Archive/File: imt/tgmwc/tgmwc-15/tgmwc-15-140.01
Last-Modified: 2000/03/25

                                                   [Page 49]

HUNDRED AND FORTIETH DAY

TUESDAY, 28th MAY, 1946

THE MARSHAL: May it please the Tribunal, the report is made
that defendant Goering is absent.

THE PRESIDENT: We were going to deal with defendant
Bormann's documents, were we not?

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

DR. SERVATIUS (Counsel for the defendant Sauckel): Mr.
President, two witnesses only have arrived so far for the
defendant Sauckel. Three essential witnesses are still
missing. Perhaps the Tribunal can help to bring these
witnesses quickly so that the case will not suffer. They are
the witnesses Stothfang, Dr. Jager and Hildebrandt. I have
repeatedly asked the prosecution to get them but they are
not here yet. I have not yet spoken to the witnesses.

THE PRESIDENT: Have they been located?

DR. SERVATIUS: Yes. One is in a camp in Kassel, which is
only a few hours from here, and the other is in Neumunster.
That is a little farther, perhaps six or seven hours from
here. Dr. Jager is free.

THE PRESIDENT: That is not in accordance with the
information which the Tribunal has. The Tribunal has the
information that they cannot be found.

DR. SERVATIUS: I received the information that their
whereabouts has been ascertained.

THE PRESIDENT: From whom did you receive that information?

DR. SERVATIUS: Officially, from the General Secretary.

THE PRESIDENT: Well, we will make inquiries into it.

SIR .DAVID MAXWELL FYFE: My Lord, first, with regard to the
witnesses applied for for the defendant Bormann. They are,
as I understand it, Fraulein Kruger, to whom we have no
objection. The witness Muller is no longer applied for?

DR. BERGOLD: Yes, I have dispensed with that witness.

SIR DAVID MAXWELL FYFE: Then, Klopper, and lastly,
Friedrich. These are with regard to Bormann's law-making
activities, and the prosecution have no objections.

DR. BERGOLD: Your Lordship, in place of the witness Muller,
whom I have withdrawn, I have an additional request for the
witness Gerta Christian on the same subject for which I had
requested the witness Muller.

THE PRESIDENT: The first witness, Fraulein Kruger, is going
to speak to exactly the same facts, is she not, to the death
of Bormann?

DR. BERGOLD: Yes, your Lordship. The circumstances
concerning Bormann's death are not very clear. It is very
necessary to hear all the available witnesses on this
subject because only in this way can one be convinced of the
fact, which I am trying to establish, that the witness
Bormann is already dead.

                                                   [Page 50]

THE PRESIDENT: It does not seem to be a very relevant fact.
It is very remotely relevant whether he is dead or whether
he is alive. The question is whether he is guilty or
innocent.

DR. BERGOLD: Your Lordship, my point of view is that
sentence cannot be passed upon a dead man. That is not
provided for in the Charter. According to the Charter, the
Tribunal can only condemn an absent person, but a dead
person cannot be included under the term "absent." If the
defendant is dead, the Charter does not provide the
possibility of continuing proceedings against him.

THE PRESIDENT: Sir David, have you any objection to that
other witness?

SIR DAVID MAXWELL FYFE: No, my Lord, the prosecution does
not make any objections.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL FYFE: Now, my Lord, with regard to the
documents, the first batch of documents are a series of
treaties and diplomatic pronouncements and documents to
counter the statement of Sir Hartley Shawcross as to the
position of the international law before the Charter, the
statement that the law of nations had constituted aggressive
war an international crime before this Tribunal was
established and this Charter became part of the lave of the
world. The position of the prosecution is that evidence on
that point is really irrelevant because after all, the
Tribunal is covered by the Charter, and it seems unnecessary
to translate and publish, by way of document books, all
these matters which the learned Counsel has set out in his
application. That is, shortly, the position of the
prosecution with regard to that first batch of documents.
Especially, I do not want to discuss the problem for the
reason that I have given.

THE PRESIDENT: Yes. What are the numbers of them?

SIR DAVID MAXWELL FYFE: They are one to eleven - no, one to
seven in the application.

THE PRESIDENT: Yes. Are they long documents.

DR. BERGOLD: Your Lordship, I have not seen them yet. I
applied for these documents three months ago, in order to
look them over, but unfortunately I have not received them
yet and therefore I cannot give the Tribunal any information
as to whether they are long or not and what parts of them I
will need for my defence.

THE PRESIDENT: No. 2 looks like a long document.

SIR DAVID MAXWELL FYFE: Yes, my Lord.

DR. BERGOLD: But I will not use all these documents if I
receive them. I shall probably take some of them, your
Lordship, I shall only -

THE PRESIDENT: When you say you applied for them three
months ago, you do not mean you applied to the Tribunal, do
you?

DR. BERGOLD: I applied to the General Secretary, but perhaps
it was put aside when your Lordship decided that my case
should be postponed to the end. Perhaps it was forgotten.

THE PRESIDENT: Was there any order on your application?

DR. BERGOLD: No.

THE PRESIDENT: You applied, I think, for an adjournment, did
you not, in order that the matter might be brought up later?

DR. BERGOLD: Yes, your Lordship, I am in an especially
difficult situation. I have questioned many witnesses and
have tried very hard, but I can find nothing exonerating.
All the witnesses are filled with great hatred towards the
defendant Bormann, and they want to incriminate him in order
to exonerate themselves. That makes my case especially
difficult. The man himself is probably dead and

                                                   [Page 51]
can give me no information. Any day I might get new
information. For example, a few days ago one of Bormann's
co-workers, a Dr. von Hummeln, was arrested in Salzburg. I
will go to see him and perhaps get new information - perhaps
not. I must also assume -

THE PRESIDENT: We need not bother about that now. We are
only inquiring about your application with reference to the
documents.

Sir David, have you anything further you want to say about
the documents?

SIR DAVID MAXWELL FYFE: No. I do not want to discuss the
merits of my points because that is the issue that I am
saying is irrelevant.

THE PRESIDENT: What about No. 11?

SIR DAVID MAXWELL FYFE: I am not disposed to object to any
of the other documents, my Lord.

THE PRESIDENT: Are there any others besides -

SIR DAVID MAXWELL FYFE: No. 11; I can see a possible
argument on that, my Lord, therefore I am not going to
object to it. The other documents, certainly we have no
objection to the ordinances of the Fuehrer's Deputy and -

THE PRESIDENT: All under "B"

SIR DAVID MAXWELL FYFE: Yes. The prosecution makes no
objection to these.

THE PRESIDENT: Yes.

Now, what do you say to Sir David's objection to these
documents, one to seven?

DR. BERGOLD: Well, your Lordship, I have already made my
point of view clear in my application. In order to save the
time of the Tribunal, I will merely refer to this written
application. I will not say any more at the moment on the
subject, but if your Lordship wants me to explain it now I
am ready to do so.

THE PRESIDENT: The Tribunal will consider the matter.

SIR DAVID MAXWELL FYFE: Did your Lordship wish to deal with
the other outstanding applications or would your Lordship
prefer to deal with that later on at the end of the case of
von Schirach?

THE PRESIDENT: I do not think we have the papers here. We
were only going to deal with Bormann this morning.

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

(Mr. Dodd of the American Prosecution came to the lectern.)

THE PRESIDENT: Mr. Dodd, we have a document here, D-880,
said to be extracts from testimony of Admiral Raeder, taken
at Nuremberg on 10th November, 1945, by Major John Monigan.
Have you offered that document in evidence or not?

MR. DODD: May I have just a minute to check it? I am not
certain.

THE PRESIDENT: Yes, we will give you the document.

MR. DODD: I believe not, Mr. President, I do not believe it
has been offered in evidence.

THE PRESIDENT: It seems to have been handed up yesterday or
the day before -

MR. DODD: I think through a mistake.

THE PRESIDENT: - or last week. Yes. But you will find out
about that and let us know.

MR. DODD: Very well, sir. Would you like to have this copy
back?

(Paper handed up to the Bench.)

THE PRESIDENT: Dr. Sauter, you were still examining Gustav
Hopken, were you not?

                                                   [Page 52]

DR. SAUTER: Mr. President, I shall continue my examination
of the witness Hopken.

(GUSTAV HOPKEN, a witness, resumed the stand and testified
as follows):


DIRECT EXAMINATION (Continued)

BY DR. SAUTER:

Herr Hopken, we stopped yesterday when discussing the
question whether the defendant von Schirach during his time
in Vienna was opposed to the church or was tolerant in this
connection. The last answer you gave me yesterday referred
to the relations of the defendant von Schirach to the
Viennese Cardinal, Innitzer. Is it correct, witness, that at
the suggestion and with the knowledge of the defendant von
Schirach during his time in Vienna you periodically had
talks with a Catholic priest there, a Dean, Professor Ens,
for the purpose of discussing church questions with him and
removing any differences which might arise?

A. Yes, that is true. The Dean, Professor Ens, was not, as
you assume, Catholic, but Protestant. He was Dean of the
Faculty of Theology of the University of Vienna. When he
visited me, he submitted many church and religious questions
to me. I, discussed them with him. He then asked me to
report on them to Herr von Schirach so that, if it were in
his power, he could make redress. This was done as far as
possible.

Q. Do you know, witness, that the defendant von Schirach,
for example, ordered that at the Party Christmas
celebrations, new national-socialist Christmas songs were
not to be sung, but the old Christian Christmas hymns?

A. Yes, I know that at the Christmas celebrations of the
Party and of the Hitler Youth, and the Christmas celebration
for wounded soldiers, the old Christian Christmas carols,
such as "Es Ist Ein Ros Entsprungen," and "Silent Night,
Holy Night" -

THE PRESIDENT: This is surely not a matter which is worthy
to be given in evidence.

Q. Witness, do you know that the defendant von Schirach, in
the official magazine of the Hitler Youth had a special
number published, which was in favour of a humane treatment
of the people of the Eastern territories, and when was that?

A. I know that it was the quarterly number, April-June of
1943.

Q. Do you know that in the same official magazine of the
Hitler Youth, at the request of the defendant Bormann, a
special anti-Semitic number was to appear, but that von
Schirach refused it?

A. I know that it was requested at that time by the
Propaganda Ministry and also by the Party Chancellery. Von
Schirach refused each time.

Q. Witness, do you know that von Schirach once inspected a
concentration camp?

A. Yes, I know that.

Q. Which one?

A. The concentration camp Mauthausen.

Q. In regard to this point, which has already been more or
less cleared up by the testimony of other witnesses, I am
interested only in one question. When was this visit to
Mauthausen?

A. I cannot say exactly. I can say with certainty, however,
that it was not after April, 1943.

Q. Why can you say that?

A. In April 1943 I was released from hospital, and began my
service in Vienna. From that day on, until April, 1945, I
knew every day where von Schirach was. Moreover, immediately
after my arrival in Vienna, in April 1943, when I asked him,
as I was rather run down physically because of my wound and
I was also a sports teacher, whether I might take part in
some sport between seven and eight in the morning

                                                   [Page 53]

THE PRESIDENT: Dr. Sauter, we do not want to know about the
witness's health, do we?

BY DR. SAUTER:

Q. Witness, you heard what the President just said. I have
already told you I am interested in when this visit to
Mauthausen took place. You said if I understood you
correctly -

THE PRESIDENT: He said he could not say when it was but it
was not after April, 1943.

DR. SAUTER: Mr. President, I believe you misunderstood the
witness. Witness, please pay attention, as to whether this
is correct. I understood the witness to say that it was
before April, 1943. The visit must have been before April,
1943. It could not have been later.

THE PRESIDENT: Dr. Sauter, he also said, according to the
conversation I heard and took down that he could not say
when the particular time was.

DR. SAUTER: Yes, but through the testimony of the witness I
should like to settle the fact that it was not later than
April, 1943.

THE PRESIDENT: He has said that already. He said it. He
said, "I can't say when it was, but it was not after April,
1943." He said: "In April, 1943, I was released from
hospital and began my service in Vienna. I knew every day
where Schirach was." I have that all written down.

DR. SAUTER: Very well.

BY DR. SAUTER:

Q. Witness, in this conversation about his visit to
Mauthausen did the defendant von Schirach tell you anything
to the effect that on this visit he got to hear of any
atrocities, ill-treatment, and such things?

A. No, he said nothing about that.

Q. Witness, I now turn to the question of the deportation of
Jews from Vienna. As far as I know you were present during a
conversation between the Reich Fuehrer SS Himmler and the
defendant Schirach. Will you tell us what was said in this
conversation on the question of deportation of Jews?

A. I believe it was in November 1941, Himmler and Schirach
were driving through East Prussia from Himmler's quarters to
his special train. In the car Himmler asked von Schirach:
"Tell me, von Schirach, how many Jews are there still in
Vienna?" Von Schirach answered, "I cannot say exactly. I
estimate forty to fifty thousand." And Himmler said, "I must
evacuate these Jews as quickly as possible from Vienna." And
Schirach said, "The Jews do not give me any trouble,
especially as they are now wearing the yellow star." And
Himmler said, "The Fuehrer is already angry that Vienna in
this connection, as in many others, is made an exception,
and I will have to instruct my SS agencies to carry this out
as speedily as possible." That is what I remember of this
conversation.

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