The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 91
(Part 1 of 6)

Session No 91

27 Tammuz 5721 (11 July 1961)

Presiding Judge: I declare the ninety-first Session of the trial open.

Dr. Servatius, if you please, we have your application to summon the witnesses Tohar and Shimoni. We want to deal with this application first. What do you wish to say in this connection?

Dr. Servatius: Your Honour, the tenor of the evidence is specified in the application itself. I made both applications at the beginning of the trial. At the sixth session, on 17 April 1961, the Court handed down a decision by which it rejected the application to examine these witnesses, on the grounds that the way in which the Accused had been brought to Israel was irrelevant. I do not share the opinion of the Court if the Accused was seized in Argentine and brought to Israel upon the official order of the State.

The opinion of the Court could be reviewed before a higher Court. Such a review, however, cannot be carried out in theory, but only on the basis of proven facts. In an argument against the decision of 17 April 1961 the issue will be regarding a procedural error. Should the facts which form the basis of this argument be proved, and should the Court rule that they are irrelevant, then a plea of substantive judicial error could be advanced for the consideration of which other aspects, in my opinion, are more decisive than for procedural error.

In order to prove these facts I submit my application to examine the two witnesses.

Presiding Judge: Dr. Servatius, I am not sure that I have understood the terminology you used, which most likely is taken from quite a different system of procedure. In any event, in the decision which you mentioned, Decision No 3, the application to summon the above-mentioned witnesses was rejected, because we were of the opinion that under the law the facts which you wished to prove by the evidence of these witnesses, were irrelevant. In other words, even if we took into account everything you wanted to prove through these witnesses, even if all that were correct and true, all of that has nothing to do with the present trial. In fact, nothing new has come up in the meantime, and somehow it seems to me that this application is an appeal against our earlier decision. But this is not admissible. It is impossible to address that to the same Court which gave the decision in the first place.

Do you have anything to say about this?

Dr. Servatius: Your Honour, this is not an appeal against the first decision, which cannot be contested. The original decision, however, concerns only procedure, that is to say the question whether this Court is competent, whereas the factual, material contents have to be decided in the judgment, on the basis of facts which have not yet been established. Only a matter which has been proved may be contested in the appeal. If, then, the judgment states that in fact that an official order existed, but the Court is nonetheless competent, then this can be reviewed. If, however, this fact has not been established and is not proven through witnesses, then the Appellate Court cannot go into this issue merely on theoretical consideration. This is my opinion; it rests on German legal interpretation.

Presiding Judge: I think that, in this case too, there will be other avenues open.

I assume that if the Appellate Court, in the event that an Appeal is submitted, should take the position that this evidence is relevant, then the Appellate Court will find - even at the Appellate stage - ways and means to hear this evidence and to accept it.

Dr. Servatius: Your Honour, I am not familiar with the practice of the Supreme Court and would be grateful, if the Court were to pronounce a decision.

Presiding Judge: All right. Mr. Hausner, what is your view on this application?

Attorney General: May it please the Court, this time, too, Defence Counsel's application is directed, as it stands, against the competence of this Court. He requests that the witnesses be summoned only in order to use the facts which he hopes to hear from them, upon which he will base his argument that this Court is not competent. This argument was already advanced at the beginning of the Trial, and it was then requested that these witnesses be summoned and examined for the same purpose.

It was already stated then that this was an Act of State, since Messrs. Tohar and Shimoni have been agents of the State and this would vitiate the Court's jurisdiction, so that the Court is not competent to try the Accused. This was pleaded at the time by Counsel for the Defence.

To that argument I replied at the time in extenso, and I can only repeat now that the grounds which I submitted at that time apply also to the present application. I would just like to repeat what Your Honour has already stated that a decision which has been taken, also on interim matters, is binding and can only be contended on appeal.

Therefore, the application by Counsel for the Defence deals with an issue on which a decision has already been handed down, and cannot be reopened. On the substance of the matter I submit that all my previous arguments are still valid.

Presiding Judge: If I have understood Dr. Servatius correctly he is now applying for taking the evidence ex abundante autela in the event that the Court of Appeal should be of a different opinion. So I understand, if I have followed the argument correctly.

Attorney General: If that is so, then I again have nothing to add to what Your Honour has stated just now. The Appellate Court is entitled to summon witnesses and order the taking of evidence, and if the Appellate Court should be of the opinion that the way by which the Accused was brought here is relevant to these proceedings, then it will be able to inform itself of the facts in question. I submit that this is entirely irrelevant.

Presiding Judge:

Decision No 94

Counsel for the Defence requests that Mr. Tohar and Mr. Shimoni be summoned to testify in order to support his argument that this Court does not have the jurisdiction to try this case. This application is in no way different from a previous application on the same subject, which was rejected by our Decision No. 3. Accordingly, we also reject the present application.

Now a further application has been received from Dr. Servatius for summoning a witness.

Has the Attorney General received a copy?

Attorney General: Yes.

Presiding Judge: Let us now deal with this application to summon Van Taalingen-Dols, an attorney.

Dr. Servatius: Your Honour, this is a Dutch lawyer, who has represented Professor Meyers. This is Professor Meyers from the University of Leyden on whose behalf a permit for emigration had been submitted and refused, even against payment of 150,000 Swiss Francs on the ground that he was an intellectual. The Accused has been questioned on this point specifically. This lawyer has just sent me a copy of a letter he sent to this Court in Dutch dated 30 May 1961. In this letter he states that he himself had acted in this matter. He states that he had been in Berlin, at Section IVB4 and had spoken with Guenther, the deputy of the Accused. I am of the opinion that this testimony is relevant.

Now, as time is very short, I have therefore requested that the Court should content itself with a sworn statement which the witness would give before a notary in Holland. I have wired him and asked him to do so. After all, to let him come here now because of this matter, would, I suppose, involve too much of an effort. But if it should be necessary he would have to come. The reason why this is important is that it concerns the general line of defence of the Accused. What he actually says is: "I gave all these negative answers only because they were ordered by the highest authorities," and here we have a witness who confirms this, and who has volunteered to testify as a former representative of a persecuted person. I have prepared a copy of the Dutch letter. Whether it is a perfectly correct - anyway I have made it to best of my knowledge. I assume that the Court did not take note of this letter because it was in Dutch and that it was overlooked.

Presiding Judge: No, that is not so. A translation was made and then the letter was handed to you. The Dutch letter (in translation) was in draft form, and therefore was not transmitted to you together with the original letter.

I would like to explain to you what I do with such letters. The Court, and I as Presiding Judge, receive many letters, due to the fact that the writers are not familiar with our judicial procedure, and they apply to the Court with a request to testify. My practice is to refer these letters, according to their contents, either to the Prosecution or to the Defence. I saw this letter, too, after a translation was made, and judging from the content, I concluded that it should be yours, that it belongs to you and therefore I had the letter referred to you.

Dr. Servatius: Your Honour, I have received a series of such referrals through the Court, and probably this letter as well. However, this must have been lost in the great mass of correspondence which comes in every day. Apparently the Dutch text was just skimmed through, and its true significance was not realized at the time. Therefore, I apologize for submitting this application belatedly.

Presiding Judge: Have you received a reply to your letter to this Dutch attorney?

Dr. Servatius: Your Honour, only yesterday I received a letter from this lawyer, with the copy, and in this way I encountered the letter again. I wired him yesterday and perhaps I shall receive a reply today or tomorrow.

Presiding Judge: So that at this moment you do not yet know whether he is prepared to come here?

Dr. Servatius: No, this I do not yet know, at this moment.

Presiding Judge: Mr. Hausner, if you please, what is your position?

Attorney General: I think that it is a little premature to discuss this matter. If Counsel for the Defence wishes to call the attorney Van Taalingen-Dols as a witness for the Defence, he is of course entitled to do so, and there can be no objection against his coming here and testifying from the witness stand. Naturally he will receive an entry visa and he will be able to come and testify and say whatever he wishes to say. I do not think that this is a case for tendering affidavits, as we have here a person who is free to come and go, he risks no danger in coming here, and it may well be reasonable and useful to have him come and testify.

In any event, if all Counsel for the Defence wishes to prove through Mr. Van Taalingen-Dols' letter is that he was Prof. Meyers' representative, and that in connection with Prof. Meyers' request to emigrate he - as an attorney - was referred to the Accused's Section in Berlin, and there Guenther said: "I cannot decide on it, the decision is in the hands of Himmler" - if for that purpose, and that purpose alone he wishes to submit the letter, there will be no objection on my part to have the letter submitted, as it is.

Presiding Judge: The letter?

Attorney General: Yes, if all that the letter is to prove is that in the course of handling this matter the Dutch attorney was directed from Holland to Berlin, and that he came to Section IVB4 and there Guenther told him: "This is a matter for Himmler to decide" - I have no objection to having the letter submitted for this purpose.

Judge Raveh: There is one further point. If you look at point 6 of the letter in the German translation. I assume that Counsel for the Defence wishes to prove points "b" and "c." The question is whether you, Sir, agree to these points. This, presumably, is what it is wished to prove.

Attorney General: Here he bases himself on a book. Surely he cannot prove this through evidence. Here he is referring us to a book. And I am referring to what Mr. Van Taalingen-Dols relates in his letter from his personal knowledge, and what he did. He represented his client, and in that connection he was referred to Section IVB4. He went to Berlin, met Guenther, and there Guenther told him that the matter of the emigration permit for Professor Meyers would depend on a decision by Himmler himself.

Presiding Judge: Perhaps the letter is there. He says: On 14 June 1943, Himmler demanded that Professor Meyers submit recommendations. This could be in the form of a letter.

Attorney General: If Your Honour would kindly note, it says on top there: "The following emerges from this book..." That means he is not referring to his own knowledge, his own actions, but to things written in some book. About that he certainly cannot testify.

Judge Halevi: Isn't this a book that he himself wrote?

Presiding Judge: It is a book that he has written, but from hearsay evidence, perhaps.

Judge Halevi: At the end of "c" it says that the book contains six pages, in detail, about Guenther's explanations. That is to say, testimony which is more detailed than that which is summarized here. What is our exhibit number, what is the number of our exhibit that refers to this matter?

Attorney General: I think that the Counsel for Defence mentions it in his application. His application refers to T/534 and T/535. But I think we have submitted a whole series of documents regarding Professor Meyers, including the final decision signed by the Accused.

Judge Halevi: Did Guenther sign in the end?

Attorney General: Eichmann signed.

Presiding Judge: You agree to the submission of a sworn affidavit, even to the letter itself. But I think that we will require, at least, an affidavit that will detail the facts which the witness himself gathered, from others as well of course. Here it refers to Guenther and documents in his possession.

Attorney General: But if, in consequence of the detailed statement and of new matters which are not before us at this point, the need will arise to examine the witness, we shall insist that he be brought here as a Defence witness, and that we be given the opportunity to cross-examine him. This must be quite clear.

Presiding Judge: You may, of course, put questions to him from the outset, and reserve the right to see, later on, what comes out of it.

Attorney General: And examine him in Holland?

Presiding Judge: Yes. The shortest way is a sworn affidavit at this stage. It will go much quicker if he goes to a notary and takes an oath there - at this late stage.

Attorney General: Why shouldn't he come here to testify? It is not impossible.

Presiding Judge: Coming here also involves money. I am trying to find out how far you are prepared to go to save Dr. Servatius this expense, while reserving your right to demand that he be examined here, as you said.

Attorney General: At this stage I would put it this way: If all the Defence wishes to prove is confined to the point that Guenther had replied to the attorney that the emigration of Professor Meyers depends on a decision by Himmler, then I agree to have the evidence submitted, without examining the witness. If he wishes to prove more that that, I would like to know what he is seeking, and thereupon I shall tell the Court what I intend to do.

Presiding Judge: Perhaps the most practical way is for Dr. Servatius first of all to obtain from him a notarized statement.

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