Chapter XXXI: Section 3: (Concerning Articles 3 and 4) (4)

The right of supervision over the Ministries of Justice of the Laender, was not in the hands of the Reich Minister of Justice. Guertner and I agreed that those practices must be stopped at the earliest possible moment, all the more so since one did not know whether or not in other Laender, similar things might be happening as were happening in Prussia. One could not tell what was happening because the ministries of the Laender throughout had new men working with them concerning whose persons, in some cases, one had certain misgivings, and justified misgivings. Frank was the Minister of Justice for Bavaria, and Thierack was the Minister of Justice for Saxony.

That experience increased Guertner’s energy in carrying out his work of centralization. The basis for that work was laid down in the first and second centralization laws dated 16 February and 5 December 1934.[180]

The result of the centralization, the transfer of the tasks of the Ministries of Justice of the Laender to the Reich, was this, from the political angle: The entire administration of justice from now on lay in the hands of a minister who was not a member of the Party and who, as Minister of Justice for Bavaria, had enjoyed the confidence of all parties from the extreme right to the extreme left. I myself, who also was not a member of the Party, remained at my post. The National Socialist Ministers of Justice of the Laender lost their official positions in the administration of justice.

The opinions of the Party as to the centralization of the administration of justice is evidenced best by a statement of Goering’s, which he made to me in 1941 when, in the course of a conversation, I said to him that the Party at every opportunity made difficulties for our ministry, he said to me: “That cannot surprise you. The reason lies in the centralization of the administration of justice under the circumstances under which it was achieved. That is the reason why the Party as a group is opposed to the Reich Ministry of Justice and makes life as difficult as possible for that ministry. The Party is of the opinion that the administration of justice should again be taken over by National Socialist hands.” Goering added, “I myself will never pardon Guertner and you for the way you acted in 1934.”

Q. I shall submit Schlegelberger Document 26, Schlegelberger Exhibit 66,[181] in reference to the aforesaid statements. Will you please give us a brief description of the organization of the Reich Ministry of Justice?

A. Under the very top, that is, under the Reich Minister of Justice, there were two separate under secretariats: the under secretariat for civil law matters, the head of which was myself; the direction of the secretariat for penal law matters which was in the hands of Freisler. Further, he was in charge of the so-called organization section [Organisationreferat], the Hereditary Farm Law [Erbhofrecht] and the Inspection Office for Judicial Affairs [Justizpruefungsamt].

Under the two under secretariats there worked a total of six ministerial directors each of whom was the head of his specialized divisions. The number of these divisions and their sphere of work changed several times in the course of time.

Inside some departments, subsections had been created which were in charge of a Ministerialdirigent. The number of higher officials[182] in the Reich Ministry of Justice amounted to approximately 250. Personnel matters were divided into regions. As regards the East, I was only in charge of my own home province, East Prussia. Otherwise, I dealt with western and southern Germany, Freisler was in charge of the remaining [regions]. Freisler was in charge of the People’s Court. The Reich Supreme Court and the Reich patent office were in my charge. The two divisions, directed by Under Secretaries were entirely separate from one another. Freisler and myself had different times at which we went to report to the Minister. The Minister asked me to come to see him when Freisler had finished his report and had left the room. Only very rarely, and only when one of my officials was to be appointed to a head office in Freisler’s sphere, or vice versa, did the two of us meet at the Minister’s. If one of the under secretaries was absent, his affairs were dealt with by the Minister together with the competent ministerial director. The other under secretary did not deputize for the one who was absent.

May I cite an example? In 1938 I had to go to the hospital as a result of an accident, and at that time the Minister did not discuss the new German marriage law with Freisler, but with the head of the respective department. If the Minister were also absent, the Under Secretary, who was present in Berlin, did only a certain amount of duty for his colleague. That is to say, he was available for matters which could not possibly be postponed. In my recollection, that happened only very rarely, for this was one point over which Freisler and I were in absolute agreement. Neither had the wish to meddle with the other’s affairs.

Furthermore, Freisler when he went on a business trip or when he went away for the summer holidays was practically always in contact with Berlin. Therefore, he told Dr. Guertner that a deputy for which I was the only possible candidate was neither necessary nor desirable. It did happen that when the Minister did not feel well and left the office earlier, he asked me by telephone to sign and to dispatch letters which he had already signed in draft form. Now and then that could have concerned matters which fell into Freisler’s sphere when Freisler could not be reached.

I should like to cite as example the letter which the prosecution submitted about the fight against political Catholicism. Concerning details accompanying that letter, I know nothing about this. In particular, I do not know what particular pressure was exercised or what instructions Hitler had issued in virtue of his right to lay down the directives of policy but I should like on this occasion to say something about what was the practice of the Ministry in regard to church affairs. I should like to point out what the witness for the prosecution, the Catholic Priest, Schosser, testified here on 9 May. According to his testimony, the Ministry refused on the occasion of a church funeral for Poles to take steps against the Catholic clergymen.

DR. KUBUSCHOK: The letter which you have mentioned is Document NG-630, Prosecution Exhibit 428.[183] The examination which you mentioned here of Father Schosser is on page 3021 in the English transcript.[184]

* * * * * * *

V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE

A. Introduction

This major section of the volume contains selections from the evidence concerning leading questions or issues of the trial. The evidence selected for publication herein constitutes only about one-twentieth of the total mimeographed record. Hence, all issues of the trial are not covered, and numerous items of evidence mentioned in the printed materials are not reproduced herein. Where extracts from testimony have been reproduced, a footnote indicates the pages of the official mimeographed transcript where the entire testimony can be found.

Both prosecution and defense evidence is contained in each of the sections into which the evidence selected has been organized. The prosecution evidence consists in the main of contemporaneous documents of the Nazi era, most of them discovered in German archives by Allied investigators after Germany’s unconditional surrender. The defense evidence consists principally of extracts from the testimony of defendants. A substantial number of the contemporaneous documents offered by the defense have also been selected for publication. With one or two exceptions, the contemporaneous documents have been reproduced within the various sections in chronological order, regardless of whether they were offered by the prosecution or the defense. In selecting defense testimony under the various topical sections, considerable emphasis has been given to the testimony of the three defendants Schlegelberger, Rothenberger, and Klemm who were appointed Under Secretaries in the Reich Ministry of Justice, and to the testimony of the defendant Rothaug, presiding judge of the Nuernberg Special Court.

The defendants were charged with participation in various types of criminal conduct “by distortion and denial of judicial and penal process.” The selections from the evidence below have been grouped into five main sections (sec. VB through VF) treating of various types of conduct by which it was alleged that the defendants engaged in criminal acts as principals or accessories.

In Hitler’s Third Reich many persons were placed entirely outside the judicial process. Therefore the first section (B) is concerned with measures under which persons were committed to the “protective custody” of the police (usually the Gestapo) or to the concentration camps of Himmler’s SS.

The next four sections (C through F) deal with various methods whereby it was charged that perversions of law and the judicial process were employed to persecute, imprison, and execute or exterminate large numbers of persons. Section C, which contains evidence on numerous topics, has been divided into three periods of time: 1933--January 1941 when Guertner was Reich Minister of Justice; January 1941--August 1942, when the defendant Schlegelberger was acting Reich Minister of Justice; and August 1942--1945, when Thierack was Reich Minister of Justice. The next section (D) deals with large groups of persons allegedly subjected to discriminatory treatment of many kinds: Germans, Poles, Jews of several nationalities, the Night and Fog prisoners from occupied western Europe, and others. Section E deals with the growth, development, and application of such concepts as treason, undermining the defensive strength, and public enemies. These concepts were applied in cases against persons who were not nationals of Germany as well as against Germans. The final section (F) deals with the handling of religious matters.

Because of the close relationship of the developments of these various topics to the crowded history of the Nazi regime, there necessarily is considerable over-lap between the several sections into which the evidence has been organized. A case where a Pole was convicted of treason against Germany (reproduced here in sec. E) cannot be divorced from the materials concerning the general treatment of Poles (included in sec. D2). The Night and Fog prisoners offer another example, since these prisoners were ordinarily kept incommunicado in concentration camps, and the evidence concerning them (D3) is closely related to the evidence dealing with protective custody and concentration camps (B). The over-lap is often quite pronounced in the extracts from the testimony of defendants. Most of the defendants were active in a number of different fields and held different official positions during the 12 years of the Nazi era. In making out his case, each defendant chose his own course in grouping together various items. In facing this unavoidable problem of over-lap, the editors have employed footnotes extensively in making cross-references between the materials contained in various sections, particularly in extracts from testimony where mention is made of decrees and other documents reproduced in various parts of the volume.

B. Measures Outside the Judicial Process--Protective Custody, Transfer of Persons to Concentration Camps and the Police

TRANSLATION OF KLEMM DOCUMENT 28
KLEMM DEFENSE EXHIBIT 28

ORDER OF PRUSSIAN MINISTRY OF JUSTICE, 15 MARCH 1934, INFORMING AUTHORITIES OF GOERING’S DECREE OF 11 MARCH 1934, AUTHORIZING THE GESTAPO AND CERTAIN PRUSSIAN AUTHORITIES TO ORDER PROTECTIVE CUSTODY FOR POLITICAL REASONS[185]

No. 76 Order concerning measures of protective custody, Executive Order of the Prussian Ministry of Justice of 15 March 1934 (I 3540), _German Justice_, page 341.

On account of its importance also with regard to the official sphere of activities of judicial authorities, I hereby inform these authorities of the following decree, by the Prussian Ministerpraesident (Secret State Police), dated 11 March 1934.

Berlin, 11 March 1934

The Prussian Ministerpraesident [Goering] Secret State Police Insp. 1946/11 March 34

Subject: Order concerning protective custody

Effective immediately I order the following:

1. The regulations which so far dealt with competence with regard to the application of protective custody for political reasons are cancelled. In future restrictions of personal freedom in accordance with article 1 of the Decree for the Protection of the People and State, dated 28 February 1933, may be ordered with effect on the entire state territory [of Prussia] by the Secret State Police Office only, and within their local fields of jurisdiction by the Oberpraesidenten, Regierungspraesidenten, the police president in Berlin and the local state police offices.

The district police authorities, especially the Landraete, are no longer competent for such measures. The measures hitherto ordered by them will be rescinded as per 31 March unless they have been extended by order of the competent police authorities of the constituent states.

[Page 342]

Offices of the Party and the affiliated organizations may not carry out arrests on their own initiative. In case of disobedience to this order the competent authority will interfere, and report to me, at once.

To the Ober- and Regierungspraesidenten
Secret State Police Office in Berlin
Police President in Berlin
State Police Offices

TRANSLATION OF JOEL DOCUMENT 8
JOEL DEFENSE EXHIBIT 11[186]

LETTER OF REICH MINISTER OF JUSTICE GUERTNER TO REICH MINISTER OF THE INTERIOR FRICK,[187] 14 MAY 1935, PROTESTING AGAINST THE “MISTREATMENT OF COMMUNIST PRISONERS BY POLICEMEN”

_Copy_

The Reich Minister of Justice 3751 PS of the IMT
Z.F.g 10--1717.34

_Personal_

Berlin, 14 May 1935

To the Reich and Prussian Minister of the Interior, Berlin

Subject: Mistreatment of Communist prisoners by policemen Enclosure: 1 loose sheet

My Dear Reich Minister!

Enclosed you will find copy of a report of the inspector of the Secret State Police, dated 28 March 1935.[188]

This report gives me an occasion to state my fundamental attitude toward the question of the beating of internees. The numerous instances of ill-treatment which have come to the knowledge of the administration of justice can be divided into three different causes for such ill-treatment of prisoners.

1. Beating as a disciplinary punishment [Hausstrafe] in concentration camps.

2. Ill-treatment, mostly of political internees, in order to make them talk.

3. Ill-treatment of internees arising out of sheer fun, or for sadistic motives.

I should like to make the following detailed comments on those three categories:

_About No. 1._ In the remand prisons and penal establishments under the Ministry of Justice, there was no need to introduce corporal punishment as a disciplinary measure. The experience of the administration of justice has taught that a well trained, reliable, and conscientious personnel of wardens is in a position to set up and to maintain model order under a strict discipline, even without corporal punishment. The more training and discipline the prison guards have, the less need exists to introduce corporal punishment as a disciplinary measure.

But if, contrary to this view, one is to suppose that there might be a need to introduce corporal punishment in concentration camps, it appears indispensable that this disciplinary measure and the manner of its application should be determined, uniformly and unambiguously, for the whole territory of the Reich. It has happened recently that camp orders of individual concentration camps concerning this matter and the use of weapons, contained unusually severe instructions which were brought to the knowledge of the internees as a stern warning, while the warden personnel was administratively informed that these regulations which dated mostly from 1933 were no longer applicable. Such a situation is equally dangerous for the warden personnel and for the internees. It would therefore appear, after the question of imposing protective custody was generally settled by the competent minister, that in the interests of all concerned, one should urgently and clearly define responsibility and legal aspect, furthermore that the same responsible authority would have to settle, by means of camp regulations generally applicable, the question of corporal punishment as a disciplinary measure, which is still unclarified, as well as the question of the use of arms by the warden personnel.

_About No. 2._ I cannot concur with the opinions expressed in the enclosed letter. The present penal law, which I have to enforce, renders liable to particularly severe penalties those officials guilty of inflicting ill-treatment in the performance of their duties, especially when such ill-treatment is used to extort admissions or statements. That these legal provisions also reflect the will of the Fuehrer and Reich Chancellor is shown by the fact that, during the suppression of the Roehm revolt, the Fuehrer ordered the shooting of three members of the SS who had ill-treated prisoners in Stettin. That being the legal situation, it is out of order to grant silently one part of the police forces permission to extort statements by means of ill-treating prisoners. Such a measure would destroy the respect for the existing laws and would thereby lead necessarily to the confusion and demoralization of the officials concerned.

Furthermore, such statements extorted by force are practically without value if they are supposed to serve as evidence in trials for high treason. The courts which have jurisdiction in cases of high treason consider to an ever increasing degree statements of the defendants made before the police as worthless and without any evidenciary value for court decisions. This was the result of their getting convinced in the course of numerous proceedings that confessions and statements made before the police were extorted by ill-treatment.

Moreover, I cannot follow the statements contained in the attached report in as much as the beating of Communists held in custody is regarded as an indispensable police measure for a more effective suppression of Communist activities. These explanations of the Gestapo office show precisely that the methods used up to now have not been successful in combatting the illegal Communist machine or to hinder its development.

Experience shows that such police measures may perhaps partially be successful but that they never can attain a total suppression and destruction of an illegal revolutionary organization which alone is of importance in the long run. Behind such revolutionary organizations there are professional revolutionaries of great experience and frequently exceptional intelligence. These succeed very soon by means of cleverly camouflaging all more important functionaries in excluding for all practical purposes the possibility of betrayal as a result of mistreatment.

_About No. 3._ The experience of the first revolutionary years has shown that the persons who are charged to administer the beatings generally lose pretty soon the feeling for the purpose and meaning of their actions and permit themselves to be governed by personal feelings of revenge or by sadistic tendencies. As an example, members of the guard detail of the former concentration camp at Bredow near Stettin completely stripped a prostitute who had an argument with one of them and beat her with whips and cowhides in such a fashion that 2 months later the woman still showed two open and infected wounds on the right side of her buttocks, one 17.7 by 21.5 centimeters and the other 12.5 by 16.5 centimeters, as well as a similar wound on the left side of the buttocks 7.5 by 17 centimeters. In the concentration camp at Kemna near Wuppertal, prisoners were locked up in a narrow clothing locker and were then tortured by blowing in cigarette smoke, upsetting the locker, etc. In some cases the prisoners were given salt herring to eat, so as to produce an especially strong and torturing thirst. In the Hohenstein concentration camp in Saxony, prisoners had to stand under a dripping apparatus especially constructed for this purpose until the drops of water which fell down in even intervals caused seriously infected wounds in their scalps. In a concentration camp in Hamburg four prisoners were lashed for days--once without interruption for 3 days and nights, once 5 days and nights--to a grating in the form of a cross, being fed so meagerly with dried bread that they almost died of hunger.

These few examples show such a degree of cruelty which is an insult to every German sensibility, that it is impossible to consider any extenuating circumstances.

In conclusion, I should like to present my opinion about these three points to you, my dear Reich Minister, in your capacity as cabinet member in charge of the establishment of protective custody and the camps for protective custody.

1. It seems now absolutely necessary that the competent minister should decree unified camp regulations for all camps for protective custody, which shall regulate completely and unmistakably the question of corporal punishment as disciplinary measure, and the question of use of weapons by the guards.

2. It appears necessary that the competent cabinet minister order valid for all police authorities an absolute prohibition against mistreatment of prisoners for the purpose of forcing statements.

3. All mistreatments which are entirely or partly due to personal reasons must be prosecuted vigorously and punished under close cooperation of all governmental offices concerned.

Heil Hitler!

[Signed] DR. GUERTNER

TRANSLATION OF DOCUMENT NG-326
PROSECUTION EXHIBIT 456

DIRECTIVE OF 12 JUNE 1937 FROM HEYDRICH, CHIEF OF THE SECURITY POLICE, TO POLICE OFFICES, CONCERNING PROTECTIVE CUSTODY FOR JEWISH RACE DEFILERS

_Copy_

The Chief of the Security Police Berlin, 12 June 1937 S-P (II B) No. 4021/37

[Handwritten] Annulled 28 August 1937
[Handwritten] Ku

Subject: Protective custody for Jewish race defilers.

From what I can see from a statistical survey, cases of race defilement have increased considerably recently. In order to take preventive measures against this danger, it is to be examined in every single case of race defilement whether protective custody is necessary after the sentence inflicted by law has been served.

For this purpose I request that a short report be made 1 month prior to the discharge of the condemned from prison with the valid judgment concerning the case of race defilement attached.

Apart from this I request that immediately after termination of legal proceedings in a case of race defilement in which a male person of German blood has been sentenced, the Jewess involved be taken into protective custody and reported to this office.

No publicity whatever is to be made of this order.

[Signed] HEYDRICH
S. Certified: [Signed] KASKATH
Clerk

To all--
Higher State Police Offices
State Police Offices
Higher State Police Offices
Criminal Police Offices

TRANSLATION OF SCHLEGELBERGER DOCUMENT 90
SCHLEGELBERGER DEFENSE EXHIBIT 83

EXTRACTS FROM THE REGULATIONS OF THE REICH MINISTRY OF
THE INTERIOR, 25 JANUARY 1938,[189] CONCERNING
PROTECTIVE CUSTODY

* * * * * * *

Circular Decree[190] of the Reich Minister of the Interior
25 January 1938--Pol. S-V I No. 70/37--179 g

Secret

Article 1

Admissibility

1. For the protection against potential enemies of the people and the State, the Secret State Police [Gestapo] is hereby authorized to impose protective custody as a compulsory measure on all persons who through their behavior endanger the welfare and the security of the people and the State.

2. Protective custody shall not be decreed for punitive purposes or to take the place of legal imprisonment. Punishable acts are to be judged by the courts.

Article 2

Competence

1. Competence to order a person into protective custody rests exclusively with the office of the Secret State Police.

2. Motions for an order of protective custody are to be addressed through the local and regional State Police agencies to the office of the Secret State Police. With every motion detailed reasons are to be given which must include defensive statements [Einlassungen] made by the arrested person. As soon as the person under provisional arrest has been interrogated, a copy of this interrogation will be forwarded immediately.

3. An order for protective custody can only be issued after the accused has been heard on the charges raised against him.

Article 3

Temporary Arrest

1. The office of the Secret State Police, and the regional and local state police agencies are authorized to order the temporary arrest of any person to whom the provisions of article 1 apply, provided--

a. That such person is likely to engage in subversive activities unless detained.

b. That there is danger that evidence may be destroyed [Verdunklungsgefahr].

c. That the person is suspected of preparing for his escape.

2. The record must show that the accused has been advised of his provisional arrest within 24 hours after he has been seized. Likewise the record must show that he has been advised of the reasons for his being placed under temporary arrest.

3. A person under temporary arrest must be released not later than 10 days from the day of his arrest, unless an order for protective custody has been issued within that period by the office of the Secret State Police.

Article 4

Right to Issue Directives

The right of the Reich governors, the Land government, the Oberpraesidenten, and the Regierungspraesidenten, to issue directives to the superior State Police and Police offices, is not affected by articles 2 and 3.

Article 5

Order for Protective Custody

1. To place a person under protective custody an order for protective custody must be issued in writing by the office of the Secret State Police. At the time of his arrest or not later than the day after the order for protective custody has been transmitted, the accused will be handed a copy of the order for which he has to sign a receipt.

2. Any order for protective custody must include a brief statement of the reasons for which protective custody was ordered.

3. The next of kin (wife, parents, children, brothers, or sisters) of a person under protective custody are to be informed that he has been placed under protective custody and where he is located, unless special reasons render such action inadvisable.

4. If a civil servant is taken under protective custody the Secret State Police must immediately notify his superior agency and state the reasons for his protective custody.

5. If a member of the NSDAP or of any of its formations is taken under protective custody, the Secret State Police must notify the Party agency concerned and state the reasons for his protective custody.

Article 6

Execution

As a matter of principle, persons under protective custody are to be placed in State concentration camps.

Article 7

Duration

1. Protective custody is to last no longer than necessary to achieve its purpose.

2. Release from protective custody is ordered by the office of the Secret State Police. It is the responsibility of the Secret State Police to examine at regular intervals of not more than 3 months whether the protective custody is to be lifted. The arrested person must be released not later than 3 days after the protective custody has been lifted.

Article 8

Foreigners

Foreigners, who have been taken into protective custody, are to be deported unless special reasons render such action inadvisable.

Article 9

Executory Regulations

Executory regulations to implement the preceding provisions shall be issued by the chief of the Security Police.

To the Office of the Secret State Police, the regional, and
local State Police Agencies.

For information only:

The Reich Ministers, Reich Governors, Land Governments, The
Prussian Oberpraesidenten, Regierungspraesidenten, and the
Police President of Berlin.

(Not published)

PARTIAL TRANSLATION OF DOCUMENT NG-2218
PROSECUTION EXHIBIT 604

CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO PRESIDENTS OF DISTRICT COURTS OF APPEAL, 31 JANUARY 1938, REQUESTING LISTS OF ATTORNEYS ALLOWED TO DEFEND PRISONERS HELD IN PROTECTIVE CUSTODY

Berlin, 31 January 1938

_Copy_

The Reich Minister of Justice 4611--1a^7 194/38 The Presidents of the District Courts of Appeal

Subject: Defense of prisoners in protective custody by attorneys

To prepare a decision of the Reich Leader SS and Chief of the German Police on whether certain attorneys can generally be allowed to defend prisoners held in protective custody, you are requested to examine immediately whether attorneys in your district, and which ones, could be considered in this respect. To defend prisoners held in protective custody, qualification and reliability are necessary to a particularly high extent. Therefore, in making the selection, a very strict standard will have to be applied. Mere membership in the NSDAP--as far as it was acquired only after 30 January 1933--will generally not warrant the necessary extent of reliability; on the other hand, this qualification will not have to be denied merely because the attorney is no Party member. Only such attorneys can be considered whose attitudes prove beyond doubt that they fully approve of the political plans of the State and of the ideological aims of the movement. For the rest, it will have to be assumed that attorneys not acting as counsel for the defense in criminal cases--will generally not defend prisoners held in protective custody either.

I request that attorneys qualified according to these rules to defend prisoners held in protective custody and who, if possible, ought to reside at various places of your district be in sufficient number entered into a list arranged according to State Police Offices. As to their qualification I request that the president of the bar then be consulted, the necessity of a strictly confidential treatment will have to be pointed out to him. Agencies, other than the judicial administration, will not be consulted. I then request that two copies of the list be submitted and that the opinion of the president of the bar be attached. Concerning the attorneys mentioned in the list, personal data and qualification for each of them have to be attached in addition to the character and political attitude of the attorney, particularly the manner of his professional training as counsel for the defense in criminal cases has to be explained in this statement; furthermore, if possible, whether it can be assumed that the attorney enjoys the confidence of the State Police Office.

Negative reports, if such is the case, are requested.

As Deputy
[Signed] SCHLEGELBERGER

Note

I have discussed the question with the attorney Dr. Dormann today. He received from me 3 copies of the decree to deal with them; it was especially pointed out to him that the affair was strictly confidential. After contacting Dr. Droege he will try to compile for Hamburg and Bremen a list of such attorneys who are qualified to defend prisoners in protective custody.

Note

After 2 weeks

11 February 1938

[Signed] LETZ

_Note._--I have reminded Dr. Dormann by telephone. The list is under deliberation at present.

Note

1. To be submitted to the Senator.

2. Two weeks.

5 May 1938 [Signed] LETZ

When opinion arrives, report has to be made.

[Signed] ROTHENBERGER

Certified true copy. Hamburg, 9 August 1947

[Signed] VON THADEN
Justizoberinspektor

[Stamp]

Hanseatic District Court of Appeal Hamburg

TRANSLATION OF DOCUMENT NG-366
PROSECUTION EXHIBIT 256

MINUTES OF DEFENDANT KLEMM ON CONFERENCES OF REICH MINISTER OF JUSTICE WITH ATTORNEYS GENERAL AND PRESIDENTS OF COURTS OF APPEAL, 23 AND 24 JANUARY 1939, CONCERNING PROTECTIVE CUSTODY

Conference with the Attorneys General [Generalstaatsanwaelte][191]
on 23 January 1939

Protective custody after serving punishment, after acquittal, after release from arrest pending trial.

From the individual districts:

_Munich_ (Leimer)--In Memmingen 4 cases of arrest for protective custody occurred and 2 of those after penal detention, 2 after arrest pending trial (not advisable, because executed in the same prison, probably even in the same cell), 8 in Augsburg, 1 in Kempten, 7 in Munich, altogether 359 after penal detention. The cases are decreasing.

_Hamm_ (Semler)--No detrimental cases. 1 case in Arnsberg with the explanation that there is no intention to criticize the sentence. There have been frequent requests for calling back in cases where no warrant of arrest is issued.

_Berlin_ (Jung)--The State Police [Stapo] takes functionaries of the KPD [Communist Party] into protective custody after penal detention. In cases where a warrant of arrest in high treason affairs is rejected, protective custody is to be ordered at once. Furthermore, in 1937 and 1938 a few priests and Jews in protective custody in cases of refusal of warrants of arrest. Protective custody justified on an acquitted sexual criminal (later conviction). No further annoying clashes.

_Jena_ (Wurmstich)--Penitentiary inmates as a rule always in protective custody after penal detention likewise traitors and defaulters [violating restrictions acknowledged by signature upon release]. As regards the detrimental cases, improvement since 1936. Jehovah’s Witnesses are arrested on principle after penal detention, but are mostly released after 3–4 days.

_Duesseldorf_ (Hagemann)--3–4 percent of the released are taken into protective custody. Jehovah’s Witnesses are released, if they countersign. There are frequent requests for calling back in cases, where no warrants of arrest are issued.

_Stettin_ (Staecker)--Only in very few cases protective custody after penal detention. In 2 cases (abortion by female defendant Dr. Buchholz and 1 other case in accordance with section 175a of the penal code [Sodomy]) protective custody was entirely justified as the result of the appeal has shown. (Case Buchholz 4 years of hard labor.) As a rule, Jehovah’s Witnesses and high treason criminals are arrested pending trial.

_Celle_ (Schoenering)--On principle, traitors, Jehovah’s Witnesses, homosexuals, and persons guilty of abortion are taken into protective custody after penal detention. 4 detrimental cases of protective custody: priest, RM 10,000 bail; race defiler, RM 15,000 bail; acquitted because of proved innocence; Jew (after being acquitted of acting maliciously against the State); insulter of the SS (after penal detention).

_Hamburg_ (Drescher)--Protective custody as preventative measure after penal detention, etc., has to be acknowledged as justified, but not as a correction of a judicial decision. No special details.

_Karlsruhe_ (Lautz)--Jehovah’s Witnesses as a rule are taken into protective custody after penal detention. Protective custody after repeal of the warrant of arrest was justified in 2 cases.

_Graz_ (Meissner)--The Chief Public Prosecutor asked the State police in 2 cases for actions of protective custody, because a 13-year-old gangster could not be prosecuted and because the use of violence could not be clearly proved to a priest in a case of sexual crime.

_Brunswick_ (Mueller)--There is one case, where protective custody as a correction of a judicial decision is embarrassing, because protective custody is justified (priest, sexual criminal). In another case, (priest, sexual criminal) the protective custody is not justified. In general the State Police is trying to act in agreement with the public prosecutor.

_Oldenburg_ (Christians)--On principle, functionaries of the Communist Party are taken into protective custody after penal detention, furthermore, Jehovah’s Witnesses in almost all cases. Only a few unsatisfactory cases.

_Naumburg_ (Hahn)--Frequent request for calling back if no warrant of arrest is issued. The impression has been given that judges are deciding for a warrant of arrest, because protective custody seems to them harder than arrest pending trial. Often the criticism of justice because of actions of protective custody is not absolutely unjustified.

Special example: A former SS Sturmfuehrer (disloyalty) after 1 year of penal detention was given another year in protective custody.

_Nuernberg_ (Bems)--Cases of protective custody after penal detention, etc., have decreased, although frequently protective custody is exercised, if no warrant of arrest is issued. Protective custody as criticism of justice has not occurred any more. On principle, high treason criminals, Jehovah’s Witnesses and race defilers are taken into protective custody after penal detention.

The minister ends the conversation by stating that in the interest of justice those cases are to be regretted where protective custody is to be regarded as justified criticism of justice, besides no objections can be raised against preventative measures.

[Signed] KLEMM
25 January 1939

Conference with the _Presidents_ of the Courts of Appeal on
24 January 1939

Protective custody after serving term of imprisonment, after acquittal, after release from arrest pending trial.

_Hamm_ (Schneider)--Conditions have improved during the year 1938. The most important cases are the ones after arrest pending trial. The taking into protective custody is performed more carefully today because of the reputation of justice. The complaint has been made that the length of protective custody is assuming the character of punishment. In one case (public notary) protective custody after release from arrest pending trial was justified. Some lawyers refrain from submitting a complaint of arrest because protective custody is pending. There are judges who in case of doubt issue a warrant of arrest in order to avoid protective custody. In one case of criminal proceedings homosexuals were released from arrest pending trial and later on legally acquitted; during the trial, however, they were brought to court from protective custody every day. Monks from Dorsten were taken into protective custody after their acquittal.

_Darmstadt_ (Scriba)--In one case defendant taken into protective custody while still being in court after acquittal. In some cases protective custody was inflicted after repealing arrest pending trial, release, however, was obtained after objecting by the administration of justice. General picture: Decline of measures of protective custody in face of contradictory legal decisions.

_Berlin_ (Hoelscher)--In 1938 only 3 cases of protective custody. A decline of arrests has been observed.

_Duesseldorf_ (Schwister)--Frequent requests for calling back if warrant of arrest has been refused. It has even been noticed that corresponding agreements were made between the investigating or examining judges and the State Police (Duesseldorf). In one case protective custody was justified and in another case one additional year of protective custody. Those cases are very rare now; good understanding exists between the court and the State police. Therefore the impression that justice is being criticized does not exist.

_Naumburg_ (Sattelmacher)--A mitigation has been noticed, however, there are frequent requests for calling back if warrant had been refused.

_Hamburg_ (Rothenberger)--Cases of protective custody have been increased, because the warrants of protective custody are decided on in Berlin. In 6 cases, Jewish women have been taken into protective custody because of sexual intercourse with Aryans. In the case of Laeiss _vs._ half-Jewess, she has already been under protective custody for 1½ years. State police file notes from police records state:

(1) Protective custody, “to make the punishment finally effective.”

(2) Protective custody, “to make the served sentence still more effective.”

(3) Protective custody, “because of the big number of previous convictions.”

(4) Protective custody, “to prevent prejudicing the course of justice through the interference of lawyers as defense counsel.”

_Rostock_ (Goetsch)--Good cooperation with the State Police, only preventive measures have been noticed.

_Graz_ (Meldt)--No difficulties, not the slightest disharmony, or criticism of the law.

The minister concludes the discussion by indicating that it is to be the task of the presidents of the courts of appeal to see that arrests in the courtroom by the State Police are avoided and recommends for the rest to remain in contact with the State Police.

[Signed] KLEMM
25 January 1939

PARTIAL TRANSLATION OF DOCUMENT NG-629
PROSECUTION EXHIBIT 28
[Also Rothenberger Document 3
Rothenberger Defense Exhibit 3][192]

EXTRACTS FROM A REPORT ON A 1 FEBRUARY 1939 CONFERENCE AT THE MINISTRY OF JUSTICE BETWEEN DEFENDANT ROTHENBERGER AND VARIOUS COURT PRESIDENTS[193]

_Report on the conference of [court] presidents on 1 February 1939_

Present: Senator Dr. Rothenberger, Attorney General Dr.
Drescher, Vice President Letz, District Court Presidents Korn
and Dr. Ruther, Bremen, Local Court President Dr. Blunk, Local
Court Directors Schwarz, Boehmer, Hansen, and von Lehe, Senior
Judges of Local Court Gersdorf and Stender, Chief Public
Prosecutor Lohse, Bremen, Oberlandesgerichtsrat Dr. Segelken and
the undersigned.[194]

Senator Dr. Rothenberger and the attorney general reported on the discussions at the meetings of the presidents of the courts of appeal and attorneys general with the Reich Minister of Justice.

Senator Dr. Rothenberger first asked for a report on the attitude of the judges with reference to the articles in the “Schwarze Korps” [Black Corps, official newspaper of the SS] before his speech on 28 January 1939, and wanted to know whether his address had put their minds at ease. With the exception of Wandsbek where the articles of the “Schwarze Korps” evidently were not noticed, it was the general opinion, expressed particularly by the district court president of Hamburg and Director Hansen, Altona, that the judges were actually extraordinarily disturbed by the attacks of the Schwarze Korps. The statements made by Senator Dr. Rothenberger have had a rather soothing effect since there was now some hope for improvement. However, there were doubts as to whether the Reich Minister of Justice would succeed in carrying his point against the Schwarze Korps i.e., the SS. These doubts were based especially upon the former passive attitude of the ministry.

I. The attorney general then reported on the penal development of the events of 9 to 11 November.[195] The former regulation according to which the State Police is the final authority in deciding whether or not such a case should be followed up, has been abolished following a decision by the Reich Ministry of Justice. The Reich Minister of Justice and Chief Public Prosecutor Joel have stated that it would, of course, be impossible to handle these things the normal legal way; if, at first, the law as such has been changed by order from higher authorities, then it would not be possible to prosecute those people involved in the perpetration. Therefore, by way of example the conception of violation of the public peace would have to be abandoned. This can be legally justified because the perpetrators lacked the knowledge of illegality since they acted on order. As far as the criminal offenses committed during the encounter are concerned, negligible acts should be disregarded. Otherwise, cases will be withdrawn, but only by order of the Fuehrer, while serious criminal offenses, as for instance rape and race defilement have to be prosecuted. The order for prosecuting will be issued in every case by the minister after, to begin with, the perpetrators in case they are Party members or members of a Party organization have been expelled by a special department of the Supreme Court of the Party which has been established in Berlin.

Goering had strongly disapproved of the events. In his opinion, it was the hardest blow the Party had ever received.

Comments concerning these events should not be prosecuted under the Heimtueckegesetz if they were occasioned by well founded protest.

Senator Dr. Rothenberger pointed out that nothing had happened in Hamburg, thanks to Gauleiter Kaufmann’s attitude which Ministerpresident Goering had expressly recommended. He asked for understanding in the attitude of the Reich Minister of Justice and to pass that understanding on to the judges.

As far as prosecution under the Heimtueckegesetz is concerned, because of comments about the events between 9 and 11 November, he stated that the court might find itself in the position where it would have to investigate the facts. Such cases would have to be reported.[196]

* * * * * * *

IV. The discussion on the question of protective custody by the police was then reported upon. The standpoint of the ministry is, which also finds approval here, that protective custody measures, insofar as they are purely of a preventative nature, cannot be objected to; that, however, corrective measures such as have become known in various cases should not be permitted.

Senator Dr. Rothenberger requested _immediate presentation_ of all cases in which the judge is under the impression that the police are attempting to correct the verdict through their arrest measures. In addition to this, all cases should immediately be reported in which the police effect an arrest in the courtroom.

* * * * * * *

PARTIAL TRANSLATION OF DOCUMENT NG-340
PROSECUTION EXHIBIT 257

LETTER FROM BOUHLER, CHIEF OF THE FUEHRER’S NAZI PARTY CHANCELLERY, TO LAMMERS, 26 JULY 1939, CONCERNING HITLER’S DECISION TO PLACE PERSONS IN SECURITY DETENTION UNDER HIMMLER FOR WORK IN CONCENTRATION CAMPS

Berlin W 8, 26 July 1939
Vosstrasse 4

The Chief of the Chancellery of the Fuehrer in the NSDAP

To the

Chief of the Reich Chancellery, Dr. Lammers

Subject: People in security detention

Dear Party Member Dr. Lammers,

Some time ago the Reich Leader SS made a request to the Reich Minister of Justice to the effect that some of the people in security detention be put at his disposal for important work in the concentration camps. The urgency for this increased, when on the 50th birthday of the Fuehrer a great number of persons in protective custody were dismissed. The request of the Reich Leader SS was refused in the letter of 14 July 1938 because these persons apart from carrying out work to fulfill the requirements of the penal institutes also did such work as appeared urgent under the Four Year Plan. When, however, the penitentiary Brandenburg-Goehrden was inspected by the chief of the office for matters concerning pardoning, the Chancellery of the Fuehrer, it was established that a large number of the people in security detention were busy painting cardboard soldiers for private firms. Considering the far more important work (which can actually be regarded as urgent in connection with the Four Year Plan) which is being carried out by prisoners, for example, in the concentration camp Sachsenhausen and in the adjoining brick yard, the Fuehrer has ordered that all dispensable persons in security detention are to be put at the disposal of the Reich Leader SS immediately.

At the request of the Reich Leader SS, after inspecting the concentration camp Sachsenhausen in the spring, I supported the request he made to the Fuehrer. I was then given the order to ascertain the way in which the persons in security detention were occupied at the present time. During the process of my investigation I established what was required, and I also received the following report from the Reich Ministry of Justice concerning this matter:

“According to the most recent information, there were 4,303
persons in security detention. Of these 4,096 are working; i.
e., 721 of them (16.8 percent) are carrying out work for the
requirement of the penal institutes and other authorities; and
3,375 persons in security detention (78.4 percent) are engaged
in work in connection with the Four Year Plan (including work
for export and for military use). The remaining 207 persons in
security detention (4.8 percent) were not working on the day of
my investigation, in consequence of illness or because they had
to undergo a term of imprisonment.”

There can be no doubt that the persons in security detention who are working on the toys mentioned, and who, per person, enable the institute to earn daily RM 1.20-1.80 are inserted under the heading of “urgent work for the Four Year Plan.”

In consequence of my report in Obersalzberg, the Fuehrer, who already had leanings toward this interpretation after my first report, decided that the persons in security detention were to be incorporated into the concentration camps under jurisdiction of the Reich Leader SS.

I have on purpose refrained from informing the Reich Minister of Justice directly. I request you to inform the Reich Minister of Justice of the decision of the Fuehrer.

I have informed the Reich Leader SS of the decision of the Fuehrer and of my letter to you.

Heil Hitler!

Yours faithfully
[Signed] BOUHLER

TRANSLATION OF DOCUMENT NG-190
PROSECUTION EXHIBIT 284

VARIOUS MEMORANDUMS AND LISTS OF REICH MINISTRY OF JUSTICE, 28 SEPTEMBER 1939 TO 7 MARCH 1941, CONCERNING EXECUTIONS WITHOUT TRIAL OR EXECUTIONS AFTER TRIAL UNDER VARIOUS CIRCUMSTANCES

1. Note by Reich Minister of Justice Guertner to Lammers, 28
September 1939, Concerning Executions of Three Persons Without
Trial and Urging Clarification of Problems Created by Punishment
“Without Criminal Proceedings and Without a Sentence.”

_Note_

1. _Publications in the press_

_a._ The Reich Leader SS and chief of the German police reports that Johann Heinen, Dessau, was shot on 7 September 1939, because of his refusal to cooperate in tasks for the protection of the security of the national defense. In addition, Heinen was a criminal who had been convicted previously for theft.

_b._ The Reich Leader SS and chief of the German police reports the following have been shot:

(1) On 11 September 1939 Paul Mueller from Halle because of arson and sabotage. Mueller had been convicted previously 8 times to imprisonment and penitentiaries because of crimes violating property rights.

(2) On 15 September 1939 August Dickmann from Dinslaken, born 7 January 1910, because of his refusal to fulfill his duty as a soldier. D. stated as a reason for his refusal that he was a Jehovah’s Witness. He was a fanatical follower of the international sect of the serious explorers of the Bible [ernste Bibelforscher, Jehovah’s Witnesses].

2. _Statement of facts_--Details are not known here since the judicial authorities had nothing to do with the matter. Whether the military judicial authorities have knowledge of it (case Dickmann) is not known here either.

3. _Legal basis for the executions without trial_--The Fuehrer is said to have ordered these executions, or to have approved them. Furthermore, he is said to have ordered that the Reich Leader SS should maintain by all means the security within the territory of the Reich, and this order includes also immediate execution in cases of actions in violation of war laws (report of SS Brigadefuehrer Dr. Best).

Upon the request for information about this order of the Fuehrer, Gruppenfuehrer Heydrich replied that the Minister of Justice should contact the Fuehrer directly in regard to the executions.

4. _Legal situation_--Should the information made available to the Ministry of Justice be correct, then a concurrent jurisdiction would now exist in the nonoccupied territory of the Reich, that is outside of the area of combat and operation. There would exist in this area a concurrent jurisdiction for the punishment of war crimes between the People’s Court, the military courts, and the Special Court on one hand, and the police on the other hand. According to which criteria should the question of the competency be decided in the individual case?

Within the nonoccupied territory the state of public order and security does not permit that any authority should be hampered or disturbed in its activities.

The criminal procedure according to the war laws is practically the same as the procedure before the courts martial. The Special Courts have just not been _called_ courts martial. I refer to the case of the farmer Glein from Obersleben near Weimar, who during the night of 18 September 1939 put fire to his grain-rick and thus destroyed 100 hundred-weights of grain. He was sentenced to death by the Special Court on 18 September 1939.

5. In a further case (Ernst Georgi of Freiberg), a warrant of arrest had been issued against the defendant on charges of fraud. The State Police, Office Plauen, suggested to place Georgi at the disposal of the Secret State Police, and to cancel the trial fixed for the 18th of this month, since this file should be treated in a special way according to an order of the chief of the Security Police and, therefore, a transfer to the trial in Freiberg would not be feasible.

In this case the crime was committed before the war decree [Kriegsverordnung] took effect. After a short period the defendant was returned to the public prosecutor. The trial took place, and the sentence (10 years penitentiary, and protective custody) was passed on 26 September 1939. The Security Police did not refer to a general order in this case. What the legal basis was for the interference with the court proceedings, is not known to me.

6. I think it to be urgent that the problem, whether crimes committed in the nonoccupied territories should be punished according to the war laws, or by the police without criminal proceedings and without a sentence, be clarified in general.

Berlin, 28 September 1939 [Signed] DR. GUERTNER

The above note, I handed over to colleague Lammers on 28 September 1939.

Berlin, 30 September 1939 [Signed] DR. GUERTNER

2. Handwritten File Note by Guertner, 14 October 1939, on a
Conference with Lammers Concerning Executions Without Trial upon
Order of Hitler

Note: 14 October 1939, 12:00 V. [Noon]

Lammers saw me by order of the Fuehrer.

He said that yesterday he had informed the Fuehrer about the contents of my manuscript. The Fuehrer said he had not issued _general_ directions. He said he had ordered the 3 executions [Erschiessungen]. He also could not give up this right in individual cases, since the courts (military and civilian) did not prove capable of coping with the peculiar conditions of war.

Thus, he had ordered now the execution of the Teltow bank robbers. Himmler would contact me in this matter before the day is over.

14 October 1939

[Signed] GUERTNER

3. Draft of a Proposed Letter from Guertner to Himmler, 30
November 1939, Concerning the “Carrying-out of Death Sentences”

Berlin, 30 November 1939

The Reich Minister of Justice

To the
Reich Leader SS and Chief of the
German Police in the Reich Ministry of the
Interior, Heinrich Himmler

Subject: Carrying-out of death sentences

Enclosures: 2 documents (one copy of sheets 110–115 of the file
IIIg 19 5039/39 and one of the attached list II, sheets 67–72 of
the file IIIg _10a_ 5010/39)

[Handwritten marginal note] To be submitted again on 30 November
1939

[Initialed] GTR [Guertner]

Dear Herr Himmler!

For your information I submit in the enclosure[197] two copies of list reports to the Fuehrer about the death sentences passed since 3 September 1939, the day I have been put in charge of decisions about appeals for mercy in regard to death sentences--and about the decisions I made, or intend to make.

In regard to the shootings, mentioned at the end of list II it has been published in the press that the perpetrators, as for instance in the cases of Latacz, Jacobs, and Gluth, had made themselves guilty of resistance by force or, as for instance in the case of Potzleschak, had tried to escape. Let me point out that these publications--always using the same phraseology--were apt to attract the same attention of at least those persons who participated in the criminal proceedings. On the day before the shooting of Latacz the press had reported about the trial which took place in the hospital for prisoners on remand. Latacz who prior to his transfer was lying in the prison hospital, had a bandage with metal braces. Thus, also the broad public was informed about his physical condition, and knew that a resistance was hardly possible in such a condition.

Heil Hitler!
Yours very much devoted