Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Pleading-01-02 Last-Modified: 1999/06/15 2. Various Evidence. a) Documents: The District Court did not sufficiently consider that the incriminatory documents produced are only fractions of the total number of documents, and that therefore generally only the final result of a comprehensive official procedure appears, which does not inform of the origin of the orders carried out by the Accused upon instruction. Here, in particular, the degree of responsibility and participation of the Accused in some cases does not disclose anything. Example: Draft letters by Amtsgerichtsrat Wetzel (Ostministerium) relating to gas-apparatus. Documents concerning the secretary of Ancestral Heritage [Ahnenerbe], Sievers, on a skeleton collection. b) Evidence given by witnesses. (1) The District Court does, however, explicitly declare in the Judgment that it would give careful consideration to the statement of witnesses who are interested in the Proceedings. These considerations, however, appear to be insufficient in particular cases. Example: The statement made by witness Veesenmayer who, contrary to the existing documents denies having been the general commissioner for Hungary, convinces the District Court, on the basis of existing documents, that his activities in Jewish matters were purely those of a "reporter" (point 141 of the Judgment). On the other hand the position held by SS-General Winkelmann has not been sufficiently considered, and the Accused who had been under his command, is established to be the chief offender. (2) The District Court called it an error when witness Joel Brand confirmed the fact that the Accused had offered him the emigration of ten per cent of the one million Jews scheduled, upon conclusion of an agreement on the supply of trucks. Application: Application is made for a re-hearing of this witness. Further witnesses will be called to confirm that witness Joel Brand explicitly mentioned the ten per cent clause to members of the Sochnuth after his arrival in Constantinople. Witness: Chaim Barlas, a.o. Addresses will be forwarded. The names of these witnesses were taken from witness Joel Brand's book Die Geschichte von Joel Brand; the book is a document and is contained in the Court files. (3) The District Court did not sufficiently credit the statements made by Dr. Loewenherz, which were recorded in a report produced for these Proceedings before he died in 1960, by confronting them with his reports of 1939 (and following). (4) The District Court has not sufficiently considered the exonerating parts of the statements made amongst others by witnesses Hoettl, Wisliceny and Hoess. (5) In crediting the statements made by foreign witnesses, as in the case of witnesses Dr. Gilbert, Judge Musmanno and Probst Grueber, the District Court did not sufficiently consider that the statements of these witnesses may have been influenced by the circumstance that these witnesses offered their services as witnesses, even though they were not in a position to prove any important facts, but instead merely produced their own combinations to the disadvantage of the Accused. Facts established which are insuficient for substantiating the criminal facts of the case. 1. The facts established on acts committed on aliens, Poles, Czechs, as well as on Gypsies are insufficient to warrant condemnation, as these acts are not punishable and cannot be pursued in accordance with the Nazis and Nazi Collaborators (Punishment) Law. 2. The facts established by the District Court on the position and on the activities of the Accused in the territories governed by Germany before the War are not sufficient to establish his major responsibility. The practice on chain of command contradicts this. Example: Generalgouvernment, Hungary, Denmark. With reference to the Generalgouvernement it is pointed out that Governor-General Frank does not mention the name of the Accused in his voluminous diary. With regard to Hungary it has been established by documentary evidence that the Accused had been called back by his superiors, SS-General Winkelmann and by the commissioner Veesenmayer, in order to be employed in carrying out deportation measures. Italy and France: Here the superior authorities acted directly in order to institute measures in Jewish matters; so [did] the Minister for Foreign Affairs, Ribbentrop, and SS-General Mueller. 3.The excusability of the Accused for acting on higher orders, which was not accepted by the District Court, is not excluded by the established facts. Under the existing conditions the Accused was not in a position to refuse to carry out orders, as in the event of his refusing obedience his body and life would have been immediately endangered. Application : Advance Notice: New evidence will be produced to the effect that, contrary to the statements made by witnesses Six and others, anyone who did refuse to comply with orders was shot, and that in view of the dangers to body and life there was, on the whole, nobody who dared refuse to carry out orders, and particularly not when these were orders which were in no immediate connection with the act of killing. On the whole, the District Court overlooks the predominating guilt of the individuals passing an order and, furthermore, does not properly credit the critical state the subordinate officials were in. Inadmissible Exclusion of Evidence The hearing of witnesses Shione and Thoar (as demanded by the Defence), who are reponsible for issuing an official order to abduct the Accused, was unjustly refused by the District Court as being not worthy of consideration. In order to prove the importance of introducing evidence, reference is made to previous representations on the incompetence of the Court (vide I, 2 b above). Further evidence is reserved by witnesses yet to be named. Irregularities in the Procedure 1.The hearing before the Court of witnesses for the Defence was obstructed by the Attorney General, who threatened to arrest any witness for the Defence coming to Israel to be heard. Thus the Defence was deprived of the opportunity to shed sufficient light onto the circumstances before the Court. It concerns the essential question of position and activities of the Accused. The hearing before the Court would have been all the more necessary insofar as it concerns witnesses who are former superiors of the Accused. Past experience makes it obvious that these superiors might endeavour to refute their own responsibilities as superiors and charge the Accused with these. The dangers which exist here, and which have been investigated by the Defence, were not sufficiently credited in the Judgment. With regard to this it is pointed out that the hearing of a witness who is imprisoned in Germany could also have been secured by agreement with the German authorities. Example: With regard to irregularities of the procedure: Hearing of witness Hoettl before the Austrian court in Vienna, without the presence of the parties, behind closed doors, and where the interrogating judge, according to information given by him, directed the hearing at objectivess set by him. Hearing of witness Becher before the Amtsgericht Bremen, after the court (a young assessor) gave Becher the Defence cross_examination questions for informational purposes. This happened even though it was apparent that Becher has previously made efforts to adjust his statements according to the requirements. (Prison discussion between Becher and Dr. Kasztner). 2.Due to the threat made by the Attorney General, the witnesses nominated by the Defence not only refused to appear before the Court, but other witnesses did not even dare to put themselves at the disposal of the Defence, and went into hiding. During his detention in Israel the Accused has not been in a position to obtain needed evidence. In accordance with German law, the office of the Attorney General would have been obliged to launch the necessary investigations. This also goes for material for the Defence. 3.The admission of evidence, in accordance with Article 15 of the Nazis and Nazi Collaborators (Punishment) Law, requires further investigation. The decisions made by the District Court may have served the purpose of shortening the procedure and simplifying the introduction of evidence. The interests of the Accused and ascertaining the truth, however, have been infringed upon. 4.The documents concerning the various incidents in question were not produced in one batch in their chronological order when Captain Less conducted the police investigations. They were produced one by one and chronologically disarranged. In his bid to reconstruct events which he could no longer remember, the Accused was caused to state wrong assumptions. This was particularly the case when he had a first glance at a certain document which he considered to be correct. After having read the complete document, he modified his assumption. The District Court unjustly did not recognise this modification. 1.The maximum punishment under the law imposed by the District Court is not commensurate with the guilt of the Accused, and which would be the yardstick used to establish the penalty. a)The view held by the Court, according to which the Accused has been obstinately telling untruth in order to evade justice, contradicts the fact, not sufficiently credited by the Court, that the Accused himself made voluntary statements during the cruelty proceedings which were far more significant. The publication of these statements would naturally have been withheld by the Accused had he actually intended to conceal the truth. Right from the beginning of the Proceedings the Accused was undoubtedly a co_operative Accused, who did not intend to prevent fact-finding in the case. b)The view held by the District Court, according to which the Accused held a prominent and far_reaching position, is in contradiction to the striking fact that the Accused had no further promotion after 1941. This is even more striking since extraordinary promotions for extraordinary service used to be a typical reward by the government at that time. Example: At the beginning of the War, witness Becher was promoted from a simple SS member to an SS Standartenfuehrer (colonel). The promotion list for SS generals will show similar rewards in the form of promotion. Contrary to this, the Accused was not discharged from his department. He did not become a chief or commander but remained a subordinate, carrying out orders under SS General Mueller, who was his superior. 2.The death penalty as a maximum punishment appears excessive compared with the fact that even more senior persons, who were also involved in the persecution of Jews, either received no punishment or today enjoy freedom after having served minor sentences; persons who were put under pre-trial confinement in the Federal Republic during the trial of the Accused cannot, in accordance with the legislation of the Federal Republic, be sentenced to death, as the death penalty has been abolished there. 3.The death penalty also appears excessive, because, had the Accused been extradited in accordance with Argentinian law on extradition, instead of being abducted, the death penalty could not have been awarded, as it has been abolished in Argentina. At this, it should be taken into consideration that the intended extradition agreement between Argentina and the State of Israel recognizes this fact. The fact that this agreement has not been signed, with consideration to the trial of the Accused, is irrelevant for the principal judgment, as the principle had already been agreed to. 4.The death penalty is also considered to be excessive, as it fundamentally exceeds the rights of man to punish man; penal reprisal is nowadays rejected by the majority of people who form public opinion. The right to submit supplementary statements to this Statement of Appeal is reserved. Submission will be effected by delivery by mail by 15 February 1962. (signed) R. SERVATIUS Attorney
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