[Page 231]

THE PRESIDENT: You have got a copy of this, Dr. Gawlik? Have you got a copy of it?

DR. GAWLIK: Yes.

THE PRESIDENT: Do you wish to re-examine?

DR. GAWLIK: I have no questions.

THE PRESIDENT: The witness can retire. And I think that finishes your evidence, Dr. Gawlik - that is all of your evidence, is it not? That is all of your evidence, is it not? Wait a minute. You have no more witnesses, have you?

DR. GAWLIK: I have no more witnesses, Mr. President.

[Page 232]

DR. KUBUSCHOK (counsel for the Reich Government): It is prescribed that the witnesses for the Reich Government will be examined now.

THE PRESIDENT: Very well.

DR. KUBUSCHOK: I call the witness Dr. Franz Schlegelberger to the stand.

THE PRESIDENT: Will you state your full name, please?

THE WITNESS: Franz Schlegelberger.

THE PRESIDENT: Will you repeat this oath after me.

I swear by God, the Almighty and Omniscient, that I will speak the pure truth, and will withhold and add nothing.

(The witness repeated the oath.)

THE PRESIDENT: Sit down.

DIRECT EXAMINATION

BY DR. KUBUSCHOK:

Q. Witness, from what year on were you employed in the Ministry of Justice?

[Franz Schlegelberger] A. To begin with, I was judge in courts of first and second instances, and from 1918 I was first an assistant and then a "Geheimrat" (privy councillor) in the ministry.

Q. When did you become State Secretary?

A. In 1931.

Q. At what time, after the death of the Reich Justice Minister Guertner, did you carry on the affairs of the Ministry of Justice?

A. From January, 1941, to August, 1942.

Q. Were you a member of the Party?

A. I was originally not a member of the Party and I never requested admission into the Party. To my great surprise, on the 30th of January, 1938, I received a letter from the chief of the Fuehrer's Chancellery that the Fuehrer had authorized my admission into the Party. Of course I could not reject this letter, and I should like to call myself an involuntary member of the Party.

Q. Were you in very close personal contact with Minister Guertner, so that you were constantly kept informed by him of all questions, not only of the Ministry of Justice but also of all general Government questions?

A. Yes.

Q. Was Guertner already Minister of Justice in the Papen Cabinet?

A. Yes.

Q. Was Guertner previously Minister of justice in the province of Bavaria?

A. Yes.

Q. Did the activity of the entire Government which met for cabinet sessions in the first period of the Hitler Cabinet - I mean the time up to the decree of the Enabling Act - differ from previous practice?

A. No, the business was thoroughly discussed and conflicting opinions were debated.

Q. Did this change after the Enabling Act was issued?

A. Yes. The March elections and the adoption of the Enabling Act by the Reichstag had greatly strengthened Hitler's position. At first Hitler was quite reserved, modest with yon Hindenburg, or perhaps even embarrassed. Now he was filled with the thought that he was the executor of the popular will. Perhaps that can be explained by the fact that Hitler had directed all his activities to winning over the masses; that he now saw success; that he believed he had judged the will of the people correctly; that he considered himself the personification of the people's will; and that he wanted to execute its authority.

[Page 233]

A. Yes; I see in this law the last step in the concentration of all power in the person of Hitler, and I therefore judge this law as important, particularly because it was generally approved by the decision of the people.

Q. Was this development also expressed in the law of the 16th of October, 1934, in regard to the oath of allegiance for the ministers - was the duty of obedience towards the Fuehrer and Reich Chancellor established for the ministers?

A. Yes, and this law meant that the ministers, like other officials, were now bound by instructions.

Q. Did the ministers now have the possibility to resign on their own wish?

A. No.

Q. Did later laws further reduce the activity of the Cabinet?

A. Yes. I am thinking of the law on the Four-Year Plan and on the Ministerial Council for the Defence of the Reich.

Q. Were considerable parts of the governmental activity de- centralised and assigned to special offices? I am thinking of the appointment of Gauleiter, Reich Commissioners, Chiefs of civil administration?

A. Yes; the Gauleiter were appointed "Reichsstatthalter" (Reich Governors) and Reich Defence Commissioners. The "General Plenipotentiary for Administration" was created, and the "General Plenipotentiary for Economy and for Labour Commitment."

Q. Through the law on the unity of the Party and State, of theist of December, 1934 did co-operation between Party and State agencies arise in practice, or how did conditions develop in fact?

A. Whoever had believed in this co-operation was soon severely disappointed. From the very beginning severe contrasts were shown between the State offices and the Party offices and I can say from my own experience that an extraordinarily large part of the work became necessary because State agencies had to overcome the influence of the Party offices.

Q. For what purposes and under what conditions was the Enabling Act submitted to the Reichstag in March, 1933?

A. The Enabling Act, which is called the "Law to relieve the distress of People and Reich," was issued because the cumbersome machinery of the Reichstag worked too slowly and laws had to be created speedily. It had been expected that only a temporary solution would be found with the Enabling Act and for that reason it was limited to four years; later it was repeatedly extended.

Q. For what reasons were special courts established and what special circumstances were there in this procedure?

A. Special courts were already established during the Bruning Cabinet in 1931, temporarily, and now they were created again because in this way they wanted to deal quickly with things which needed special expedition. This could be achieved only with legal means eliminated, but in order to avoid unjust procedure and unjust sentences, a number of checks were established. (1) The resumption of closed legal procedure in favour of the defendant was made easier; (2) The plea of invalidity, to the Reich Court was granted, which meant that the Reich Court could quash a sentence and substitute another; (3) A special appeal to the Reich Court was instituted by means of which a completely new trial could be started. Finally, an official defence was instituted.

I may emphasize that the special courts and the legal devices which I have mentioned were as much in favour of, as against, the defendants, that these special courts were regular judicial courts and not exceptional courts, and that they were each conducted by three professional judges.

Q. What have you to say regarding the law of the 3rd of July, 1934, by which the measures of Hitler, taken on the 30th of June, 1934, were legalised?

[Page 234]

Q. Did you and the Reich Minister of Justice Guertner know of the "Nuremberg laws" before the decision was made at the Reich Party Rally?

A. No. I had already left the Reich Party Rally and learned of these laws, on my journey, through the newspapers or radio. The Reich Minister of Justice, Dr. Guertner, as I know for certain from him, himself, was not informed beforehand of the intention to issue these laws.

Q. What was the purpose of taking over the Department of Justice by the Reich?

A. This was primarily in the general tendency of centralisation but, in addition, the Reich Ministry of Justice carried out this measure with the greatest energy. The provincial ministries of justice everywhere had National Socialist ministers and probably State Secretaries, and this caused a number of embarrassing situations. The taking over of the Department of Justice by the Reich had the effect that now it came into the hands of a Minister of justice and his State Secretary who were not National Socialists.

Q. What was the relationship between the Party agencies and the Ministry of Justice?

A. As a result of the transfer of the Department of Justice to the Reich, strong efforts were soon made by the Party to exert influence on the Ministry of Justice first by way of personal politics. The legal situation was such that according to an order of the Fuehrer, the Party had to be heard before a judge, or a high legal official. The Party did not limit itself to commenting on the Ministry of Justice's candidate, but vigorously put forward candidates of its own. As soon as the Minister, and later I myself, became convinced that the Party wanted to have an unsuitable man in the position, we opposed him and we kept the position open. Later it was filled by a different man who was more suitable, at least in our opinion.

Repeatedly, we observed that in civil trials Party agencies approached the judges and tried to persuade them that in the public interest this or that decision was necessary. In order to spare the judges this painful discussion, at the suggestion of the Minister of Justice the law on the co- operation of the State Prosecutor in civil cases was issued, according to which the judge to whom such an announcement was made could tell the Party agency: "Apply to the prosecuting authority, it is competent to work for the public interest."

I recall further a case in which the then Gauleiter Adolf Wagner told me in Munich that he was going to appear uninvited at a civil trial and make a speech in order to convince the court that this Party member had Party rights in a civil trial. On behalf of the Reich Minister of Justice, I then visited the defendant Hess and asked him to prevent the appearance of Gauleiter Wagner, and this wish was granted.

Another means to influence justice was to criticise sentences of judges that they did not like. This criticism was made by the SS newspaper Schwarzes Korps.

THE PRESIDENT: Wait a minute. How does this evidence bear on the Reich Cabinet?

[Page 235]

THE PRESIDENT: Go on.

A. The Schwarzes Korps repeatedly promised to stop the criticism, but did not keep their promises. The Ministry of Justice utilised every opportunity in conferences with the Presidents of the Provincial Appellate Courts and the Provincial Prosecutors to tell them to point out to the justices that they were independent and should reject every attempt at intimidation and report all difficult cases to the Minister.

Q. In cases of ill-treatment and excesses in concentration camps which became known to you, did the Ministry of Justice take steps to intervene?

A. According to my information the Minister of justice intervened in cases of which he was aware. As early as 1933 he employed two lawyers in the Ministry of Justice for the express purpose of investigating on the spot all cases which were reported, and to follow them up with great energy. Prosecution ensued and in many cases sentence was passed. Since 1939 and the introduction of the special jurisdiction of the SS, these matters were withdrawn from the competence of the Ministry of Justice.

Q. What were the personal relations of the Ministers to Hitler?

A. I believe one must make a distinction between Hitler's relations to the Party Ministers and the non-Party Ministers. If they did not belong to the Party, he was distant; he did not trust them. Even with the Ministers who were of the Party the relationship, as I saw it, varied greatly. I believe, for example, that Ministers Rust and Darre were not nearly as close to him as Goering and Goebbels. But Party Ministers, too, Hitler did not always trust. This is already indicated by the fact that, as far as I know, there were even Party Ministers who for years were not admitted to report personally to the Fuehrer.

Q. Was Hitler's circle of close confidants from ministries comparatively small?

A. Yes, very small. To my knowledge it was limited to a few persons.

Q. Did Hitler take measures to prevent co-operation of the members of the Cabinet or even personal contact between ministers?

A. Hitler's point of view was that frequent meetings of the Cabinet members were undesirable. From 1938 on he firmly prevented all attempts to return to the form of Cabinet meetings, even expressly prohibited unofficial meetings such as a "beer evening."

Q. Did you and Minister of Justice Guertner, before the outbreak of the war or before the beginning of any of the later hostile actions, know anything about Hitler's plans?

A. No. I may remark that I had the intention in the late summer of 1939 to take a cure in Marienbad. For that reason, as the situation was tense, I asked the Minister of Justice what he thought about it, and he said, " Go right ahead. I consider it out of the question that there will be any hostilities." Then I went to Marienbad, and returned only at the beginning of September when the war broke out.

DR. KUBUSCHOK: I have finished the examination.

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