended by—

Presiding judge—District Court President Oeschey;

Associate judges—Local Court Judge Dr. Pfaff and

District Court Judge Dr. Gros;

Public Prosecutor for the Special Court;

Public Prosecutor Markl, and as registrar of the office.

Court Clerk Kastner rules as follows:

Kaminska, Sofie; nee Uba, born on 1 September 1907 at Czenstocice, widow, Polish farm laborer,

Wdowen Wasyl, born on 20 February 1923 at Zatwanica, single, Ukrainian farm laborer,

both last residing in Uffenheim, both under arrest pending trial are guilty: Kaminska slapped a German soldier, threatened him with a hoe, and threw a stone after him; furthermore offered resistance to a policeman when she was being arrested. Wdowen tried by force to prevent Kaminska’s arrest.

They are therefore sentenced to death; Kaminska under articles II, III, and XIV of the Penal Ordinance for Poles; Wdowen is sentenced as a public enemy.

Findings

The defendant Kaminska, who belongs to the Polish ethnic group and who on 1 September 1939 was residing in the territory of the former Polish State, attended elementary school and after having finished school worked as a laborer on several farms in Poland. She was married in 1929 and since then had three children.Her husband was killed in action during the Polish campaign in October 1939. At the middle of December 1939 she came to Germany being committed to work there. She was first employed for over a year by a farmer in Weidenheim, then for a year by the farmer Landshuter at Unternzenn, and since 15 March 1942 she has been employed by the farmer Gundel at Uffenheim. Leo Gundel is 60 years old and fragile; his daughter manages the farm. At Weidenheim the defendant Kaminska met the codefendant Wdowen who belongs to the Ukrainian ethnic group. Wdowen never attended school, he can neither read nor write, nor had he learned a trade. Until he came to Germany in March 1940 for labor commitment he worked as a farm laborer for his parents and for other farmers in the territory of the former Polish state. In Germany he was first employed by a farmer in Weidenheim, and in March 1942 he was transferred to Gundel together with Kaminska. Wdowen started a love affair with the defendant Kaminska in Weidenheim. The child born in June 1942 is a result of that relationship. The defendant took the child to her mother in Wussiowa in March 1943.

On 1 July 1942 the two defendants entered Gundel’s home and demanded money from the daughter, Marie, for the journey which the defendant Kaminska had made to Poland to take her child to her mother. When the daughter refused the request, they turned to old Gundel who was also present in the room. When he, too, refused to pay any money to Kaminska both defendants became more and more insistent; the defendant Wdowen even gave the farmer a push. In his distress, Gundel called for the help of the army private Anton Wanner, who used to work on the farm as a laborer and who happened to be spending his leave there. Wanner was in uniform. He came into the living room and told the defendants to leave immediately. The defendant Kaminska at once attacked the soldier, slapping his face once. Thereupon, Wanner slapped her face. Now a fight resulted during which his infantry assault badge fell to the ground. Wanner, feeling himself threatened, drew his bayonet and yelled at Wdowen, “Get out, you bully.” The defendant Kaminska by this time ran out of the room and took a hoe which was leaning near the staircase. She did not get a chance of attacking him as the soldier quickly closed the door.

Shortly afterward Wanner was riding on his bicycle along the road to Uffenheim to go to the police station. When he was passing the two defendants who were walking in the same direction, the defendant Kaminska threw a stone weighing half a pound after the soldier without, however, hitting him.

The next day police sergeant Dirmann went to Gundel’s farm, but the defendant Kaminska was working in the fields. There, the police official told her to follow him. The defendant Kaminska followed him unwillingly and hesitatingly. The codefendant Wdowen ran after the police official, although the latter had forbidden him to follow them. On the way Dirmann twice slapped Wdowen’s face to force him to turn back. Despite this he followed the two to the prison cell. When Dirmann wanted to put Kaminska in the cell she began screaming. Wdowen rushed up to them and embraced Kaminska with both hands so that the police official was prevented from arresting Kaminska. Only after several other people who were called in by the police official came to his aid, he succeeded in overpowering the two defendants and putting Kaminska in the cell.

The defendant Kaminska states that she learned before 1 July 1942 at the employment office that the farmer Gundel had to pay her travel expenses both ways. On 1 July 1942, she made only these demands. Besides, she only slapped the soldier after he had slapped her face. She had not purposely torn off his infantry assault medal. It was true she had fetched the hoe but she had not raised it to assault the soldier but only to intimidate him.

The defendant further admits having picked up a stone on the way to Uffenheim and having thrown it after the soldier; she merely mentioned as an excuse that she had been so angry that she had picked up a stone and thrown it at Wanner.

Regarding her arrest by police sergeant Dirmann, the defendant says she had offered resistance because she had been afraid that the police official would throw her into a cellar; she had not known before what the official really wanted from her.

The defendant Wdowen denies having struck or attacked the old man Gundel and the soldier in the living room. He had only received a blow on the nose from Wanner when Wanner had said something to him and to Kaminska which he could not understand. He had not seized or held him.

Concerning the arrest of Kaminska, Wdowen states that he had “already thought” that Kaminska was to be arrested by the police official; he had also kept “running after them,” although he had been forbidden to do so, and he did not let himself be intimidated by the slappings. Outside the cell he had intended to tear Kaminska away from the police official because he had felt sorry for her. The excuses which the defendants have put forward are irrelevant; for the rest, the afore-mentioned facts have been confirmed by the witnesses Gundel and Wurm. The soldier Wanner has been reported missing since the fighting in Tunisia. The witness, police sergeant Wurm testified, however, that Wanner had made definiteand clear statements. The court is therefore convinced that the defendant Kaminska hit the soldier first; she was not authorized to do so in any way. When the witness Miss Gundel had told her that she would first make inquiries at the employment office as to whether the demands for payment of travel expenses were justified, the defendant Kaminska should have been satisfied. If despite that she continued to insist on her imagined demand and together with Wdowen behaved insolently towards Miss Gundel and her father, it was absolutely understandable that old Gundel called the soldier Wanner for help. The defendant Kaminska should have complied immediately with Wanner’s demand to leave the room. She cannot claim that she did not understand his demand. If instead of immediately leaving the farmer’s living room, she slapped the soldier’s face then this constituted a bodily maltreatment and thereby an assault and battery.

As the codefendant Wdowen, too, according to the credible statements which the soldier Wanner had made to the police sergeant Wurm, either gripped the soldier or at any rate took sides with Kaminska, so that Wanner had to fear a joint attack, it was understandable that he drew his bayonet in his defense. If the defendant Kaminska had to run out of the house to get a hoe and with it had walked towards the front door where the soldier was standing, Wanner had to fear the possibility of an attack on his life, although it was not established at the trial whether the defendant had already lifted the hoe to hit him. This behavior must be regarded as a threat within the meaning of article 241 of the Criminal (Penal) Code.

The defendant admits that after the incident in Gundel’s room, “some time later” on the way to Uffenheim she, in her anger, picked up a stone weighing a half pound and threw it after the soldier Wanner who was sitting on a bicycle, however, without hitting him.

The facts thus established prove that the defendant has committed a crime within the meaning of article 1, paragraph 1 of the Law against Violent Criminals of 5 December 1939. For this the death sentence is imposed on a person who, among other things, when committing a serious act of violence uses cutting or thrusting weapons or with such a weapon threatens the body or life of another person.

An act of violence within the meaning of that provision is constituted by a violent attack on a person which, according to design or execution or in view of the consequences for the person who is being attacked, endangers the security afforded by law to a high degree, and which therefore is particularly rejected and detested by the national community which is engaged in a fight for itsright of existence, according to the verdict of the Reich Supreme Court of 26 January 1942, Second Criminal Senate, January 1942.

In the present case, the basic punishable deed is a threat within the meaning of article 241 of the Criminal (Penal) Code.

The defendant by throwing, in her anger, such a heavy stone after the soldier did not merely make a purposeless gesture. The court is convinced that it is evident from the over-all attitude of the defendant Kaminska, which she had previously displayed toward the soldier, that she meant to hit Wanner. A stone weighing half a pound when being thrown by someone in a condition which the defendant herself described as anger may kill a human being. Thus, a stone of that weight must be considered equal to a cutting or thrusting weapon; it must be considered as an object equal to a weapon within the meaning of the law against violent criminals. The defendant dared attack a German soldier, she took up an offensive position which would have caused grave injury if the soldier had not evaded the stone which was thrown at him. The defendant was about to endanger gravely the life and health of a German national. The German nation which is engaged in a grim defensive struggle rightly expects the most severe methods to be taken against such alien elements. The crime of the defendant, by design, and execution, as well as a considerable violation of the security afforded by law, constitutes a serious crime of violence within the meaning of the law against violent criminals. The fact that the criminal is a Pole is of particular significance.

From the name of the law it is concluded that it can only be applied against persons who are to be regarded as violent criminals. The defendant had not been provoked to the violent action. After she had failed to hit him with the hoe, she tried to hit the soldier on the road. The over-all behavior of the Polish woman, also toward the farmer, proves that the crime is not alien to her nature. She thereby characterizes herself as a Polish violent criminal. The defendant cannot dispute that she resisted with all her strength when a police official wanted to put her in a cell. Her excuse that she had not known what the official wanted from her cannot be believed. She knew in what manner she had acted toward the Germans on the previous day. She therefore had to expect the police official who moreover was in uniform to try and arrest her. The court has no doubt that she, as well as Wdowen who admitted having assumed that Kaminska was to be “picked up” because of her behavior on the day before, knew that she would now be arrested. By her violent resistance outside the cell, she therefore violated article 113 of the Criminal (Penal) Code.

According to the opinion of the medical expert, which the Courtshares, the defendant shows no symptoms which could justify doubts as to her responsibility for the crime.

As the defendant on 1 September 1939 was a resident in the territory of the former Polish State, she had to be found guilty in application of articles II, III, and XIV of the Penal Ordinance for Poles, of a crime of assault and battery in conjunction with a crime of threat, a crime under article 1, paragraph 1 of the Law against Violent Criminals, and of a crime of offering resistance to the police.

The defendant was further charged with intentionally having torn off the infantry assault badge of the soldier Wanner. That could not be proved during the trial. The witness, Miss Gundel, testifies that after the defendant Kaminska had slapped the soldier’s face, a fight ensued and that afterward the soldier’s infantry assault medal was missing. In view of this evidence there is, at any rate, a possibility that the badge might have loosened in the course of the fight. A particular acquittal was not necessary, however, as the attitude of the defendants must be regarded as one action.

Although the old feeble farmer Gundel was not physically injured by the thrust of the defendant Wdowen, he did rightly feel the action of the Ukrainian to be an offense to his honor as a German. The defendant Wdowen, by holding Kaminska with both hands when the Polish woman was about to be put into a cell so that the police official was unable to do so for the moment, and by allowing himself to be removed only after the intervention of other persons, offered forceful resistance to an official who was lawfully doing his duty.

By his action, he also tried to free the codefendant Kaminska from the hold of the official in whose custody she was.

His act, therefore, constitutes an attempt to free a prisoner in conjunction with resistance to the police under articles 120, 43, 113, 73 of the Penal Code.

That, however, does not exhaust the entire unlawful character of his deed.

The defendant Wdowen knows very well that the German economy, on account of wartime conditions, is dependent on foreign labor, in particular on labor from the eastern territories. He speculated that his offenses would be overlooked in order not to lose him as a worker. The defendant also knew that because of the drafts into the armed forces the security organs in the Reich have been reduced and that Germany is deprived of the population fit for military service so that the rural population is largely helpless against the insolent and obstinate behavior and against attacks, which occur more and more on the part of such elementsfrom the East. The defendant Wdowen, therefore, committed the offense taking advantage of the extraordinary wartime conditions. His action is therefore particularly despicable and demands that the ordinary limit of punishment be exceeded.

The defendant therefore had to be sentenced for a crime under article 4 of the Decree against Public Enemies in conjunction with resistance toward the police and an attempt to free a prisoner.

Under article III, paragraph 2 of the Penal Ordinance for Poles, the death sentence must be passed if the law provides for it. The defendant Kaminska, therefore, under the law against violent criminals is deserving of the death penalty.

The death penalty has to be pronounced as the only just atonement because the security afforded by law within the German living space must be protected against Polish criminality with the utmost severity. The defendant Wdowen, if only by his behavior toward the feeble old farmer Gundel proved that he is an insolent aggressive fellow inasmuch as he kept following the police official, although he had been chastized twice. It is to be concluded that he was waiting for a favorable moment to free the codefendant Kaminska by force, and finally by attempting to prevent by force the police official from the execution of his official duties and the latter having to call for assistance, he topped his provocative, dangerous behavior. Every security organ enjoys the special protection of the Reich. He who impedes in such a provocative manner the security organs, which are stationed at home, and which on account of their numerical minority are particularly overburdened during the war, must expect the Reich to react with utmost severity. That applies, in particular, to the foreign workers from the East who work in the Reich. In view of that, the court has assumed a particularly grave case within the meaning of paragraph 4 of the Decree against Public Enemies, and has not attached any decisive importance to the circumstances alone that the defendant Wdowen has had no previous convictions and has hitherto not attracted any unfavorable attention during his stay in Germany. Therefore, the defendant Wdowen had to be sentenced to death under the penal law of article 4 of the Decree against Public Enemies.

Costs: Paragraph 465, Code of Criminal Procedure.

[Signed]Oeschey[378]

Dr. Gros[379]

Pfaff[380]

TRANSLATION OF DOCUMENT 664-PSPROSECUTION EXHIBIT 348

CIRCULAR LETTER OF HIMMLER TO THE SUPREME REICH AUTHORITIES, 10 MARCH 1944, NOTING THAT “THE ACCOMPLISHED EVACUATION AND ISOLATION” OF JEWS AND GYPSIES HAD MADE MEANINGLESS THE PREVIOUS MANNER OF PUBLISHING SPECIAL DIRECTIVES CONCERNING THEM

Berlin, 10 March 1944

The Reich Leader SS

Minister of Interior Affairs

S. Pol. IV D 2 c—927/44 g-24

[Initial]Th[Thierack]

[Stamp] Reich Ministry of Justice

17 March 1944

Dept. VII

SECRET

To the Supreme Reich Authorities

Subject: Posted prohibitions concerning Poles, Jews, and gypsies

The separately published decrees and rules governing the livelihood of Poles, Jews, and gypsies within the jurisdiction of the Reich, have frequently led to a summary equalization of these groups in the public eye as far as sale-and-utilization prohibitions, public announcements in the press, etc., are concerned. This attitude does not correspond with the differentiated political position to be granted to these groups now, and in the future.

As far as Jews and gypsies are concerned the accomplished evacuation and isolation of these groups by the Chief of the Security Police and the SD has made the publication of special directives (concerning the all inclusive prohibition of participation in many livelihoods) in the previous manner meaningless. Therefore, corresponding public directives may be eliminated.

The decrees and regulations which have been decided upon to govern the livelihood of the Poles will remain as before. For political practical reasons it is hereby recommended to maintain a certain amount of restraint in the public directives of these regulations, be it in posters, signboards, on press releases, etc.

I wish that the subordinate officers be informed of the necessary directives.

[Typed] Signed:H. Himmler

Certified: [Illegible signature]

SS Sturmbannführer

TRANSLATION OF DOCUMENT NG-900PROSECUTION EXHIBIT 453

LETTER FROM THE CHIEF OF SECURITY POLICE AND SD TO MINISTRY OF JUSTICE, 3 MAY 1944, ENTITLED “REQUESTS MADE BY THE COURTS FOR INFORMATION ON JEWS,” AND INTEROFFICE MEMORANDUMS LEADING TO DISPATCHING OF A LETTER DRAFTED BY DEFENDANT ALTSTOETTER

The Chief of the Security Policeand the Security Service

IVA b (I) a 4647/43

Please state this business number,the date and the subject incorrespondence

Berlin SW-11, 3 May 1944Prinz Albrechtstr. 8Local Phone: 120040Long distance: 126421

[Stamp] Reich Ministry of Justice

5 May 1944

Dept. VII-VI

[Initial]Th[Thierack]

[Initials]Kle[Klemm]

To the Reich Minister of Justice

Berlin

Subject: Requests made by the courts for information on Jews

Reference: None

In a number of proceedings for the checking of descent, the District Court Vienna requested information about the whereabouts of Jews, in some cases it requested this information from the central office for the regulation of the Jewish problem in Bohemia and Moravia at Prague, and in some cases directly from here. These Jews were at some time either evacuated to the East or were sent to Theresienstadt. Although my local office drew the attention of the District Court Vienna several times to the fact that such requests, as well as applications for the admission of such Jews as witnesses before courts or for hereditary biological examinations cannot be granted on account of reasons stated by the Security Police, the District Court Vienna renews its applications continuously.

Besides the fact that the Jews for years had time and opportunity to clarify their position with regard to descent, the proceedings for the checking of the descent demanded by the Jews or their families are according to experience in general made only in order to conceal their descent so that they would not be subject to the measures of the Security Police intended for them, or to those which have already been carried out. For this reason and in the interest of urgent dispatch of work important to the war effort the granting of applications of this kind has to be refused for the time being.

Therefore, I request to direct the District Court Vienna not to submit any such applications in future. I would be grateful to be informed about the steps taken from there.

As deputy:

[illegible signature]

The Reich Minister of Justice

Berlin, 3 June 1944

VIb 2 1124/44

Dispatched 14 June 1944, [initial] B

[Stamp] Office

8 June 1944

H/Frl. [illegible]

1. To the President of the Court of Appeal,Vienna

Subject: Handling of cases concerning descent of Jews or Jewish persons of mixed race

No previous correspondence.

The Chief of the Security Police and the Security Service pointed out that in cases concerning descent of Jews and Jewish persons of mixed race the office of the police are frequently asked for information on the place of abode of deported Jews by the courts especially by the District Court Vienna, or that their admission, as witnesses or for the purpose of examination for hereditary biological expert opinions is requested. These requests cannot be granted for reasons of the Security Police.

Even if the hearing (and examination)[381]of the Jews (be an important piece of evidence for the clarifying of the question of descent) in many cases help to frustrate the intentions (of the Jews) to conceal their descent, reasons of the security police demand to desist therefrom (from this piece of evidence).

In the near future I intend to issue in a decree detailed regulations for the handling of cases concerning the descent of Jewsand Jewish persons of mixed race. Already now I request to inform the District Court Vienna (and other courts, in your district, which according to your judgment, Mr. President of the Appellate Court, should be informed) of the following:

(insert)[382]

As deputy:

2. To the Chief of the Security Police and the Security Service

Subject: Requests for information on Jews made by the courts.

Reply to the letter of 3 May 1944—IV A-4-b (I) a-4647/43

1 enclosure (copy of 1)

[Stamp] Dispatched: 14 June 1944

3475/2

[Initial] B

In the enclosure I submit a copy of my letter to the president of the Appellate Court Vienna for your information.

By order

[Initial]Al[Altstoetter]

3. Ministerial Counsellor Rexroth

With the request to settle the arrangement of the report with the Minister

The settlement of the arrangement of the report was not possible on 3 June 1944

Before dispatch

Mr. Minister is informed

[Illegible initials]

[To the] Minister [of Justice] with request to permit the dispatch of the above letter signed by me. The arrangement of the report could be settled in connection with the report on the decree concerning a general order on the handling of cases concerning the descent of Jews and Jewish persons of mixed race. It is intended to put into the draft of this official decree, the directives in the above letter sent to the president of the Appellate Court Vienna for information to all presidents of the appellate courts and general public prosecutors.

[Signed]Altstoetter, 3 June

[Initial] R [Rexroth] 3 June

[Insert]

(In cases of Jews who were deported to Theresienstadt or to other places, a hearing as witnesses or a hereditary biological examination is impossible for reasons of the Security Police, because persons to accompany them and means of transportation are not available. If the residents registration office or another police office gives the information that a Jew has been deported, all other inquiries as to his place of abode as well as applications for his appearance [before court], questioning and examination are superfluous. On the contrary, it has to be assumed that the Jew is not obtainable for the taking of evidence.

If in an individual case it is in the interest of the public to make an exception and to render possible the taking of evidence by special allocation of persons to accompany and means of transportation for the Jew a report has to be submitted to me in which the importance of the case is explained. In all cases offices must refrain from direct application to the police offices, especially also to the central office for the regulation of the Jewish problem in Bohemia and Moravia at Prague, for information on the place of abode of deported Jews and their admission, hearing or examination.)

[Initial] R [Rexroth] 3 June

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[383]

DIRECT EXAMINATION

*******

Dr. Kubuschok(counsel for defendant Schlegelberger): Since the Jewish question is of particular importance for several points in the indictment, I would ask you first of all to tell us what your personal attitude to the Jewish question was.

Defendant Schlegelberger: As far as I am concerned, there is and there was no Jewish question. This is my attitude: all races were created by God. It is arrogant for one race to place itself above another race and try to have that race exterminated. If a state deems it necessary to defend itself against being inundated and does so within the frame of a social problem, then it can and must be done by applying normal, decent means.

During the Goebbels campaign in 1938 I was abroad. When I heard about those events I said to my family: “We must be ashamed of being Germans.” That was my view at that time and that is my view today. The only person with whom I am united in faithful friendship until today because we went to school together is a full Jew. I succeeded in saving his life all through that era. He again holds his former office as a judge. My physician too is half-Jewish. That attitude of mine naturally meant that on many occasions I was faced with inner conflicts. I ask you to consider that the Jewish problem was regarded as the central problem of the National Socialist State and the entire life in Germany was to be placed in line with that. Concerning that question Hitler and his followers worked in an entirely uncompromising manner; that an expert administrator could not bypass that basic attitude is a matter of fact. I shall have an opportunity to demonstrate what my personal attitude was toward those questions and how it always evidenced itself in an effort to put a check on the wishes of party policy, to make improvements and to exercise as far as possible a moderating influence on the practical application of those matters.

Q. What were the manifestations of your attitude to the Jewish question in your office?

A. The prosecution charges me with having cooperated in taking measures against the Jews. That the ordinance of 4 December 1941[384]against Jews in the eastern territories must be evaluated under particular points of view, I shall show in connection with the Polish question. For the rest, I ask you to consider that in view of the strength of the powers with which I was engaged in a struggle, a hundred percent victory of the Ministry of Justice was entirely out of the question. In that sphere, too, faithful to my basic attitude, I did work to make justice prevail; but frequently I had to content myself with making a compromise and I had to be pleased when at least I had achieved some amelioration. To use a customary phrase, if I had drawn the consequences from every defeat, I would have deprived myself of all possibility to aid the Jews. Quite apart from the fact that the resignation from office, before the war would have been a factual impossibility, and during the war a legal impossibility until a new minister was appointed.

With the permission of the Tribunal I will prove how difficult it was by citing an example. When the Party started a campaign against Jewish lawyers, I went to see Hitler and told him that itwas untenable to remove from their profession Jewish lawyers among whom research people of repute were included, and with whom I myself had worked. I was pleased when I succeeded in persuading Hitler that that was correct and in achieving his agreement that he would reject the wishes of the Party. To inform the agencies concerned, I called a meeting of Ministers of Justice of the Laender who were still in office in those days and informed them about Hitler’s decision. The result was surprising. I encountered bitter resistance, and the meeting bore no result. Hitler asked for Guertner to come to see him and asked him for information as to whether I was not perhaps a Jew myself. Then the Party began to exercise pressure on Hitler. He abandoned his decision, and the Jewish lawyers were removed from office. So as to make it possible at least for the Jews to preserve their rights, I proposed to set up the institute of the so-called Jewish consultants where former lawyers worked as consultants.

As to my own attitude toward these problems, that I could show properly only where I, myself, had to make the decisions. In this connection, I attach importance to the fact in saying here that nothing is more removed from me than here to play the part of the friend of the Jews. I am not a friend of the Jews; I am not a friend of the Aryans as such; but I am a friend of justice. And anybody who saw me at work and wishes to give a just opinion can confirm that with regard to all those who in my opinion were unjustly persecuted; no matter what their race or what their class, I tried to help them with all my strength.

Roosevelt, the former President of the United States of America, in 1944, in an address to the United Nations said, “Hitler asserts that he had committed the crimes against the Jews in the name of the German people. May every German show that his own heart is free of such crimes by protecting the persecuted with all his might.” I can claim for myself that I acted accordingly. Concerning the members of the Ministry who were not fully Aryan, I kept them in office; and as has been established at this trial concerning judges who were not fully Aryan, I left large numbers of them in their offices irrespective of the Party purge. I looked after those who had been dismissed from their posts, and who were non-Aryans, and who had Jewish relatives. As far as possible, I protected them against being driven out of their homes and being deported.

Q. Concerning the question of civil servants remaining under Dr. Schlegelberger who were not fully Aryan, persons who were only dismissed on the basis of Thierack’s list, I refer to Exhibit 42.[385]On the legal provisions concerning the fact that since 1933 aminister could not resign on his own, I will submit Schlegelberger Documents 79 and 80.[386]

Witness, you also dealt with a bill concerning people of half Jewish race. The prosecution has included those documents under PS-4055, Prosecution Exhibit 401.[387]Will you tell us something about those documents?

A. That document has been the subject of the discussion before the International Military Tribunal. The document, if my recollection is right, consists of two parts. On 12 March [1942], there was a letter from me to Reich Minister Lammers, and a letter of 5 April, to various agencies.

Q. May I interrupt you for a moment? The first letter is dated 6 March, and is in the English text on page 95.

A. I thought you were talking of the discussion which took place on 6 March.

Q. Yes, on page 95.

A. First of all, I’d like to speak about the letter of 12 March. That was, as I said, a letter from me to Reich Minister Lammers. From that letter I gathered that on 6 March there was a discussion about the treatment of persons of mixed origins, partly Jewish, partly Aryan. In that conference, the SS had demanded that people of mixed origin were to be treated in the same way as full Jews and were to be sent to labor camps in Poland.[388]If that had been done, a demand which for a long time had been voiced by the Party in a categorical manner would have been carried out. If one reflects to what extent the police measures were carried out in those days against Jews, one had to recognize that now the question of the fate of the mixed Jews had entered into an acute phase.

When I heard about the subject of that discussion, the question arose immediately whether one could, and how one could, intervene. My moral obligation was clear to me. There was the difficulty that it was a different department; that in itself was difficult to interfere with a different department in its work; and again and again there would be the additional difficulty that I was no minister. But to put it plainly, it was the case of an under secretary who was only appointed [as acting Reich Minister of Justice]under a system by which he could be given notice any day. If I had attempted to attack that political solution with legal or ethical weapons, nothing would have been done and there would have been nothing but mockery about me. Thus, I had to find a different way.

I had to try to approach somebody who perhaps might have the possibility to talk some sense into Hitler, and that person was Reich Minister Lammers, a man from the group of old civil servants, a man who had a feeling for right and justice, and whom I had frequently assisted in difficult situations. I could be quite open and frank with him; and, therefore, the quite open way in which I talked in my letter was without any pretense. I described the suggestions as entirely impossible. I did so knowing that thereby I was interfering with affairs which had nothing to do with me as far as my department was concerned, for the judiciary only had an outside interest in those affairs. There was a question of compulsory divorce, a question which naturally I answered in the negative; a question which was naturally very important for those whom it concerned, but the importance of which was not comparable to the great problem which was now my concern. Lammers said I could talk to him, but that conversation never came off, and probably it did not come off because Lammers was away at the [Fuehrer] Headquarters. Thus, I had to act on my own initiative, and, as I have said, I could not act in basing myself on legal and ethical considerations because that would have amounted to doing nothing. I had to limit myself concerning the agencies in question to acquaint them with the fact that the solution which they intended to apply was not possible. The entire idea and the entire way of thinking concerning that question altogether was based upon the desire to see to it that a further increase of persons of mixed origin, Aryan and Jewish descent, was to be avoided. I used that as my basis, and this is what my proposal amounted to. Certain groups were to be exempted from the solution altogether from the very outset. First, persons of mixed descent of the second degree, that is to say those persons who had only one Jewish grandparent; second, a person of mixed descent of the first degree, that is to say a person who had two Jewish grandparents; of those the people who were not able to propagate; and three, those persons of mixed descent, first degree, whose offspring under the law were not considered half-Jews. By that proposal, therefore, all persons of mixed descent, second degree a very large number, and a considerable number of people of mixed descent first degree, would have been excluded from this measure. The remaining persons were of mixed descent, first degree. For them I suggested that if they were to prefer it, theywere to be sterilized rather than deported to Poland. May I draw the attention to this point. The idea of escaping deportation by voluntary sterilization did not originate within myself. That idea originated from the persons of mixed descent themselves. I knew that persons of mixed descent had asked physicians to exempt them from the application of the Nuernberg laws and had themselves suggested to afford them the possibility of sterilization. In view of that situation in which they found themselves, I thought it justified to revert to the suggestion which these people themselves had made originally, and to afford them an opportunity in that manner to escape deportation to Poland. The prosecution employed that suggestion of mine to raise charges against me. I believe that if one thinks things out until the last, it is not so difficult to recognize that these charges are unfounded. My suggestion, altogether my work in that respect as I have said before, was not one of the tasks of the judiciary. If I went beyond the limits of my department, one must bear in mind that the charge would only be justified if one took it for granted that I was a model of active National Socialists, an active National Socialist who overcomes every obstacle even the limitations of his department, and I would assume that everything that has been discussed here so far will show that to assume such an active National Socialist ardor would be complete nonsense. I acted in accordance with my ethical feelings; the only motive for me was the intention to check a development which was fatal for a large number of persons. There are, after all, situations where one can only escape a larger evil by applying a smaller evil. But that somebody who all his life has thought along the lines of law, found it extremely difficult to make a decision of that kind, that the Tribunal will understand.

Q. Under Document NG-151,[389]the prosecution has submitted documents concerning limitations of the legal means for Jews in penal cases. Please give us an explanation concerning those documents.

A. Those documents begin with a letter by Freisler dated, I believe, 3 August 1942. In that letter Freisler tells the agencies in question about a bill concerning the problem we have just mentioned. The reason for his suggestion, he referred to as the exigencies of the war, he says that the state of affairs is untenable, and that it weakens the defensive will of the German people. Freisler wrote that letter without my knowing anything about it beforehand, but afterward he told me about it and gave me his explanation. This is what he told me: Himmler and his agencies hadpointed out again and again that the present state of affairs was an impossibility; only a radical separation of the entire Jewish problem from the judiciary and transfer to police was conceivable. Again here we find—I shall have to revert to that later—Himmler had also said that the administrative measures against the Jews had advanced so far that it would be nonsense, in particular concerning criminal Jews, to be more lenient; therefore, one had to guard against allowing these criminal Jews, who were already under the supervision of the judiciary, such benefits as legal protection.

Himmler’s desire to transfer Jewish affairs to the police was too much even for Freisler. Perhaps he was also particularly proud of his paternity of the penal ordinance concerning Poles and Jews which he considered his own sphere. Therefore, so he told me—and I believed him—in all circumstances he wanted to adhere to the competence of the courts; but he then convinced himself that somehow or other he had to make a concession because otherwise events would move without us.

Furthermore, we of the administration of justice, particularly in the Incorporated Eastern Territories, suffered from a severe lack of judges, and we could only master that difficulty if we exempted a number of judges from service in the armed forces. If Freisler and we had refused consistently to comply with Himmler’s wishes, it would have been easy for Himmler to get Hitler to agree to cancel such exemptions from service with the armed forces, and thus the administration of justice in the eastern territories would have come to an end altogether. In order to avoid this danger, Freisler believed that he had found a way out in limiting legal remedies and thereby to start out on a way which we later on, inside Germany, in cases against Germans, had to take on account of the lack of judges. That is why he made the suggestion. I could not altogether agree with Freisler’s arguments, but I attached importance to the fact that this new regulation was to be final and was to appear as such to the outside world, too. That might strengthen our position toward the opposing forces and, therefore, in the letter I wrote afterward,[390]I discussed the question of whether Jews are able to take an oath, and I included that question in my draft so as to make that draft more well rounded and complete. In itself this question of the oath was important, for under German law it is the duty of the judge to attach equal weight to statements made under oath, and statements made while the person was not under oath.

There again we were faced with a case in which a concession which in itself was immaterial but which to the outside world, nevertheless, seemed important, had to be made in order to pacify Party circles. If one wants to evaluate such a procedure, one must bear in mind that 1 month later Thierack did find a final and comprehensive solution. He dropped my suggestion and transferred the Jews to the police.[391]

Q. The prosecution also submitted Document NG-589, Prosecution Exhibit 372,[392]a document which concerns a curtailment of the poor law privileges of the Jews. Was that ruling made at your suggestion?

A. No. I only heard about that ruling here when the document book was submitted. At every ministry certain matters which are not of much importance are dealt with quite independently by departments which are below the under secretary or the minister. It is altogether out of the question that an under secretary or minister deals with everything personally. He would even misunderstand his function if he were to do so. Those matters, for example, the question of the poor law, fell within the competence of the then Assistant Under Secretary Hueber, who signed the ordinance.

As I said, I only heard about it here, but I should like to add that the institution of the poor law was created so as to enable poor persons to conduct civil litigations. The granting of poor law privileges does not mean that the person to whom it is granted can conduct proceedings free of costs, but it only exempts him from payment in advance. He is still under an obligation to pay.[393]

The poor law institution, therefore, so to speak is an institution of government welfare. For a long time before Hueber ordered it, government financial support of Jews had been stopped, and they had been referred to their own Jewish welfare organizations. The uncurtailed provisions governing the poor law, therefore, were not in accordance with the line otherwise observed, and Hueber refers to that when he considers the old ordinance as outmoded.

Q. I do not know whether the witness’ statements were clear enough to elucidate the concept of the poor law. I hear that the expression in English has been translated by “poor law.” Thattranslation might perhaps lead to confusion. We are concerned here merely with the question of costs and merely with the exemption of paying costs in advance, and that is the cost of civil litigation.

*******

Q. I come now to the introduction of the German criminal law in the Incorporated Eastern Territories. Will you please give a short review of the general development of that question?

A. These matters, as far as the time was concerned, are connected with what I said before. Among the drafts sent out in February 1940, there was also one about the introduction of criminal law.

Q. May I interrupt you? That, again, is Exhibit 459.[394]

A. That draft comes from Freisler’s sphere, and in the absence of the Reich Minister of Justice Guertner, as well as Freisler, I signed that draft upon the request of the Minister. That draft provided absolutely equal treatment of Germans and Poles. Later on, 6 June 1940, a decree was issued about the introduction of penal law in the Incorporated Eastern Territories and that decree was only designed for Poles and Jews; that shows that before my time, and without any assistance on my part a special law was created for Poles and Jews. Apparently Freisler afterward gave in to the efforts of the Party and had managed after hard struggles to obtain the approval of Guertner, who, as I know, was against such a thing on principle. But the decree of 6 June 1940 bears the signatures of Frick and Guertner.

Q. That decree will be contained in my document, Schlegelberger 60.[395]Then, it came to the penal ordinance concerning Jews and Poles, 7 December 1941, that is Exhibit 343.[396]Will you please discuss that decree in detail?

A. That decree of 7 December 1941 which has been the subject of a detailed discussion in this trial is based on the following: The decree of June 1940, in the view of the department of criminal legislation in the Ministry, was not satisfactory. And that wasbecause the extent of punishment was not sufficient, neither the maximum nor the minimum of punishment was sufficient. There was also a lack of specific provisions. In addition to that, the Reich Chancellery had informed the Ministry, that the deputy of the Fuehrer and the Party, demanded a discriminatory law concerning Poles and Jews.

Q. I refer to Exhibit 341.[397]

A. Therefore, the Department for Penal Legislation—that was before my period in office as Acting Reich Minister of Justice—had started to work out a new draft which should take care of these deficiencies. When I took over after Guertner’s death, Freisler reported to me about that matter and told me the following: It was Himmler’s intention to obtain sole competency for all cases against Poles and Jews, and that Gauleiter Greiser of Warthegau province was of the same opinion, and he if necessary wanted to eliminate the administration of justice with the aid of civilian courts martial. Bormann was of the same opinion and demanded, first of all, the introduction of corporal punishment. According to this information I had to expect a fight with the Party. This fight which was fought to maintain legal procedures for Poles and Jews in all events, could only be successful if I could point out that the courts had at their disposal an appropriate procedure and appropriate provisions which were sufficient for all, even the most serious cases. The new draft,[398]in my opinion, was designed to rebut the assertion by the Party that the courts could not master the situation. Therefore, in April 1941, I submitted that draft to the Ministerial Council for Reich Defense to the attention of Reich Minister Lammers, in order to achieve a decision. I also announced to Lammers that I had to see him in advance to inform him about the situation, and about the conditions which lead to the draft in that form. The prosecution has repeatedly referred to that covering letter which accompanied the draft.[399]Therefore, I should like to explain the reason for this letter, and the manner in which it was written. According to the legal provisions, to those provisions which I have already discussed, I had to have the approval of the Party Chancellery, butonly then did I have any chance to obtain that approval, if that draft was implemented with those main points which I considered necessary.

If I had described in my letter the contents and consequences of the draft without exaggeration, I could never have expected the approval of the Party Chancellery. Therefore, I had no alternative but to emphasize the increases in the severity of treatment with exaggerated expressions, to pass over less severe provisions, and to leave out references to decrees which would make this decree more lenient. Whether it came to any conference with Lammers, I could no longer tell. I remember quite clearly the event which proved to me that my assumption was correct, that we would have to expect a most energetic attack on the part of Himmler.

In the summer of 1941, Himmler asked me to come to a conference. That was the only one I ever had with Himmler. There was a great pressure with regard to time connected with that request. Himmler told me that he was on his way to see Hitler and that he had to have my approval. Penal cases against Poles and Jews should be turned over to him, that is to say, to the police. That was regardless of where the acts had been committed.

I rejected that categorically and told him that for that kind of change of competence, there was no reason whatsoever, particularly since in a very short time a new regulation could be expected about that question by the Ministerial Council for Reich Defense. That, of course, made Himmler suspicious. At that time, it did not seem to him to be the right thing to fight against the Ministerial Council for Reich Defense which was under the presidency of Goering, at that time a strong opponent. Himmler seemed to depart for a short time from his original plan.

The Ministerial Council for Reich Defense passed that draft in December of the same year and that determined and assured the competence of the courts for penal cases against Poles and Jews[400]. When I left office that was immediately changed as could be seen from these proceedings. That decree dates back to December 1941, as I have already pointed out the period when my task as Acting Minister of Justice came to an end. It is not surprising that I could not gain a clear picture, as to how that decree was applied and what the consequences were.

I do recognize that one could criticize individual sentences at least as far as the limited amount of material is concerned which is available to us now. However, considering that there were about half a million penal cases during 1 year—as regrettable as it may be in the individual case—it is not very decisive for an over-alljudgment of conditions. I owe it to the German judges to state here frankly and publicly that as long as I could observe their activity, they have discharged their duties with a definite desire for justice in general.

Concerning the criticism which was voiced against this decree, I should like to say the following in detail. The most essential feature of that decree was its practical application. I took every opportunity when a judge from the eastern territories came to see me to point out that that decree gave a great deal of latitude to the judges; that therefore, the judges for the procedure as well as for the sentencing had to keep in mind that they were servants of justice. Beyond that I caused Freisler to discuss the point of view of just application in an article in a magazine,Deutsche Justiz(German Justice).[401]Deutsche Justiz, an official publication, was read by all judges and prosecutors, and that made absolutely certain that they knew how Freisler thought about it, and that he did not want any arbitrary application. That achieved that Freisler himself was prevented from giving individual directives or expressing opinions which would go contrary to the meaning of that decree. In view of his unstable nature, this was particularly important.

This article by Freisler took into account my demands by stating that it was a serious duty of judges and prosecutors in cases of Poles and Jews to apply the same maximum care as they would in the case of Germans. The prosecutors are instructed in preliminary investigations to examine also points in favor of the defendant very carefully so that the defendant can recognize the charges made against him and is put in a position to prepare his defense. The courts are admonished to keep in mind that it was not within the meaning of the decree that facts which were of little or no importance should be artificially exaggerated. What harms an individual does not harm the Reich. Sufficient opportunity should be given to the defendant to use legal remedies, to explain things, and to state his views to the evidence submitted. Everything should be avoided which in the least would make the sentence look like a sentence based on suspicion. Under all circumstances, the extent of the punishment should be within sound measure. The legal remedy of appeal should be applied by the prosecutor, also in favor of the defendant and for that express purpose, the time limit was extended to twice its normal length.

Presiding Judge Brand: Mr. Schlegelberger, you are referring to an article by Freisler, are you not?

Defendant Schlegelberger: Yes.

Presiding Judge Brand: Does that have an exhibit number, or will it have?

Dr. Kubuschok: I will submit that article as Document Schlegelberger 61; 61 will be the number of that article. It is in my document book.

Presiding Judge Brand: 161?

Dr. Kubuschok: No, only 61 in document book 3, Schlegelberger document book 3.

Presiding Judge Brand: Thank you very much.

Defendant Schlegelberger: The right for civil suits for Poles and Jews had already been rescinded by the old decree. A new decree brought modification by which also Germans should not have that right any longer as Freisler explained. And now the most important element—the latitude and extent of punishment was increased not only toward heavier punishment, but also by decreasing the minimum. The death penalty was mandatory only where an act of violence was committed against a German on account of his being a German. That was already contained in the old decree. In all other cases, apart from the death sentence, there was an opportunity for a prison term.

In the old decree, in the case of anyone owning or carrying weapons a death penalty was mandatory. The new decree provides for the possibility of a prison term which goes all the way down to 3 months in prison. That modification applied to a large number of offenses. Also, the mandatory death sentence for arson was abolished. Apart from that, I am of the opinion—and it has been mentioned here frequently—that whether the death penalty is mandatory or optional, a judge who does not want the sentence of death in taking into account the facts in a case, can almost always avoid that possibility.

Back to Index Next