“In trials in which according to the regulations a defense counsel has to be appointed for the defendant, the regulation may be ignored if the president of the court is convinced that the character of the defendant or the nature of the charge make the assistance of a defense counsel superfluous.”
“In trials in which according to the regulations a defense counsel has to be appointed for the defendant, the regulation may be ignored if the president of the court is convinced that the character of the defendant or the nature of the charge make the assistance of a defense counsel superfluous.”
However, it might be expedient to obtain the comments of the President of the People’s Court, and of the chief Reich prosecutor at the People’s Court, the presidents of the courts of appeal at Kiel and Cologne and the attorneys general in Hamm, Cologne, and Kiel.
Berlin, 1 February 1943
[Initials] V [Vollmer]
M [Mettgenberg] 1 February
A [von Ammon] 30 January
[Letter, 9 February 1943, from the Reich Ministry of Justice, initialed by defendants Mettgenberg and von Ammon.]
Berlin, 9 February, 1943
The Reich Minister of Justice
III a 184/43 g
Secret
1. To
a.The President of the People’s Court[456]
b.The Chief Public Prosecutor at the People’s Court[456]
c.The Oberlandesgerichtspraesidenten in Kiel and Cologne
[Initial]Th[Thierack]
d. Chief Public Prosecutors in Hamm, Kiel, and Cologne
[Stamp] To files 9 February 1943
Subject: Crimes against the Reich or the occupying forces in occupied territory
The president of the Essen Special Court reports that in trials for the above-mentioned offenses, where a defense is necessary, because of the sentence which may be expected, it is often difficult to obtain counsel for the defense when [defendants who have confessed in cases where there is a collision of interest between the defendants][457]a defense counsel always has to be obtained. Therequisite number of lawyers is not always obtainable, the course of the main proceedings is also frequently hampered by the inability of individual lawyers to appear.
I therefore propose to insert in No. 7 of the decree for the carrying out of the directives laid down by the Fuehrer and Supreme Commander of the Armed Forces of 7 December 1941 the following regulation, which is to be paragraph 2:
“In trials before the Sondergericht [Special Court] in which according to the regulations defense counsel has to be provided for the defendant, the regulation may be ignored when the president of the court can conscientiously state that the character of the accused and the nature of the charge make the presence of a defense counsel superfluous.”
“In trials before the Sondergericht [Special Court] in which according to the regulations defense counsel has to be provided for the defendant, the regulation may be ignored when the president of the court can conscientiously state that the character of the accused and the nature of the charge make the presence of a defense counsel superfluous.”
Please comment as soon as possible.
By order:
[Department] IV
[Department] III
[Initial Illegible]
[Initials] V [Vollmer] 4 February
M [Mettgenberg] 4 February
A [Ammon] 3 February
C [Crohne] 3 February
2. 3 weeks later.
3 March
TRANSLATION OF DOCUMENT NG-269PROSECUTION EXHIBIT 319
SECRET INSTRUCTIONS OF REICH MINISTRY OF JUSTICE TO PROSECUTORS AND JUDGES, INITIALED BY DEFENDANTS ALTSTOETTER, METTGENBERG, AND VON AMMON, 6 MARCH 1943, CONCERNING MEASURES NECESSARY TO MAINTAIN SECRECY OF NIGHT AND FOG PROCEDURES
SECRET INSTRUCTIONS OF REICH MINISTRY OF JUSTICE TO PROSECUTORS AND JUDGES, INITIALED BY DEFENDANTS ALTSTOETTER, METTGENBERG, AND VON AMMON, 6 MARCH 1943, CONCERNING MEASURES NECESSARY TO MAINTAIN SECRECY OF NIGHT AND FOG PROCEDURES
Draft
Berlin, 6 March 1943
The Reich Minister of Justice
IV a 398/43 secret
[Stamp] Secret
Secret
1. To:
a.The Chief Reich Prosecutor at the People’s Court
b.The Attorneys General in Celle, Duesseldorf, Frankfurt/Main, Hamburg, Hamm, Kiel, and Cologne
c.The Attorney General at the Berlin Court of Appeal
Subject: Criminal procedures on account of criminal acts committed against the Reich or the occupying power in the occupied territories
Enclosures: Extra copies for the Chief Public Prosecutors in Essen, Kiel, and Cologne and for the Attorney General at the Berlin District Court
For the attention of:
a.The President of the People’s Court
b.The Presidents of the District Courts of Appeal in Hamm, Kiel, and Cologne
c.The President of the Berlin Court of Appeal
Enclosures: Extra copies for the Presidents of the District Courts in Hamm, Kiel, Cologne, and Berlin
[Stamp] Chancellery of Justice
6 March 1943
With regard to criminal procedures on account of criminal acts against the Reich or against the occupying forces in the occupied territories (so-called Night and Fog cases) I request the observance of the following directives in order not to endanger the necessary top secrecy of the procedure,particularly, regarding the execution of death sentences and other cases of death among prisoners. [Italicized text crossed out in the original document.]
1. The cards used for investigations for the Reich crime statistics need not be filled in. Likewise, notification of the penal records office will be discontinued until further notice. However, sentences will have to be registered in lists or on a card index in order to make possible an entry into the penal records in due course.
2. In cases of death, especially in cases of execution of NN prisoners, as well as in cases of female NN prisoners giving birth to a child, the register must be notified as prescribed by law. However, the following remark has to be added: “By order of the Reich Minister of the Interior, the entry into the death (birth) registry must bear an endorsement, saying that examination of the papers, furnishing of information and of certified copies of death (birth) certificates is only admissible with the consent of the Reich Minister of Justice.”
3. In case an NN prisoner sentenced to death desires to draw up a public will, proceedings must follow No. 30, paragraph 2 of my circular ordinance of 19 February 1939, article 417-III a, 318.39. The persons who assist the drawing up of the will are, if necessary, to be sworn to secrecy. The will has to be taken into official custody according to article 2 of the Probate Law. The deposition receipt has to be kept by the prosecution until further notice.
4. Farewell letters by NN prisoners as well as other letters must not be mailed. They have to be forwarded to the prosecution who will keep them until further notice.
5. If an NN prisoner who has been sentenced to death and informed of the forthcoming execution of the death sentence desires spiritual assistance by the prison padre, this will be granted. If necessary, the padre must be sworn to secrecy.
6. The relatives will not be informed of the death and especially of the execution of an NN prisoner. The press will not be informed of the execution of a death sentence, nor must the execution of a death sentence be publicly announced by posters.
7. The bodies of executed NN prisoners or prisoners who died from other causes have to be turned over to the State Police for burial. Reference must be made to the existing regulations on secrecy. It must be pointed out especially that the graves of NN prisoners must not be marked with the names of the deceased.
The bodies must not be used for teaching or research purposes.
8. Legacies of NN prisoners who have been executed or died from other causes must be kept at the prison where the sentence was served.
By order:
[Initials]Sch[Schaefer] 5 March
Mx[Marx] 3 March
A [Altstoetter] 3 March
M [Mettgenberg] 25 February
v. A.[von Ammon] 27 February
[Initials] W [Westphal] 27 February
V [Vogel] 26 February
R [Rexroth] 27 February
H [Hecker] 26 February
Ei[Eichler] 1 March
2. Copy of (1) to District Court Judge Dr. von Ammon and to Chief Public Prosecutor Dr. Metten, also to Dr. Eichler.
3. To be submitted again after being mailed.
[Stamp] Mailed 8 March 1943
[Handwritten] resubmitted [Initials illegible] March 9
[Handwritten notes illegible]
Distribution
The circular ordinance of 6 March 1943-IV a 398/43—has been mailed today to the following addresses:
[Handwritten] 14 Weber
[Stamp] Berlin, W 8, 8 March 1943, 6–7 afternoon
TRANSLATION OF DOCUMENT NG-281PROSECUTION EXHIBIT 323
FILE NOTE OF DEFENDANT VON AMMON, 7 OCTOBER 1943, CONCERNING DEFENDANT LAUTZ’ QUESTION AS TO GIVING DEFENDANTS TRANSLATIONS OF THE INDICTMENTS AGAINST THEM IN NIGHT AND FOG CASES
FILE NOTE OF DEFENDANT VON AMMON, 7 OCTOBER 1943, CONCERNING DEFENDANT LAUTZ’ QUESTION AS TO GIVING DEFENDANTS TRANSLATIONS OF THE INDICTMENTS AGAINST THEM IN NIGHT AND FOG CASES
1.Note—Chief Reich Prosecutor Lautz asked me whether there were any objections to translations of indictments in NN proceedings being handed over to the defendants. It has turned out to be inconvenient that the defendants learned the details of the charges raised against them only during the trial. Also the interpretation by the defense counsel is not always sufficient, since their French mostly is not good enough and since the defendants were brought to the place of the trial only shortly before it was held.
The procedure adopted for Czech defendants, viz, having the indictment translated to them orally by a Czech-speaking sergeant,is not possible here since French-speaking sergeants are not available.
After having given a report to Ministerialdirektor of Department IV and to the Minister, I informed Chief Reich Prosecutor Lautz on 6 October 1943 that there were no objections whatever to the intended procedure.
2. Ad procedures of office a 3.—“Prosecution of criminal acts against the Reich or the occupying power in the occupied territories.”
Berlin, 7 October 1943
IVa 2369/43 g
[Initial] A [von Ammon]
PARTIAL TRANSLATION OF DOCUMENT NG-205PROSECUTION EXHIBIT 328
SECRET DIRECTIVE OF THE REICH MINISTRY OF JUSTICE, 21 JANUARY 1944, ORDERING TRANSFER TO GESTAPO OF NIGHT AND FOG PRISONERS WHO WERE ACQUITTED, AGAINST WHOM PROCEEDINGS WERE QUASHED, OR WHO HAD SERVED THEIR SENTENCES
SECRET DIRECTIVE OF THE REICH MINISTRY OF JUSTICE, 21 JANUARY 1944, ORDERING TRANSFER TO GESTAPO OF NIGHT AND FOG PRISONERS WHO WERE ACQUITTED, AGAINST WHOM PROCEEDINGS WERE QUASHED, OR WHO HAD SERVED THEIR SENTENCES
The Reich Minister of Justice
IV a 2083.43 g
Berlin, 21 January 1944
Secret
[Handwritten] Immediately!
[Initial]Th[Thierack]
(Stamp)
dispatched: 25 January 1944
1. To the
a.President of the People’s Court
b.Chief Reich Prosecutor at the People’s Court
c.Presidents of the Courts of Appeal in Breslau, Hamm, and Kiel
d.President of the Military Court
e.Attorneys General in Breslau, Hamm, and Kiel
f.Attorney General at the Military Court
Subject: Prosecution of criminal acts committed against the Reich or the occupying power in the occupied territories
Enclosures: Extra copies for the Presidents of the District Courts in Breslau, Essen, Kiel, and Berlin; Chief Public Prosecutors in Breslau, Essen, and Kiel; and for the Attorney General at the Berlin District Court
[Stamp] submitted on 25 January 1944
For information:
a.The other Attorneys General
b.Supreme Command of the Armed Forces
Referring to the letter of 10 November 1943
14 n 16.18 WR (I/3)—129/43 g
c.Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior—Chief of the Security Police and of the SD—
Referring to the letter of 17 December 1943
IV D 4-103/42 g
As supplement to my circular decree dated 28 October 1942—IV a 1668/42 g—I order the following concerning the treatment of NN prisoners who were acquitted by a general court, against whom such proceedings were quashed, or who served their sentence imposed on them by a general court:
1. If during the trial of an NN proceeding it appears that the defendant is innocent or that his guilt has not been sufficiently established, he will be handed over to the Secret State Police; the public prosecutor will inform the Secret State Police of his opinion whether the defendant can be released and return to the occupied territories, or whether he will continue to remain under detention. The Secret State Police will decide what further actions are to be taken.
2. Defendants who were acquitted, or against whom proceedings were quashed during the trial, or who served a sentence during the war, will be handed over to the Secret State Police for detention for the duration of the war. The Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior has ordered that these defendants will always be given the mildest grade of protective custody, i.e., grade I.
3. Deviations from the regulations as contained in Nos. 1 and 2, will be made only after my approval has been given.
By Order:
As deputy
[Initial] V [Vollmer] Jan. 18
2. Copy of 1 will be sent to the—
a.President of the Senate Hecker
b.Ministerialrat Dr. von Ammon
c.Amtsrat Thienel
d.s 1
3. To be resubmitted after dispatch—
[Initial] A [von Ammon] Jan. 18
Report of 13 December 1943
[Handwritten] submitted with IV a 27/44 g
The decree of 21 January 1944—IV a 2803/43—has been mailed to the following addresses today:
[illegible marginal note]
[Stamp] Berlin, 25 January 1944
TRANSLATION OF DOCUMENT NG-230PROSECUTION EXHIBIT 331
LETTER FROM ARMED FORCES HIGH COMMAND TO THE FOREIGN OFFICE, COPY TO DEFENDANT VON AMMON, 4 APRIL 1944, CONCERNING TWO NOTES OF M. DE BRINON, VICHY GOVERNMENT AMBASSADOR, ON NIGHT AND FOG CASES
LETTER FROM ARMED FORCES HIGH COMMAND TO THE FOREIGN OFFICE, COPY TO DEFENDANT VON AMMON, 4 APRIL 1944, CONCERNING TWO NOTES OF M. DE BRINON, VICHY GOVERNMENT AMBASSADOR, ON NIGHT AND FOG CASES
Berlin, W 35, 4 April 1944Tirpitzufer 72–76
Copy
High Command of the Armed Forces
14 n 16.18 WR (I/3)
259/44g
Secret
To the Foreign Office
Berlin W 8
Subject: Prosecution of offenses against the Reich or the army of occupation in the occupied territories
2 enclosures[458]
Enclosed two notes of the French Ambassador and Secretary of State de Brinon are submitted
The High Command gives the following comment upon them:
In virtue of the directions given by the Fuehrer on 7 December 1941, capital punishment will be inflicted on principle in the occupied territories for offenses of non-German civilians which are directed against the Reich and the army of occupation and are endangering its safety or readiness for action. Whenever capital punishment would not be probable or could not be immediately inflicted and executed, the perpetrator will be brought to Germany and sentenced there. In some cases perpetrators who have been sentenced in the occupied territories will be committed for imprisonment to a penitentiary in Germany. This will be done for political reasons on principle in case of capital punishments inflictedon women, men of 70 years and older, and fathers of numerous children under age, excepting punishments inflicted on account of murder or of such crimes which are in connection with actions (e.g., partisans).
The transfer to Germany will be made, in accordance with the wishes of the Fuehrer, in order to make an efficacious and lasting warning example. The Fuehrer desires the relations and the population to be kept in suspense as regards the fate of the perpetrator. To German and foreign bureaus it will be replied to inquiries and petitions—“The perpetrator has been committed to prison, further information cannot be given.”
To Ministerialrat von Ammon
It is therefore impossible to comply with the wishes of the Ambassador de Brinon. The High Command requests you to inform him in due form.
By order:
[Typed] signedDr. Huelle
Berlin, 6 April 1944
High Command of the Armed Forces
14 n 16.18 WR (I/3)
259/44g
To the Reich Minister of Justice
Berlin W 8
In reference to letter of 17 March 1944 (V s1 263/44g). The above copy is forwarded to you for information
By order:
[Signed]Dr. Huelle
[Handwritten note]
To previous correspondence [illegible].
Prosecution of offenses against the Reich or the army of occupation in the occupied territories
[Initial] A [von Ammon]
2.5
TRANSLATION OF DOCUMENT NG-262PROSECUTION EXHIBIT 333
FILE NOTE INITIALED BY DEFENDANT VON AMMON ON 10 MAY 1944, CONCERNING THE STATUS OF NIGHT AND FOG CASES AS OF 30 APRIL 1944
Copy
IV n 313/42 secret
Survey of the Status of NN Proceedings on 30 April 1944
I. The following cases were transferred by the military authorities to:
a.Chief Public Prosecutor Kiel—12 proceedings with 442 defendants.
b.Chief Public Prosecutor Oppeln—729 proceedings with 4048 defendants.
c.Chief Public Prosecutor Breslau[459]—1273 proceedings with 2149 defendants.
Total—2014 proceedings with 6639 defendants.
II. Charges preferred by:
a.Chief Public Prosecutor Kiel—9 proceedings with 345 defendants.
b.Chief Public Prosecutor Oppeln—494 proceedings with 1578 defendants.
c.Chief Public Prosecutor Breslau—813 proceedings with 1113 defendants.
d.Chief Reich Prosecutor with the People’s Court—134 proceedings with 588 defendants.
Total—1450 proceedings with 3624 defendants.
III. Verdicts have been submitted from:
a.Kiel Special Court—8 cases with 168 defendants.
b.Oppeln Special Court—307 cases with 725 defendants.
c.Breslau Special Court—377 cases with 473 defendants.
d.Chief Reich Prosecutor with People’s Court—115 cases with 427 defendants.
Total—807 cases with 1793 defendants.
[Handwritten] To the files concerning the prosecution of criminal acts against the Reich and the occupying power in occupied territories.
[Initial] A [von Ammon]
10 May
TRANSLATION OF DOCUMENT NG-1886PROSECUTION EXHIBIT 546
LETTER FROM DEFENDANT VON AMMON TO THE ATTORNEY GENERAL IN MUNICH, 22 NOVEMBER 1944, CONCERNING THE EXECUTION OF NIGHT AND FOG PRISONERS
LETTER FROM DEFENDANT VON AMMON TO THE ATTORNEY GENERAL IN MUNICH, 22 NOVEMBER 1944, CONCERNING THE EXECUTION OF NIGHT AND FOG PRISONERS
The Reich Minister of Justice
IV a 676/44g
Berlin W 8, 22 November 1944Wilhelmstrasse 65Telephone: 11 00 44Long distance calls: 11 65 16Diary No. 1716/44g
SECRET
To the Prosecutor General in Munich 35
Subject: Certification of the personal data of executed NN prisoners
Reference: Diary No. 1584/44g
In view of the new arrangement concerning the treatment of NN prisoners in the future there no longer will be executions of NN prisoners in any large numbers.
Therefore, a closer examination of the suggestions, made by the director of the penitentiary and the detention prison Munich-Stadelheim, is not necessary. I request you to notify the latter accordingly.
By order:
[Typed]Dr. von Ammon[460]
[Official seal of the Ministry of Justice]
[Signed]Ruth
Certified: Court Official
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS RUDOLF LEHMANN[461]
DIRECT EXAMINATION
*******
Mr. King: Will you tell us briefly what your rank was and what your duties were in the High Command of the Armed Forces?
Witness Lehmann: I was the Ministerialdirektor in the High Command of the Armed Forces, and I was Chief of the Legal Division of the Armed Forces.
Q. Do you know of the so-called Nacht und Nebel Decree which was issued in the latter part of 1941 over the signature of Keitel?
A. I am very well informed as to how that came about.
Q. Will you tell us briefly how the Nacht und Nebel program was supposed to work? In other words, what was the theory upon which this “Erlass” or decree was issued?
*******
A. There arose in France, after the beginning of the Russian campaign, the resistance movement which became very active. Hitler complained to the justice administration of the armed forces that on account of their attitude they were not in a position to suppress that resistance movement. That is the general background for the Nacht und Nebel Decree.
In detail this is what happened—In the beginning of October 1941 I received a letter from Field Marshal Keitel—but I want to state here that Keitel was always at headquarters, whereas I was always in Berlin. In this letter, which all my assistants have read, Keitel passed on a directive which he had received from Hitler. The letter was quite long, several pages in handwriting. In that letter, it was expressed that Hitler considered the resistance movement in France a tremendous danger for the German troops. It could be seen that the methods previously used were not sufficient to suppress that movement. There was no sense in passing sentences of prison terms—considering conditions as they were—which were handed down after a long period. That was not the right deterrent which the armed forces should employ; therefore, new means would have to be found.
Q. Now, Witness, you have given us some background on the history of the Nacht und Nebel Decree. Will you tell us with some particularity how the Nacht und Nebel program was supposed to work? In what way were the resisters to be handled under the Nacht und Nebel Decree?
A. Yes. That was also stated in that letter by Keitel. The Fuehrer demanded that Frenchmen who were suspected of such acts, during night and fog—that is where the expression comes from—should be brought across the border and that in Germany they should be held completely incommunicado. That should only not apply in those cases where immediately a death sentence could be passed in France. This measure could be used as a deterrentbut not the procedures as had been used heretofore. That was the general plan of Hitler’s which did not include anything about the question as to who should deal with these people after they had been brought to Germany.
Q. Now, Witness, did you, in your position with the High Command of the Armed Forces negotiate with the Ministry of Justice regarding the Nacht und Nebel Decree?
A. Yes, but not immediately. At first, in a lengthy conference with Field Marshal Keitel, I tried to thwart the entire plan because I disagreed—I definitely disagreed with it. Details about that conference, I am sure, are not interesting for us now. In doing that, I only had a very limited success; that is, Keitel said that he would be ready to speak to the Fuehrer once more. But already on the occasion of this first conference, he stated that the Fuehrer insisted on the carrying out of that concept and he used a term which I cannot forget. Hitler had said with reference to that—“Nobody can deny that I am a revolutionary of considerable stature. Then I should know best how uprisings can be suppressed.” Keitel then spoke once more to Hitler, as he stated, but it was of no avail. According to Keitel’s information, Hitler said that there were things of which he understood more than jurists do.
In the conference with Keitel, I raised the question immediately as to who should deal with these matters in Germany now. Thereupon, Keitel said, that it would be most according to the desire of the Fuehrer if the Secret State Police would deal with it. But we were against that from the very beginning, and also Admiral Canaris was against it with the same severity.
After the argument had gone back and forth, I received the permission from Keitel to get in touch with the Ministry of Justice.
Q. Do you have any reason which you can state at this time as to why Hitler preferred the Ministry of Justice rather than the army court system to deal with Nacht und Nebel cases?
A. That question can only have been discussed between Keitel and Hitler. It was a way out which I had suggested, because under all circumstances I wanted to achieve that these matters should continue to be dealt with by judges, and since the aversion of Hitler against the armed forces justice was known, it could be assumed that he would still prefer civilian court to us.
*******
Q. When did you first confer with a member of the Ministry of Justice regarding the assumption by the Ministry of Justice of the Nacht und Nebel program?
A. I went to see State Secretary Freisler, I believe, in October 1941. I went to Freisler because he dealt with the criminal cases in the Ministry. He was in charge of them.
Q. Can you tell us what purpose you had in mind in going to Freisler; what proposition did you discuss with him?
A. I discussed with him the proposition that the cases which the military courts in France would not keep should be taken over and tried by the civilian justice administration.
Q. What was Freisler’s reaction to this suggestion which you made?
A. He was not enthusiastic about it but he agreed that one had to try and keep these cases for the administration of justice as such.
Q. Can you tell me this? Did Freisler have the authority to agree on behalf of the Reich Ministry of Justice to assume the trying of Nacht und Nebel cases?
A. That question I can only answer by saying that Freisler told me that first he had to think it over; and secondly, he had to discuss it with State Secretary Schlegelberger who was at that time in charge of the Ministry.
Q. Is it your impression that Schlegelberger was the individual in the Ministry of Justice to whom Freisler went to secure permission and authority on behalf of the Ministry of Justice to try the Nacht und Nebel cases?
A. That is hard to answer. I can only answer it out of my general background by saying that this was a question of considerable importance, and I thought it was quite clear that Freisler told me that he had to ask the man who was in charge of the Ministry, the acting Minister.
Q. Mr. Lehmann, on 23 December 1946 you put your name to an affidavit. Do you recall signing an affidavit about that time?
A. Yes.
Q. I point out to you that this affidavit is now in evidence before this Court as Document NG-484,[462]Prosecution Exhibit 307. I wish to read to you a statement from that affidavit, and ask you a question concerning it after I have read it. The statement is as follows: “Schlegelberger, who was then acting Minister of Justice,was in my opinion the only person who could consent to take over these Nacht und Nebel cases by the Ministry of Justice.” I ask you now, do you still agree with that statement?
A. Yes, with the reservations that I have made before; as far as I was informed about the routine in the Ministry.
*******
EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[463]
DIRECT EXAMINATION
*******
Dr. Kubuschok(defense counsel for defendant Schlegelberger): To what extent did you participate in the legislative work and the execution of the Night and Fog Decree, the Nacht und Nebel Erlass?
Defendant Schlegelberger: First, I must make a temporal limitation here. The Tribunal knows that on 20 August 1942 I left the Ministry of Justice. Thus, in regard to my person, only the previous period can be considered. During that time the procedure, as well as taking prisoners into custody, remained exclusively in the hands of the Ministry of Justice.
If I am supposed to make some statements about the decree, I would like to emphasize that the jurisdiction of the Ministry did not refer to the western territories, which are under consideration here. This was entirely under the competence of the military commanders. Hitler had issued the order to Keitel that in the future merely in very clear cases, and in such cases where the death sentence could be expected with certainty, the military courts were to pass sentences. The rest of the culprits were, for the purpose of a deterrent by the police, to be transported to Germany to remain under the custody of the police, and—and this is the expression he used—to disappear during night and fog.
The chief of the legal division of the Wehrmacht, Dr. Lehmann, realized what the situation was, and after unsuccessful attempts with Keitel and with Hitler he tried to have it avoided that the prisoners be left in the custody of the police by having them tried before the ordinary courts. He called on Freisler. Freisler did not disagree with Lehmann, and basically asked for my agreement. I gave my approval.
Here, too, I had to make a serious decision. On the one hand, the fate of the prisoners was concerned. If they were in policecustody, their fate could not be controlled. On the other hand, there was the necessity to loosen certain regulations which formed definite components of our legal system.
The Fuehrer order was based on the fundamental idea that the deterring force, through the cutting off of the prisoners from every contact with the outside world, could be achieved in this manner. If we now wanted—and this is the decisive question—to have the direction of the prisoners, if we wanted to avoid having the prisoners remain in police custody and thus not carry out Hitler’s decree but break its head, no other recourse was left to us but to conduct our court proceedings under the point of view of secrecy, since otherwise Hitler would immediately have forbidden and actually prevented the fact that ordinary courts should handle these matters.
However, in order to avoid any doubt, I want to emphasize expressly in the following that I have to state we are concerned only with regulations governing proceedings. The NN prisoners were supposed, and were, to be tried materially according to the same regulations which would have applied to them by the courts martial in the occupied territories. The rules of procedure had been curtailed to the utmost extent. In German law we also know of the possibility, because of the endangering of the security of the State, that the public is excluded when the opinion on which the sentence is based is pronounced. We now had to take one more step, to issue an order to make available the possibility that the pronouncing of the sentence itself would not be made in public. One could not avoid the recognition that otherwise the secrecy would not be maintained, and I have to repeat, the cases would have been taken out of our hands immediately.
Everything else was based on this. For example, the limitation in the selection of defense counsel. Germany had a very eminent legal profession, and in my opinion it was a matter of course that every lawyer fulfilled the oath of secrecy given to him by law. However, one had to realize that as with every other profession, the lawyer’s profession too, during such times, was permeated with bearers of the resistance idea, and therefore, here too, a certain caution was needed and it was necessary to limit the selection of defense counsel.
It is well known that in the executive order which I signed—and it was the same as the draft submitted in the document book[464]—that I limited the use of foreign evidence. However, if one thinks the matter through correctly and thinks of the practical application, one will realize that this limitation worked only in favor ofthe defendants because numerous acquittals occurred according to the principle, that governs other law as well as ours,in dubio pro reo. In accordance with this basic attitude, it was decisive, under all circumstances, to avoid the subsequent transfer of the NN prisoners to the police.
Presiding Judge Brand: We will recess until 1:30 this afternoon.
AFTERNOON SESSION
(The hearing reconvened at 1330 hours, 30 June 1947)
The Marshal: The Tribunal is again in session.
Dr. Kubuschok: We have come to the discussion of the NN regulations. Will you please continue there?
Defendant Schlegelberger: I have taken the liberty to explain that the purpose in including ourselves in the procedure was to counteract Hitler’s plan to have prisoners in the hands of the police. There arose a problem—If one had to consider that in the regular course of procedure a penalty was found which expired before the end of the war. In such cases there would not have been any possibility to keep these people but they had to be taken over by the police and that would have thwarted the purpose—of the inclusion of our administration. That, one had to consider. The matter was simple, if the prosecutor, after examining the facts, arrived at the result that the penalty had to be so low that the term would expire before the expected end of the war because then he did not demand that a date for the main trial be set; the procedure remained pending and the accused remained in the custody of the administration of justice. The situation however could become more difficult if the prosecutor intended to demand a higher penalty which probably would expire after the end of the war and if the court would arrive at a more lenient sentence. The way out could be found only by quashing the proceedings in time and in order to do that various means could be applied. It could have been put to the court, that is, by legislation of course, to make a decision for this continuance, and could also put the prosecutor in a position where he would demand discontinuance and then let the court decide for discontinuance. I took the latter approach. Therefore, I provided that if the court wanted to deviate from the demands of the prosecution it should inform the prosecutor so that he had the possibility to demand discontinuance, but with all emphasis I want to stress there can be no question that the courts were to be bound in any way by the demands for a penalty on the part of the prosecutor. That would have been quite irresponsible.
Presiding Judge Brand: Dr. Schlegelberger, are you still speaking with reference to the NN case?
Defendant Schlegelberger: Yes. So, it is quite out of the question that the courts were to be bound in any way to the penalty as requested by the prosecutor as Freisler has stated in a letter which was written for special service to Thierack and which is quite wrong, but I repeat again, the intention was only for the court to tell the prosecutor, “we are arriving at a milder sentence than you requested,” so as to put the prosecutor in position to demand discontinuance; then the matter remained in the hands of the administration of justice; that is to say that the defendant was in the custody of the administration of justice. May I summarize. The provisions concerning secrecy had to be made so that the matter would not be taken out of our hands by Hitler. I was faced with the problem as to whether I should refuse to take over the NN case altogether, and the Tribunal will recognize that that would have been very simple for me. I could have held the position that as far as my department was concerned that I had nothing to do with the matter and therefore could reject it or refuse to have anything to do with it. But I could not take the responsibility to assist, to contribute, that the Hitler order be carried out and that the NN prisoners remain in the custody of the police. And, I believe that that decision has also found its justification in the findings of the International Military Tribunal concerning the treatment of these prisoners in the hands of the Gestapo.[465]
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EXAMINATION BY THE TRIBUNAL
Judge Harding: Dr. Schlegelberger, you have testified that you favored the decree as to Poles and Jews and the taking over of NN prisoners for trial, to avoid having these people turned over to the police, is that correct?
Defendant Schlegelberger: (Nodded in the affirmative.)
Q. Why was that?
A. May I ask you a question, namely, does this question refer to the Poles and Jews, or as I now understand it, to the NN prisoners?
Q. It applies to both.
A. Well, that was for the following reason. From the cases of transfer about which I reported, I saw that the police was the instrument of power that Hitler used in order to do away withcertain people without any legal procedure, and I wanted to give those people a legal procedure with a regular trial.
Q. Now the administration of justice at one time, at least, was responsible for the prosecution and trial of all crimes committed in the Reich, isn’t that correct?
A. Yes.
Q. Was there ever an investigation with subsequent trial after 1 September 1939 for the abuse or murder of a person in the hands of the police or in a concentration camp?
A. I can answer that question by saying that the Ministry of Justice as far as I am informed—that is, these matters were in the penal sector—interfered in every case, even in the case of abuses and concentration camps where they could actually do something about it, only since 1939—I don’t remember the exact date—these matters were taken out of our hands through the special jurisdiction of the SS.
Q. I don’t believe you quite answered my question. Did the Ministry of Justice ever call or ever prosecute a member of the police or somebody connected with the concentration camp because of abuse of the prisoners or murder of prisoners in their hands?
A. Yes, the Ministry did so.
Q. In what cases? That was after 1 September 1939.
A. In any case, it did happen before September 1939. I regret, Your Honor, that I cannot give exhaustive information about this because those are events and trials which were outside of my official duty, but I can say with certainty and under the oath under which I am now that because of abuse in concentration camps measures were taken with the utmost energy.
Q. Did a person who had been handed over to the police or who was sent to a concentration camp, including Poles and other foreigners, have any recourse to the law as administered in the Reich, for his protection?
A. Well, if these people were in the hands of the police, we could not extend that protection to them. As long as those people were in a concentration camp, and to the extent that we had any jurisdiction over concentration camps—to that extent we always intervened, if somehow or other we could find out that there had been some abuse; but later on, from 1939 on, these matters came under the special SS jurisdiction, and we were no longer in a position to interfere[466].
Q. After that these people had no recourse to the law as administered in the Reich?
A. We could not give them any legal recourse; we of the Ministry of Justice could not extend legal protection to them.
Q. Did they have any legal protection?
A. Well, I would like to say there was a jurisdiction over the inmates of the concentration camp and this was in the jurisdiction of the SS courts. That SS jurisdiction in accordance with its duty, could intervene in the same manner as we if anything had happened, that was the legal protection afforded to them.
Q. That was the only legal protection they had?
A. Yes, I could not name any other.
Q. Now, by what laws, orders, or decrees were these people left to the sole jurisdiction of the SS and the police?
A. Well, the Poles and Jews, NN prisoners were only handed over to the police after my time in office. As long as I was in office this did not happen.
Q. I mean, by what order or decree—you speak of a time when the SS had their own courts—by what order or decree—
A. The SS got a special jurisdiction through a law of 1939. The handing over of Poles and Jews, of the NN prisoners, and other people took place through measures of the year 1942, I believe. However, I do not want to make this statement with certainty, because it was after I had resigned.
Q. After this order setting up special jurisdiction for the SS the Ministry of Justice could not prosecute them, isn’t that correct—or try them?
A. No, it couldn’t.
Q. Now, I have here this decree which is found in volume 2, on page 55, decree of 17 October 1939, relative to the Special Courts for the SS.[467]Are you familiar with that?
A. Yes.
Q. After that the Ministry of Justice could not try these people for abuse or murder of persons in their hands, is that correct?
A. Yes, I assume so. Please take into consideration when considering my answers that these matters were apart from my official activity. Therefore, I can rather give an expert opinion than a testimony as a witness.
Q. Well, the effect of this decree was to deprive the people in the hands of the police of all legal recourse, is that not correct?
A. The effect was in any case that they had no recourse to the ordinary means of administration of justice. But the SS jurisdiction in my opinion had the same duties, the same possibilities for their people as we had.
Q. The only recourse, then, was to the SS administration of justice—now, on page 56 there is this decree which is signed by you, implementing that order, which places the police beyond the administration of justice.
A. I didn’t quite understand.
Q. I have here on page 56 of volume 2 a decree concerning the jurisdiction of SS courts and police courts in the Protectorate Bohemia and Moravia[468]which implements to some extent the preceding decree which I called to your attention. This decree is signed by you, which sets up Special Courts for the police, that is, takes them out from under the administration of justice. Now, this is signed by you. Do you have any explanation of that?
A. May I ask you to state the date again, just the date?
Q. 15 July 1942.
A. Is that an order which was cosigned by Keitel? (Document handed to the witness.)
Yes. This decree, however, I believe, has nothing to do with the matters we have discussed so far. This decree as far as I remember, was connected with a decree of January of the same year. In this decree of January in the Protectorate military jurisdiction was rescinded, and only for certain cases the Commander in Chief of the Wehrmacht was granted the right, in the matter of attacks against the Wehrmacht, to found the competency of Wehrmacht courts. The text of this decree which concerns itself with the policy is almost literally the same one as that of the decree of January 1942 regarding the Wehrmacht. Here in this decree for the police, they were concerned with certain courts for the SS. But the Wehrmacht SS [sic], which was considered a special group of the SS was supposed to be treated in the same way [as the Wehrmacht]. Therefore, after a discussion between Keitel and the commander of the SS Wehrmacht [sic], the possibility just as it was given to the Wehrmacht, was given to the SS as a fighting troop, to found such courts. But this has nothing to do with the question of SS jurisdiction, which is another question.
Q. Were there any other orders or decrees issued whereby prosecution of SS and similar units was taken out from under the administration of justice, and if so, what were they?
A. Yes, there was a special law about SS jurisdiction. At the moment, I cannot tell you the date, but it was from 1939. That is the civilian SS. But this decree refers to the SS as part of the Wehrmacht.
Q. Well, is that the decree of 17 September 1939 that I called your attention to?
A. The decree which you were kind enough to show to me just now.
Mr. LaFollette: Will Your Honor permit me? It is October. Your Honor said September.
Judge Harding: It is October, yes.
Defendant Schlegelberger: Yes, 17 October 1939. That is the decree about the SS jurisdiction.
Q. After that decree, did the Ministry of Justice have any means whereby they could protect a person in the hands of the police in any way whatsoever?
A. In my opinion, no; and that is why I tried to keep all these people away from the police. That is why I wanted to keep all these people within the sphere of the administration of justice, so that I could protect them.
Q. Then these foreigners, Poles, and Jews in the hands of the police were beyond any recourse of law in Germany, is that correct?
A. Not in my opinion.
Q. What recourse did they have?
A. Well, they probably had to turn to the higher SS office and to ask for help.
Q. Was that recourse in law or is that merely administrative?
A. Yes. That was more administrative.
Judge Harding: That’s all. That answers my question.
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EXTRACTS FROM THE TESTIMONY OF DEFENDANT VON AMMON[469]
DIRECT EXAMINATION
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Dr. Kubuschok(counsel for defendant von Ammon): You have stated that you were not a confirmed National Socialist. In view of your attitude, did you not have conflict of conscience sometimes during your activity in the Ministry of Justice?
Defendant von Ammon: To a certain extent I have to answer “yes” to that question. In my official activity, I occasionally had to apply laws or other legal regulations or had to follow instructions issued by my superiors with which I was not quite in agreement in my own mind. In such cases I considered it my duty to follow such regulations and provisions which in my opinion though unpleasant were after all effective. Likewise, I considered it my duty to follow the instructions issued by my superiors. However, I would not have considered myself obligated to follow instructions issued by my superiors which were contrary to law. Such illegal orders however were not given to me. In such cases, however, a certain amount was left up to my own discretion and that happened in many cases. When I applied that discretion I tried as far as possible to make my own opinion apply. Of course, the possibility in those directions were not overly large since as a Referent I had to obtain the agreement of my superiors, the more important decisions. Because of my lenient attitude I was frequently objected to, especially by my superior Vollmer and the Minister of Justice Thierack.
Q. Did your attitude change when the war broke out?
A. Due to the outbreak of the war nothing changed in my basic attitude. I was of the opinion that since the war had broken out, independent of its consequences for national socialism, it would bring about the decision, “to be or not to be” for Germany. Therefore, I believed that every German had to fulfill his duty in his official position.
Q. I now come to the main charge which the prosecution has raised against you in regard to your dealing with the so-called NN cases. Under what circumstances were you entrusted with this new field of work?
A. The distribution of the Referate [sections] was as a rule made by order of the department chief without asking the Referent about it in advance. Thus, I too in February 1942 was assigned by my department chief, Ministerial Director Crohne, to work with NN cases without my knowing for the time being what these NN cases were all about.
Q. What tasks and authorization did you have as Referent of Department IV of the Ministry of Justice for NN cases?
A. In order to answer that question I first have to describe briefly the competency of Departments III, IV, and V.
Department III was the department for criminal legislation, Department IV was for the administration of criminal law, Department V was the department for the administration of penalties. It belonged to the competency of Department III; the preparations of the laws and regulations similar to laws, the housing of prisoners belonged to the competence of Department V and the treatment of these prisoners while they were in prison. Department IV, that is my department, dealt in the main with the cases against the defendants until they were sentenced by a court, including the clemency procedure. Furthermore, the issuance of general provisions regarding legal procedure in as far as Department III was concerned was not competent for this.
Q. As far as Department V was competent, what authorization did you as Referent have with regulation to your superiors?
A. Gramm and Mettgenberg have already testified to this, here on the witness stand. I only have to add some supplementary remarks. As Referent, I had to a certain extent the right to give my signature, that is to say, to a certain extent I could give written or oral statements by order. This right for signature, however, was limited, since due to my being subordinate to the department chief, and for the most part of my activities I was subordinate also to a subdepartment chief. During the first month of my activity in the NN cases my section was directly under the department chief. A few months later, however, Mettgenberg was put in charge as a subdepartment chief between me and the department chief. My authority in relation to my subdepartment chief and department chief were limited through general regulations rather carefully. The regulations applied which were contained in Exhibit 510 submitted by the prosecution.[470]May I refer to these regulations? Regarding the letters by the Ministry of Justice that were sent outside the Ministry of Justice which were submitted by the prosecution, in accordance with the provisions I mentioned, I did not sign a single one finally, but all the letters after I had also cosigned them I submitted to my subdepartment chief for signature. He then for the most referred them to the subdepartment chief or even to the under secretary or to the minister. If the prosecution, contrary to this, in this submission of several documents, stated that the letters of the Ministry of Justice were signed by me, that is an error. There are throughout letters for which I did give a cosignature, that is in the right hand lowercorner, they bear my initials, but one of my superiors gave the final signature.
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Q. As Referent in NN cases, did you have a large staff of assistants?
A. No. I never had more than one assistant, and he worked only part of the time in NN cases, and then only at the beginning of my activity with NN cases. From the beginning of 1943 on I worked entirely without any assistance. From that time on, due to the heightened drafting for the Wehrmacht, younger gentlemen who could be assistants, were available only to a very limited extent in the Ministry of Justice. From that time on I had only a so-called “Mittlerer Beamter,” a civil servant in the intermediate level [of civil service] for registration and filing.
There was a special provision only for preparation of clemency pleas in death sentence cases. For that work, I had assistance from time to time.
Q. I refer to that extent to Document NG-988, Prosecution Exhibit 510, the plan of distribution of work which shows further facts. Witness, please give us a survey over the periods when the general administration of justice participated in the NN cases.
A. We can distinguish between two periods during which the general administration of justice was concerned with NN cases. The first period extends from February 1942 until October 1942; the second from October 1942 until September 1944, and to some extent until the end of the war. During the first period the executive regulations of the Reich Ministry of Justice of 6 February 1942[471]were decisive in their original form as they had been issued by Schlegelberger and Freisler. Two factors characterized this period. First, the police were involved in the NN cases only to the extent that the transportation of the NN prisoners from the occupied territories was carried out by the police; and secondly, for the sentencing of NN cases only some Special Courts were competent. The competency of the People’s Court did not exist at that time, for those cases.
The second period begins with the changes which were introduced soon after Thierack assumed office. The police now also became competent to the extent that the NN prisoners, for the detention of whom no legal reason existed any more, were transferred to the police for protective custody for the duration of the war.[472]And for the trying of NN cases, in addition to the individualSpecial Courts, the People’s Court now is competent too. This second period ends with the order that the NN prisoners should generally be returned to the police. This order was issued in September 1944. The return, however, was carried out until the end of the war only partly so that at the end of the war numerous NN prisoners were still in the detention of the administration of justice.
Q. We shall now turn to the first period for which the executive regulations of 6 February 1942 were decisive. Witness, were you involved in the drafting of these regulations and the discussions with the OKW which preceded this decree and which the witness Lehmann testified about?
A. No. I neither participated in the formulation of the regulations nor in the preceding negotiations. The regulations were worked out in the departments for penal legislation, first Department II and later III, and at that time I did not belong to either of them. About the regulations and the preceding negotiations, I heard only on the day when the regulations were issued. On that day—it was 6 February 1942—the presidents of the courts of appeal and the attorneys general of those districts in which the NN cases should in the future be tried, had been ordered to the Ministry of Justice for a discussion.
Immediately preceding the beginning of the meeting my then department chief, Ministerial Director Crohne, had a message sent to me that I should come to the meeting because in future I would have to work with the penal cases which would result from the newly issued regulations.
I then attended that meeting and for the first time, from the mouth of State Secretary Freisler, who was presiding over the meeting, I heard about the Night and Fog Decree and the executive regulations issued pursuant to it.