Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume III

Chapter XXXII: Section 3: (Concerning Articles 3 and 4) (5)

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To be signed by the Minister [initialed] Dr. C.[198] [Crohne]

28 November

4. List compiled by the Reich Ministry of Justice tabulating information concerning 18 persons executed without sentence or after sentences for a term of years[199]

5. File Note of 6 March 1941 Submitted by Dr. Crohne to the
defendant Schlegelberger, concerning “Executions Planned and
Carried Out on the Basis of Dubious Information”

1. _Gluth case_--In the summer of 1939 the almost 18-year-old locksmith apprentice Gluth set 4 fires in Marquardt near Potsdam in order to disturb the population, and to show off afterwards as an especially efficient member of the fire brigade. The medical expert stated that Gluth was still in the age of puberty and that the state of his development was equal to that of a 16½-year-old boy. In the opinion of the experts his acts were caused by the physical and mental changes connected with the age of puberty, and further by the awakening of the desire to do important things, which is typical for this age. Sentence: 10 years’ imprisonment.

The Fuehrer ordered his execution. According to the statement of SS Brigadefuehrer Mueller, the expert opinion was known to the Fuehrer, but the latter stated that it would be foolish to save such persons, who are a danger for society for further infamous actions. On 19 November 1939 Gluth was shot for offering resistance.

2. _Trampe case_--Trampe stole jewels and clothes from the apartment of a friend, who was the wife of a soldier, and pawned these articles for RM 200. He had access to the apartment in his capacity of repair man. Afterward the soldier’s wife and her husband agreed with Trampe on the damage. Trampe defended himself by stating that he was by want compelled to steal, that he intended to redeem the stolen objects later and that he was sure from the beginning that the couple would forgive him afterward because of their friendship and because of his distressed condition. The court accepted his statement as true and sentenced him to 6 years of penitentiary. The press reported that his defense was untruthful, and that it was not accepted as true by the court.

Trampe was shot on 27 September 1940 by order of the Fuehrer. It is not known here whether the shooting took place merely on account of the incorrect reports of the press.

3. _Jackubetzki case_--The milker Jackubetzki had a savings account in the Landeshaus in Breslau. These were the savings from his wages. One day he came to Breslau without money and wanted to withdraw his savings. Since the Landeshaus was already closed, he got the idea of taking away the handbag from a woman walking in front of him in order to get money for his trip home. He did that, and was sentenced to 10 years penitentiary.

Referring to a press report in the “Nachtausgabe” [Evening Edition] (not in the file) the Fuehrer expressed, on 9 December 1940, by phone through the SS Gruppenfuehrer Schaub his astonishment about the fact that J. was not sentenced to death. In the “Nachtausgabe” the case was misrepresented; it could not be seen from the article that the deed concerned was prompted by the occasion.

On 26 February, Under Secretary Dr. Freisler conferred with SS Gruppenfuehrer Schaub and related to him the details of the perpetration, whereupon Schaub considers the case as settled.

4. _Kuhlmey case_--Kuhlmey in his capacity as an auditor knew a number of manufacturers who were drafted into the army. He asked their wives to authorize him to adjust their allowance cases. He cheated the wives of 4 soldiers by giving them altogether about RM 375 less than he had received at the public welfare office. He cheated the public welfare office of about RM 3,000 by obtaining allowances on false pretenses and without the knowledge of the woman concerned, and by keeping the money for himself. Sentence: 5 years penitentiary. There still are some minor cases to be sentenced.

On 14 October 1940, Schaub notified us by phone that the Fuehrer had learned about the case through an article in the V.B. [Voelkischer Beobachter] of 9 October 1940. If, in the still open cases the death sentence should not be imposed, a transfer to the State Police will be ordered. It cannot be seen from the report of the “Voelkischer Beobachter,” under the headline, “Soldiers’ wives thoroughly cheated” that K. caused detriment first of all to the welfare office and in addition also to a few women. It contains some hints though that K. also received subsidies which were not due to the women, but creates the impression that the total amount of about RM 3,500 was withheld to the detriment of soldiers’ wives.

[Handwritten note] Submitted to Under Secretary Dr.
Schlegelberger according to order. Case 1 does not belong here.

[Illegible initial] 6 March 1941
[Illegible initial] 6 March

7 March [Signed] DR. CROHNE

PARTIAL TRANSLATION OF DOCUMENT NG-369
PROSECUTION EXHIBIT 258

LETTER FROM PEOPLE’S COURT PRESIDENT, THIERACK, TO GUERTNER, 14 AUGUST 1940, RECOMMENDING TRANSFER TO CONCENTRATION CAMPS WITHOUT TRIAL OF PERSONS FALLING WITHIN A “MINOR GUILT” CATEGORY OF HIGH TREASON

The President of the People’s Court 1400-I, Confidential!

To the Reich Minister of Justice Berlin W 8 Wilhelmstr. 65

Berlin W 8, 14 August 1940
Bellevuestr. 15

[Stamp]

Reich Ministry of Justice
17 August 1940
Dept. III

Immediately after I was recalled from the war, I realized that things were not as I had expected when plans for the People’s Court were worked out. It was overloaded with trials and this because it had to handle cases which it had certainly not been intended to judge. This happened especially in cases which arose in the Protectorate of Bohemia and Moravia because as yet there was no possibility of transferring the cases to the courts of appeal. But even among cases which are ready for such a transfer there are some which should not be dealt with by the courts of appeal for various reasons.

However right it is to exterminate harshly and uproot all the seeds of insurrection, as for example we see them in Bohemia and Moravia, it is wrong for every follower [Mitlaeufer], even the smallest, to be given the honor of appearing for trial and being judged for high treason before a People’s Court or, failing that, before a court of appeal. In order to deal with these small cases and even with the smallest, the culprits should surely be shown that German sovereignty will not put up with their behavior and that it will take action accordingly. But that can also be done in a different manner, and I think in a more advantageous one, than through the tedious and also very expensive and ponderous channels of court procedure.

I have therefore no objection whatsoever if all the small and smallest followers who are somehow connected with the high treason plans which have been woven and plotted by others are brought to their senses by being transferred to a _concentration camp_ for some time. This would have the further advantage that dispositions would be taken quickly and that they would be doubly effective because of that, and that these dispositions could be rapidly modified if by the measures taken the culprit were brought to a better attitude.

One can think, in addition to this, of the many cases of _article 90c of the Criminal_ (_Penal_) _Code_, in which, by inconsiderately exploiting the strong position of the foreign state, persons who had to cross the border for some reason or other (work, or visiting relatives) were used to find out something about the neighboring state. This occurred particularly frequently in the border areas which were at that time Polish or Czech.

In any case, I consider it to be an _absolutely_ essential prerequisite that all these cases should be submitted first of all to the Chief Reich Public Prosecutor of the People’s Court for penal prosecution. If he considers that _article 153, Code of Penal Procedure_ can be made to apply, then the People’s Court will be able to give its consent to this in nearly all cases. Then the accused would be put at the disposal of the Security Police with the injunction that he be placed in a concentration camp for a certain period of time.

I start from the principle that the conception of minor guilt in the sense of article 153, Code of Penal Procedure is naturally not the same in cases which are suitable for the People’s Court, as in those cases in which the official judge has to decide. Even if this conception is relative and depends on the nature of the offense, a _legal extension of article 153, Code of Penal Procedure_ should surely be made in order to presume insignificance of guilt for an act which can be characterized as a crime, as, e.g., crimes in the nature of high treason in the territory of Bohemia and Moravia.

[Signed] THIERACK

TRANSLATION OF DOCUMENT NG-540
PROSECUTION EXHIBIT 260

LETTER FROM MEISSNER[200] TO DEFENDANT SCHLEGELBERGER,
22 APRIL 1941, CONCERNING TRANSFER OF CONVICTED
PRISONERS TO THE GESTAPO

Berlin W 8, 22 April 1941
Voss-Strasse 4

The Minister of State and Chief of the Presidential Chancellery of the Fuehrer and Reich Chancellor

RP 83/41 Secret
02/312

_Personal_

_Confidential_

Dear Herr Schlegelberger!

In the matter of the transfer of convicted prisoners to the Secret State Police, Reich Leader Martin Bormann has meanwhile informed me by order of the Fuehrer that the Fuehrer does not consider it necessary to procure opinions from the Reich Ministry of Justice on sentences which are submitted to him for reviewing. The question remained unsettled of whether the Fuehrer wants to request the transmittal of sentences himself or to hear your opinion in cases in which no sentence is submitted. At present, however, I do not consider it expedient to pursue the matter by sending another letter to Reich Leader Bormann. I would, however, leave it to your discretion to inform me briefly and with the utmost speed prior to the transfer of the prisoners to the Secret State Police about the factual and legal situation of all those cases in which you think that essential details for the evaluation of the perpetrator’s character or of the crime have not been brought to the Fuehrer’s attention. I shall then inform the Fuehrer of the details I learn from you as far as the case requires this. The transfer of the convicted prisoners to the Secret State Police may be postponed in these cases for a short period until you hear from me again.

Heil Hitler!

Yours very truly
[Signed] DR. MEISSNER

To State Secretary Dr. Schlegelberger Reich Ministry of Justice Berlin W 8 Wilhelmstrasse 65

TRANSLATION OF DOCUMENT 648-PS
PROSECUTION EXHIBIT 264

DIRECTIVE ON BEHALF OF THE REICH MINISTER OF JUSTICE TO PUBLIC PROSECUTORS, 22 OCTOBER 1942, CONCERNING THE “TRANSFER OF ASOCIAL PRISONERS TO THE POLICE”

Reich Minister of Justice IV a 1665/42 g.

Berlin W 8, 22 October 1942
Wilhelmstrasse 65
Tel. 11 00 44
Long Dist. 11 65 16

To the Attorneys General

For information [Stamp] _Secret_

A. Chief Reich Prosecutor at the People’s Court

B. Presidents of the District Courts of Appeal,
Graz
Innsbruck
Linz
Vienna

Subject: Transfer of asocial prisoners to the police

I. In agreement with the Reich Leader SS, the following group of lawfully sentenced prisoners confined to penal institutions will be transferred to the custody of the Reich Leader SS.[201]

1. Jews--men and women--detained under arrest, protective custody, or in the workhouse.

2. Gypsies--men and women--detained under arrest, protective custody, or in the workhouse.

3. Russians and Ukrainians residing in the Reich as non-refugees (excluding Latvians, Esthonians, and Lithuanians) detained under arrest, protective custody, or in the workhouse.

4. Poles residing in the former Polish state territory on 1 September 1939, men and women, sentenced to penal camps or subsequently turned over for penal execution, if sentence is over 3 years, or includes subsequent protective custody, (including Kriegstaeter [perpetrators of crimes during war time] and persons in protective custody).

5. Men _only_, in protective custody (except those sentenced by Austrian Law to workhouse according to sec. 1, par. 2, Reichsgesetzblatt, No. 165, dated 10 June 1932).

6. Convicts sentenced to subsequent protective custody--men _only_ (including Kriegstaeter). Excepted from this transfer are--

_a._ Those sentenced by an armed forces court and by an SS and police court.

_b._ Prisoners of war.

_c._ Those sentenced by Dutch courts.

_d._ Those sentenced by former Yugoslav courts.

_e._ Foreigners, not coming under groups 1–4. People from the Protectorate and stateless persons are considered natives.

Until further notice, the transfer is to be postponed for--

_a._ Those sentenced by former Polish courts or by the present courts of the Government General. Poles, sentenced by former Polish courts in the Occupied Eastern Territories can however be transferred.

_b._ Germans sentenced by German courts in the Occupied Eastern Territories, in the Government General, in Holland, in Norway, Alsace, Lorraine or Luxembourg.

_c._ Those sentenced by the courts of Alsace, Lorraine, and Luxembourg.

_d._ Nationals of the Protectorate.

Those in protective custody and in the penitentiary with subsequent protective custody are to be selected for special screening by the [department] concerned, Department XV of the Reich Ministry of Justice, and, therefore, are also not to be transferred immediately if the institution is convinced that release from protective custody would enter into the question within a predictable time. On account of their favorable development during the execution of punishment (not merely because of old age or similar reasons). Those who are sentenced to additional protective custody upon completion of punishment for high treason and sedition are generally to be selected for this special screening. Department XV of the Reich Ministry of Justice will decide which of the prisoners who are not to be transferred according to this shall be excepted permanently from the transfer.

The director of the institution is personally responsible for the selection of prisoners to be transferred.

If doubt arises in individual cases whether the transfer shall be made, the decision of the Reich Ministry of Justice has to be requested. The same applies if a prisoner who is considered for transfer is still needed as a witness, etc., in other proceedings or in cases of additional sentence by a court.

II. The decisive day fixed for lawful sentence is 1 November 1942. Only prisoners lawfully sentenced before 1 November are liable for transfer. Further directives concerning arrest, confinement in special institutions, and so forth, of those legally convicted later, are reserved.

III. Sick prisoners are not exempted from transfer, they are to be transferred as soon as they are transportable. Final decision on insane prisoners is reserved, transfer at the present is postponed.

IV. In preparation for transfer of prisoners belonging to groups I, 1–6, excluding cases of postponement, lists bearing name and current number of each prisoner, separate for each group, and 1–4 for men and women, are to be executed by the institutions. Four copies have to be sent directly from the institution to the Reich Ministry of Justice for the attention of President of the Senate _Hecker_. The first lists are to be executed according to the status existing on 1 November of this year. Supplementary lists, compare II, also, on the status at 1 December of this year and 1 January 1943, and are to be submitted up to the 8th day of the month in question. Institutions having over 100 prisoners for transfer, submit partial lists for 100–200 prisoners, whenever completed.

The lists must be divided as follows:

1. Number of list.
2. Surname and Christian name.
3. Date of birth (day, month, and year).
4. Place of birth.
5. Last residence.
6. Nationality.
7. Institution number.
8. Sentence or measure of security and improvement.
9. _a._ Acting court.
_b._ Executing authority and its reference number.
10. Start and completion of sentence--in case of ex-servicemen,
note that term has not yet started.
11. Offense--main offense only.
12. Able to work--yes, no.

V. Prisoners not yet consigned to the proper institution, or temporarily consigned to other institutions, will be specified by the competent institution, to which they are to be delivered as soon as possible.

VI. Slowdown of production in vital armament factories, is to be avoided during transfer of prisoners. Therefore, the transfer has to be effected gradually with distribution over several months, as deemed necessary by the individual institutions, in consideration of the factories. At the same time, the institutions most affected are already filled up because of changes in the execution plans. The number of prisoners and the time of transfer for the different districts, will be announced here from time to time.

VII. With completion of the transfer to the police, the penal term is considered interrupted. Transfer to the police is to be reported to the penal authority, and in cases of custody to the superior executive authority, with the information that the interruption of the penal term has been ordered by the Reich Ministry of Justice.

VIII. Preparatory to examinations of all male penitentiary prisoners, sentenced to terms over 8 years, the directors of institutions concerned received verbal instructions at the Reich Ministry of Justice. These instructions are valid correspondingly for persons in protective custody and penitentiary prisoners with additional protective custody, whose transfer has been postponed until examination of case by department XV of the Reich Ministry of Justice (compare I, par. (4)).

IX. The information of this statute is to be given exclusively to such directors of institutions, for whom its knowledge is an absolute necessity in consideration of the incarcerated prisoners. The number of these directors is to be kept as small as possible, by concentration of the prisoners concerned, in some cases in agreement with the adjacent districts. Concerning convicts with a sentence of more than 8 years, such concentration has already been ordered from here.

X. I request that special care be taken for the apprehension of all prisoners, including those not delivered to the competent institution, or those transferred to other institutions for industrial reasons.

BY ORDER:
[Typed signature] Dr. Crohne
Certified: [Signed] KIRSTEN

As Administrative Assistant
[Ministerialkanzleiobersekretaer]

[Seal] Reich Ministry of Justice Office of the Ministry

TRANSLATION OF DOCUMENT 701-PS
PROSECUTION EXHIBIT 268

DIRECTIVE OF 1 APRIL 1943, ON BEHALF OF THE REICH MINISTER OF JUSTICE ANNOUNCING THAT POLES AND JEWS RELEASED FROM PRISONS PURSUANT TO A DECISION OF THE REICH SECURITY MAIN OFFICE, ARE TO BE TRANSFERRED TO CONCENTRATION CAMPS

The Reich Minister of Justice 4410 _b_ Vs _1_ 379/43g

Berlin W 8, 1 April 1943
Wilhelmstrasse 65

To the Public Prosecutors of the Courts of Appeal,

To the Commissioner of the Reich Minister of Justice for the
penal camps in Emsland Papenburg, Emsland

Subject: Poles and Jews who are released from the penal institutions of the department of Justice[202]

Additional copies for the independent penal institutions.

I. With reference to the new guiding principles for the application of article 1, section 2 of the decree of 11 June 1940 (Reichsgesetzblatt I, p. 877), enclosure I of the decree of 27 January 1943-9133/2, enclosure I-III a_2_ 2629, the Reich Security Main Office has directed by the decree of 11 March 1943, II A 2 number 100/43--176--

_a._ Jews who, in accordance with number VI of the instructions are released from a penal institution, are to be committed by the State Police (Regional) Office competent for the district in which the penal institution is located, for the rest of their lives to the concentration camps Auschwitz or Lublin, in accordance with the regulations for protective custody that have been issued.

The same applies for Jews who in the future are released from a penal institution after serving a sentence of confinement.

_b._ Poles, who in accordance with number VI of the instructions are released from a penal institution, are to be taken by the State Police (Regional) Office competent for the district in which the penal institution is located, for the duration of the war to a concentration camp in accordance with the regulations on protective custody that have been issued.

The same applies in the future to Poles, who after serving a term of imprisonment of more than 6 months, are to be discharged by a penal institution.

Conforming to the request of the Reich Security Main Office, I ask that in the future, (a) all Jews to be discharged, (b) all Poles to be discharged, who have served a sentence of more than 6 months be designated for further confinement to the State Police (Regional) Office competent for the district and are to be placed promptly at its disposal, before the end of sentence for conveyance.

II. This ruling replaces the hitherto ordered return of all Polish prisoners undergoing imprisonment in the Old Reich condemned in Incorporated Eastern Territories. The decree of 28 July 1942-4410 _b_ Vs _1_ 1731, has lost its validity. Imprisonment up to 6 months imposed within the Incorporated Eastern Territories, excluding exceptions, is to be carried out in these territories, and not in the Old Reich.

BY ORDER:
[Typed] Dr. Eichler
Certified: [Signed] FREYER
[Seal] Clerk

Reich Ministry of Justice Office of the Ministry

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER CONCERNING TRANSFERS OF PERSONS TO THE POLICE[203]

_DIRECT EXAMINATION_

* * * * * * *

DR. KUBUSCHOK (counsel for defendant Schlegelberger): I should like to refer to another complex of questions. Witness, in the course of this trial you have often heard that persons against whom prosecution was pending or who had already been sentenced were turned over to the police. How did these transfers to the police come about?

DEFENDANT SCHLEGELBERGER: These transfers are a very sad chapter for anybody who has a sense of justice. They came shortly after the beginning of the war in 1939. From publications in the press Guertner found out that the police had killed people. Guertner made notations about these notices in the press, had them filed and gave a compilation of these notices through Lammers to Hitler together with his compiled notes, and he explained the situation in detail. The purpose was clear. Hitler should be made to discontinue these things. Lammers actually submitted these compilations to Hitler, but told Guertner later that Hitler had said that he had not given a general directive to carry out these shootings but in individual cases he could not do without these measures, because the courts, that is, military courts as well as the civil courts, were not able to take care of the special conditions created by the war. At the same time Lammers announced that Hitler in a further case had already ordered the execution by shooting.

Q. I refer to Document NG-190, Prosecution Exhibit 284.[204]

A. I am certainly not making a mistake in saying that that decision on the part of Hitler was probably the most serious thing which ever happened to this man Guertner, whose main intention was to serve justice. It was an order which Hitler had given through administrative channels to the police, and the execution of it was assured on the basis of the means of power then prevailing. The attempt on the part of Guertner to reinstate the respect for court decisions therefore had failed; but he was not satisfied with that. He wanted to insure that the administration of justice should be given the authority to intervene in time and to attempt at least to thwart the execution of the order given to the police. That, of course, was only possible if the administration of justice was informed in time about the order that had been given to the police, and that request by Guertner was actually granted. Subsequently the administration of justice as a rule was informed by Hitler’s adjutant, Schaub, wherever an order of that kind was given to the police.

The question, therefore, as to how after one has been informed, one can make an attempt to prevent the execution of Hitler’s order involved great difficulties particularly because the police had a time limit of 24 hours after which it had to report to its superiors that the order had been executed. Guertner then was of the opinion that for these matters he had to assign the one official in his ministry whom he could use as a capable man with the police--who shared Guertner’s opinion in these matters--and from whom one could expect, on the basis of previous experience, that he would show sufficient cleverness. Guertner therefore charged my codefendant Joel with that mission.

When the information about such an order was received, feverish work started. First one had to try to extend the police time limit; that is, to persuade the police to delay the report. That alone brought great difficulties, because the police official incurred considerable risk. But in some individual cases it succeeded. At the same time, the files of the case were called to Berlin and all other bits of information which probably had caused Hitler to order the transfer of the person concerned to the police. Then a detailed report was made of the act and the culprit which justified the sentence, and telephone calls took place with various agencies whenever that seemed to have chances for success. Some individual cases were successful. But if it could not be achieved that the order turning over the individual to the police was rescinded, although everything had been tried, then there was no other alternative than to issue a directive to the authority which was about to carry it out, telling them that they should no longer resist but should turn over the man to the police.

If the Reich Ministry of Justice had failed to give the man up, the police would have broken the resistance by force; the condemned person could not be saved. During the war, civilian and military command offices in numerous cases were seriously charged with the fact that through a defense which they had to consider as useless, they had sacrificed many lives. Such a useless sacrifice it would have been if the Reich Ministry of Justice had instructed the prison authorities, via the executive office, to resist the police. The subject of this sacrifice would have been not only threats to officials or civil servants, but to the entire administration of justice, which would have been eliminated and its opponents would have triumphed. The acting official in the ministry would have been eliminated as a saboteur; and already at that time he would have been replaced by a person who would willingly and without exception have put the administration of justice in the service of the Party. The individual cases of transfer which the prosecution has described have to be evaluated from these points of view. I myself, after taking charge of the Ministry of Justice, immediately established contact with Minister Meissner in order to determine basically that no order for transfer made by the police was to be executed as long as the administration of justice did not have a report. This intention of mine was again foiled by Bormann. A letter from Meissner to me makes this apparent. Hitler had me informed by Bormann that the obtaining of the opinion of the Ministry of Justice was not necessary. Meissner, who shared my opinion, asked me in spite of that, in those cases where the ministry believed that Hitler was not properly informed, that a report should be sent to Meissner. I did that in all cases.

* * * * * * *

Q. What do you have to say about the Markus Luftglas case, a case of transfer to the Gestapo, Document NG-287, Prosecution Exhibit 88?[205]

A. This case, too, I no longer remember even though the name recalls certain memories. In my statements I have to refer to the documents that have been submitted, and by referring to them I would like to determine the following: the Fuehrer order to the police was given to the Reich Ministry of Justice on 24 October 1941, through the usual channels by the Presidential Chancellery. That nothing happened in this case is absolutely impossible. It would have been inexplicable why my letter to Lammers in which I informed him of the release was written only 4 days later, on the 29th, for letters of that kind were answered immediately in our office as a matter of course. The fact that our letter is dated only the 29th shows me rather that in the meantime unsuccessful interventions had taken place.

Now I notice that in this letter to Lammers I informed him that Luftglas had been transferred to the police for the purpose of execution. That is noticeable because the information about the orders given by the police never said anything about executions, but merely stated “transfer” as the subject of the order. If in this letter to Lammers, I therefore informed him that Luftglas was transferred for the purpose of execution, this can only be based on the information we received from the police, and I am quite sure that I formulated the letter in that way in order to inform Lammers how the direct Fuehrer order--that is, the order to the police--was actually worded and in order to point out to him the effects of such transfer orders.

In conclusion, in regard to this question of transfer I would like to say that the Hitler order went to the police through administrative channels. The police had legally and by authority the possibility to execute the order. The Ministry, on the other hand, had only one weapon, and that was the word. If this weapon remained without success, the Ministry was defenseless and had to submit to force.

* * * * * * *

C. Measures to Influence or Avoid the Judicial Process

1. DEVELOPMENTS PRINCIPALLY DURING THE PERIOD WHEN GUERTNER WAS
REICH MINISTER OF JUSTICE (1933–JANUARY 1941)

a. Example of relations of officials of the Reich Ministry of
Justice, judges, and public prosecutors with officials of the
Nazi Party, the Gestapo, the SD, the SS, and the SA

TRANSLATION OF KLEMM DOCUMENT 20
KLEMM DEFENSE EXHIBIT 20

LETTERS FROM GUERTNER, REICH MINISTER OF JUSTICE, TO HITLER’S DEPUTY RUDOLF HESS AND TO THE SA CHIEF OF STAFF, VIKTOR LUTZE, 5 JUNE 1935, CONCERNING INTERFERENCE IN THE TRIAL OF CAMP HOHENSTEIN PERSONNEL

1. Letter from Guertner to Hess

Copy The Reich Minister of Justice Berlin, 5 June 1935 Z.F.g^{10} 1696.34 Letter to the Deputy of the Fuehrer Reich Minister Hess

Secret!

Personal!

Subject: Criminal proceedings against the merchant and SA
Obersturmbannfuehrer Jaehnichen and 22 party members
for causing bodily injury in the performance of
their official duties (protective custody camp
Hohenstein/Saxony)

Dear Colleague!

With reference to the indictment which I submitted on 20 March 1935 in the above-mentioned criminal case I wish to state the following:

On 3 May 1935, after a trial lasting approximately 6 weeks, the prosecutor, and public prosecutor, Dr. Walther, proposed the following sentences:

Against--

Jaehnichen (camp commander), 5 years, penitentiary.
Zikera, 1 year 6 months imprisonment.
Heinz Meier, 3 years imprisonment.
Herbert Meier, 3 years 2 months imprisonment.
Tuerke, 3 years imprisonment.
Volkmar, 2 years 3 months, penitentiary.
Leuschner, 2 years 3 months imprisonment.
Romkopf, 2 years 6 months imprisonment.
Karche, 1 year 8 months imprisonment.
Hausch, 1 year 4 months imprisonment.
Lehmann, 3 years 3 months imprisonment.
Kuehnel, 1 year imprisonment.
Stachowski, 1 year imprisonment.
Ude, 1 year imprisonment.
Friedrich, 1 year 3 months imprisonment.
Schmeling (police), 1 year imprisonment.
Konitz, 1 year imprisonment.
Uhlmann, 1 year imprisonment.
Sturzkober, 10 months imprisonment.
Schupp, 1 year 6 months imprisonment.
Hensel, 2 years 3 months imprisonment.
Heinicker, 1 year 6 months imprisonment.
Putzler, 3 years 9 months, penitentiary.
Liebscher, 7 months imprisonment.
Heeger, quashed by reason of the amnesty.

On 15 May 1935 the 12th Great Criminal Panel of the District Court [12. grosse Strafkammer des Landgerichts] in Dresden pronounced sentence according to which the following were sentenced for violation of Article 340[206] of the Criminal (Penal) Code:

Jaehnichen to 6 years imprisonment.
Zikera to 1 year 6 months imprisonment.
Heinz Meier to 3 years imprisonment.
Herbert Meier to 3 years imprisonment.
Tuerke to 3 years imprisonment.
Volkmar to 2 years 3 months imprisonment.
Leuschner to 2 years 6 months imprisonment.
Romkopf to 2 years 6 months imprisonment.
Karche to 1 year 8 months imprisonment.
Hausch to 1 year 4 months imprisonment.
Lehmann to 3 years imprisonment.
Kuehnel to 1 year imprisonment.
Stachowski to 1 year 6 months imprisonment.
Ude to 1 year imprisonment.
Friedrich to 1 year 3 months imprisonment.
Schmeling to 1 year imprisonment.
Konitz to 1 year imprisonment.
Uhlmann to 1 year imprisonment.
Sturzkober to 1 year 10 months imprisonment.
Schupp to 1 year 6 months imprisonment.
Hensel to 2 years imprisonment.
Heinicker to 1 year 6 months imprisonment.
Putzler to 3 years 9 months imprisonment.

The proceedings against Liebscher and Heger were quashed by virtue of the law concerning exemption from punishment [Straffreiheitsgesetz].

After the sentences had been proposed, but before they had been actually pronounced, the president of the 12th Great Criminal Panel received the following communication from the Reich Governor in Saxony:

Office seal The Reich Governor in Saxony II 84/35

Dresden--A, 1. on 8 May 1935
Post Office Box: 78
Telephone: 24 371

To the President of the District Court, Dr. Roth Dresden--A. Pillnitzer Strasse 41

Dear President:

I have been informed that a sentence of 3½ years penitentiary has been proposed for the defendant Standartenfuehrer Jaehnichen. Without wishing to interfere in the proceedings nor wanting to influence you as judge in any way, I should like to point out to you again before the passing of the sentence that the circumstances created by the revolution in 1933, which--no doubt--were still affecting conditions at the beginning of 1934 should not be disregarded when passing sentence.

Another point which seems to me worthy of consideration is the fact that one cannot accuse Jaehnichen of a villainous disposition and, above all, that the scum of the earth were to be guarded in Hohenstein. In view of these facts I leave it to you to examine whether the offenses actually demand a punishment of such great severity or whether an acquittal might be considered.

As Gauleiter I consider it my duty to point once more to the exceptional circumstances.

Heil Hitler!

[Signed] MARTIN MUTSCHMANN.

Furthermore news was received here that the two lay judges who acted as judges during the trial, Regierungsamtmann Helbig and the merchant Pesler, were expelled from the NSDAP after the sentence had been pronounced. I do not know who was responsible for this expulsion.

Finally, the prosecutor, Public Prosecutor Dr. Walther, an SA man, was approached by his Obersturmfuehrer after the sentence had been passed, suggesting that he withdraw from the SA.

The fact that these measures coincided with the passing of judgment suggests some internal connection. This, however, would mean that very dubious and most unwelcome consequences have resulted from the proceedings which were legally perfectly correct. If, from the communication of the Reich governor, which is reproduced above, the receiver was apt to gain the impression that here his decision as a judge was being influenced by high quarters, the same might be said, only to a larger degree of the measures taken against the two lay judges. Such action as was taken against lay judges after the verdict was returned, would naturally leave them under the impression that they are responsible before a certain authority for all their actions, carried out in their line of duty while acting as judges. This would destroy judicial independence, a factor which until now had been considered the basis of an orderly administration of justice. Apart from that the lay judge who when commencing his duties is made to take an oath that he will vote to the best of his knowledge and belief will in this way be subjected to great inner conflicts. The consequences resulting from such measures against the prosecutor would be no less serious. This official also would be faced by great conflicts in the performance of his duty. Thereby the orderly unbiased work of the legal authorities would be endangered to such an extent that I would feel it my duty to examine, whether under these circumstances it is at all possible for public prosecutors and judges to be party officials or members of the SA.

It therefore seems necessary--

1. That in the above case the perplexity caused by these
measures should be removed by some suitable countermeasures, and

2. That provisions be made to avoid the renewal of such
occurrences which are incompatible with the administration
of justice and therefore with the security of legal right
guaranteed by the State.

I beg to let me have your opinion concerning this matter and to inform me of the measures taken over there. In view of the importance of the case I should welcome a speedy settlement.

Heil Hitler!

[typed] signed: DR. GUERTNER

2. Letter to the Chief of Staff of the SA of the NSDAP with the copy
of the indictment attached

insert page 1 Secret!

Enclosure: 1 separate document Personal!

Dear Chief of Staff:

In the above-mentioned criminal case, where severe ill-treatment of prisoners in protective custody at the Hohenstein/Saxony internment camp is the subject of the indictment, the trial took place before the 12th Great Criminal Panel of the District Court in Dresden between 20 March and the middle of May 1935. Regarding the details of the incidents on which proceedings were based, I beg to refer to the enclosed copy of the indictment, dated 25 October 1934, and particularly to page 21 of the result of the inquiry.

On 3 May 1935 the prosecutor, Public Prosecutor, Dr. Walther, proposed the following sentences:

insert page 1 and 2 up to

News was received here that the prosecutor, Public Prosecutor Dr. Walther, an SA man, had been approached by his Obersturmfuehrer after the sentence had been passed, suggesting that he withdraw from the SA. The fact that this measure coincided with the passing of judgment suggests that there might be some internal connection between the two. This, however, would represent a very dubious and most unwelcome result of the procedure, which was legally perfectly correct. As a result of such measures the officials would be faced by the greatest of conflicts in the performance of their official duty. This would endanger the orderly unbiased work of the legal authorities to such a degree that I consider it my duty to examine whether under these circumstances it is at all possible for public prosecutors and judges to be also party officials or members of the SA.

It appears therefore necessary--

1. That in the above case the perplexity caused by these
measures should be ended by some suitable countermeasures, and

2. That provisions be made to avoid the renewal of such
occurrences which are incompatible with the administration
of justice and therefore with the security of legal rights
guaranteed by the State.

May I ask you to let me have your opinion regarding this matter and to inform me of the measures taken over there. In view of the importance of the case I should welcome a speedy settlement.

Heil Hitler!

[typed] signed: DR. GUERTNER

3. To the Minister, secret

4. 2 weeks

TRANSLATION OF DOCUMENT NG-323
PROSECUTION EXHIBIT 32

LETTER FROM THE REICH MINISTRY OF JUSTICE TO PUBLIC PROSECUTORS, 10 MARCH 1937, CONCERNING COLLABORATION BETWEEN PUBLIC PROSECUTORS AND THE GESTAPO AND ENCLOSING A CIRCULAR DECREE OF HIMMLER ON THE SAME SUBJECT

D.RM.d.J. [The Reich Minister of Justice] 4606--IIa^3 146/248

Berlin, 10 March 1937
Metallblatt [offset printing]

To the
Chief Public Prosecutor
at the Kammergericht[207] and
to the Chief Public Prosecutors
at the Courts of Appeal
(with------* copies for the Public Prosecutors)

[Handwritten]* insert figures from distribution plan below.

[Stamp] received at office 11 March 1937

[illegible handwritten notes]

[Handwritten] according to distr. plan forwarded 17 March 1937

Concern: Collaboration between the office of the public
prosecutor and the Gestapo.

[Handwritten] (Copy Circular letter Reich Leader SS of 18 March 1937)

1 Enclosure forwarded 17 March 1937

For your information I forward the enclosed copy of a circular decree of the Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior of 18 February 1937.[208]

In order to have this decree fulfill its purpose and in the interest of the closest possible collaboration between the office of the public prosecutor and the authorities of the Gestapo, I hereby issue this supplementary order that in future public prosecutors routinely address all requests for investigations to be conducted on the basis of reports of political nature received by them directly, to the local and district police authorities _via the competent State police offices_. When in cases based on such reports the necessary interrogations of the accused or the witnesses are procured by the court itself or by the expert of the prosecution, and the police authorities are not at all involved in the proceedings, I request that State police offices be informed of the proceedings as soon as possible. If, because of the urgency of a matter, the transfer of files is deemed inadvisable, the State police office is to be informed when the proceedings are instituted and if the occasion warrants, a copy of the indictment is to be submitted.

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Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume IIIChapter XXXII: Section 3: (Concerning Articles 3 and 4) (5)

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