V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE (continued 3)

A. Under the heading police administration, it says, “Collaboration of the authorities of the administration with the SD was the subject of the Reichsfuehrer SS (SD) circular decree by the Reich Ministry of Interior, dated 11 November 1938.” Then, there is a file note. Then—“one: The SD of the Reichsfuehrer SS (SD), as information organization, intelligence organization for Party and State, has to work in particular in support of the security police and has to fulfill important duties. The SD thereby acts on the instructions of the State. That necessitates close understanding and cooperation between the SD and the authorities of the general and internal administration. In reply to inquiries by the SD, information has to be imparted therefore to the same extent as if inquiries had come from a government authority. The official agencies of the SD, in the same way, are under obligation to reply to inquiries of the general and internal administration.”

Q. Witness, what were the motives for which you met with Elkar and discussed matters with him?

A. The main cause was that he knew me from his former training period.

Q. You may continue.

A. I said Elkar knew me since the time when he was in training, because he was assigned to me. He was by nature a very faithful person, and at the time when he was not yet with the SD, I was connected with him by purely human relationships. That is how it came about that at that time, after he had taken up service with the SD and a connection with the administration of justice and the SD was sought, he came to me first for I was known to him; and that is how in the subsequent period the entire relationship was purely a matter of comradeship. This is shown best perhaps by the fact that one day Elkar informed me that he would probably be transferred to the RSHA in Berlin for further training. Thereupon, I told him that in that case I would also discontinue my activity because I would not start all over again with a new man.

Q. What descriptions did Elkar give you about the further handling of the SD reports in Berlin?

A. He said that the information which I gave him—which was usually an opinion on problems which were connected with the collection of comments from the people—he would incorporate into his reports. These reports in Berlin would then be divided according to whichever participating Reich agency was interested and put at the disposal of those offices.

Q. Did you have an insight into questions and tasks which were outside of the administration of justice?

A. I did not gain any insight into those questions.

Q. Did Elkar tell you anything about the activity of the SD Einsatzgruppen in the east?

A. No. I only found out about that now.

Q. Did Elkar speak to you about the so-called final solution of the Jewish problem by extermination, execution, or gassing?

A. No word was ever spoken about this. I do not believe that Elkar was informed about matters of that kind either.

Q. Did Elkar tell you about individual SD Fuehrers being entrusted with special tasks, as for instance, the feigned attack on the Gleiwitz radio station, or similar undertakings which were the subject of the IMT Trial?

A. Matters of that kind were not discussed among us. The examples you have cited became known to me only here in Nuernberg in the course of this trial.

Q. What was the basic line of your conversations with Elkar, or the basic topic?

A. As I have already stated, the conversations were mainly on problems which were raised by opinions which were gathered from the population. That then led to problems of a general nature, for example, the general development of wartime criminality in one field or another.

In general, that was the direction in which our conversations developed and that was also the aim of such conversations.

Q. Could everything be said in such conversations without restrictions?

A. I believe that that was the only possibility at that time in Germany where a person could say exactly what he was thinking; and the reason for that is because, in this connection in particular, only the truth was at stake for they were interested in finding out what the population was actually thinking in regard to certain events, measures, laws, speeches, judgments, etc.

Q. Do you know in what form these reports were forwarded?

A. That is not known to me; I never read such a report.

Q. According to Elkar’s testimony you directed your attention to the development of criminal and penal proceedings. (Tr. p. 2890.) What ideas did you represent?

A. I believe I have already stated my position on that question. I do not remember a great deal in detail regarding what was discussed at that time. One question, for example, which interested us and which demonstrates how we came to speak about these matters and what opinion we represented is the question which was frequently discussed in this trial, and that is the contact of the prosecution during the trial with the court because of the application for penalty. Opinions from circles of lawyers and judges and from the prosecution were gathered for this purpose at that time. I myself represented the opinion that this problem grew into a problem only because it was treated in a wrong manner on the part of the administration of justice. The entire question could be solved by a small remark in the “Deutsche Justiz,” namely, by pointing out that the law does not provide that a formal application has to be made, and therefore it would have been sufficient to instruct the prosecutors to refrain from a formal application for penalty and to be satisfied with adducing the evidence and then stating the reasons which spoke for and against the defendant. With that, the entire excitement and fuss which was caused by the formal application for penalty could have been avoided.

Q. What reason did you give for this suggestion?

A. The reason which I have just explained.

*******

Q. Elkar alleges that you had also talked about pending trials and had discussed also the facts as well as the legal situation and future judgment. (Tr. p. 2891.) Was the name of a defendant ever mentioned as long as trial was still pending?

A. The names of defendants never played any importance in these conversations. The manner of expression was general. The individual cases, as such, were of no importance at all and their outcome even less so. It is possible that in the most infrequent cases—as an example of a definite criminal deed, in order to demonstrate, for example, the method of the consequences of this crime and to use it in the discussions of general questions, that an individual case was mentioned, but not in a single case was it like this that Elkar ever was interested in a certain pending trial or even wanted to get information about the final outcome in advance; such an evaluation was not possible in practice at all for the decision could be given only on the basis of the trial after it was concluded. Thus, Elkar’s activity was not aimed at such a goal.

Q. By mentioning an individual case, did you ask for the opinion of the RSHA in order to find a basis for the political evaluation of the offense?

A. Never. I had no connections whatsoever to the RSHA. Moreover, such a method even in the Third Reich would have been an absolute impossibility, and it was never alleged that this occurred.

Q. Did you, in any individual case, receive an instruction from the RSHA or a recommendation to direct the trial in a certain direction under a certain point of view, or to pronounce a certain definite penalty?

A. This, too, was never alleged so far. Such a procedure, too, would have been an absolute impossibility. No office would have dared to suggest anything of that nature even.

*******

Q. We started with your relationships to the SD. On what formal basis were your relationships with the SD? Were you a member of the SD?

A. I was never a member of the SD; I don’t know either whether there was such a thing as a membership in the SD; or, whether the people were assigned to the SD from the SS. Only during this trial did I hear that there was such a thing as an actual membership in the SD. At that time I assumed that it was an institution of the nature of an official agency, the personnel for which was appointed by the SS. I never made any application for any membership in this institution; I never signed anything.

Q. Elkar says that in 1940 you had taken an oath as collaborator of the SD; that is in the English transcript at page 2896. Did you take an oath?

A. I can say this with absolute certainty, that I never took an oath in that connection. The possibility exists that it was called to my attention that matters which I found out in connection with such conversations were supposed to be kept secret. However, I do not have the slightest recollection of this either, so I cannot imagine that I was approached on this matter in a solemn ceremony. It is a fact, in any case—and this is why the people who worked for me also knew about these occurrences—that the matters which were discussed there, without exception, I believe, I had also discussed with them and among them. Thus, I had no thought of violating any secrets or any pledges of secrecy.

Q. What was the status called that you had with the SD?

A. In former times I never worried about that because for me it was not a question of practical importance as to what I would be designated as, since I had agreed to hold conversations of the type that I used to carry on with Elkar. Thus, in former times, there was no need to have some kind of a rank for that, or whatever you want to call it.

Q. Did you ever become a member of the SS?

A. I was never a member of the SS.

*******

b. New devices to change final court decisions—The “Extraordinary Objection” and the “Nullity Plea”

PARTIAL TRANSLATION OF NG-715

PROSECUTION EXHIBIT 112

EXTRACT FROM LAW, 16 SEPTEMBER 1939, AMENDING REGULATIONS OF GENERAL CRIMINAL PROCEDURE, MILITARY CRIMINAL PROCEDURE, AND THE PENAL CODE

1939 REICHSGESETZBLATT, PART 1, PAGE 1841

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Part 2

Extraordinary Objection [Ausserordentlicher Einspruch]

Article 3

Extraordinary Objection to final judgments [rechtskraeftige Urteile][231]

(1) Against final penal sentences the Chief Reich Prosecutor at the Reich Supreme Court can file an objection within 1 year after the sentence has become final, if, because of serious misgivings as to the justness of the sentence, he deems a new trial and decision in the case necessary.

(2) On the basis of the objection, the special penal senate of the Reich Supreme Court will try the case a second time.

(3) If the first sentence was passed by the People’s Court, the objection is to be filed by the Chief Reich Prosecutor at the People’s Court, and the second trial is to be held by the special senate of the People’s Court. The same applies to sentences of courts of appeal in cases which the Chief Reich Prosecutor at the People’s Court has transferred to the public prosecutor at the court of appeal, or which the People’s Court has transferred for trial and sentence to the court of appeal.

(4) If there is a connection with a case which is under the jurisdiction of the military courts, the proceedings can be transferred to the jurisdiction of the armed forces by agreement between the Reich Minister of Justice and the Chief of the High Command of the Armed Forces. On the basis of the objection the case will then be decided by the special senate of the Reich Supreme Military Court (art. 410b of the Military Code of Criminal Procedure).

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Fuehrer Headquarters, 16 September 1939

The Fuehrer and Reich Chancellor

Adolf Hitler

The Reich Minister of Justice

Dr. Guertner

The Chief of the High Command of the Armed Forces

Keitel

EXTRACTS FROM THE TESTIMONY OF DEFENDANT LAUTZ CONCERNING THE EXTRAORDINARY OBJECTION[232]

DIRECT EXAMINATION

*******

Dr. Grube (counsel for defendant Lautz): When, in effect, did you assume your office as Chief Reich Prosecutor at the People’s Court?

Defendant Lautz: Due to illness, I only assumed office on 20 December 1939, in Berlin.

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Q. * * * Witness, first of all what general remarks do you have to make on the subject of the extraordinary objection?

A. The extraordinary objection, which was introduced in 1939, was based on a bill which had already been drafted. The purpose was to be able to correct obvious mistakes in judicial decisions, and thereby to effect uniformity in the practice of the courts.[233]

Q. In article 2, section 3 of the law of 16 September 1939, it says: “Against final criminal sentences, the Chief Reich Prosecutor at the Reich Supreme Court can file an objection within 1 year after the sentence becomes final, if, on account of serious misgivings against the justness of the sentence, he deems a new trial and decision in the case necessary.” In paragraph 3 of the same section, it says, “If the first sentence was passed by the People’s Court, the objection is to be filed by the Chief Reich Prosecutor at the People’s Court, and the second trial is to be held by the special senate of the People’s Court.” According to this, one should assume that the two Chief Reich Prosecutors were those who had to decide whether an extraordinary objection was to be made or not. Please comment on this.

A. This assumption would be incorrect. According to all the regulations and the constitutional basis of this law, it was without doubt that such a far-reaching statement could be made only by the head of the State for the government, because the extraordinary objection repealed the sentence which had been pronounced, and returned the case to the stage at which it was before the trial. Thus, if an extraordinary objection was raised, a new trial had to take place as if nothing had happened before. Therefore, through internal instructions, it was assured that the two Chief Reich Prosecutors, the one at the People’s Court and the other at the Reich Supreme Court, could raise an extraordinary objection only by virtue of an order of the Minister of Justice as the representative of the leadership of the State. And this is not expressed in the law because according to the German conception of a trial, the Minister of Justice cannot make any direct statements in a trial. The two Chief Reich Prosecutors, therefore, made these statements, as I said, only from case to case on orders of the Minister, which as a rule, were even issued so unequivocably that the statement which had to be made, with the reasons for it, was in each case prescribed to the Chief Reich Prosecutors. Thus, the Chief Reich Prosecutor just as the other authorities, for instance, the attorneys general or the presidents of the courts were not prevented, if they thought that there was a cause for it, from suggesting on their own to the Minister of Justice that he should issue such an order.

Q. Witness, the material decision as to whether an extraordinary objection should be raised or not was thus made in the Ministry?

A. The material decision was made exclusively by the Minister of Justice. That is, only he personally made it on the basis of a report made to him by his Referent personally. In particular it was like that; in case of every decree issued by the Ministry it had been assured that either by the signature of the Under Secretary or the Minister, or the division chief, it was made clear that the decision had actually been made by the Minister in this case.

Q. Did you ever raise an extraordinary objection without having an order from the Minister?

A. That never happened.

Q. You just said that the two chief Reich prosecutors as the officials, as supervising authorities of the administration of justice, for example, attorneys general, presidents of the courts of appeal, etc., had the right to suggest to the Minister of Justice that he should issue an order to raise an extraordinary objection. Did you make use of that possibility?

A. I only did so very infrequently on my own initiative. I still remember a few cases in which sentences pronounced by the senate presided over by Freisler were concerned. We were per se not very much inclined to attack sentences pronounced by our own court by such a legal recourse. However, Minister Thierack, though not much inclined to admit objections, occasionally could be made to do so in cases presided over by Freisler. The cases which are pertinent here, I may perhaps describe briefly. The first Senate of the People’s Court in one case had condemned a person to death because of treason. The facts were as follows: The defendant had transferred a model 38 machine gun into the hands of the enemy; he had obtained the machine gun and given it to an enemy agent. The enemy had known about this machine gun for a long time because they had captured many of these machine guns on the battlefield. Thus, only attempted treason could be the case, and the indictment was filed in that manner. Nevertheless, the Senate passed the death sentence. Here the extraordinary objection was permitted. A second case was a death sentence against a member of the Protectorate, the opinion of which consisted of three-quarters of a page by Freisler. In this case I suggested that this was not an opinion at all, since from the facts one could not find out at all what the defendant had done; and because of this legal mistake the extraordinary objection should be allowed. This extraordinary objection, therefore, was permitted.

Q. Witness, could the defense suggest an extraordinary objection?

A. Yes, the defense counsel could do it, too. The contents of such petitions frequently showed that pure clemency reasons were used by them as arguments in favor of an extraordinary objection, and not basic legal questions. In such cases it was suggested to them that they make a clemency plea. But, if the extraordinary objection was based on such grounds that there was a hope that it might succeed, I submitted it to the Minister of Justice and supported it. However, and I have stressed that here before, it was very difficult to get Thierack to allow extraordinary objection to be made in favor of a defendant.

Q. May I interpolate a question? Were you, as chief prosecutor, the competent official who had to deal with such extraordinary objections?

A. No, no, that was the Chief Reich Prosecutor of the Reich Supreme Court at Leipzig.

Q. Can you tell us something as to whether extraordinary objection was made frequently?

A. During the early part of the war, when the extraordinary objection was introduced, that is, until approximately 1942, it was a very infrequent occurrence. It was altogether the exception that it was made. From that time onward, however, their number increased slowly, but I cannot even give a rough estimate as to the number of extraordinary objections that were ordered. Originally, the Ministry of Justice, if a report was made by me as to whether an extraordinary objection was to be made—for example, in the case of a sentence passed by the court of appeals—originally the ministry was agreeable to my using again and again the phrase that the sentence gave rise to misgivings on some points, but these points were by no means of such a serious nature that the unusual recourse of the extraordinary objection should be used. That became different only when the new chief of Department IV of the Ministry of Justice, Ministerialdirektor Vollmer, assumed office. I asked him about this one day, and inquired from him how it was that these days the Minister more frequently ordered an extraordinary objection to be made. In reply he said, since the Fuehrer decree of August 1942, Thierack had all authority in the field of the administration of justice and, therefore, in the sphere of the extraordinary objection, too, he had more scope than hitherto.

*******

PARTIAL TRANSLATION OF DOCUMENT NG-715

PROSECUTION EXHIBIT 112

DECREE OF 21 FEBRUARY 1940 CONCERNING THE NULLITY PLEA

1940 REICHSGESETZBLATT, PART 1, PAGE 405

Decree concerning the jurisdiction of the criminal courts, the Special Courts, and additional provisions of criminal procedure of 21 February 1940.

*******

Part V

Nullity Plea [Nichtigkeitsbeschwerde] of the Chief Reich Prosecutor

Article 34

Prerequisites of the Nullity Plea

The Chief Public Prosecutor may lodge a nullity plea with the Reich Supreme Court against a final judgment of the local court, the penal chamber of the district court, or the Special Court, within 1 year from the date of its becoming final, if the judgment is unjust because of an erroneous application of law on the established facts.

Article 35

Decision on the Nullity Plea

(1) The nullity plea is to be filed in writing with the Reich Supreme Court. This court will decide thereon by judgment based on a trial; with the consent of the Chief Reich Prosecutor it can also reach a decision without a trial.

(2) The Reich Supreme Court can order a postponement or an interruption of the execution. It can order a warrant of arrest already before the decision on the nullity plea. Outside of the trial, the penal senate, composed of three members including the president, decide thereon. Article 124, paragraph 3, of the Code of Criminal Procedure remains unaffected.

(3) If the Reich Supreme Court reaches a decision based on a trial, articles 350 and 351 of the Code of Criminal Procedure apply accordingly. The president can order the personal appearance of the defendant.

(4) If the Reich Supreme Court quashes the contested sentence, it can make its own decision on the case if the facts found by the contested judgment are sufficient for this; otherwise it will refer the case to be retried and newly decided upon to the court whose sentence is quashed or to another court.

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Part VI

Final Regulations

Article 40

Validity in the Protectorate

This decree is also valid for the German courts in the Protectorate of Bohemia and Moravia.

Berlin, 21 February 1940

The Plenipotentiary for the Administration of the Reich

Frick

PARTIAL TRANSLATION OF DOCUMENT NG-677

PROSECUTION EXHIBIT 188

EXTRACTS FROM AFFIDAVIT OF DR. ESCHER, GERMAN ATTORNEY,[234] CONCERNING THE USE OF THE NULLITY PLEA

Dr. Ernst Escher, Attorney

Fuerth, 7 December 1946

Rudolf Breitscheidstrasse 8

Sworn Affidavit

As a result of questioning by the American prosecutors in the Nuernberg courthouse, I have the following declaration to make in connection with the questions set before me concerning the procedure of the so-called nullity plea by the Chief Reich Prosecutor:

1. Previous legal situation—It is true that the legal principle that a man cannot be tried twice for the same offense [ne bis in idem] is not clearly stated in the German Criminal Code, dated 22 March 1924, and since subjected to frequent editorial changes; this maxim, however, was repeatedly acknowledged in the so-called “motives” of that law. In all of the German legal terminology and literature, no doubt had ever occurred that an individual, once legally tried, could not be resummoned before a court for the same criminal act, without the introduction of additional evidence of proof. New proceedings against an accused who had been legally acquitted, could only be initiated in accordance with the rules concerning such a reconsideration of a once legally concluded trial (arts. 359 ff., in particular, art. 362 of the Criminal (Penal) Code).

The accused was therefore assured that, once he had been legally acquitted, he would not be summoned a second time before the court on the same charge.

These principles were never repealed in the Code of Criminal Procedure itself; they remained unaltered until the present, and the Criminal Code of 1946, issued by the [Allied] Control Council also incorporated them.

2. During the war, Hitler’s government, in a decree pertaining to the competence of the criminal and Special Courts and covering other regulations of criminal procedure, dated 21 February 1940 (Reichsgesetzblatt 1940, I, p. 405, in art. 5, pars. 34 to 37), created the procedure of the so-called nullity plea[235] by the Chief Reich Prosecutor and thereby annulled and destroyed this fundamental legal maxim. Within a year after a verdict became valid, according to this decree, the Chief Public Prosecutor at the Reich Supreme Court was empowered to use the nullity plea against the final sentences of the local courts of the criminal divisional courts and of the Special Courts if, due to an error in the application of the law to clearly established facts, the sentence could be regarded as unjust.

In a later decree, dated 13 August 1942, allowance was made for a further extension in the use of the nullity plea. Published in the Reichsgesetzblatt in 1942 (p. 508 ff.), this decree in article 7, paragraph 2, established the right of the Chief Public Prosecutor at the Reich Supreme Court to employ the nullity plea, if the decision due to an error in the application of the law was unjust, or if there were serious objections to the validity of the evidence on which the decision was based, or to the sentence itself.

By this decree, it became practically possible to employ the nullity plea against every final judgment and of summoning an accused man the second time before a criminal court despite the fact that his case had already been legally decided.

As is evident in the literature, and especially in the published decisions of the Reich Supreme Court, the nullity plea was not infrequently employed. I refer to the official collection of Reich Supreme Court decisions, volumes 74, 75, and 76 of the published decisions involving the nullity plea.

*******

I have been asked how the nullity plea of the Chief Public Prosecutor at the Reich Supreme Court was obtained legally. In this connection, I am only able to state that, according to regular procedure, the chief of the local prosecution—thus in Nuernberg, the Chief Public Prosecutor at the district court of Nuernberg-Fuerth—Chief Public Prosecutor Schroeder in the cases with which I was concerned—would send the documents with an appended suggestion to use the nullity plea first to the attorney general at the court of appeal (during the last years, Bens) and from there to the Chief Public Prosecutor at the Reich Supreme Court in Leipzig.

According to the text of the law, the nullity plea could also be employed to the advantage of the condemned. In one case, I myself filed a nullity plea with the Chief Public Prosecutor at the Reich Supreme Court. I was, however, informed that there was no justification for the instigation of the nullity plea.

[Signed] Dr. Ernst Escher

Attorney

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS ERNST ESCHER[236]

CROSS-EXAMINATION

*******

Dr. Schilf (counsel for defendants Klemm and Mettgenberg): Now I am going to refer to the factual contents of your affidavit. (NG-677, Pros. Ex. 188.[237]) This statement concerns itself exclusively with the problem of the nullity plea. Therefore, Witness, I will ask you whether you consider yourself a particular specialist on this problem and held yourself to be such an expert when, on 7 December 1946, you made that statement.

May I point out that the first part—I should like to say one half, the first half, is concerned with theoretical matters, that is to say, with the interpretation of the law. The remainder is concerned with facts. Furthermore, you refer to literature and also to decisions made by the Reich Supreme Court. May I ask you to give me your point of view?

Witness Escher: On no account can I say that I am an expert or that I have special knowledge of the problem of the nullity plea. We defense counsels, generally speaking, do not have much time to devote ourselves to scientific problems. As a rule we deal with problems only when they have been brought to us by our practical work. Concerning the theoretical aspect of the nullity plea, I have never in my practice studied it, in detail, but when the nullity plea, became topical, I examined the questions which a defense counsel has to investigate. When in December 1946 I was asked what I knew about the nullity plea, what I had to say about my knowledge of this matter, I mentioned the two cases which occurred in my practice. It seemed necessary to me, however, to give a brief introduction concerning the situation such as it was before the introduction of the nullity plea and such as I saw it after the introduction of the nullity plea. I read several decisions, but I would consider it conceit if I were to say that I possessed thorough knowledge of the problem of the nullity plea.

Q. Witness, in your practice you only came across two cases, isn’t that correct?

A. Yes.

Q. In spite of your statement, Dr. Escher, I have to discuss one theoretical question with you. In your introduction such as you characterized it just now, on page 2 under 2 of your affidavit, you have drawn a conclusion, that is a conclusion as to what the introduction of the nullity plea led to. You said, and I am going to quote literally: “The so-called nullity plea of the Oberreichsanwalt was created and thereby the basic legal principle, ne bis in idem, double jeopardy, was revoked and destroyed.” As you made such a far-reaching statement on that point, I would like to hear in brief as to what, at the time you deposited your affidavit, you understood by the legal principle ne bis in idem, double jeopardy. I noted you mentioned that principle twice. May I ask you to give a brief account to the Tribunal of your opinion as you held it at that time?

A. The principle of double jeopardy meant that a person on whom a legal verdict had been passed could not without new facts having emerged or without the condition of articles 359 and following of the Code of Penal Procedure applying, be retried by a court. Neither the prosecution nor the defendant after legal sentence had been passed could demand a new trial unless the conditions such as they are laid down in the law were fulfilled. That is, for example, perjury on the part of a witness, the finding of new documents or similar fundamental new aspects. By that principle the possibility of the nullity plea was eliminated. And that and not more is what I believe to have stated in my affidavit.

*******

Q. Witness, concerning your opinion on the principle of double jeopardy, your view that that principle was eliminated by the nullity plea, will you maintain your opinion in the face of what I am going to read to you now? It is a paper by Oberreichsanwalt Retzer, Leipzig, published in Deutsche Justiz, volume 1941, No. 20, page 562, I quote:

“It is doubtful whether the nullity plea is possible if the violation of the law which occurred refers to a condition of the trial. It is undisputed in the case of a violation of the principle of double jeopardy. The Supreme Reich Court in a great number of cases revoked sentences where the principle of double jeopardy had been violated.”

That is the end of the quotation. To make it clearer, the Supreme Reich Court revoked these decisions by way of the nullity plea, and four cases are quoted and the file numbers are given. My question—now that I have read this to you—do you maintain your opinion?

A. May I say briefly the nullity plea could only be made by the Oberreichsanwalt, but not only against the defendant but also in favor of the defendant. It was, therefore, altogether possible that the Oberreichsanwalt, if he considered a verdict unjust, should use the nullity plea in favor of the defendant. Such a case does exist, even if through certain circumstances or errors a man is sentenced twice for the same crime by different courts, which happened occasionally because, for example, it wasn’t known in the case of a Nuernberg case that this man had already been sentenced in Berlin. When that was revealed, the Oberreichsanwalt naturally could make use of the nullity plea in favor of the defendant. Such cases evidently are discussed in the decisions which my colleague has just put to me. In those cases, the nullity plea was a blessing and worked in favor of the defendant, but in most cases, or at least in very many cases, the nullity plea was used without any new facts or conditions, according to article 359 by the Oberreichsanwalt against the defendant.

Q. Witness, the essence of what I put to you is this: You said, by the nullity plea, the principle of double jeopardy has been destroyed, and the other author says that the nullity plea was in fact to protect that principle. I wanted to ask you whether you maintain your opinion, and you have not answered that question as yet.

A. I am of the opinion that the question, the way it is put, contains a little misunderstanding insofar as Retzer deals only with one special case of the nullity plea where it was made in order to revoke decisions which had been made in violation of the principle of double jeopardy. Naturally, the principle of double jeopardy was not expressly eliminated by so many words, but the effect of the introduction of the nullity plea was that a man, on whom a legal sentence had been passed without new facts or circumstances having come to light, could be retried by a court. Sometimes it could operate in his favor, but in the majority of cases it went against his interest, in my experience, that is.

*******

EXTRACT FROM THE TESTIMONY OF DEFENDANT ROTHAUG CONCERNING A CASE WHERE, AFTER A NULLITY PLEA, THE REICH SUPREME COURT CHANGED A PRISON SENTENCE TO THE DEATH SENTENCE WITHOUT REFERRING THE CASE BACK TO THE SPECIAL COURT OF FIRST INSTANCE[238]

DIRECT EXAMINATION

*******

Defendant Rothaug: * * * In order to elucidate how severe, for example, the Reich Supreme Court, in particular, generally judged the situation in those cases [sabotage cases during wartime] is demonstrated by the case in the list of the death sentences of the Special Court Nuernberg in which the notation is made—Sentence of the Reich Supreme Court. I believe it was in 1941. The following were the facts:

A Pole had given a civilian pair of pants to a Serbian PW in order to enable him to flee into his home country. In fact, the Serbian prisoner did escape. The Pole confessed; however, he denied decisively that he had intended that the Serb should join the Tito forces; that he only did it out of compassion. Therefore, we sentenced him to a penal camp, 3 years in a penal camp. Thereupon, a nullity plea was filed, the Reich Supreme Court changed the sentence, did not even refer it back to us, but quickly sentenced the Pole to death by stating that, in their opinion the facts which we had already determined ourselves, as I have just told you in a few brief sentences now, were absolutely sufficient to pronounce the death sentence.

And I still recall that the important point of view was—and I remember it, because I was interested—that it could not matter in wartime what concrete intentions he had but that it was absolutely sufficient that the Pole could have counted upon the possibility that the Serb would join Tito’s forces.

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2. FURTHER DEVELOPMENTS PRINCIPALLY DURING THE PERIOD WHEN THE DEFENDANT SCHLEGELBERGER WAS ACTING REICH MINISTER OF JUSTICE (JANUARY 1941–AUGUST 1942)

a. The Influence of Hitler and Others upon the Administration of Justice

PARTIAL TRANSLATION OF DOCUMENT NG-152

PROSECUTION EXHIBIT 63

LETTERS FROM DEFENDANT SCHLEGELBERGER TO HITLER AND LAMMERS, MARCH 1941 AND MARCH 1942, CONCERNING JUDICIAL SENTENCES DISPLEASING HITLER AND PROPOSING PARTICIPATION IN CIVIL PROCEEDINGS BY PUBLIC PROSECUTORS

[Stamp]

Reich Chancellery 5197 B-4 April 1941

The Acting Minister for Justice

Berlin, 10 March 1941

My Fuehrer,

In continuing the work of the deceased Reich Minister Dr. Guertner, I will do my utmost to install the administration of justice with all its branches more and more firmly within the National Socialist State. In the course of the large number of verdicts pronounced daily there are still judgments which do not entirely comply with the necessary requirements. In such cases, I will take the necessary steps. In order that such judgments be dealt with rapidly you, my Fuehrer, have created the nullity plea and the extraordinary objection for criminal cases. For civil proceedings, the right of application by the Chief Reich Prosecutor at the Reich Supreme Court for the resumption of the procedure, could serve the same purpose as provided in an ordinance drafted by myself. So as to avoid all such wrong verdicts, the public prosecutor’s office is called on, in this draft, to participate in civil proceedings, and should stress the right of the national community against the individual interests of the opposing parties.

Apart from this it is desirable to educate the judges more and more to a correct way of thinking, conscious of the national destiny. For this purpose it would be invaluable if you, my Fuehrer, could let me know if a verdict does not meet with your approval. The judges are responsible to you, my Fuehrer; they are conscious of this responsibility and are firmly resolved to discharge their duties accordingly.

I feel that it is my duty to you, my Fuehrer, to bring it to the attention of the judges if a decision does not conform to the opinion of the State leadership.

Heil, my Fuehrer!

[Signed] Dr. Schlegelberger

[Stamp] 3868 B

[Handwritten] 1508/1

The Acting Reich Minister of Justice

Berlin, 10 March 1941

[Initial] L. [Lammers]

[Handwritten] 11 March 2 enclosures

Dear Reich Minister Dr. Lammers:

In connection with our telephone conversation of today, I am sending you a copy of my letter addressed to the Fuehrer.[239] I consider it of great importance that the Fuehrer receive this letter as soon as possible. It has come to my knowledge that just recently a number of sentences passed have roused the strong disapproval of the Fuehrer. I do not know exactly which sentences are concerned, but I have ascertained for myself that now and then sentences are pronounced which are quite untenable. In such cases I shall act with the utmost energy and decision. It is, however, of vital importance for the administration of justice and its standing in the Reich, that the head of the Ministry of Justice should know to which sentences the Fuehrer objects; for nothing is more dangerous than the creation of a so-called atmosphere, of the causes of which the Minister of Justice is unaware. That is the reason for my request to the Fuehrer in the last paragraph of my letter. I repeat, this attempt to establish a direct contact between the Fuehrer and the Minister of Justice must be made at once if irreparable damage is to be avoided.

In explanation of the first paragraph of my letter, I enclose the mentioned draft of the decree, which is to be provisionally discussed here on the 17th of this month with the Reich Chancellery. Basic approval has already been received from the Reich Finance Minister, the Reich Minister of the Interior and the Reich Minister of Economics. Participation by the prosecuting authorities in civil cases was already known in Roman law. Nowadays, in the recently published Italian code of civil procedure, this participation has been extended, following the general line of my draft, because, as is indicated in the report to the king, a purely platonic participation is no longer sufficient.

The deceased Reich Minister Dr. Guertner, during the last days he was still in office, advised me to examine the question of whether an extraordinary objection should be created for civil as in criminal cases. I have adopted the right of the Chief Reich Prosecutor to ask for the reopening of a case but deliberately with such limitations, that by human standards no offense can be created thereby; this special reopening will only be put into practice in so-called secular cases.

With best regards and Heil Hitler!

Yours very truly

[Signed] Dr. Schlegelberger

Enclosure to the Letter of 10 March 1941 from Defendant Schlegelberger to Lammers

Draft of a Decree Concerning Participation by the Public Prosecutor in Legal Proceedings of matters of Civil Law

dated....................1941

The Ministerial Council for the Defense of the Reich issues the following decree with force of law:

Article 1

(1) The public prosecutor is authorized to participate in civil law proceedings in order to plead the circumstances which have to be considered from the point of view of the national community and for the final judgment. For this purpose, the public prosecutor may be present at all proceedings and may give his opinion regarding the judgment which is to be passed. He may submit facts and evidence insofar as this does not affect the rights of either party with regard to the disagreement.

(2) Regulations which already provide for participation by the public prosecutor in matters of civil law, are not affected.

Article 2

In matters of civil law where a valid final judgment has been passed, the Chief Reich Prosecutor at the Reich Supreme Court may, within a year after the decision has become valid, file an application for reopening the proceedings if there are serious legal and factual objections against the justness of the decision, and if he considers new proceedings and a new judgment to be necessary because of the special importance of the judgment to the national community.

Article 3

(1) The high senate for civil matters at the Reich Supreme Court makes a decision by writ, on application.

(2) The participants in the previous proceeding may be heard.

Article 4

(1) If the Reich Supreme Court grants the application of the Chief Reich Prosecutor, it will again take up—as far as this is necessary—the previous proceedings and the judgments passed, and will order new proceedings and a new judgment.

(2) The Reich Supreme Court determines whether the new proceedings and judgment will be dealt with by the court previously concerned with the case, or will be replaced by another court of the same standing, or whether it will be dealt with by a senate of the Reich Supreme Court.

Article 5

(1) The new proceedings will be considered a continuation of the previous proceedings.

(2) The court is bound by the legal and factual judgment on which the Reich Supreme Court based its writ.

(3) No court fees will be charged for the new proceedings and judgment.

Article 6

The president or a member of the high senate for civil matters, appointed by him, may issue temporary orders regarding the execution of judgments concerned in the application of the Chief Reich Prosecutor at the Reich Supreme Court.

Article 7

The Reich Minister of Justice is authorized to issue supplementary regulations and regulations for the implementation of this decree.

Article 8

In the Protectorate of Bohemia and Moravia, this decree is only valid for proceedings before German courts.

The Acting Reich Minister of Justice

Berlin, 24 March 1942

My Fuehrer:

When I took office, I asked you to inform me whether, if a sentence did not meet with your approval, you would allow me to correct it. I ask permission to consider the telephone call made on Sunday, 22 March, concerning the case of Schlitt at Wilhelmshaven as granting my request, and I express my sincerest thanks for this.

I entirely agree with your demand, my Fuehrer, for very severe punishment for criminals [Verbrechertum], and I assure you that the judges have honest will to comply with your demand. Constant instructions in order to strengthen them in this intention and the increase of threats of legal punishment have resulted in a considerable decrease of the number of sentences to which objections have been made from this point of view, out of a total annual number of more than 300,000.

I shall continue to try to reduce this number still more, and if necessary, I shall not shrink from personal measures as before.

In the criminal case against the building technician Ewald Schlitt from Wilhelmshaven, I have applied through the Chief Reich Prosecutor for an extraordinary objection against the sentence at the special senate of the Reich Supreme Court. I will inform you of the verdict of the special senate immediately it has been given.

Heil my Fuehrer!

[Signed] Dr. Schlegelberger

To the Fuehrer and Chancellor of the Greater German Reich, Adolf Hitler

TRANSLATION OF DOCUMENT NG-280

PROSECUTION EXHIBIT 70

CORRESPONDENCE BETWEEN THE REICH CHANCELLERY AND DEFENDANT SCHLEGELBERGER, MARCH AND APRIL 1941, AFTER HITLER HAD EXPRESSED DISPLEASURE AT A SENTENCE GRANTING EXTENUATING CIRCUMSTANCES TO A POLE

Berlin, 28 March 1941

Pertaining to Reich Chancellery 4729

Subject: Sentences against Poles

1. Memorandum:

According to information from Reichsleiter Bormann a sentence of the Lueneburg District Court (apparently in a rape trial) against a Polish farm hand has been submitted to the Fuehrer, in which the defendant is granted extenuating circumstances because it was felt that he did not have the same restraint in his relations to female co-workers as German farm hands have. The Fuehrer rejected this view of the court as totally misleading. Under Secretary Schlegelberger is to take the necessary steps to preclude a repetition of this view.

[Initial] F [Ficker]

The Reich Minister and Chief of the Reich Chancellery

Berlin, 29 March 1941

Dispatched 30 March

Reich Chancellery 4729 B

[Handwritten] See Reich Chancellery 5021 B

2. To: Under Secretary Dr. Schlegelberger

Reich Ministry of Justice

Dear Mr. Schlegelberger:

The sentence of the Lueneburg District Court of 21 October 1940 on the Polish farm hand Wolay Wojcieck from Rolfsen has been transmitted to the Fuehrer. In it the court states:

“The defendant is granted extenuating circumstances in respect to the crime. The court considered in the defendant’s favor that, as a Pole, he does not have the same restraint in his relations with female co-workers as the German farm hand would have.”

The Fuehrer rejected the view of the court as totally misleading. The Fuehrer urges you to take immediately the steps necessary to preclude repetition in other courts of the view of the Lueneburg court. I should be obliged if you would inform me what steps you have taken in the matter.

Heil Hitler!

Yours very truly,

(Name of the Reich Minister)

[Handwritten] with final copy

3. To Reichsleiter Bormann

Dear Mr. Bormann:

I transmitted the instruction of the Fuehrer as contained in your letter of 26 March 1941, concerning the consideration of extenuating circumstances in crimes committed by Poles, to Under Secretary Dr. Schlegelberger with the request for information about what steps he has taken in the matter.

Heil Hitler!

Yours very truly,

(Name of the Reich Minister)

[Initial] L

(with original copy)

4. [to be submitted again] on 28 April

[Initials] Ri 29/3

F 28/3

Reich Chancellery 5021 B—2 April 1941 Kri-Fi Record RH 4729 B 1b, 392 B

The Acting Reich Minister of Justice

Berlin, 1 April 1941

[Initial] /L. [Lammers]

1. Office: 2 April

[Stamp] Enclose previous records

2. Miss Frobenius:

See Reich Chancellery 5194

[Initial] L. [Lammers]

2 April

Dear Reich Minister:

Upon receipt of your kind letter of 29 March 1941 I immediately consulted the files of the criminal case against the Polish farm hand Wolay Wojcieck. In the statement of the court the passage quoted in your letter is indeed to be found. By means of a circular letter with the order for immediate transmittal to all judges and public prosecutors I brought the mistake in the viewpoint, as it is shown in this passage of the court’s statement, to the attention of the administration of penal justice [Strafjustiz] without delay. I consider it impossible that such an incident will occur again.

I also had the responsible president of the Appellate court and the judges concerned ordered to report here tomorrow with the intention of changing responsibilities at the Lueneburg district court with a view to excluding the judges who cooperated in issuing the sentence from further employment in criminal jurisdiction.

Heil Hitler!

Yours very truly,

[Signed] Schlegelberger

1. Reported to the Fuehrer. Also reported on the letter of Under Secretary Schlegelberger of 3 April 1941.

2. Office—The above letter is to be filed.

3. To be submitted to me again.

Berlin, 3 April 1941

[Handwritten]

1. Schl. has been provisionally informed by phone.

2. [Illegible] above Count 2

3. Min. Counsellor Kritzinger [illegible] L 4 April

[Stamp]

Reich Chancellery 5914 B—4 April 1941

[Handwritten] submitted with File Reich Chancellery 5021 B

The Acting Reich Minister of Justice

Berlin, 3 April 1941

[Initial] L [Lammers] 3 April

Your Excellency, Herr Reich Minister:

In addition to my letter of 1 April 1941 I beg to inform you that the presiding judge of the penal chamber which passed the sentence in the case against the Polish farm hand Wolay Wojcieck is no longer presiding and that the two associate judges have been replaced by other associate judges.

Heil Hitler!

Yours very truly,

[Signed] Schlegelberger

[Handwritten]

Reich Chancellery 5021, 5194 B

1. No further steps will be taken.

2. The Reich Minister of Justice is going to transmit the [Illegible].

3. To be submitted again on 24 April.

[Initials] Kr [Kritzinger] 10 April

See Reich Chancellery 5929 B

Justice 11

TRANSLATION OF DOCUMENT NG-611

PROSECUTION EXHIBIT 64

CORRESPONDENCE BETWEEN BORMANN, LAMMERS, AND DEFENDANT SCHLEGELBERGER, 25, 29 MAY AND 28 JUNE 1941, CONCERNING A SUGGESTION OF HITLER TO CONVERT A PRISON SENTENCE INTO A DEATH SENTENCE

[Handwritten] Reich Chancellery 7593 B

Reich Leader Martin Bormann

To Reich Minister Dr. Lammers,

Berchtesgaden

Reich Chancellery

Fuehrer Headquarters, 25 May 1941

Bo/Si.

[Initial] L [Lammers] 26 May

1 enclosure

Personal

By messenger

[Handwritten]

1. [stamp] Miss Frobenius: (Reich Chancellery)

2. To Ministerialrat Ficker

[Initial] L [Lammers] 26 May

[stamp] See document of 29 May

Dear Mr. Lammers:

In yesterday’s edition of the “Voelkischer Beobachter” the Fuehrer read the enclosed report according to which the Special Court of Munich in a trial in Augsburg sentenced the 19-year-old Anton Scharff to 10 years’ hard labor for theft under cover of the black-out; the public prosecutor had asked for the death sentence.

In the Fuehrer’s opinion this sentence is entirely incomprehensible. The Fuehrer believes that in such cases capital punishment must definitely be given if crimes committed under cover of the black-out are to be kept to a minimum from the outset. The Fuehrer has also emphasized time and again that the criminals should receive severe punishment considering the heroic fighting of our soldiers.

The Fuehrer requests you to inform Under Secretary Schlegelberger again of his point of view.

Heil Hitler!

Yours very truly,

[Signed] M. Bormann

[Typed] (M. Bormann)

1 enclosure

[Handwritten] War 12

[Enclosure]

JUST MISSED THE SCAFFOLD

10 Years’ Hard Labor for a Pickpocket—Death penalty demanded

Augsburg, 23 May

The 19-year-old Anton Scharff was tried for theft under cover of the black-out before the Special Court of Munich in session in Augsburg. On the evening of 18 April in the Jesuitengasse in Augsburg, the perpetrator snatched the handbag from a young woman as she was going to unlock the door of her house. Upon the woman’s screams for help, the perpetrator was pursued and caught by passers-by. He was sentenced to 10 years’ penitentiary and corresponding loss of civil rights.

The public prosecutor had asked for the death penalty.

The Reich Minister and Chief of the Reich Chancellery

Reich Chancellery 7593 B

Fuehrer Headquarters, 29 May 1941

1. To Under Secretary Dr. Schlegelberger

[Handwritten] Charged with the management of the affairs of the Reich Minister of Justice.

Subject: Crimes committed under cover of the black-out Enclose copy of enclosure of Reich Chancellery 7593 B

Dear Mr. Schlegelberger:

The Fuehrer took from the Munich edition of the “Voelkischer Beobachter” dated 24 May, a report, a copy of which is enclosed, according to which the Special Court of Munich in a session in Augsburg sentenced the 19-year-old Anton Scharff to 10 years’ penitentiary for theft under cover of the black-out; the public prosecutor had asked for the death penalty. The Fuehrer considers this sentence entirely incomprehensible. The Fuehrer believes that in such cases the death penalty must definitely be given, if crimes committed under cover of the black-out are to be kept down to a minimum from the outset. The Fuehrer has also emphasized time and again that the criminals should receive especially severe punishment considering the heroic fighting of our soldiers.

The Fuehrer requested that I reiterate his point of view to you.

Heil Hitler!

Yours very truly,

(Name of the Reich Minister)

2. To Reich Leader Martin Bormann

In reply to the letter of 25 May 1941—Bo/Si—

Enclose copy of 1

Dear Herr Bormann:

Enclosed please find a copy of my letter of today to Under Secretary Dr. Schlegelberger for your information.

Heil Hitler!

Yours very truly,

(Name of the Reich Minister)

3. After dispatch to Ministerial Director Kritzinger for his information.

[Initial] Kr [Kritzinger] 2 June

4. To be filed.

(Name of the Reich Minister)

[Initial] L [Lammers]

[Initial] F [Ficker] 27 May

Berlin, 28 June 1941

Reich Chancellery 9687 B/29 June 1941

The Acting Reich Minister of Justice

III secret 23 1548/41

[Initial] Kr [Kritzinger] 20 June

[Initial] F [Ficker] 30 June

To: The Reich Minister and Chief of the Reich Chancellery

Berlin W 8

Voss Strasse 6

Submitted to the Reich Minister for his information.

[Initial] Kr [Kritzinger]

1 July

Subject: Crimes committed under cover of the black-out

Reference: Letter Reich Chancellery 7593 B dated 29 May 1940.[240]

[Handwritten]: To be filed. [Initial] L [Lammers]

Dear Reich Minister Dr. Lammers:

I am very much obliged to the Fuehrer for having complied with my request to take the sentence of the Special Court in Munich against Anton Scharff as an opportunity to have me informed about his views as to the proper expiation for crimes committed under cover of the black-out. I shall again inform the presidents of the district courts of appeal and the attorneys general of this view of the Fuehrer as soon as possible.

The short notice in the Munich edition of the “Voelkischer Beobachter” dated 24 May, which was enclosed in your letter of 29 May, does not make the sentence comprehensible in my opinion either. In the judgment the following facts are stated. Scharff, who was not quite 19 years old when he committed the crime, is the only child of a painter’s family and comes from a very poor home. On account of an infection of the lungs his father is unable to work as a painter and his only occupation is in the office of the Nazi Party Public Welfare Organization in Pfaffenhofen on the Ilm. The parents have barely the necessaries of life.

Since the middle of 1937 the defendant was thrown on his own resources and gained his living without parental help and away from home on poorly paid jobs, first by agricultural work and recently as an unskilled worker with a firm in Augsburg. His conduct and efficiency were satisfactory. As the defendant, whose wages amounted to 50 pfennig per hour, could not make both ends meet and contracted harassing debts, he absented himself from work several times in order to get better earnings through odd jobs, such as helping in the loading of wagons at the railroad station and also in this way to obtain dismissal from his employers who would not discharge him.

Around Easter 1941 he left his job after having spent his last wages. He reckoned with his early drafting into armed forces, since he had volunteered for an antitank unit and, with consent of his father, had enlisted for 12 years in order to bring his financial troubles to a final stop. This time he did not find work at the railroad station. Thus, it happened that he soon found himself without means, and hit upon the idea of getting money by stealing a handbag. After having watched the district in question, he thought that on 18 April 1941 at about 2200 hours he had found a fitting opportunity and snatched the handbag from under the arm of a young woman whom he had followed for some time when she was about to unlock the door of her house. When the woman, a war widow, called for help and people approached, the defendant fled and threw away the handbag but was arrested a short time later without offering resistance.

On the basis of these facts which help to elucidate the peculiarity of the offense and the character of the perpetrator, the court was induced to pass a mild sentence. Since no violence could be proved, the defendant was not convicted of robbery, but only of theft. As extenuating circumstances, the clean conduct sheet, satisfactory work, his youth and immaturity, as well as the hard life, full of deprivations, led by defendant, were put to his account by the court and for these reasons the death penalty was dispensed with.

I ask you to assure the Fuehrer that my unwavering attention is directed to the safeguarding of the protection of the people against public enemies through the severe punishment of criminals.

Heil Hitler!

Yours very truly,

[Signed] Dr. Schlegelberger

TRANSLATION OF DOCUMENT NG-287

PROSECUTION EXHIBIT 88

CORRESPONDENCE BETWEEN LAMMERS, SCHAUB, AND DEFENDANT SCHLEGELBERGER, OCTOBER 1941, CONCERNING TRANSFER OF MARKUS LUFTGAS TO THE GESTAPO FOR EXECUTION[241]

The Reich Minister and Chief of the Reich Chancellery

Rk/ 15506 B

Fuehrer Headquarters

25 October 1941

[Handwritten] 393A

1. To: Under Secretary, Professor Dr. Dr. h.c. Schlegelberger, charged with the management of the affairs of the Reich Minister of Justice

Berlin W 8

Wilhelmstrasse 65

[Handwritten] Refer to newspaper

Dear Mr. Schlegelberger:

The enclosed newspaper clipping about the sentencing of the Jew Markus Luftgas to imprisonment for 2½ years by the Special Court of Bielitz has been submitted to the Fuehrer.[242] The Fuehrer wishes Luftgas to be sentenced to death. May I ask you urgently to instigate what is necessary and to notify me about the measures taken so that I can inform the Fuehrer.

Heil Hitler!

Yours very truly,

(Signature of the Reich Minister)

[Handwritten] Justice 11

2. To: SS-Gruppenfuehrer Julius Schaub[243]

Fuehrer Headquarters

Subject: Markus Luftgas

Dear Mr. Schaub:

After receiving your letter dated 22 October 1941 I got into touch with the Reich Minister of Justice and asked him to instigate the necessary measures.

Heil Hitler!

Yours very truly,

(Signature of the Reich Minister)

3. Copy of the newspaper clipping to be filed.

4. After dispatch—For the attention of Ministerial Director Kritzinger for information.

5. After 1 month.

(Signature of the Reich Minister)

[Initial] L [Lammers]

Copy

[Enclosure] to Rk. 15 506 B

“Berlin Illustrated Night Edition”

No: 246, Monday 20 October 1941

Jew hoarded 65,000 eggs and allowed 15,000 of them to spoil

By wire from our reporter

Breslau, 20 October—The 74-year-old Jew Markus Luftgas from Kalwarja removed a huge number of eggs from the controlled economy and had to answer for it at the Special Court in Bielitz. The Jew had hidden 65,000 eggs in containers and in a lime-pit, 15,000 of which had already spoiled. The defendant was sentenced to 2½ years’ imprisonment as a just punishment for a crime against the war economy regulations.

Berlin, 29 October 1941

The Acting Reich Minister of Justice

III g-14 3454/41

To the Reich Minister and

Chief of the Reich Chancellery

in Berlin W 8, Vosst. 6

[Initial] L [Lammers]

[Handwritten] 3/11

1. Submitted to the Minister for his information

2. To be filed.

[Initial] Kr [Kritzinger]

Subject: Case against the Jew Luftglass (not Luftgas) Sg 12 Js 340/.41 of the Chief Public Prosecutor in Katowice —Rk. 15506 B dated 25 October 1941.

Dear Reich Minister Dr. Lammers:

In accordance with the order of the Fuehrer and Reich Chancellor dated 24 October 1941, transmitted to me by the Minister of State and Chief of the Presidential Chancellery of the Fuehrer, I have handed over to the Gestapo for the purpose of execution, the Jew Markus Luftglass who was sentenced to 2½ years’ imprisonment by the Special Court in Katowice.

Heil Hitler!

Very truly yours,

[Signed] Schlegelberger

TRANSLATION OF DOCUMENT NG-508[244]

PROSECUTION EXHIBIT 72

CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO PRESIDENTS OF DISTRICT COURTS OF APPEAL, 15 DECEMBER 1941, QUOTING FROM A SPEECH BY HITLER AND STATING THAT JUDGES AND PUBLIC PROSECUTORS MUST KEEP HITLER’S WORDS IN MIND

The Acting Reich Minister of Justice

33/2-IIa2 3024/41

Berlin W 8, 15 December 1941

Wilhelmstrasse 65

Tel. 11 00 44

Long distance: 11 65 16

To: The Presidents of the District Courts of Appeal and the Attorneys General

An important factor in keeping up the morale of the German people on the home front is the prompt and purposeful administration of penal justice.

The Fuehrer was referring to this when, in his speech before the German Reichstag on 11 December 1941, he said:

“The memory of those who died for the existence and greatness of the German people even before our time makes us realize the extent of our duties.

“He who tries to escape this duty, however, has no right to live among us as a member of the German national community.

“We shall be equally unrelenting in our fight for the preservation of our people as we were in our fight for power.

“At a time when thousands of our best men, fathers and sons of our people, are being killed in battle, nobody shall hope to live who attempts to depreciate at home the sacrifice which is made at the front. No matter under which disguise the attempt is made to disturb this German front, to undermine the resistance power of our people, to weaken the authority of the regime or to sabotage production on the home front; the culprit shall die! But there is this difference—while death brings highest honor to the soldier at the front, the other who depreciates this sacrifice shall die in shame.”

Every judge and every public prosecutor while doing his duty must keep these words of the Fuehrer in mind. This will enable him to fulfill his task in such a manner as is demanded by the Fuehrer.

I beg to give this outline immediately to all judges concerned with the administration of penal justice and to all public prosecutors, and to bring it to the notice of all judges who will in future be concerned with the administration of penal justice.

[typed] Signed: Dr. Schlegelberger

Certified: [Signed] Massmundt

First Secretary at the Ministerial Chancellery

[Stamp]

Reich Ministry of Justice,

Office of the Minister

TRANSLATION OF DOCUMENT NG-445

PROSECUTION EXHIBIT 73

LETTER FROM THE PRESIDENT OF THE BERLIN COURT OF APPEAL TO DEFENDANT SCHLEGELBERGER, 3 JANUARY 1942, COMMENTING UPON “INFLUENCE EXERTED UPON THE JUDGES”

The President of the Berlin Court of Appeal

File number—3130.—A. 522/36

Berlin W 35, 3 January 1942

Eltzholzstrasse 32

Phone No. 27 00 13

To: Under Secretary Dr. Schlegelberger

in Berlin W 8,

Wilhelmstrasse 65

Subject: Report about the general situation in the districts.

Reich Ordinance of 9 December 1935—Ia 11012.

1. When I paid a visit to the criminal court a few months ago in order to attend proceedings of the Special Court, I heard from the representative of the president of the district court in Moabit that “the Reich Ministry of Justice was expecting two death sentences” in the criminal case which was on the docket. My investigations produced the fact that the competent public prosecutor had informed the president of the Special Court prior to the session that he had received a directive from the Reich Ministry of Justice to ask for a death sentence in two cases. The president of the Special Court had informed me the representative of the president of the district court hereof. I consider it undesirable that officials of the public prosecutor’s office pass on prior to the proceedings such directives given them by a higher authority to the president of the court, as it has been done here. For I am afraid that judges, including those sitting in the Special Court, are in some cases much more easily inclined to pronounce a given penalty, especially the death penalty, if they hear that “the Reich Ministry of Justice” has given a directive to the public prosecutor’s office to ask for such a sentence or that “according to the views of the Reich Ministry of Justice” this penalty is necessary. I consider such a communication, given to the court by the public prosecutor, as undesirable, also because the “opinion of the Reich Ministry of Justice” conveyed by the public prosecutor, might possibly, in an individual case, but represent the personal views of a minor official of the Reich Ministry of Justice, about which he had informed the competent official of the public prosecutor’s office.

2. The president of the Berlin district court, according to what he reported to me recently, in the course of a visit to a criminal trial in Moabit observed the following:

The trial was set for 0900 hours. Punctually at 0900 the president of the district court had taken a seat on the witnesses’ bench. The judges did not show up at first. Instead, loud voices could be heard from the conference room behind the courtroom. The president of the district court got the impression of a heated debate in which one voice could be heard above the others. According to what the president of the district court could observe, the defendant’s attention was aroused, and he listened in the direction of the conference room. No actual words could be understood by the president of the district court, but he thought it quite possible that the defendant who was very much nearer to the conference room could hear details. Therefore, the president sent a marshal to the conference room with the order to inform the court about that. Shortly afterward the public prosecutor appeared first in the courtroom, then the members of the court. They all came through the same door which leads directly to the courtroom from the conference room. After the beginning of the proceedings the president of the district court soon could undoubtedly recognize that the extraordinarily loud voice he had heard before had been the voice of the public prosecutor’s representative for that trial.

3. Recently I learned from an official complaint [Dienstaufsichtbeschwerde] that immediately prior to the session the president of a Special Court had conferred with the public prosecutor. Thereby the punctual beginning of the session was prevented, and the final results were that all other people involved in the trial had to wait unnecessarily for the beginning of the session. The president of the district court told the judge that if such talks seemed necessary they should be timed in such a way that the punctual beginning of the session would not be delayed thereby.

4. It has been reported to me that repeatedly, even after the beginning of the session, especially after the end of the producing of evidence and prior to the beginning of the pleadings, the public prosecutor’s representative repeatedly got in touch with members of the court in the conference room, during an intermission in the proceedings. In these talks, as I have been told, the question of guilt, but above all the sentence, had been discussed.

5. I have been informed confidentially that a Gau office for legal affairs [Gaurechtsamt] has conveyed the following information to the Reich Office for Legal Affairs of the NSDAP:

“According to a confidential instruction of the Reich Ministry of Justice, details of which I do not know, the public prosecutors have been requested to contact the judges about the sentence to be asked for before the pleadings take place. This request has caused extraordinary surprise, especially among lawyers. The pleadings of the defense counsel have practically become a mere formality. Prior to the pleadings of the defense counsel the court and the public prosecutor have already agreed upon the penalty. In practice, the court in almost every case always agrees to the penalty asked by the Chief Public Prosecutor.

“Naturally, this does not only strike the defense counsel, but gradually also the population.

“In this connection, a change must take place immediately. If a conference between the public prosecutor and the court concerning the degree of the penalty is considered necessary at all, at least it can be asked that the defense counsel, too, be present at these talks and be permitted to clearly state his point of view.”

It is my opinion that, as soon as the trial has begun, any contacts between the public prosecutor and members of the court are undesirable, because, as the events discussed above prove, misunderstandings are provoked thereby.

The public prosecutor’s getting in touch with the court, as requested in the decree of 27 May 1939—4200. IIIa-4-758, and as it was also suggested in the concluding speech of the late Reich Minister of Justice at the conference held in the Reich Ministry of Justice on 24 October 1939 (condensed report, pp. 50 and 51), therefore, will have to be limited to the time before the beginning of the trial. It seems practical to have it take place already the day before the trial or even earlier. At any rate I do not think it desirable that the contacts are made immediately before the beginning of the trial and that, in addition, they happen in the conference room of the court, because then occurrences such as I have described under 2 and 3 of this report cannot always be prevented. I consider it an illicit contact when the latter takes place after the end of the producing of evidence or, even more, after the pleadings have been concluded. Therefore, the president of the district court in Berlin, upon my request, has conferred with the attorney general of the district court. The latter has instructed the public prosecutors within his area of jurisdiction to get in touch with the president of the court—as far as this is necessary—already the day before the trial or still earlier, at any rate, however, to refrain from making contacts after the beginning of the trial. The presidents of the courts have been notified by the president of the district court accordingly, and have been instructed to refrain under all circumstances from any getting in contact in the conference room immediately prior to the beginning of the session. The prevention or limitation of discrepancies between the penalty demanded by the public prosecution and the sentence passed in court, which was the purpose of the decree of 27 May 1939 and of the detailed arguments of the late Reich Minister of Justice, should be safeguarded by a timely and comprehensive contact prior to the trial.

Moreover, and as stated above, I consider it as undesirable in the interest of the administration of justice, and in order to remove any fears concerning influence exerted upon the judges, that officials of the public prosecutor’s office communicate “the opinion of the Reich Ministry of Justice” in the case on hand, or any orders which may have been issued to them concerning the penalties to be asked, to the court outside of the proceedings.

In view of the general importance of the matter, I thought it advisable to report about it.

[Typed] Signed: Hoelscher

Certified.

[Signed] R. Ottilie

[Seal] Berlin Court of Appeal

Clerk

PARTIAL TRANSLATION OF DOCUMENT NG-752

PROSECUTION EXHIBIT 24

EXTRACT FROM HITLER’S SPEECH TO THE GERMAN REICHSTAG, 26 APRIL 1942, REQUESTING CONFIRMATION OF THE RIGHT TO KEEP EVERYONE AT HIS DUTY AND EXPRESSING HIS INTENTION TO INTERVENE WHERE JUDGES “DO NOT UNDERSTAND THE DEMAND OF THE HOUR”[245]

*******

I do expect one thing—that the nation give me the right to intervene immediately and to take action myself wherever a person has failed to render qualified obedience and service in the performance of the greater task, a matter of to be or not to be. The front and the homeland, the transport system, administration and justice must obey only one idea, that of achieving victory. In times like the present, no one can insist on his established rights, but everyone must know that today there are only duties.

I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position without regard for his person or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty.[246] And that just because among millions of decent people, there are only a few exceptions. For, today, one single common duty takes precedence over all rights, even the rights of these exceptions. It does not interest me therefore whether, in the present emergency, leave, etc., can be granted or not to an official or employee in every individual case, and leave which cannot be granted should not be saved up for a later date.

If there is anybody who is entitled to ask for leave, it would be first of all only our front soldiers and secondly the men and women workers who supply the front.

For months I have been unable to grant leave to the eastern front, and nobody at home, whatever his office, should dare therefore to insist on his so-called “established right” to leave. I myself am justified to refuse because since 1933 I have not taken 3 days’ leave—a fact which is probably not known to these individuals.

Furthermore, I expect the German legal profession to understand that the nation is not here for them but that they are here for the nation, that is, the world which includes Germany must not decline in order that formal law may live, but Germany must live irrespective of the contradictions of formal justice. To quote one example, I fail to understand why a criminal who married in 1937, ill-treated his wife until she became insane and finally died as a result of the last act of ill-treatment, should be sentenced to 5 years in a penitentiary at a moment when tens of thousands of honorable German men must die to save the homeland from annihilation at the hands of bolshevism, that is, to protect their wives and children.

From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.

The achievements and sacrifices of the German soldier, the German worker, the farmer, our women in town and country, that is, the millions of our middle classes, imbued only with the idea of victory, demand the corresponding attitude on the part of those who themselves have been called by the people to protect their interests. In times like the present there can be no sacrosanct individual with established rights but all of us are merely obedient servants of the nation.

Deputies!

Men of the Reichstag!

A tremendous winter battle is behind us. The hour will strike when the fronts will come out of their rigidity, and then history will decide who was victorious in this winter—the aggressor who insanely sacrificed his masses or the defender who simply held his position. During the past few weeks I have read continuously about the violent threats of our enemies. You know that my duty is far too sacred to me and that I take it far too seriously ever to be careless.

Whatever man can do to forestall dangers, I have done and shall continue to do in future.

PARTIAL TRANSLATION OF DOCUMENT NG-102

PROSECUTION EXHIBIT 75

FOUR COMMUNICATIONS, MAY-JUNE 1942, CONCERNING THE AUTHORITY FOR THE CONFIRMATION OF SENTENCES[247]

1. A Letter from Schlegelberger to Hitler, Enclosing a Proposed Decree for Hitler’s Signature

The Acting Reich Minister of Justice

Berlin, 6 May 1942

My Fuehrer!

Repeatedly, and finally in the session of the Greater German Reichstag on the 26 April of this year, you expressed that the front and the homeland require the unrelenting punishment of criminals, and that the judgments of the courts which do not meet these requirements cannot be tolerated.[248]

In order to accelerate the setting aside of such decisions, you, my Fuehrer, created the extraordinary objection to the Reich Supreme Court.[249] With the help of this legal resource the judgment against Schlitt, which you mentioned in the session of the Reichstag, was quashed within 10 days by sentence of the Reich Supreme Court. Schlitt was sentenced to death and executed at once. I believe, however, that the desired aim could be achieved even better and quicker if the Reich Minister of Justice, by means of an authority of confirmation, were given decisive influence on the award of punishment.

If you, my Fuehrer, could decide, by signing the attached draft of a decree, to transfer to the Reich Minister of Justice this right of confirmation for cases in which you do not want to decide yourself, the following would be achieved thereby:

The entire administration of penal justice be placed under the supreme control of the Reich Minister of Justice as far as the award of punishment is concerned. He could then achieve an increase of insufficient punishment in every case.

The Reich Minister of Justice would pronounce the nonconfirmation either himself or, more probably, in view of the approximately 300,000 penal sentences per annum, through the presidents of the courts of appeal.

In case of a nonconfirmation, the president of the court of appeal would himself fix the punishment or bring about another judicial decision on the measure of punishment.

The Reich Minister of Justice could, as soon as it is obvious that a criminal court cannot master a case, transfer the matter to another court.

It is guaranteed that the Reich Minister of Justice will immediately be informed about all important criminal matters. The attorneys general who, according to the draft, would have to propose the nonconfirmation, are under his direction. I can absolutely rely on the insight and willingness to serve of the 35 presidents of the courts of appeal. Should they ever lack the necessary severity, I myself would pronounce the nonconfirmation.

Therefore I believe that, if you, my Fuehrer, will agree to the draft, I could assume the responsibility that the punishment awards of the courts will no longer lead to complaints.

Heil, my Fuehrer!

[Signed] Dr. Schlegelberger

[Draft]

Decree by the Fuehrer on the authority for Confirmation in

Criminal cases of

1942.

I

As far as I shall not decide myself, in my capacity as holder of the supreme judicial power, I charge the Reich Minister of Justice to regulate within his jurisdiction the confirmation of sentences passed by special courts and other penal courts. In this connection the following is ordered:

II

I authorize the Reich Minister of Justice to pass on to the presidents of the courts of appeal the right to refuse confirmation to the amount of penalty following a valid judgment upon application of the general prosecutor in as much as such nonconfirmation of the sentence is not pronounced by the Reich Minister of Justice himself.

III

In case the president of the court of appeal denies confirmation of the sentence, he will return the case to the same or another court for another award of penalty. In case it was wrongly denied or disregarded that the culprit was a people’s parasite [Volksschaedling], brutal criminal, dangerous professional criminal or a dangerous immoral criminal, he is also entitled to quash the sentence for award of a just penalty and to pass the case to the same or another court for a new trial and judgment.

IV

Upon demand of the general prosecutor, the president of the court of appeal, by calling in two judges as advisers, can also commute the sentence in free procedure himself.

V

The court to which the president of the court of appeal has passed on the case will, with the aid of the prosecutor, decide by writ or judgment in a proceeding that will be freely determined by itself.

VI

In case of urgent reasons dictated by public interest, the Reich Minister of Justice can pass a pending trial on to another court within his jurisdiction.

VII

The Reich Minister of Justice, in accordance with the Reich Minister and chief of the Reich Chancellery and the head of the Party Chancellery, is entitled to issue instructions for the execution of this decree.

1942

The Fuehrer

The Reich Minister and Chief of the Reich Chancellery

2. File Memo by Lammers Concerning Discussion with Hitler’s Subject Decree on Authority for Confirmation of Sentences

To RK. [files] 6832 u. 6833 B.

Fuehrer Headquarters, 11 May 1942

Subject: Draft of a Fuehrer decree on the authority for confirmation in criminal cases

1. Miss Buege: (a) The enclosed letter[250] of the Reich Minister of Justice, dated 6 May 1942, addressed to me and also the enclosed notes of the Under Secretary Dr. Schlegelberger are to be registered under Rk., (b) the original copy of the Fuehrer decree is to be placed into a separate file.

[Handwritten] carried out.

[Initial] Bg

11 May

2. I have presented the matter to the Fuehrer on 7th instant and recommended the suggested decree. It seems to me indeed the only and safe way to master insufficient punishment in legal sentences.

The Fuehrer agreed to the decree in principle but could not decide on signing it; moreover, suggested whether it was not appropriate to soon fill in the position of Reich Minister of Justice and to leave the reform in question as well as the other reforms also to the new Reich Minister of Justice.

3. Under Secretary Dr. Schlegelberger, who visited me here, has been briefly informed by me on 8th instant about the state of the affair. He told me that he had already interested the Reich Marshal [Goering] also in the draft of the decree, and that he [the Reich Marshal] had promised him to speak in favor of the decree.

Under Secretary Dr. Schlegelberger further stressed the fact that the decree would naturally lose all its value for him if the confirmatory authority would pass to party offices (Party Chancellery, Gauleiter). To that I replied that one could perhaps consider to listen to the party before using the confirmatory authority. With regard to this question on 9th instant, Under Secretary Schlegelberger presented the notes of the same day to me. (Rk. 6833 B). He promised me also to send more material to the case in hand.

4. Office—Please enclose files for the filling of the position of Reich Minister of Justice!

5. To UStS. Kritzinger with the request for consultation conferences for further adaption of this matter. (Support of chief of Party Chancellery, contact with the Reich Marshal.)

[Handwritten]

Rk. 1527 H 41

Mg. Rk. 553 Bg. 41

3. Letter by Bormann Opposing Schlegelberger’s Proposed Decree and File Note by Lammers Concerning It

[Stamp] Reich Chancellery 8457 B 13 June 1942 Fi

[Handwritten] Submitted with Reich Chancellery 7964 B 13 June

NATIONAL SOCIALIST GERMAN WORKERS PARTY

PARTY CHANCELLERY

The Chief of the Party Chancellery

Fuehrer Headquarters

10 June 1942

[Stamp] See affair of 10 June—III C—Ku.

[Stamp] Submitted through adjutant

[Handwritten] Duly submitted to the Reich Minister

13 June

Settled R 15 June

[Initial] F [Ficker]

[Initial] L [Lammers]

To: The Reich Minister and Chief of the Reich Chancellery Dr. H. H. Lammers

Berlin W 8

6 Voss-Strasse

Subject: Draft of a Fuehrer decree concerning the authority for confirmation [of sentences] in criminal cases

Reference: Your letter dated 21 May 1942—Reich Chancellery 7010 B.

Dear Dr. Lammers:

During the session of the Reichstag held on 26 April 1942, the Fuehrer requested the Greater German Reichstag expressly in consideration of the exigencies of the war, for the authorization to take all measures he deemed expedient without being bound by the existing legal provisions.[251] The Fuehrer’s choice of [expressing his desire] this way shows the importance he imputes to sovereign acts of the State [Hoheitsakten]. It is not proper to limit pronounced sentences—which have a certain effect on legal affairs—in their guiding effect on legal and factual circumstances by questioning their irrevocability through further unpredictable interventions, after all lawfully provided legal resources have been exhausted. This applies to a special degree to the judgments of courts which, in every case, represent a considerable intervention into the personal conditions of the people involved and, moreover, have a certain effect on the entire nation, be it as an intimidation or as a satisfaction with the strong, order-establishing hand of the State. Moreover, the arrangement of the life of the people requires that the further development of legal conditions starts from certain fixed basic conditions which cannot be shaken from any side, and that the security of the law be guaranteed. If the Fuehrer expressly requested the right of direct intervention over all formal legal provisions, then this emphasizes particularly the importance of the modification of a judicial sentence.

The proposal made by the Reich Minister of Justice, however, is likely to obliterate the impression of this authorization, and to impair its importance. However, this would be an inevitable consequence of the transfer of the correcting authority to the presidents of the court of appeal and of the strong decentralization originating thereby. The proposed decree of the Fuehrer would be nothing more than another effort to correct insufficient sentences as has been repeatedly undertaken before by the Reich Justice Ministry. In addition to the analogy provision of article 2 of the Reich criminal (penal) Code, I am especially thinking of the extraordinary objection, the nullity plea, the participation of the public prosecutor in civil proceedings, the public parasite decree, the decree against desperate criminals, and the provisions concerning dangerous professional criminals and immoral criminals.

[handwritten] Justiz 3

Despite all these provisions we were not in the position to silence the complaints on judgment inadequate in consideration of the exigencies of war. We observed again and again how these provisions were applied as mildly as possible, and not at all with the required readiness for responsibility and strictness which actually would have been possible.

It is my conviction that the proposed decree of the Fuehrer will have the same fate as the measures whose execution remained with the administration of justice.

It must be expected that the presidents of the courts of appeal will shrink from an intervention into the independence of the judge, of which they still have the old conception. They will bring the judge concerned on to the right path, not so much guided by their own conviction, but in order to get him to pass a sentence which will satisfy the threatening criticism. Even less, however, can one expect, for the same reason, more rigorously enhanced measures against an obstinate or incapable judge. Therefore, we must not expect the elucidating and guiding decisions hoped for in the material and personal field, the value of which lies first of all in the educational influence on other judges and on the public, but only measures or indications limited to individual cases.

In a formal respect, the following misgiving should be stressed: With the wording provided under paragraphs I and II of the draft, the Fuehrer literally deprives himself to a vast extent of the right of correcting sentences. In all cases which are brought to the Fuehrer’s knowledge only after the president of the court of appeal or the Minister of Justice has decided on the confirmation of a sentence, this decision was taken “by order of the Fuehrer.” Even with regard to the authorization by the Reichstag there would not be any room for the Fuehrer’s decision, since by the proposed decree he would have renounced the authorization legally assigned to him, in favor of the Minister of Justice or even of the president of the court of appeal.

Because of these considerations I am not able to agree with the draft of a Fuehrer decree as suggested by Under Secretary Schlegelberger.

In view of the importance which I assign to these fundamental objections, I have refrained for the time being from showing the additional objections I have to the structure of the decree and its individual provisions.

Heil Hitler!

Yours very truly

[Signed] M. Bormann

[Typed] (M. Bormann)

1. During yesterday’s conference with Under Secretary Schlegelberger I informed him of the basic ideas in Reichsleiter Bormann’s letter dated 10 June 1942. Schlegelberger would appreciate a copy of this letter. I do not think that there are objections to this. However, I wish to answer Reichsleiter Bormann’s letter and perhaps make my reply available to State Secretary Schlegelberger.

[Initial] Kr [Kritzinger]

26 June

2. a. UStS. Kritzinger

b. RKabR. Dr. Ficker

With request for conference

[Initial] F [Ficker]

26 June

Berlin, 25 June 42

[Initial] L [Lammers]

4. File Memo Noting Postponement of Proposals for Judicial Reform Until a New Reich Minister of Justice is Appointed

Following report to the Reich Minister [Lammers]

To RK. 8457 B

Berlin, 26 June 1942

Subject: Confirmation of sentences in criminal cases

1. The Reich Minister does not consider to pass on the letter written by Reichsleiter Bormann to State Secretary Schlegelberger and intends to discuss the matter orally with Reichsleiter Bormann on occasion.

2. Submitted to the Reich Minister according to instructions. Reichsleiter Bormann’s objections are aiming essentially at two points:

[Initial] L [Lammers]

a. He does not expect much from a delegation to presidents of courts of appeal as these would not interfere with sufficient energy;

b. He fears the Minister of Justice’s proposal would flatten the impression made by the Fuehrer’s Reichstag speech.[252]

As to the doubts of a more editorial nature expressed at the end of the letter, it should be possible to remove them by another formulation, which will also be necessary for other reasons. This reediting might be taken in hand as soon as an agreement exists on the fundamental points.

3. In file Bormann.

[Initial] F [Ficker]

Turn over

[Reverse side]

1. Discussion with Reichsleiter Bormann took place.

We agreed that further handling of all proposals regarding justice reform must be reserved to the new Minister of Justice.

2. a. To UStS. Kritzinger. [Initial] Kr [Kritzinger] August 3

b. To RKabR. Dr. Ficker. [Initial] F [Ficker] July 31

Who are requested to take notice.

3. To files.

Fuehrer Headquarters, 28 July 42

[Initial] L [Lammers]

TRANSLATION OF DOCUMENT NG-387

PROSECUTION EXHIBIT 400

REPORT FROM DEFENDANT ROTHENBERGER TO DEFENDANT SCHLEGELBERGER, 4 JULY 1941, CONCERNING CRITICISM OF JUDGES BY THE SS PERIODICAL, THE DRAFT LAW ON “ASOCIALS”, AND THE LACK OF SUITABLE CANDIDATES FOR JUDGESHIPS

The President of the Hanseatic Court of Appeal

3130 E-1a/3/ (3x)

Hamburg 36, 4 July 1941

Registered

To: Under Secretary Dr. Schlegelberger

Reich Ministry of Justice,

Berlin

Subject: Report on the general situation

Reference: Your No. Ia 11012/35

I

The article “Mental Black-out” in the “Schwarzes Korps” of 17 April 1941 had a disastrous effect on the morale of the judges; in the last paragraph of this article the actions of the judges are compared with the conduct of a people’s parasite, who takes advantage of the black-out to commit his crimes. If the judges read the correction in the bulletin of the Reich chamber of attorneys of 20 May 1941 and then see there is no vindication of the judges to the public, a further increase of the displeasure among the German judges can scarcely be imagined.

II

I was confidentially informed of the draft of the law of April 1941 concerning the treatment of asocial elements.[253] According to this law the custody of these persons is exclusively in the hands of the Reich Security Main Office, and so the sterilization insofar as the decision of this office as to whether a person is asocial has been declared binding on the eugenics court. I consider so extensive a disregarding of a judicial authority very dubious, and I propose that the local court consisting perhaps of a judge, a physician, and a representative of the police should decide whether an asocial element should be kept in lifelong custody or should be sterilized.

III

Day before yesterday I undertook a careful review of the courts of Bremen, and I learned anew that there is in Bremen a complete lack of suitable younger men to become judges. One of the reasons for this lack was the fact that the customary manner in which lawyers had hitherto applied for the judicial career has been made impossible because only up to 4 years of their activity as attorneys may be included in their service age for purposes of calculating salaries. As the Finance Minister has agreed, for the annexed eastern territories, three-quarters of the period of service as an attorney may be added to the service age for purposes of calculating salaries. I propose that this provision shall also be issued for Bremen, because of the special circumstances. In view of the whole development of the judicial situation in Bremen, I should consider it very regrettable if the Bremen lawyers were deprived of the opportunity of becoming judges.

[Signed] Rothenberger

TRANSLATION OF DOCUMENT NG-395

PROSECUTION EXHIBIT 74

REPORT FROM THE PRESIDENT OF THE COURT OF APPEAL IN HAMM, 7 JULY 1942, CONCERNING THE ALARM AMONG JUDGES CAUSED BY HITLER’S REICHSTAG SPEECH OF 26 APRIL 1942, AND CERTAIN ACTIVITIES OF THE GESTAPO AND THE NAZI PARTY AFFECTING LEGAL MATTERS

The President of the Court of Appeal

File No. 3130 I

To: The Reich Minister of Justice,

Berlin W 8

Hamm (Westphalia), 7 July 1942

Telephone 1780-1786

Subject: General situation, Decree of 9 December 1935—Ia 110/2

Enclosures: 2 copies of the foregoing report. 3 copies of a report by the senior judge of the local court [at] Haltern, of 22 June 1942.

1. The Fuehrer’s speech at the meeting of the Reichstag on 26 April 1942 has, as far as the administration of justice is concerned, caused alarm among the judges of my district. Uncertainty in the administration of justice was threatening, since the Fuehrer’s reproaches—except in the Oldenburg case, particulars of which were, however, not given either—were held in general terms, and the question on what reasons the Fuehrer based his reproaches could not be answered. As soon as possible, I called together the judges of the court of appeal and informed them, and through the presidents of the district courts, the judges of their courts, and of the local courts that I, too, did not know the reasons for the Fuehrer’s reproaches, but that it was the duty of all of us to examine ourselves earnestly as to the extent to which he was to blame; the judges were to continue to do their duty and were to hold themselves responsible to the Fuehrer and to their own conscience; the sentences passed by the courts of this district have always been severe, except for some cases, and this standard should be kept up in the future. It has been reported to me that my words have had a calming effect; the administration of justice in this district continues to proceed along the proper lines, and according to my observations the standards of sentences have remained the same.