V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE (continued 11)

Q. Ferber charges you generally, and particularly, in the case Katzenberger.

A. I intended to add, that it is therefore quite certain that at that session I also stated my opinion concerning the problem of race defilement on the basis of the doctrine of the State and on the basis of the legal system, and on the basis of our political and legal foundations. That I also discussed the danger in the manner that these things were regarded at that time according to the legal situation, the danger arising from the mixture of races to coming generations, that I consider to be a fact. What words I used and what thoughts I may have expressed in detail in discussing these matters, that, of course, I could no longer tell today. But what I object to is the assertion that these may have been statements of the level of the “Stuermer;” and with absolute certainty I should like to exclude the possibility that in that connection I demanded any physical destruction. That, according to the law, would not have been possible. That, of course, based on the fact of the war which went far beyond any racial point of view.

*******

Q. The witness Seiler in her direct examination testified that she and the defendant Katzenberger had denied under oath at various times those relations. Was Katzenberger heard under oath?

A. No, he was not heard under oath. That was not admissible under German law because German law holds that the defendant had to be entirely free to use all possibilities for his defense. That is considered a certain guarantee to aid in finding the truth.

Q. The witness Seiler also stated in her direct examination that the judge, Rothaug, used the assumption of her guilt as the basis for the entire conduct of the trial. The reason for that discrimination in her opinion had been that Rothaug did not want to hear any answer. Did you examine the witness Seiler thoroughly?

A. Of course, she was examined thoroughly, and I may point out—and that can be found also from reading the opinion—that this was a so-called case of circumstantial evidence, that a large number of individual situations of more or less importance were compiled in order to make it possible to reconstruct the circumstances which were of importance for the evaluation; and it was always like that, and it was no different in this Katzenberger-Seiler case, that I discussed with the defendants every phase and every little detail; not only in order to completely clarify any particular action, that of course, was the main purpose; but beyond that it was of importance to establish what the point of view of the defendants was, and how they described matters; that is the reason why that matter took a day and a half, and in addition to that, after the examination of every witness who offered something new, again the two defendants were heard thoroughly concerning the new situation. At any rate the evidence which was taken as the basis for the judgment, was discussed in all possible detail.

*******

Q. Among the judges concerned during the deliberations, was there any doubt about the guilt of Katzenberger?

A. I remember the deliberations very well. That conference was as peaceful as could be; for in the course of the trial, which lasted a day and a half, the entire occurrence, as far as the facts were concerned based upon the statements of the defendants and on what the witnesses testified to, had developed into such a clear picture that there could not have been any differences of opinion; and, after a very short time—and I remember that very well also—we arrived at a decision and actually started to write the judgment down, but considering the importance of the case, we extended the time for deliberations so that the impression should not be given that we wanted to pronounce a hasty decision. There were no difficulties at all, the reason being that the facts themselves were of compelling logic, and that anything else which was the consequence of the facts just arose from them logically and in the way one had to evaluate those things at that time, and of course, we could not evaluate it based upon any different philosophy.

Q. Which motions were made by the defense counsel?

A. I would like to say with certainty that one of the defense counsel, without being able to tell who it was, made an attempt in the direction of a lenient sentence, and he was trying to combat its evaluation as a serious case, but there was no doubt left about the basic facts in the case. That is the way I remember the case, and it must have been like that; and that was also manifest by the calm deliberations where no points of argument came in existence.

Q. Was any one of the associate judges of a different opinion concerning the extent of punishment? Did any one of them vote against the death penalty, for instance?

A. The core of the question from the very beginning was the following.

Presiding Judge Brand: Let me ask you a question. Did all of the judges vote for the death penalty? Answer yes or no.

Defendant Rothaug: Yes, absolutely.

Presiding Judge Brand: Next question.

Dr. Koessl: At that time, among the jurists around you—but those who were not in direct contact with the case—were there any discussions about that sentence?

Defendant Rothaug: In no way at all. That sentence was never criticized in any way or considered doubtful by jurists who were not connected with the case which would normally be possible.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[422]

DIRECT EXAMINATION

*******

Dr. Wandschneider (counsel for defendant Rothenberger): We come now to a new subject which plays an important part within the scope of national socialism; that is, the Jewish question. Will you please tell the Tribunal quite generally what your point of view is concerning the Jewish question.

Defendant Rothenberger: Concerning the Jewish question, there were in the NSDAP already before 1933 two factions which opposed each other. One was the so-called Streicher wing which put the racial problem in the foreground. The other wing was the so-called social wing, led originally by Gregor Strasser. Gregor Strasser, already as early as the end of 1932, went into open opposition, and in 1934 was killed together with Roehm. Among the men who emphasized the beliefs of that social group was Kaufmann. That was conditioned by the fact that in Hamburg, of course, social problems played an important role. The Jewish question did not play the same part in Hamburg as in many other parts of the Reich. One reason for that was that on account of a large Portuguese immigration in Hamburg, the connection to western Jewry had been very strong for centuries; particularly the so-called good old Hamburg families are greatly mixed by intermarriage. Furthermore, it was due to the fact that the people of Hamburg are generally more tolerant in their basic temperament.

Another indication of the attitude of the people of Hamburg to the Jews was, for instance, that the display of the so-called Stuermer boxes in Hamburg was prohibited by Reichstatthalter Kaufmann. I, of course, officially and also privately was in close contact with Jews. I knew the advantages and disadvantages of Jewry.

Q. Now, of course, it is known to you, Dr. Rothenberger, that the Party program ambiguously states its position to the Jewish question. I assume you knew the Party program at that time. Could you comment on that as to what thoughts you had concerning the attitude the Party would take to the Jewish question?

A. In the beginning of 1933, I believed that just as in many of the Party platforms many points are made which later do not play an important role. Gradually, however, I realized that the general line became more severe. It is beyond doubt that any German under the influence of propaganda considered a limitation of the Jews in cultural and spiritual life absolutely required, and so did I. But what was generally rejected in Hamburg was any method of violence, any economic exploitation and any kind of hatred. As for the general line, such as it developed gradually in Germany, I could not change anything anymore. In each individual case of my personal and official sphere of influence, individually and from the human point of view, I helped.

Q. In connection with this question, the pogroms against Jews of November 1938 play a part. Will you please state to us what experiences you have made of these pogroms and what your attitude was.

A. On the day before the pogroms—that is the night before—by way of rumor I heard of the intention that Jewish shops were to be looted. There again to obtain information I got in touch with the Reichstatthalter Kaufmann who told me that he had asked for information in Berlin because he had also heard about it, and he had already alerted the Hamburg police too. He had posted them before the Jewish shops so that nothing should happen, and in fact, in Hamburg nothing did happen with the exception of a few individual cases. About that, in the document submitted, NG-629—

Q. I refer to Document NG-629, Prosecution Exhibit 28[423] which has already been mentioned.

A. It also mentions that due to the attitude of Reichstatthalter Kaufmann, nothing happened.

Q. Will you please discuss now the question of the legal position of Jews, as far as you had to do with it.

A. As for the legal point of view, of course in the course of years many instances of conflict occurred to everyone; also to me. In a meeting in Berlin about various legal questions negotiations were made, and the result of these negotiations as far as it concerns questions of civil law was passed on by me to the subordinate courts. As far as matters of penal law were concerned, it was passed on by the General Prosecutor at Hamburg. The opinion which the Ministry stated at that time in matters of civil law was just about in accordance with my own opinion.

Q. Here again we are concerned with Exhibit 28, which has already repeatedly been mentioned; specifically the point of view of the Ministry which Dr. Rothenberger mentioned and which he shared and passed on to the subordinate officials can be found on the last page of Exhibit 28.

A. If I may be permitted, I would like to point out that during the same press conference I mentioned two further points; one the question of sensational reports in the press about trials, where I promised to get in touch with the competent agencies to see that such sensational reports would have to cease; and the other concerning the speed of signing the sentences. I pointed out that no pressure should be permitted to be exerted on judges so that they should be given an opportunity to work on their opinions in all peace and quiet.

*******

Q. Dr. Rothenberger, we will now go over to another subject. Now we are going to deal with the beginning of the war. I want to ask you about the Jewish problem which we have already discussed. In what way did the Jewish problem develop after the outbreak of the war, as far as your opinion goes.

A. The outbreak of the war increased the difficulties of the Jewish problem in Germany considerably. The situation became considerably more acute, and in particular under the influence of propaganda. Under that influence, naturally difficult legal conflicts arose as far as the situation of a Jew in court proceedings was concerned. Previously, as Dr. Schlegelberger emphasized, already there had existed separate welfare institutions for Aryans and non-Aryans. There was the NSV for the Aryans, and there were separate welfare institutions for the non-Aryans. For the jurisdiction, that resulted in complete uncertainty on the part of the judges as to the question whether a Jew can be allowed to conduct proceedings without paying costs. There were courts which granted that privilege; there were other courts that did not. I considered that a uniform jurisdiction on these matters was necessary. Naturally I was not uninfluenced by the situation then prevailing; and, therefore, I supported a proposal to the Reich Ministry of Justice that a uniform jurisdiction should be developed to the effect that such privileges were not to be granted to the Jews. The importance of those privileges concerning costs and nonpayment of costs has been characterized by Dr. Schlegelberger who said that the State makes an advance which the person concerned has to pay back, that is to say he is not exempted from paying costs caused by court proceedings. The prosecution in submitting evidence read out a sentence which is supposed to have originated with me. I only want to correct the matter to say that Document NG-589, Prosecution Exhibit 372,[424] shows that that sentence is not mine, but was phrased by the Gau economic adviser. The other exhibits which refer to that question are NG-392—

Q. Dr. Rothenberger, may I interrupt you for a moment so that we can quote the correct exhibit numbers to the Court? They are Exhibit 373,[425] Exhibit 462,[426] and Exhibit 372. Would you please continue?

A. The only thing I can add is that it happened fairly frequently, and that it appears altogether understandable that the Jews in order to avoid having their property confiscated upon their emigration, transferred their property to somebody else in a fake transaction. Thus, the whole problem became more complicated and more difficult for the courts.

Q. In what way were you concerned with curtailment of Jewish legal rights which emerged in the subsequent period?

A. I had to deal with that question once again in the spring of 1943. At the end of April, Thierack one day asked me to go see him and told me that on the same day a discussion would take place, a so-called conference of under secretaries. That conference was to be held at the Reich Ministry of the Interior. I believe I had no knowledge of those developments until then.

Q. May I interrupt you, Dr. Rothenberger? At the moment we are concerned with Document NG-151, Prosecution Exhibit 204,[427] which Dr. Rothenberger wants to discuss. This Exhibit 204 is composed of a number of letters in which a draft on curtailment of legal means and legal recourse for Jews is discussed and in which various ministries give their views. Will you tell us, please, whether you had anything to do with that matter?

A. Until that conference I had nothing to do with the previous history. That is due to the fact that the first draft originates from a time before I had assumed office. It is dated 3 August 1942, and it is signed by Dr. Freisler. The second draft is dated 13 August, and that also was before I assumed office. As this was a matter concerning penal law I was not informed about the developments during the subsequent period. As I can see from the documents now, in September 1942 the so-called GBV, the Plenipotentiary General for the Reich Administration—that was the Reich Minister of the Interior—was in charge of the drafting and conference which I have mentioned took place at the Reich Ministry of the Interior.

Q. Would you tell us something about the course of the conference of April 1943?

A. Thierack, before I went to the conference, handed me a draft. That was the draft by the GBV of 25 September 1942. That was already 6 months old by that time because the conference took place in April 1943. I was annoyed anyhow that I was now to deal with a matter the previous history of which I did not know. I had a look at the draft in Thierack’s office and when I had read it, I said to him that I was against such far-reaching restrictions.

What seemed embarrassing to me, in particular, was the provision that if the Jew was not to swear an oath, he was yet to be punished for perjury. Thierack said to me that doesn’t matter. In his somewhat brusque and curt manner he said, “You will have to go there, for I am the minister and I cannot attend a conference of under secretaries.” That, as a matter of fact, was not the custom. I went to the Reich Ministry of Interior. To begin with, I maintained reserve, because I had not dealt with the matter beforehand. Then I heard from the others who were present there that they too were against such an ordinance. Thereupon, I said that that was my personal opinion, too. Of course, I could not say as to the minister’s decision. He was in favor of it, as he had told me beforehand.

Then the provisions of that draft were dropped. Only one person who was present objected; that was Kaltenbrunner. Kaltenbrunner said he had to attach a decisive importance to at least two provisions becoming law. He was referring to 2 provisions which, in effect for some time, had already been applied, which however, required subsequent legalization. One provision was that the property of a Jew who dies goes over to the Reich. He said—as is evident in detail from the exhibit—that until now Jewish property in the case of death had been regarded as so-called property of an enemy of the State and had, therefore, been confiscated all along. But he would like to have a legal provision, because that would constitute a technical administrative simplification.

That provision, as I see from the file, had not been incorporated into the draft before by the Reich Ministry of Justice, but by the Reich Ministry of Interior. It appears for the first time in the draft of 25 September 1942. The Ministry of Justice, thus, did not deal with it. The second provision—

Presiding Judge Brand: Would you mind telling us what happened to that provision?

Defendant Rothenberger: Yes. That provision did become law afterward. Yes, I meant to say that.

The second provision which Kaltenbrunner wanted to become law and considered necessary was a provision, which has already been discussed here, and it concerned handing over the penal jurisdiction over Jews from the administration of justice to the police. As far as I was concerned that resulted in an entirely new situation, for that provision was not contained in the previous draft. I felt I could not assume any responsibility for such a provision, all the more so as I had no formal competence for penal matters. I would have to report to the minister as I had been requested by him to do.

Dr. Wandschneider: Did you make a report to Dr. Thierack?

Defendant Rothenberger: I went to see Thierack on the same day, and I told him that he had now for the second time confronted me with a very embarrassing situation, by bypassing me in a fundamental question of the administration of justice which did not concern me formally, but which concerned me as a jurist and as a human being. I could not assume the responsibility and I offered him my resignation.

Thierack was very angry and said, “I shall decide the day when you will leave the office.” In saying that, he referred to the compulsion to which all of us were subject in time of war, that is to say, the compulsion of not being able to leave our service voluntarily.

He then added ironically, “For the rest—in the future you will have nothing to do with penal matters even when I am away for I have already asked Lammers to appoint a second under secretary,[428] and I shall get some help that way.” I mentioned these facts briefly in another connection this morning.

Subsequently I had nothing to do with the ordinance. I merely read that later, on the first of July 1943 with both provisions; it took effect. I felt unfree, and from that time on I stuck all the more to the one task, which still remained to me, that is, the task of the administration of justice proper; the strengthening of the judiciary.

*******

CROSS-EXAMINATION

*******

Mr. King: Dr. Rothenberger, the document which has been placed before you is NG-1656 [Pros. Ex. 535].[429] It is an information for the Fuehrer report. I would like to, with your concurrence, read it. You say—“After the birth of her child a full-blooded Jewess sold her mother milk to a pediatrician and concealed the fact that she was a Jewess. With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception. The buyers of the milk have suffered damage for mother’s milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for, so that the parents who were unaware of the true facts need not subsequently be worried.”

Do you recall the origin of this particular document?

Defendant Rothenberger: I do not remember the facts. It is quite impossible that I wrote this, because I never drafted the Fuehrer Information. I do not even remember whether it ever came to my attention later. I ask to be shown the original of that Fuehrer Information.

Q. I will be very happy to do that, Dr. Rothenberger. Is that your initial?

A. That shows that I have seen it later, but not at all that I was the author. It can be seen from the original, naturally, that the Fuehrer Information had neither a date nor a signature and the Fuehrer Information also shows that there is a notation on it “to the Under Secretary”—for information, that means. As I can see from the initial, it apparently came to my attention without, however, identifying myself in any manner with the contents of that Fuehrer Information.

Q. Have you finished, Dr. Rothenberger?

A. Yes.

Q. Your feeling, of the moment, is that you had nothing to do with the authorship of this document?

A. I consider it quite impossible that I would have identified myself even at that time with such an opinion.

Presiding Judge Brand: I have a question of information. Would your initials have been placed on it before or after the distribution of the document?

Defendant Rothenberger: Whenever such Fuehrer Informations were sent out—and I cannot see that that was the case—then they were afterward brought to my attention.[430]

*******

EXTRACT FROM THE TESTIMONY OF DEFENDANT OESCHEY[431]

DIRECT EXAMINATION

*******

Dr. Schubert (counsel for defendant Oeschey): I am now coming to the subject of violent criminals and the first case I want to refer to is the case of Kaminska and Wdowen. The prosecution introduced Exhibit 201, which included extracts from the official files.[432] The prosecution also introduced affidavits, Prosecution Exhibits 229, 235, and 635.[433] Finally there is the witness Gros[434] who was heard on those cases (Tr. p. 2828). Please comment on it.

Defendant Oeschey: The account given of that case by the witnesses who were heard on it gives the impression as if Kaminska had been convicted merely for having thrown that stone, but that was not the case.

What was of great significance were the events which had preceded that attack which are not mentioned by the witnesses, but which were the factors which made that case so grave that led to its being evaluated as the crime of a violent criminal.

The witness, in giving an account of that case, omitted to mention that the offense began with an act of blackmail committed by the two defendants for they approached their employer, whose name was Gundel. He was an old weak man. They asked Gundel for money to which they were either not entitled at all or to which their title was extremely doubtful. And when Gundel asked that they should give him some more time, they tried to force him to give them the money by attacking Gundel, that is to say, the defendant Wdowen attacked Gundel and slapped his face. That explains why Private Wanner appeared on the spot and intervened. That factor, too, was omitted by the witnesses and that is why it was not made clear that Wanner came to the aid of Gundel and in doing so Wanner limited himself to asking the two defendants to leave Gundel’s room. But the witnesses omitted to mention that the two defendants now assaulted Wanner who after all had behaved absolutely correctly, and Kaminska when Wanner had been able to ward off the first attack took up a hoe and tried to attack Wanner with that hoe, and Wanner was only able to evade that blow by showing presence of mind and closing the door which happened to be between him and Kaminska. Shortly after Kaminska threw a stone—

Presiding Judge Brand: Wait a minute. If I remember correctly, you are merely reviewing now the findings which are contained in the transcript of the case and which is in evidence. We have examined that.

Defendant Oeschey: I merely wanted to explain that the whole of that action did not consist of isolated facts but that it is necessary to evaluate all those facts together in order to comprehend the legal evaluation of the offense as a whole.

Dr. Schubert: Witness, I now ask you to tell us what was the nationality of those two defendants.

Defendant Oeschey: Wdowen’s nationality I am afraid I can’t remember. The Kaminska woman was a Pole. Anyway, I don’t think Wdowen was a Pole.

Q. Well, what was he?

A. He was a Ukrainian.

Q. On the basis of what provision did the prosecution file its indictment?

A. The prosecution filed an indictment on the basis of part I, section 4, Number 1 of the law against Poles.[435]

Q. Against whom?

A. Against both defendants. If I am right—well, I am not quite sure whether my memory serves me well—(document handed to witness). Against Kaminska the indictment was based on part I, article 4 of the law against Poles and with Wdowen it was based on a crime of having aided in somebody else’s crime, articles 4 to 7 of the law against Poles. Also she was convicted on the basis of having offended against article 4 of the public enemies law.

Q. You saw that in the official court files?

A. Yes, I saw that from the original files of the Nuernberg Special Court, SG 256/43.[436]

Q. Both the witnesses Pfaff and Gros today draw back from this judgment.[437] Gros said that he voted against it. Pfaff wasn’t clear in what he said about it. My first question to you is this. Did you in any other case announce a judgment without having had at least one associate agree with your view, as provided by law?

A. No, I never did that.

Q. Did you force Gros and Pfaff to agree with you in passing the death sentence on these defendants?

A. In this case they were as free in their decision and in their opinion as I left them in every other case.

Q. What did the court say of the offense against the woman, Kaminska? Was the decision in accordance with the indictment?

A. No. The court did not convict Kaminska under article 1, section 4, No. 1 of the law against Poles and among us judges there was a fairly long discussion on that point. That is to say, we debated the question as to whether the offense of Kaminska could be sentenced under the provision of the law against Poles which I have just mentioned. As far as I remember the associate judge, Pfaff, was inclined to answer that question in the affirmative. Gros, as well as myself, however, had doubts about that. That legal provision assumes that the violent crime was directed against a member of the armed forces in which case the death sentence becomes mandatory. But in view of the entire facts of the case it appeared doubtful whether Kaminska, in committing her offense, had realized at all that the person she was attacking was a member of the armed forces. According to the facts, that element did not play a part. In the view of Gros and myself, therefore, the elements needed for convicting a defendant under part I, section 4 of the law against Poles were lacking. The further examination had to discover whether the offense was to be sentenced under article I of the decree against violent criminals of 5 December 1939.[438] That question, too, we debated at great length and that is a point which I remember. We scrutinized quite a number of decisions made by the Reich Supreme Court and studied a number of commentaries. As far as I recollect, neither of the associate judges had any doubts about that view.

With these Reich Supreme Court decisions the legal questions had been clarified beyond all doubt.

Q. Witness, is it correct that Kaminska was not convicted under the law against Poles?

A. Kaminska, as the law against Poles prescribes in paragraphs II and III, was convicted under the decree of 1939, the decree against violent criminals, which applied to all violent criminals in Germany, and she was convicted under that law as concerns the question of her guilt as such and as concerns the sentence.

Q. The witness Gros testified that she had been convicted for racial and political reasons. What do you have to say to that?

A. That is altogether untrue. The decision was based solely on the logical application and interpretation of the law in accordance with the decisions of the Reich Supreme Court while taking into consideration the particularly difficult and dangerous conditions prevailing in the rural districts in wartime. Such points of view as those of race and biology and whatever else you may call them, as I pointed out yesterday, played no part whatsoever in any of my decisions and judgments.

Q. And you will now tell us something about the Wdowen case. The witnesses Gros and Pfaff evidently tried to minimize that offense. What do you have to say to that?

A. The facts of the case can be seen from the judgment which is available to the Tribunal, and I therefore need not to go into any detail. Apart from the fighting and the aid given by Kaminska, this was a very violent and altogether unusual attack against the policemen; it was a kind of attack on the policeman who had arrested the Kaminska woman, and Wdowen was trying to get the policeman to release his grip on Kaminska. Gros and Pfaff as witnesses disputed that fact; one can only refer to the fact that Wdowen himself never disputed his own intentions and his motives.

Q. What was the legal evaluation of the Wdowen offense?

A. That offense by Wdowen was considered by the court as a crime under article IV of the decree against public enemies[439] and the indictment had given the same evaluation. I should like to point out that assaults of that nature against police officials ever since the beginning of the war, and that is by all courts who tried such crimes, had been sentenced under the same provisions, that is to say under article IV of the decree against public enemies. As a rule, the Wdowen case is by no means an exception. The need to protect particularly rural districts and the need which became greatly increased due to the wartime conditions, and such need for protection was due to the fact that the police was very short of staff, and, because of all that, an attack of that kind on the police—who worked under very difficult conditions—always resulted in a very severe penalty.

Q. Was the law against Poles applied in the Wdowen case?

A. No, it wasn’t. Only article IV of the law against public enemies.

Q. Was the Wdowen case the subject of differences of opinion at the consultations?

A. As far as I remember, it wasn’t.

Q. Did the prosecution consider both defendants as meriting the death sentence?

A. The prosecution from the very beginning considered that the death sentence should be asked for both defendants, and accordingly, it informed the Reich Ministry of Justice before the indictment was filed. The Reich Ministry of Justice concurred with the view of the prosecution and approved it.

Dr. Schubert: I am now passing on to the next case of violent criminals.

*******

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ALTSTOETTER[440]

DIRECT EXAMINATION

*******

Dr. Orth (counsel for defendant Altstoetter): Do you remember Prosecution Exhibit 204, Document NG-151?[441] That document is concerned with the events which lead up to the 13th decree concerning the Reich Citizenship Law.[442]

Defendant Altstoetter: Yes.

Q. In article II of the draft, it was provided that when a Jew died his property was forfeited to the Reich and that for non-Jewish heirs and persons who were entitled to alimony, a hardship clause should be added, is that correct?

A. Yes.

Q. The treatment of hereditary provisions according to the plan for the distribution of work was to be dealt with by Department VI of the Ministry of Justice.[443] In connection with the intended contents of the provisions in article II of the draft, could that not justify a conclusion that you and your department had something to do with that decree?

A. No, the order that Jewish property was to be forfeited to the Reich in case of death of a Jew was not a hereditary ruling. It was a matter of police confiscation and that concerned only the Ministry of the Interior and only that Ministry was responsible. That is evident too from the document itself and that from the final draft, no, not the final draft, the draft before the final draft, which shows that the provision of article II, section I, originated with the Ministry of the Interior.

Q. I am now going to show you the text of the 13th amendment of the Reich Citizenship Law. Please have a look at article II of the decree. On the basis of this provision, do you have further indication that Department VI did not have anything to do with the promulgation of this decree? A. Yes, the wording of these provisions, already in article I, because if Department VI, I mean the section that dealt with hereditary law, had had anything to do with this decree, they would have chosen the version which existed in the civil code for hereditary rights of the State [Fiskus][444] which is provided there for special cases. I am referring to article 1936 in the civil code, which has always existed. Furthermore, the provision under article II shows that hereditary rights of Jews and non-Jews, [benefiting from the will] of a deceased Jew as such were not affected. Otherwise, one could no longer have spoken of persons entitled to inherit. According to that provision, or rather in spite of that provision, for example in the case of a mixed marriage, the Jewish partner of the marriage could be or become heir to the non-Jewish partner. In the case of hereditary settlements, provisions would have had to be made concerning the rights of third persons, that is to say, non-Jewish subsequent heirs. Furthermore, we would have had regulations concerning the legal validity of transactions among living people, concerning the part of the estate not comprised by inheritance regulations. Section II also mentioned non-Jewish persons entitled to receive support from the deceased, although generally in the case of death any obligation to look after the maintenance of third persons comes to an end.

Q. If Department VI had had anything to do with the 13th decree, what Referent of the Department would have dealt with it?

A. Ministerialdirigent Dr. Hesse, Ministerial Counsellor Rexroth, or Ministerialdirigent Dr. Stagel would have dealt with it in that case.

Q. Did Department VI have anything to do with the handling or carrying out the 13th decree?

A. No.

Q. Did you or Department VI at a later time have anything to do with the handling of Jewish hereditary law?

A. Yes, in 1944 the Minister of the Interior approached the Reich Ministry of Justice with a request concerning an executory order of the 13th decree, to incorporate in it provisions, which were to change or amend article II of the Reich Citizenship Law. The ministry of the Interior had recognized that article II had certain defects, and therefore asked us to find a solution concerning the hereditary law. I objected to this request from the Reich Ministry of the Interior, although the Minister of Justice was of different opinion.

Q. Do you know how that matter developed further?

A. As for the details of the subsequent development I do not remember them, but one thing I remember for certain, Hesse, with my consent, when Thierack the Minister of Justice had declared himself ready to collaborate in the preparation of this executory order, contacted the competent Referent of the Ministry of the Interior, and convinced them that the provision, purely technically, for the Reich Ministry of Interior, amounted to a basic change of the previous decree, that is to say the 13th decree. He also told them that we didn’t want to have anything to do with this matter. The Ministry of the Interior then withdrew its request, and I was told by Hesse that the matter of a Jewish hereditary law would now be dropped. In effect, an executory order in connection with the 13th decree concerning the Reich Citizenship Law was promulgated on 1 September 1944, and that by the Ministry of the Interior alone without any participation of the Reich Ministry of Justice and without incorporating the provisions concerning article II of the 13th decree, which had originally been requested.

Q. In summing up, Witness, I should like to ask you, is it correct that Department VI, during your term of office, did not participate in the making and carrying out of laws concerning confiscation of Jewish property and that during that time legal provisions about the exclusion of Jewish hereditary rights were not issued?

A. Yes, that is true.

Presiding Judge Brand: May I ask you concerning that. I am wondering if I have the correct understanding of your testimony. Do you intend to say that this 13th decree did not change the previous law of inheritance, the rights of inheritance, but that the only effect was to provide for police confiscation, is that right?

Defendant Altstoetter: Yes, yes, quite. That is my opinion.

Q. Well, was it your opinion that the provision for police confiscation was invalid?

A. Invalid? Invalid, no, not invalid.

Q. The courts which had to do with matters of inheritance in general were courts with which your department had dealt, were they not?

A. Yes, Your Honor.

Q. Well, when a question of inheritance under the general law came up in the courts in which they were confronted with this 13th decree concerning police confiscation, what did the courts do?

A. I got to know of only one single case which may be connected with this problem, and I am thinking of a case of recognition of the right of subsequent inheritance. The district court of appeals and the seventh civil senate of the Reich Supreme Court at the time decided that the right of subsequent inheritance remained legal and that regardless of the provisions which had been issued in connection with the Jewish problem, the estate, if a case of subsequent inheritance occurred, would have to be passed on to the subsequent heir. Other cases, I do not remember.

Q. Was that the equivalent or did it amount to holding that the decree for police confiscation was invalid?

A. I am sorry. I did not understand.

Q. The Supreme Court apparently refused to apply the provisions of the decree for police confiscation, did it not?

A. I can’t say for certain. If I remember rightly the Reich Supreme Court, concerning the question of the validity of that decree did not express its opinion at all.

Q. Well, it didn’t enforce the decree, did it?

A. No, the Reich Supreme Court said, the subsequent heir who comes after the immediate heir is not affected by that decree, and therefore, his rights remain his rights.

Q. And who was the subsequent heir? Was he a Jew?

A. All I remember is his name. Whether he was a Jew I don’t know, but I don’t think he was. Probably he was non-Jewish.

Q. Well, what was your opinion as to what a court could do when the law of inheritance provided that one person should receive the Jewish estate and that the decree for police confiscation provided that the property should be confiscated?

A. In practice it was like this. The law of inheritance remained as it was from the point of view of legal theory; but the property left by a Jew which was forfeited to the Reich when the Jew died, however, no longer existed.

Q. It existed. You don’t mean it vanished in the air? You mean it was—

A. No, that is to say, it had now gone to the police or to the finance office, they had now taken into their hands the property left by the Jew.

Q. Then I take it in practice the courts did not enforce what you have stated would be the valid law of inheritance?

A. I assume that such cases did not come before the courts.

Q. Well, didn’t matters of inheritance in general as to the Germans come before the courts?

A. Yes, yes they did.

Dr. Orth: I think that is all.

*******

Dr. Orth: Please explain briefly to the Tribunal what one understands under German law by “matters of descent.”

Defendant Altstoetter: The fact that from the biological point of view a certain man has fathered a certain child is under the German civil code, the decisive criterion for the status and the legal position of the child, and therefore, also for the rights and claims of such a child. However, as we know, it is frequently difficult to establish the true biological descent of a child, and it was particularly difficult at the time of the promulgation of the civil code. Pursuant to the achievements of biological science, the German legislator had established certain legal suppositions concerning the legal descent. On the basis of those provisions the biological descent and the legal descent not infrequently appeared to be different. As science progressed, in particular in the field of biochemistry, hereditary biology, and anthropology, after the civil code had come into force, more and more reliable methods of science were discovered in order to prove or at least exclude biological descent of a child from a certain father. As a result, litigations between father and child became more and more frequent concerning the true biological descent, that is to say, concerning the question as to whether the legal father was also, biologically speaking, the child’s father.

Under German law, all those cases of litigation are described as matters of descent. A partial complex is formed by those cases where Jews and persons of mixed descent, in the majority already adults, wanted the matter clarified in a court for themselves or their progeny, that contrary to the legal supposition, biologically and consequently also legally, they were not—or, at any rate, not to the extent that had been assumed—the children of a Jew or a person of mixed descent.

*******

Presiding Judge Brand: Could you tell us in a few words what, if anything, your Department VI had to do with matters pertaining to descent cases such as you have described them?

Defendant Altstoetter: Those descent cases played a great part from the point of view of my department exercising supervision. I shall revert to that matter quite briefly.

Q. Over whom or over what did you exercise supervision?

A. The Ministry of Justice, because of the treatment to be accorded to such descent cases constantly received complaints, in particular, complaints stating that these proceedings never made any progress. Furthermore, and I shall revert to this, too, we received complaints—

Q. That doesn’t answer my question. I am sorry to interrupt you. Your department exercised supervision in matters pertaining to descent. Over whom did you exercise supervision?

A. We had that supervision over the courts and over the public prosecutors.

*******

Dr. Orth: Witness, will you please comment again on Exhibit 453?[445]

Defendant Altstoetter: Here I have to say first, briefly, that the descent cases which I have just mentioned, especially the right of the prosecution to raise charges in descent cases, since the so-called laws concerning Jews were issued, were used as a means for Aryanization as we called it. In cases, that is to say, where a man who according to the law was considered to be a Jew was of the opinion that he was not to be considered a Jew, he himself filed a claim for the establishment of the fact that he was not a Jew, that is, that he was not a descendant of a Jew. Or if his right to file that claim or the right of his father to do so no longer existed because the term to do so had expired, he went to the public prosecutor to make the public prosecutor file this claim. The latter was the case when a suit was filed in order to challenge the legality of a marriage. Now in cases where these claims were filed in the course of the war, particularly during the last years of the war, considerable difficulties arose. I only want to mention two, but there were more of those. One was the lack of experts in the field of genetics which was caused by the war. The other reason was the thing that had occurred with the courts in Vienna. In other courts it did not occur, as far as I know. There in Vienna a particular difficulty arose owing to the fact that the police, as far as Jewish witnesses for these descent trials were concerned—in most cases it was a question of so-called witnesses for the investigation or witnesses for the purpose of comparison—that the police, as I said, for reasons of security had removed these witnesses and now refused to produce them or to release them. That can be seen from the letter of the police of 3 May 1944, which is in this exhibit. Objections against the attitude of the police which were raised by the subdepartment chief, Ministerialrat Rexroth, in the course of a conference with a Referent, were only successful to the extent that the police consented in exceptional cases to produce witnesses if the Reich Minister of Justice expressly demanded that. Moreover, the police referred to the lack of means of transportation and escort personnel caused by the war. With matters as they stood, the Reich Ministry of Justice could do nothing else but to bring them to the attention of the courts in Vienna through the president of the district court of appeals. For the people concerned who desired to carry out by that suit, as I have called it, an Aryanization, the fact that these witnesses were not produced as a rule did not amount to any disadvantage. The persons concerned on their part, either if they had instituted the proceedings themselves in their own interest or if they had requested of the public prosecutor to institute proceedings, had themselves presented to the public prosecutor evidence for their assertion that they were not descendants of a Jew or a person of mixed Jewish descent. And if the court could not produce the expert opinions of geneticists which officially had to be produced and for which these witnesses for the purpose of comparison were needed, then the court could do nothing else but on the basis of the evidence which the Jews concerned had submitted, to decide, and that this evidence was in favor of the person filing the claim is obvious. And to that the remarks in Exhibit 453 refer, that one had to put up with it if in this manner the intentions to cover up for the true descent could not be prevented.

Q. Witness—

Presiding Judge Brand: Let me ask you this. Concerning these claimants suspected of being Jews but claiming to be Aryans, how far back did they have to trace their ancestry to prove that they were Aryans?

Defendant Altstoetter: They were not compelled to go far back. It sufficed to prove that either one of the parents was not Jewish, and if that could not be proved, they also could refer to the fact that other ancestors of theirs were not Jewish. The question as to whether a person was a Jew or was not a Jew was laid down in the meaning of the Nuernberg laws, these laws and the decrees to carry out these laws. But the suits themselves were not concerned with that, but subsequently the main thing was whether—

Q. Did they have to prove that their grandparents were not Jewish?

A. Mr. President, we have to distinguish here—

Q. Just tell me yes or no first, and then you may distinguish. Here is a man who claims he is an Aryan. He wants to prove it. What of his ancestors must he prove were not Jews? Can you answer?

A. Framed in this way, as far as these suits were concerned, I cannot answer the question because as far as these suits were concerned that question was of no importance.

Q. Was he an Aryan if his grandfather was a Jew?

A. He had two grandfathers and two grandmothers.

Q. Yes.

A. And there the distinction was made, but according to the Nuernberg laws, which were only of interest before the administrative authorities and not for these trials, the distinction was made whether he was one-eighth, one-fourth, or one-half Jew, that is to say, a person of mixed descent of that degree, or whether he was a full Aryan. But I say that that is a question which for carrying out these descent cases was of no importance.

Q. Will you tell me then, and do it briefly, because I know you can, what did the person have to prove in order to establish in a descent case that he was an Aryan?

A. It was established, Mr. President, that contrary to the legal assumptions, he was not the descendant of that and that father. Nothing else.

Q. That is, that he was not the descendant of his purported father.

A. Of the purported father according to the legal assumption.

Q. That is, if the father was a Jew.

A. If the father was a Jew.

Q. Then he had to prove he was a bastard. Is that what you mean?

A. Yes. If it was at all a question of legitimacy. There were such cases of descent also outside of marriage, illegitimate. These descent cases were not restricted to Jews. There were not at all any special regulations for Jews.

*******

3. NATIONALS OF THE WESTERN OCCUPIED COUNTRIES—THE NIGHT AND FOG DECREE

TRANSLATION OF DOCUMENT 671-PS

PROSECUTION EXHIBIT 304

LETTER FROM KEITEL, CHIEF OF ARMED FORCES HIGH COMMAND, TO MINISTRY OF JUSTICE, 12 DECEMBER 1941, TRANSMITTING HITLER’S NIGHT AND FOG DECREE AND ITS FIRST IMPLEMENTATION ORDER; INTEROFFICE MEMORANDUM REQUESTING TRANSMITTAL OF THE LETTER TO DEFENDANT SCHLEGELBERGER

Chief of the Supreme Command of the Armed Forces

14 n 16 WR (I3/4)

No. 165/41 g

(When answering, please refer to above file number, date and subject.)

Berlin W 35

12 December 1941

Tirpitzufer 72–76

Telephone: Local: 218191

Long distance: 218091

12/Hz

[Stamp] Secret

To the Reich Minister of Justice

Attention: Under Secretary Dr. Freisler

Subject: Prosecution of criminal offenses against the Reich or the occupying power in the occupied zones

3 enclosures

With regard to the oral conversation between Under Secretary Dr. Freisler and the chief of my legal section,[446] I enclose herewith a decree of the Fuehrer and Supreme Commander of the Wehrmacht of 7 December 1941[447] and an order for its execution of the same day.[448] I agree with the opinion of the State Secretary that the execution of the Fuehrer decree necessitates a close cooperation between the Reich Ministry of Justice and the Supreme Command of the Wehrmacht.

I instructed my officials to assist your agencies in every respect. I ask you to settle the question regarding the manner of imprisonment in your provision for the execution of decree.

[Signed] Keitel

Action taken by II a 118 and 119/42 g

II a 116/42 g

3 enclosures

12

received 26/1

Sch [Schlegelberger]

Ministerialrat Dr. Gramm, State Secretary Dr. Freisler asks to transmit the enclosed letter to State Secretary Dr. Schlegelberger for his information

[Signed] von Hackwitz

19 January 1942

PARTIAL TRANSLATION OF DOCUMENT 1733-PS

PROSECUTION EXHIBIT 303

SECRET NIGHT AND FOG DECREE OF HITLER, SIGNED BY KEITEL, 7 DECEMBER 1941, CONCERNING MEASURES TO BE TAKEN AGAINST PERSONS OFFERING RESISTANCE TO GERMAN OCCUPATION

Secret

The Fuehrer and Supreme Commander of the Armed Forces

Directives for the Prosecution of Criminal Acts against the Reich or the Occupying Power in the Occupied Territories of 7 December 1941

Since the beginning of the Russian campaign, Communist elements and other anti-German circles have increased their assaults against the Reich and the occupation force in the occupied territories. The extent and the danger of these activities necessitate the most severe measures against the malefactors in order to intimidate them. To begin with, the following directives should be observed:

I

In case of criminal acts committed by non-German civilians and which are directed against the Reich or the occupation force, endangering their safety or striking force, the death penalty is indicated in principle.

II

Criminal acts contained in paragraph I, will on principle, be tried in the occupied territories only when it appears probable that death sentences are going to be passed on the offenders, or, at least, the main offenders, and if the trial and the execution of the death sentence can be carried out without delay. In other cases the offenders, or, at least, the main offenders, are to be taken to Germany.

III

Offenders who are being taken to Germany are subject to court martial procedure there only if particular military interests should require this. German and foreign agencies will be told upon inquiries on such offenders that they were arrested and that the state of the proceeding does not allow further information.

IV

The commanders in the occupied territories and the judicial authorities, within their jurisdiction, will be personally held responsible for the execution of this decree.

V

The Chief of the High Command of the Armed Forces will decide in which of the occupied territories this decree shall be applied. He is authorized to furnish explanations, to issue supplements, and implementation directives. The Reich Minister of Justice will issue implementation directives within his jurisdiction.

By order:

The Chief of the High Command of the Armed Forces

[Signed] Keitel

Distribution: Foreign Office Reich Minister and Chief of the Reich Chancellery

Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior

Army High Command (Chief, Army Armament and Commander of the Replacement Army, Army Legal Department) with 7 numbered copies

Navy High Command (Navy Legal Department) with 1 numbered copy

Reich Air Minister and Commander in Chief of the Air Force with 1 numbered copy

President of the Reich Military Court

Commander Armed Forces Southeast with 4 numbered copies

Norway

Netherlands

Ostland

Ukraine

Plenipotentiary for the Armed Forces with the Reich Protector for Bohemia and Moravia

Armistice Commission Wiesbaden

OKW:

Chief of the Armed Forces Operational Staff with 8 numbered copies

Division L

Armed Forces Propaganda

Division Foreign Affairs, Foreign Counter Intelligence

Division Foreign Affairs

Counterintelligence III

General Armed Forces Office

TRANSLATION OF DOCUMENT 669-PS

PROSECUTION EXHIBIT 305

KEITEL LETTER OF 12 DECEMBER 1941, TRANSMITTING THE FIRST IMPLEMENTATION DECREE TO THE NIGHT AND FOG DECREE

[Stamp] SECRET

The Commander in Chief of the Armed Forces

14 n 16 WR (I 3/4)

No. 165/41 g

[Stamp] L. 15 Dec. 1941

Az. 14g po 10

No. 37787 41

12 December 1941

Subject: Prosecution of criminal acts against the Reich or against the occupying power in occupied territories

1 enclosure

It is the long considered will of the Fuehrer that in case of attacks against the Reich or the occupation force in the occupied territories, other measures than those in present use should be taken. The Fuehrer is of the following opinion: in connection with such activities imprisonment, even life imprisonment, is considered as a sign of weakness. An effective and lasting deterrent can only be achieved by death sentences or by measures which will keep the relatives of the perpetrator and the population in suspense concerning the fate of the perpetrator. This purpose is served by deportation to Germany.

The attached directives for the prosecution of crimes correspond to this conception of the Fuehrer. They were examined and approved by him.

[Signed] Keitel

Distribution[449]

[Handwritten notes] Clarify as soon as possible.

1. Are the provisions concerning shooting of hostages, etc., annulled by that order?

2. Is it clear to the Army High Command, especially to the Quartermaster General, who has been omitted in the distribution?

[Initial] W [Warlimont] 17 December

Secret

First Decree for the carrying out of the Fuehrer’s and Supreme Commander’s directives concerning the Prosecution of Criminal Acts against the Reich or the Occupying Power in the Occupied Territories

By virtue of chapter V of the directives of 7 December 1941 of the Fuehrer and Supreme Commander concerning the prosecution of criminal acts against the Reich or the occupying power in the occupied territories, I order the following:

I

The conditions of chapter I of the directives will as a rule be applicable in cases of—

1. Assault with intent to kill.

2. Espionage.

3. Sabotage.

4. Communist activity.

5. Crimes liable to create disorder.

6. Favoring of the enemy by the following means:

a. Smuggling people into a country.

b. The attempt to enlist in an enemy army.

c. Support of members of an enemy army (parachutist, etc.).

7. Illegal possession of arms.

II

(1) The criminal acts described in section I of the directives are to be tried in the occupied territories only under the following conditions:

1. It must be probable that a death sentence will be pronounced against the perpetrators or at least against the principal perpetrator.

2. It must be possible to carry out the trial and the execution of the death sentence at once (on principle a week after the capture of the perpetrator).

3. Special political misgivings against the immediate execution of the death sentence should not exist.

4. Apart from the death sentence for murder or partisan activities no death sentence against a woman is to be expected.

(2) If a sentence which has been pronounced according to section I is annulled, the trial can continue in the occupied territory, if the conditions of section I, No. 1, 3, and 4 still exist.

III

(1) In case of criminal acts mentioned in section I of the directives, the highest judicial authority in agreement with the counter intelligence officer examines whether the conditions for a trial in the occupied territories exist. If he agrees that they are, he orders the session of the court martial. If he denies it, he submits the documents to his superior commanding officer (sec. 89, par. 1 of the decree on criminal procedure during wartime). The latter may reserve the decision to himself.

(2) The superior commanding officer renders the final decision as to whether the conditions for a trial in the occupied territories exist. If he agrees that they do, he orders the highest judicial authority within his command to deal with it. If he denies it, he gives the order to the secret field police to take the perpetrator to Germany.

IV

(1) Perpetrators taken to Germany will be subjected there to court martial proceedings only, if the High Command of the Armed Forces or the superior commanding officer declare in their decision according to chapter III that special military reasons require court martial proceedings. If such a declaration is not made, the order that the perpetrators be taken to Germany means a transfer according to section 3, paragraph 2, sentence 2 of the decree on criminal procedure during wartime.

(2) If the superior commanding officer uses his authority according to paragraph 1, he submits the documents to the High Command of the Armed Forces through official channels. The perpetrators are to be designated “prisoners of the armed forces” when being transferred to the secret field police.

(3) The High Command of the Armed Forces determines the tribunal for those perpetrators who are subjected to court martial proceedings according to paragraph 1. It may waive the competence of the armed forces tribunals. Moreover, it can suspend the proceedings for any time it chooses.

V

The trial in Germany will be held under strictest exclusion of the public because of the danger for national security. Foreign witnesses may be questioned during the trial only with the permission of the High Command of the Armed Forces.

VI

The regulations on the procedure before tribunals of the Armed Forces included in the decree of the High Command of 13 September 1941 concerning the situation in Norway (Armed Forces Operational Staff/Department L (IV/Qu) No. 002034/41 top secret) and of 16 September 1941 concerning the Communist revolutionary movements in the occupied territories (Armed Forces Operational Staff/Abt. L (IV/Qu) No. 002060/41 top secret) are superseded by the directives and this executive order.

VII

(1) These directives will become effective 3 weeks after they are signed. They are to be applied in all occupied territories with the exception of Denmark until further notice.

(2) The orders issued for the newly Occupied Eastern Territories are not affected by these directives.

(3) Chapter I of the directives is applicable for pending trials. The highest judicial authority and the superior commanding officer can accordingly apply chapter III of this executive order in case of such trials. If the superior commanding officer orders that a perpetrator be taken to Germany, chapter IV will be applicable. In case of perpetrators who were taken to Germany before these directives became effective, the High Command of the Armed Forces can proceed according to chapter IV, paragraph 3.

The Commander in Chief of the Armed Forces

[Signed] Keitel

Distribution:

Foreign Office

Reich Minister and Chief of the Reich Chancellery

Reich Leader SS and Chief of the German Police in the Reich Ministry of the Interior

High Command Army (Chief Army Armament and Commander of the Replacement Army, Army Legal Department) with 7 numbered copies

High Command Navy (Navy Legal Department) with 1 numbered copy

Reich Minister for Air and Commander in Chief of the Air Force with 1 numbered copy

President of the Reich Military Court

Armed Forces Commander Southeast with 1 numbered copy

Norway

Netherlands

Ostland

Ukraine

Plenipotentiary for the Armed Forces with the Reich Protector in Bohemia and Moravia

Armistice Commission Wiesbaden

High Command Armed Forces:

Chief Armed Forces Operations Staff with 8 numbered copies

Department L

Armed Forces Propaganda

Office Foreign Counterintelligence

Department Foreign Countries

Branch III

General Armed Forces Office

PARTIAL TRANSLATION OF DOCUMENT NG-077[450]

PROSECUTION EXHIBIT 306

LETTER FROM UNDER SECRETARY FREISLER TO GENERAL LEHMANN, 16 DECEMBER 1941, TRANSMITTING A DRAFT OF A PROPOSED IMPLEMENTATION ORDER TO THE NIGHT AND FOG DECREE, TOGETHER WITH AN INTEROFFICE NOTE OF 25 DECEMBER 1941

Priv. II

v. Ha/La

16 December 1941

[Handwritten] Officially dispatched, 16 December

Secret [Handwritten] IIa 117/42 g

Sheet 13

Secret!

To Ministerialdirektor Dr. Lehmann Chief of the Armed Forces Legal Division with the High Command of the Armed Forces

Berlin W

Bendlerstr. 14

Dear Ministerialdirektor,

Dear Party Member Lehmann,

Being in the possession of your letter of the 12th of this month, I send you attached hereto the draft of an executive order. Taking your consent for granted, the Reich Minister of Justice intends to publish it.[451] I should be obliged to you, if we could discuss our views in the beginning of next week. (Prior to that time I shall be on an official trip.) In the meantime, Ministerialdirektor Schaefer is also ready to discuss this matter with you. Ministerialdirektor Schaefer will prepare the necessary administrative regulations on the basis of the provisions issued or proposed.

Heil Hitler!

[Initial] Fr [Freisler]

[Illegible stamp]

[Italicized text crossed out in original document]

Before dispatch

submitted to State

Secretary Dr. Schlegelberger

with the request to take note.

Berlin, 16 December

[Signed] Freisler

22. 12. to II a 116/42 g

[Enclosure]

[Executory decree to Hitler’s Night and Fog order of 7 December 1941]

Regarding the execution of the afore-mentioned decree, I decree:

1. I reserve to myself the decision as to which court is materially and locally competent to deal with a case.

2. The public prosecutor shall prefer charges after earnest reflection according to his duty.

3. The order, application, and termination of the arrest pending trial are at the discretion of the public prosecutor.

4. The trial will be conducted behind closed doors.

5. The admittance of evidence of foreign origin depends on the preceding consent of the public prosecutor.

6. Prior to the verdict the public prosecutor may revoke the indictment or move for a suspension of the proceedings.

The motion of the public prosecutor to suspend proceedings must be granted by the court.

The public prosecutor must be given an opportunity to state his opinion, should the court decide on making an exception to his motion in re.

[Initial] Fr [Freisler] 16 December

[Initial] Sch [Schaefer] 16 December

[Entire document handwritten]

Secret

1. Note. I had an oral discussion in this matter on 19 December, and on 24 December I had a discussion by telephone with Ministerialdirektor Lehmann. He told me, that the High Command of the Armed Forces had, in principle, agreed to the draft submitted to it with regard to the executive order but that, nevertheless, it would give a reply in writing. The question has not been decided whether the High Command of the Armed Forces within its jurisdiction, will give the right to handle the case to the higher military court or the military courts. There is also the necessity of settling some other questions which presumably will be attempted in a conference of delegates in the beginning of January. It would be advisable for the Reich Ministry of Justice to await further information from the High Command of the Armed Forces. Transfers of the cases to courts should not be expected before the second half of January.

Experts in charge of this matter with the High Command of the Armed Forces are—

Senior Military Court Counsellor Huelle,

Military Court Counsellor Schoelz,

Ministerialrat Sack.

Furthermore with the counterintelligence office of Colonel Bentivegni, Chief of Counterintelligence III.

Ministerialrat Herzlieb,

Senior Military Court Counsellor von Gramatzki.

2. To Ministerialrat Grau, with the request to take note.

[Initial] Gr [Grau]

25 December

I beg you to take care of the file and handle it in the future.

[Signed] Schaefer

24 December

TRANSLATION OF DOCUMENT NG-232

PROSECUTION EXHIBIT 308

CIRCULAR DECREE OF THE REICH MINISTRY OF JUSTICE, SIGNED BY UNDER SECRETARY FREISLER, 6 FEBRUARY 1942, ASSIGNING PARTICULAR SPECIAL COURTS TO HANDLE NIGHT AND FOG CASES

The Reich Minister of Justice

II a 119/42 secret

Berlin W 8, 6 February 1942

Wilhelmstrasse 65

Phone: 110044

Long distance: 11 65 16

[Stamp] Secret

Circular decree on the implementation of the executive decree of 6 February 1942, concerning the directives issued by the Fuehrer and Supreme Commander of the Armed Forces for the prosecution of criminal acts against the Reich or the occupying power in the occupied territories.

For the further execution of the directives mentioned before, I decree:

1

Competent for the handling of the cases transferred to ordinary courts, including their eventual retrial, are, as far as they originate from the occupied French territories, the Special Court and the chief public prosecutor in Cologne; as far as they originate from the occupied Belgian and Dutch territories, the Special Court and the chief public prosecutor in Dortmund; as far as they originate from the occupied Norwegian territories, the Special Court and the chief prosecutor in Kiel; for the rest, the Special Court and the attorney general at the Berlin district court. In special cases I reserve to myself the decision of competence for each individual case.

2

The Chief Public Prosecutor will inform me of the indictment, the intended plea and the sentence as well as of his intention to refrain from any accusation in a specific case.

3

The choice of a defense counsel will require the agreement of the presiding judge who makes his decision only with the consent of the prosecutor. The agreement may be withdrawn.

4

Warrants of arrest will be withdrawn only with my consent. If such is intended, the chief public prosecutor will report to me beforehand. He will furthermore ask for my decision before using foreign evidence or before agreeing to its being used by the Tribunal.

5

Inquiries concerning the accused person or the pending trial from other sources than those armed forces and police agencies dealing with the case will be answered by merely stating that * * * is arrested, and the state of the trial does not allow further information.

Acting:

[Typed] Signed: Dr. Freisler

Certified: [Signed] Kersten

Chief Secretary of the Ministerial Chancellery

Circular stamp of the Reich Ministry of Justice

TRANSLATION OF DOCUMENT 2521-PS

PROSECUTION EXHIBIT 310

LETTER FROM THE SS ECONOMIC AND ADMINISTRATIVE MAIN OFFICE TO CONCENTRATION CAMP COMMANDERS, 18 AUGUST 1942, TRANSMITTING INSTRUCTIONS FOR TREATMENT OF NIGHT AND FOG PRISONERS

Copy

Oranienburg, 18 August 1942

SS Economic and Administrative Main Office[452]

Chief of Division D—Concentration Camps

D I/Az.: 14 c 2/Ot./U.

Secret Diary No. 551/42

Subject: Prisoners who come under the Keitel decree

Reference: Reich Security Main Office—IV C 2 Gen. No. 103/42 of 14 August 42 and attached extract of 4 August 1942

Enclosure: 1

To the Camp Commandants of the Concentration Camps Dachau, Sachsenhausen, Buchenwald, Mauthausen, Flossenbuerg, Neuengamme, Auschwitz, Gross-Rosen, Natzweiler, Niederhagen, Stutthof, Arbeitsdorf, Ravensbrueck, and Prisoner of War Camp at Lublin

I am sending you, for information and execution, enclosed extract from the Nacht und Nebel [Night and Fog] Decree for official use in concentration camps, in connection with prisoners who come under the “Keitel Decree.”

In the event of the transfer of such prisoners, it is to be pointed out that the prisoners come under the “Keitel Decree” or the Nacht und Nebel Decree.

[Typed] Gluecks

SS Brigadier General and Brigadier General of the Waffen SS

Certified true copy

Natzweiler, 24 August 1942

[Signed] Melzer

SS-Corporal

Seal

To department III with the request to inform the postal department.

Copy

IV D 4—103/42 g

Berlin, 4 August 1942

Extract from the Nacht und Nebel Decree for official use in concentration camps

By decree of the Commander in Chief of the Armed Forces dated 12 December 1941 regarding the prosecution of punishable offenses against the Reich or the occupation forces in the occupied areas (called in short Nacht und Nebel Decree), it has been directed by virtue of a Fuehrer order, that persons who, in the occupied territories, take action against the Reich or the occupation forces, shall be removed to the Reich for deterrent purposes. Here they are to be transferred to a Special Court. Should this not be possible for any reason, these persons will be placed in a concentration camp under sentence of protective custody. Protective custody as a rule lasts until the end of the war.

As it is the purpose of this decree to leave the relatives, friends, and acquaintances in uncertainty regarding the fate of the prisoners; they are not allowed to have any means of communication with the outside world. They may therefore neither write, nor receive letters, parcels, or visits. Nor will any kind of information regarding the prisoners be given to any agency outside.

In cases of death, the relatives are not to be informed until further notice. There has not yet been a final ruling on this question.

These regulations apply to all prisoners regarding whom it is stated in the detention particulars or in the detention certificates of the Reich Security Main Office that they come under the Nacht und Nebel Decree. Furthermore, all prisoners come under it who are described as “Porto” or “Continent” prisoners.

If it should occur that prisoners who come under the Nacht und Nebel Decree, have, through an error, had the opportunity of informing their relatives, further exchange of correspondence with their relatives should, for tactical reason, be granted them within the framework of the general regulations regarding correspondence for persons under protective custody.

[Typed] Signed: Dr. Hoffmann

Certified true copy.

Natzweiler, 24 August 1942

[Signed] Melzer

[Seal]

SS Corporal

TRANSLATION OF DOCUMENT NG-228

PROSECUTION EXHIBIT 312

MEMORANDUMS OF DEFENDANT VON AMMON TO DEFENDANT ROTHENBERGER, 9 AND 26 SEPTEMBER 1942, CONCERNING PENDING NIGHT AND FOG CASES AND THE HANDLING OF THESE PRISONERS

1. Note. Criminal proceedings according to the directives of the Fuehrer for the prosecution of criminal acts against the Reich or the occupying power in the occupied territories of 7 December 1941[453] (so-called Nacht und Nebel cases) pending on 1 September 1943 are—

a. With the Chief Public Prosecutor in Kiel (from the occupied Norwegian territories) 9 cases with a total of 262 accused.

b. With the Chief Public Prosecutor in Essen (from the occupied Belgian and northern French territories) 180 cases with a total of 863 accused.

c. With the Chief Public Prosecutor in Cologne (from the occupied French territories—with the exception of northern France) 177 cases with a total of 331 accused.

Since 31 August 1942, trials have been held before the Special Court in Essen. On 31 August 1942 the first death sentence (against Kratz) was passed.

2. To be submitted to:

Ministerial Director Dr. Crohne,

Ministerial Dirigent Dr. Mettgenberg,

Oberregierungsrat Mielke

separately to each one—with the request to take note

[Initial] R. [Rothenberger]

Berlin, 9 September 1942

[Signed] von Ammon

[Handwritten notes]

To State Secretary Dr. Rothenberger

To the Reich Minister of Justice

With the request to take note.

Has been submitted.

[Signed] Dr. Crohne 10 September

[Signed] Ebersberg

[Initial] E

Notes for State Secretary Dr. Rothenberger

On 24 September a report was submitted to the Reich minister on the legal basis (Fuehrer decree for the prosecution of criminal acts against the Reich or the occupying power in the occupied territories of 7 December 1941 and orders for execution) and on the present stage of the so-called Nacht und Nebel proceedings.

On 1 September 1942 pending were—

1. With the Chief Public Prosecutor in Kiel (from the occupied Norwegian territories) 9 cases with a total of 262 accused.

2. With the Chief Public Prosecutor in Essen (from the occupied territories of Belgium and northern France) 180 cases with a total of 863 accused.

3. With the Chief Public Prosecutor in Cologne (from the occupied French territories—with the exception of northern France) 177 cases with a total of 331 accused.

The Reich Minister has ordered the following changes to be made in the present procedure:

1. The Special Courts in Kiel, Essen, Cologne, and Berlin with exclusive competence hitherto, are to some extent to be replaced by the People’s Court.

2. The present procedure, according to which the accused are kept in custody indefinitely by the judiciary authorities when an indictment was either impossible or not answering the purpose, is to be abolished.

Furthermore, the Reich Minister wishes the question of the competence for pardons settled in such a way that in cases which have been handed over to the common court authorities, these (not the authorities of the armed forces) shall make the decision for pardon.

To give consideration to these questions, a departmental meeting with the High Command of the Armed Forces Legal Division and Counterintelligence is to be held on 2 October 1942.

Berlin, 26 September 1942

[Typed] signed Dr. von Ammon

[Handwritten] for further action

[Initial] A [Ammon]

2 October

PARTIAL TRANSLATION OF DOCUMENT NG-255

PROSECUTION EXHIBIT 314

LETTER FROM MINISTRY OF JUSTICE, INITIALED BY DEFENDANTS METTGENBERG AND VON AMMON, TO VARIOUS JUDGES AND PUBLIC PROSECUTORS, 21 DECEMBER 1942, CONCERNING OBJECTIONS TO ELECTIVE DEFENSE COUNSEL IN NIGHT AND FOG TRIALS

The Reich Minister of Justice

IVa 2069.42 g

Berlin, 21 December 1942

[stamp]

mailed 9 January 1943

[Handwritten] Ru.

[Stamp] Secret

To—

a. The President of the People’s Court

b. The Chief Public Prosecutor at the People’s Court

c. The President of the Military Court

d. The Presidents of the Courts of Appeal in Hamm, in Westphalia, Kiel, and Cologne

e. The Attorney General at the Military Court

f. The Attorneys General in Hamm, in Westphalia, Kiel, and Cologne

[Stamp]

To the Chancellery

5 January 1943

made out:

Reply: 6 January 1943

Le/Ru.

Subject: Prosecution of criminal acts against the Reich or the occupying power in the occupied territories

[Stamp]

Armed Forces Legal Department

24 December 1942

1211/42 Secret

[Stamp]

To the Chancellery

22 December 1942

made out: Reply:

Before mailing

To the High Command of the Armed Forces Armed Forces Legal Department

for information.

Send copy there.

Several attorneys general have raised the question of whether elective defense counsel are to be admitted in the procedures transferred to the general courts according to the directives of the Fuehrer, dated 7 December 1941, dealing with the prosecution of criminal acts against the Reich or the occupying power in the occupied territories. I have contacted the High Command of the Armed Forces in this respect. We are both of the opinion that in view of the regulations in force for keeping secret the procedures in question, there are basic objections to the admission of elective defense counsel. The interests of the defendants can be taken care of by giving them defense counsel according to paragraph 32 of the competence regulation.

By Order

[Department] III

21 December

[Initials illegible]

[Department] IV

[Initial] M [Mettgenberg] 21/12

[Initial] A [von Ammon] 17/12

PARTIAL TRANSLATION OF DOCUMENT NG-253

PROSECUTION EXHIBIT 317

EXTRACTS FROM OFFICIAL CORRESPONDENCE ARISING OUT OF THE QUESTION OF PROVIDING DEFENSE COUNSEL IN NIGHT AND FOG TRIALS, 4 JANUARY—19 FEBRUARY 1943

[Letter from the President of the Essen Special Court to the President of the Essen District Court, 4 January 1943]

The President of the Special Court

Essen, 4 January 1943

Secret

To the President of the District Court in Essen

Concerning—Prosecution of criminal acts against the Reich or the occupying power in the occupied territories.

The German Penal Code applies to the prosecution of criminal acts against the Reich or the occupying power in occupied territories. This does not exclude the application of article IV, paragraph 32 of the competence decree of 21 February 1940 concerning necessary defense, included in the Reich Minister of Justice’s executive decree of 6 February 1942.[454] Foreign defendants must therefore have counsel if there is a possibility of the death sentence (or life imprisonment) being imposed. That is frequently the case in these trials. An increasing number of more copious cases with several defendants are now coming up. Very frequently the only evidence against defendants pleading not guilty consists of statements of codefendants, so that in view of the possibility of conflicting interests, it is only rarely possible to appoint one counsel for a number of defendants. Recently, seven counsel had to be appointed for one trial lasting several days. At that time it was most difficult to find enough counsel in a position to take over the defense. The course of proceedings was repeatedly interrupted owing to the inability of counsel to appear. In a few days another case with about 30 defendants will come up, for which a number of counsel will presumably have to be appointed, too. A number of similar trials may be expected shortly.

Such a strain for trials lasting all day for several days upon the few lawyers, who are overworked due to their representing their drafted colleagues, is in my opinion untenable under present circumstances. The resultant drain upon the State treasury is considerable. When the second court for these special cases which will soon be needed is set up, it will be next to impossible to get the requisite number of counsel. The interests of foreign defendants can hardly be considered sufficiently important to justify continuous demands of this kind on staff and public funds.

I therefore suggest that the Reich Minister of Justice should lay down the following by virtue of the powers granted in No. V of the Fuehrer’s directives of 7 December 1941:

Article IV, paragraph 32 of the competence decree of 21 February 1940 is not applicable. The president of the court will appoint a counsel for the defendant if the latter is unable to defend himself or if for any other special reasons it seems desirable that the defendant be represented.

[Signed] Goebel[455]

District Court Director [Landgerichtsdirektor]

[Memorandum, 18 January 1943, from Ministerial Director Grau to defendant von Ammon asking for comments on the proposal of the President of the Special Court in Essen.]

Secret

In reference: III a 184/43g

To Oberlandesgerichtsrat Dr. von Ammon

Account of proceedings enclosed with request for comments. In case a regulation of the nature suggested by the Essen Special Court should be considered necessary, a legal decision along the lines of the draft could be made. The formulation of this communication intends to leave untouched in principle the necessity for defense in the cases concerned and only to permit individual exceptions of the compulsory regulation contained in paragraph 32 of the competence decree (ZustVO).

I consider it doubtful whether the principle of the necessity of having a defense should be abandoned also in cases where the death sentence may be expected. Here the existing regulations should be waived only in cases of the utmost urgency.

Berlin, 18 January 1943

[Signed] Grau

[Answer, 1 February 1943, from the Reich Ministry of Justice, initialed by defendants Mettgenberg and von Ammon.]

To Ministerialrat Grau

Department IV suggests that section 2 of decree No. 7 of 7 December 1941 be given roughly the following form:

“In trials in which according to the regulations a defense counsel has to be appointed for the defendant, the regulation may be ignored if the president of the court is convinced that the character of the defendant or the nature of the charge make the assistance of a defense counsel superfluous.”

However, it might be expedient to obtain the comments of the President of the People’s Court, and of the chief Reich prosecutor at the People’s Court, the presidents of the courts of appeal at Kiel and Cologne and the attorneys general in Hamm, Cologne, and Kiel.

Berlin, 1 February 1943

[Initials] V [Vollmer]

M [Mettgenberg] 1 February

A [von Ammon] 30 January

[Letter, 9 February 1943, from the Reich Ministry of Justice, initialed by defendants Mettgenberg and von Ammon.]

Berlin, 9 February, 1943

The Reich Minister of Justice

III a 184/43 g

Secret

1. To

a. The President of the People’s Court[456]

b. The Chief Public Prosecutor at the People’s Court[456]

c. The Oberlandesgerichtspraesidenten in Kiel and Cologne

[Initial] Th [Thierack]

d. Chief Public Prosecutors in Hamm, Kiel, and Cologne

[Stamp] To files 9 February 1943

Subject: Crimes against the Reich or the occupying forces in occupied territory

The president of the Essen Special Court reports that in trials for the above-mentioned offenses, where a defense is necessary, because of the sentence which may be expected, it is often difficult to obtain counsel for the defense when [defendants who have confessed in cases where there is a collision of interest between the defendants][457] a defense counsel always has to be obtained. The requisite number of lawyers is not always obtainable, the course of the main proceedings is also frequently hampered by the inability of individual lawyers to appear.

I therefore propose to insert in No. 7 of the decree for the carrying out of the directives laid down by the Fuehrer and Supreme Commander of the Armed Forces of 7 December 1941 the following regulation, which is to be paragraph 2:

“In trials before the Sondergericht [Special Court] in which according to the regulations defense counsel has to be provided for the defendant, the regulation may be ignored when the president of the court can conscientiously state that the character of the accused and the nature of the charge make the presence of a defense counsel superfluous.”

Please comment as soon as possible.

By order:

[Department] IV

[Department] III

[Initial Illegible]

[Initials] V [Vollmer] 4 February

M [Mettgenberg] 4 February

A [Ammon] 3 February

C [Crohne] 3 February

2. 3 weeks later.

3 March

TRANSLATION OF DOCUMENT NG-269

PROSECUTION EXHIBIT 319

SECRET INSTRUCTIONS OF REICH MINISTRY OF JUSTICE TO PROSECUTORS AND JUDGES, INITIALED BY DEFENDANTS ALTSTOETTER, METTGENBERG, AND VON AMMON, 6 MARCH 1943, CONCERNING MEASURES NECESSARY TO MAINTAIN SECRECY OF NIGHT AND FOG PROCEDURES

Draft

Berlin, 6 March 1943

The Reich Minister of Justice

IV a 398/43 secret

[Stamp] Secret

Secret

1. To:

a. The Chief Reich Prosecutor at the People’s Court

b. The Attorneys General in Celle, Duesseldorf, Frankfurt/Main, Hamburg, Hamm, Kiel, and Cologne

c. The Attorney General at the Berlin Court of Appeal

Subject: Criminal procedures on account of criminal acts committed against the Reich or the occupying power in the occupied territories

Enclosures: Extra copies for the Chief Public Prosecutors in Essen, Kiel, and Cologne and for the Attorney General at the Berlin District Court

For the attention of:

a. The President of the People’s Court

b. The Presidents of the District Courts of Appeal in Hamm, Kiel, and Cologne

c. The President of the Berlin Court of Appeal

Enclosures: Extra copies for the Presidents of the District Courts in Hamm, Kiel, Cologne, and Berlin

[Stamp] Chancellery of Justice

6 March 1943

With regard to criminal procedures on account of criminal acts against the Reich or against the occupying forces in the occupied territories (so-called Night and Fog cases) I request the observance of the following directives in order not to endanger the necessary top secrecy of the procedure, particularly, regarding the execution of death sentences and other cases of death among prisoners. [Italicized text crossed out in the original document.]

1. The cards used for investigations for the Reich crime statistics need not be filled in. Likewise, notification of the penal records office will be discontinued until further notice. However, sentences will have to be registered in lists or on a card index in order to make possible an entry into the penal records in due course.

2. In cases of death, especially in cases of execution of NN prisoners, as well as in cases of female NN prisoners giving birth to a child, the register must be notified as prescribed by law. However, the following remark has to be added: “By order of the Reich Minister of the Interior, the entry into the death (birth) registry must bear an endorsement, saying that examination of the papers, furnishing of information and of certified copies of death (birth) certificates is only admissible with the consent of the Reich Minister of Justice.”

3. In case an NN prisoner sentenced to death desires to draw up a public will, proceedings must follow No. 30, paragraph 2 of my circular ordinance of 19 February 1939, article 417-III a, 318.39. The persons who assist the drawing up of the will are, if necessary, to be sworn to secrecy. The will has to be taken into official custody according to article 2 of the Probate Law. The deposition receipt has to be kept by the prosecution until further notice.

4. Farewell letters by NN prisoners as well as other letters must not be mailed. They have to be forwarded to the prosecution who will keep them until further notice.

5. If an NN prisoner who has been sentenced to death and informed of the forthcoming execution of the death sentence desires spiritual assistance by the prison padre, this will be granted. If necessary, the padre must be sworn to secrecy.

6. The relatives will not be informed of the death and especially of the execution of an NN prisoner. The press will not be informed of the execution of a death sentence, nor must the execution of a death sentence be publicly announced by posters.

7. The bodies of executed NN prisoners or prisoners who died from other causes have to be turned over to the State Police for burial. Reference must be made to the existing regulations on secrecy. It must be pointed out especially that the graves of NN prisoners must not be marked with the names of the deceased.

The bodies must not be used for teaching or research purposes.

8. Legacies of NN prisoners who have been executed or died from other causes must be kept at the prison where the sentence was served.

By order:

[Initials] Sch [Schaefer] 5 March

Mx [Marx] 3 March

A [Altstoetter] 3 March

M [Mettgenberg] 25 February

v. A. [von Ammon] 27 February

[Initials] W [Westphal] 27 February

V [Vogel] 26 February

R [Rexroth] 27 February

H [Hecker] 26 February

Ei [Eichler] 1 March

2. Copy of (1) to District Court Judge Dr. von Ammon and to Chief Public Prosecutor Dr. Metten, also to Dr. Eichler.

3. To be submitted again after being mailed.

[Stamp] Mailed 8 March 1943

[Handwritten] resubmitted [Initials illegible] March 9

[Handwritten notes illegible]

Distribution

The circular ordinance of 6 March 1943-IV a 398/43—has been mailed today to the following addresses:

786 b 1. Chief Reich Prosecutor at the People’s Court, Berlin.

7 2. Attorney General, Celle.

8 3. Attorney General, Duesseldorf.

9 4. Attorney General, Frankfurt (Main).

90 5. Attorney General, Hamburg.

1 6. Attorney General, Hamm.

2 7. Attorney General, Kiel.

3 8. Attorney General, Cologne.

4 9. Attorney General at the Court of Appeal, Berlin.

5 10. President of the People’s Court, Berlin.

6 11. President of the Supreme Court of Appeal, Hamm.

7 12. President of the Supreme Court of Appeal, Kiel.

8 13. President of the Supreme Court of Appeal, Cologne.

799 b 14. President of the District Court, Berlin.

[Handwritten] 14 Weber

[Stamp] Berlin, W 8, 8 March 1943, 6–7 afternoon

TRANSLATION OF DOCUMENT NG-281

PROSECUTION EXHIBIT 323

FILE NOTE OF DEFENDANT VON AMMON, 7 OCTOBER 1943, CONCERNING DEFENDANT LAUTZ’ QUESTION AS TO GIVING DEFENDANTS TRANSLATIONS OF THE INDICTMENTS AGAINST THEM IN NIGHT AND FOG CASES

1. Note—Chief Reich Prosecutor Lautz asked me whether there were any objections to translations of indictments in NN proceedings being handed over to the defendants. It has turned out to be inconvenient that the defendants learned the details of the charges raised against them only during the trial. Also the interpretation by the defense counsel is not always sufficient, since their French mostly is not good enough and since the defendants were brought to the place of the trial only shortly before it was held.

The procedure adopted for Czech defendants, viz, having the indictment translated to them orally by a Czech-speaking sergeant, is not possible here since French-speaking sergeants are not available.

After having given a report to Ministerialdirektor of Department IV and to the Minister, I informed Chief Reich Prosecutor Lautz on 6 October 1943 that there were no objections whatever to the intended procedure.

2. Ad procedures of office a 3.—“Prosecution of criminal acts against the Reich or the occupying power in the occupied territories.”

Berlin, 7 October 1943

IVa 2369/43 g

[Initial] A [von Ammon]

PARTIAL TRANSLATION OF DOCUMENT NG-205

PROSECUTION EXHIBIT 328

SECRET DIRECTIVE OF THE REICH MINISTRY OF JUSTICE, 21 JANUARY 1944, ORDERING TRANSFER TO GESTAPO OF NIGHT AND FOG PRISONERS WHO WERE ACQUITTED, AGAINST WHOM PROCEEDINGS WERE QUASHED, OR WHO HAD SERVED THEIR SENTENCES

The Reich Minister of Justice

IV a 2083.43 g

Berlin, 21 January 1944

Secret

[Handwritten] Immediately!

[Initial] Th [Thierack]

(Stamp)

dispatched: 25 January 1944

1. To the

a. President of the People’s Court

b. Chief Reich Prosecutor at the People’s Court

c. Presidents of the Courts of Appeal in Breslau, Hamm, and Kiel

d. President of the Military Court

e. Attorneys General in Breslau, Hamm, and Kiel

f. Attorney General at the Military Court

Subject: Prosecution of criminal acts committed against the Reich or the occupying power in the occupied territories

Enclosures: Extra copies for the Presidents of the District Courts in Breslau, Essen, Kiel, and Berlin; Chief Public Prosecutors in Breslau, Essen, and Kiel; and for the Attorney General at the Berlin District Court

[Stamp] submitted on 25 January 1944

For information:

a. The other Attorneys General

b. Supreme Command of the Armed Forces

Referring to the letter of 10 November 1943

14 n 16.18 WR (I/3)—129/43 g

c. Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior —Chief of the Security Police and of the SD—

Referring to the letter of 17 December 1943

IV D 4-103/42 g

As supplement to my circular decree dated 28 October 1942—IV a 1668/42 g—I order the following concerning the treatment of NN prisoners who were acquitted by a general court, against whom such proceedings were quashed, or who served their sentence imposed on them by a general court:

1. If during the trial of an NN proceeding it appears that the defendant is innocent or that his guilt has not been sufficiently established, he will be handed over to the Secret State Police; the public prosecutor will inform the Secret State Police of his opinion whether the defendant can be released and return to the occupied territories, or whether he will continue to remain under detention. The Secret State Police will decide what further actions are to be taken.

2. Defendants who were acquitted, or against whom proceedings were quashed during the trial, or who served a sentence during the war, will be handed over to the Secret State Police for detention for the duration of the war. The Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior has ordered that these defendants will always be given the mildest grade of protective custody, i.e., grade I.

3. Deviations from the regulations as contained in Nos. 1 and 2, will be made only after my approval has been given.

By Order:

As deputy

[Initial] V [Vollmer] Jan. 18

2. Copy of 1 will be sent to the—

a. President of the Senate Hecker

b. Ministerialrat Dr. von Ammon

c. Amtsrat Thienel

d. s 1

3. To be resubmitted after dispatch—

[Initial] A [von Ammon] Jan. 18

Report of 13 December 1943

[Handwritten] submitted with IV a 27/44 g

The decree of 21 January 1944—IV a 2803/43—has been mailed to the following addresses today:

1. President of the People’s Court in Berlin.

2. Chief Reich Prosecutor at the People’s Court in Berlin.

3. President of the Court of Appeal, Breslau.

4. President of the Court of Appeal, Hamm/Westphalia.

5. President of the Court of Appeal, Kiel.

6. President of the Court of Appeal [Kammergericht], Berlin.

7. Chief Public Prosecutor, Breslau.

8. Chief Public Prosecutor, Hamm/Westphalia.

9. Chief Public Prosecutor, Kiel.

10. Chief Public Prosecutor at the Court of Appeal, Berlin.

11. Chief Public Prosecutor, Bamberg.

12. Chief Public Prosecutor, Braunschweig.

13. Chief Public Prosecutor, Celle.

14. Chief Public Prosecutor, Danzig.

15. Chief Public Prosecutor, Darmstadt.

16. Chief Public Prosecutor, Dresden.

17. Chief Public Prosecutor, Duesseldorf.

18. Chief Public Prosecutor, Frankfurt/Main.

19. Chief Public Prosecutor, Graz.

20. Chief Public Prosecutor, Hamburg.

21. Chief Public Prosecutor, Innsbruck.