dtufail/nuremberg-trials-corpus huggingface dataset:
DR. BERGOLD: is taking part in these Trials, they would have delivered Bormann to the Tribunal for trial. Where are only two possibilities-at least in my opinion-namely, that the wounded Bormann fell into the hands of the U.S.S.R.- having been proved not to be true, there remains only the second possibility-namely, that Bormann lost his life. I am therefore of the opinion that I have showed that there is sufficient proof to believe that Bormann is dead. In my opinion, one should not be allowed to say that a man is presumed to be alive until death is established with absolute certainty, a presumption which I, the defendant's counsel, would have to refute. The legal assumption of a person's being alive has been valid in all countries of the world but only in the field of civil law, and only for the purpose of regulating matters relating to inheritance or the property of married persons. However, a legal assumption of a person being alive has only very seldom been established, for instance, in common law and in the Prussian law, and even there it is contested. The Civil Code makes no provision at all for the assumption that a person is still alive; it merely admits a declaration that a missing person is dead in the eyes of the law. Common law neither provides for a declaration of the death of a person nor for the legal assumption of a person's being alive. Russian law permits, after a short period of time, the declaration that a missing person is dead in the eyes of the law, and this may be followed by the declaration of the person's death. But neither of these rulings justifies the assumption that a person may be alive. Whatever may be the case in civil law, it is nevertheless a fact that there is no provision in the criminal law of any country for the assumption that a person is alive. If criminal law does not recognize the assumption of a person's being alive, then it is not my duty either to refute such an assumption of a person's being alive.
DR. BERGOLD: It must then suffice that the Defense should prove, as I have already done, such circumstances as could lead one to conclude, after reasonably evaluating the chances in the usual course of life, that a defendant is dead. I am, therefore, most definitely of the opinion that the death of the Defendant Bormann has been proved with sufficient probability; in fact the probability is so great that the proceedings should be suspended for all time, since the Charter, too, does not recognize proceedings against a dead person. If there were such a thing as the trial of a wrongdoer after his death the Prosecution, according to all logic and reason, would have had to indict the real heads of National Socialism. But apart from all this, it is not at all proved, in my opinion, that the Defendant Bormann is intentionally evading trial as long as the possibility exists that the defendant is dead. It is true that the Charter does not recognize such an assumption in the proceedings against a defendant who cannot be found. The Charter is very reserved on this particular point and I have already stated that I am convinced that following the hearing of the witness Kempka the Tribunal should once more examine very carefully whether they should exercise their right in this special case of the Defendant Bormann. Considering the finality of the verdict it seems to me fair and just in the case of Bormann to consider the general legal principle of all civilized countries, by which a defendant must be guaranteed a hearing even if only after his arrest. Thus, by suspending the proceedings now, one would avoid creating accomplished facts so long as it is still possible that Bormann's absence can be excused. May I point out in this respect that in the second part of Article 12 of the Charter, the Tribunal refers expressly to the interests of justice that they should consider, in examining the question, whether they intend to take proceedings in absentia for any other reason than that the defendant cannot be found.
DR. BERGOLD: These interests of justice are not unilateral and are not directed against the defendant only. True justice is always universal and demands in all legal systems of the world that, as far as that is possible, the interests of the defendant shall be protected as well. Owing to the state of health of the Defendant Krupp, the Tribunal has already exercised their right not to try a person in absentia. Even if this last-mentioned case cannot be compared with that of the Defendant Bormann, this decision should be given consideration in the present instance, too. Having in view the peculiar character of the case and the testimony of the witness Kempka, it can by no means be considered as proved that the Defendant Bormann is deliberately absenting himself from the Tribunal, for in whatever way the matter is viewed one cannot dismiss the possibility that-even if he had been rescued and had not fallen into the hands of the Allies-he may have suffered such serious lasting injury that he is neither physically nor mentally able to surrender himself to the Tribunal. In my considered opinion it is precisely for this reason that the Tribunal in the interests of true justice should suspend proceedings against the Defendant Bormann even now. Such a decision, however, is also justified according to the second principle, which was formulated by the Russian law, namely, that proceedings shall, as a rule, be admitted only if the facts of the case no longer leave any room for doubt. The Defendant Bormann is absent. He has not been able to defend himself against the charges for which he is indicted. He has not been able to give me any information, neither could I find any witnesses who know the circumstances sufficiently well, and who would have been able to disclose to me any exonerating evidence concerning the accusations made. During the course of these long proceedings the man Bormann and his activity have remained shrouded in that obscurity in which the defendant, by his predisposition, held himself during his lifetime.
DR. BERGOLD: The charges which many codefendants have made against him, perhaps for very special reasons, and obviously in order to assist their own defense and exonerate themselves, cannot for reasons of fairness be taken as the basis for a judicial decision. The Prosecution has stated on more than one occasion through its representatives that the defendants would seek to throw the chief blame upon dead or absent men for the acts which are now being judged by the Tribunal. In their pleadings some of my colleagues have followed these tactics of the defendants. Perhaps it was right to do this. I cannot judge. Besides, I have no authority to form a judgment. But nobody knows what the Defendant Bormann could have said in answer to these men if he had been present. Perhaps he would have been able to show that all his activities were not the cause of the happenings arraigned in the Indictment, also that he did not possess the influence which is imputed to him as the Secretary of the Fuehrer and of the Party. It has always been a well-known fact that secretaries and chiefs of central chancelleries, in the same way as valets to princes in the times of absolutism, were attributed a considerable influence upon their superiors and lords, for in the nature of things everything which can only be handled officially must pass through the hands of this secretary. But what in a modern state can evade the Moloch of bureaucracy? The document book and the trial brief presented by the Prosecution contain no conclusive evidence that in the incriminating events and measures Bormann personally had any effective and outstanding influence on the actions and dealings of the Third Reich, of the NSDAP, or even of Hitler himself nor of how strong that influence had become.
DR. BERGOLD: In the comments on the Bormann decree, reproduced in Volume II of the official collection of Verfuegungen, Anordnungen and Bekanntgaben der Parteikanzlei, Page 228, submitted as Document Number Bormann-ll in my document book, it is stated that the Party Chancellery was an agency of Hitler, which he used for directing the NSDAP. Stress is laid on the fact that on 12 May 1941 Hitler again assumed full and complete responsibility for the leadership of the Party. The Chief of the Party Chancellery, at that time Bormann, had been charged with keeping Hitler continually informed about the work of the Party and to bring to his knowledge any circumstances about which he should know when making decisions in Party affairs. This had to be done according to Hitler's basic directives, and the Chief of the Party reserved for himself the right to determine these, especially as far as political affairs were concerned. Thus it followed that the Party Chancellery was the central chancellery for matters concerning the home policy of the Reich leadership, and through this channel all suggestions and information from below were passed upward to Hitler and all directives from Hitler were passed down through it to the lower levels.
THE PRESIDENT: The Tribunal will adjourn. [The Tribunal recessed until 1400 hours.] Afternoon Session
DR. BERGOLD: It is true that a man in a position such as I described to you this morning can have great influence, if there is a man at the top who can be easily influenced; but it is equally correct to say that a man in such an office can play a purely formal role as the head of a liaison agency, if at the top there is a dictatorial autocrat who cannot be influenced and if the chief of the office has no special ambition nor any special abilities. The proceedings which have been held for many months here have shown which of the two alternatives is more likely. It is obvious that, seen from lower levels, the head of the Chancellery would appear influential even in the case of the second alternative, because everything goes through his hands and because any blame arising from subordinates passes through his agency and because all mistakes which arise in the vicinity, committed by other officials, are reported there. These officials and subordinates, however high a rank they may have held, and even though in part they may have feared the chief of the Party Chancellery-perhaps indeed only for reasons originating in their personality or their errors-these are not the right people to enlighten us as to which of the two alternatives described is the proper one. As long as Bormann does not appear and is not heard, personally, the true part he played remains obscure. Nobody, not even the High Tribunal, could ever pass just sentence. All the facts remain dubious. They remain dubious even in the individual points. I would like to demonstrate this by just a few examples. My esteemed colleague of the Defense, Dr. Thoma, has stated that Bormann prevented the Defendant Rosenberg from following his policy. To make his point he referred to the memorandum of Dr. Markull, submitted as R-36. But this document is nothing more than a comment on an unknown and unproduced Bormann document. Markull declares expressis verbis that he put Bormann's formulations into the language of a simple member of the German civil service and presented them more pointedly.
DR. BERGOLD: Only Bormann could enlighten us in this case and tell us whether he wished his writing to be understood in this way at all or whether Markup twisted the meaning and sense of Bormann's words, so that only Bormann could disclose whether this writing, like almost all the Bormann documents submitted, did not simply transmit the utterance of another Reichsleiter or of Hitler. So this very case, too, seems altogether doubtful. An explanation can hardly be expected. Furthermore, it must be pointed out that almost all the documents which the Prosecution have gathered in their document book are, in general, mere reproductions and publications of a Hitler decree or a Hitler instruction. Bormann transmitted these instructions to the subordinate agencies with an accompanying letter in order to inform the agencies concerned. This is an activity which, as office work, has to be done even under the most reprehensible and tyrannical despotism; how much more so in a modern state like the National Socialist Reich. Someone has to forward all the instructions and orders to the subordinate agencies; that is a purely formal activity. It is immaterial whether it is done by a plain office assistant or by a brilliant Reichsleiter. The official transmission of such instructions-I mention for example the Documents Number 069-PS, 1950-PS, 656-PS, 058-PS, 205-PS, and even the famous Document Number 057-PS-can only be considered a transmission of directives and opinions of Hitler; from such a method of transmission nobody can draw the conclusion that the forwarding party had any influence on the decrees, orders, and decisions. It is possible, but it has not been proved with certainty. But before a sentence is passed, this question of influence should be entirely clarified.
DR. BERGOLD: Because even if one could see any offense in the transmission of an order, according to Chancellery routine- whereby one would even have to sentence the women who wrote such orders on the typewriter-the just verdict would have to distinguish between the extent and severity of the punishment for such clerical work; and that should fall upon a man whose collaboration was a decisive factor in causing such orders and decisions and who by his influence and advice led the chief of the state to issue them. All this is not clear in Bormann's case and continues to be uncertain. The empty statements of the codefendants, whose motives can never be entirely unveiled, to the effect that Bormann exercised great, even diabolic, influence are no proof. The other documents of the Prosecution only prove that Bormann, in keeping with the decree of 29 May 1941, Document Number 2099-PS, and the decree of 24 January 1942, Document Number 2100-PS, arranged for an exchange of correspondence between the individual Reichsleiter and forwarded their desires and suggestions. As an example I mention Documents Number 056-PS, 061-PS, 072-PS, 205-PS, and 656-PS. Nobody can derive with certainty from these activities as a go-between, which were necessary from the administrative standpoint, the extent and true nature of Bormann's influence. Further documents show that Bormann very often served as a mere stenographer, taking the necessary notes during Hitler discussions with some of the defendants. This is proved by Document Number L-221, concerning the annexation of the Eastern Territories, and the Russian Document Number USSR-172. But in any case such documents do not make clear whether and in what way Bormann influenced the policies and the measures of the Third Reich during such meetings. According to all rules, a stenographer has no influence at all. He only fulfills an automatic function. I would not like to be misunderstood here. Far be it from me to dispute the fact that Bormann occupied quite an important position within the leadership of the Third Reich.
DR. BERGOLD: But no clear view has emerged during this Trial as to Bormann's actual importance or to what extent it was exaggerated and vilified by the bad conscience of third parties and, finally, of what his influence actually consisted. Statements of the other defendants, which were made for their own defense, do not constitute relevant evidence. At any rate the document book of the Prosecution contains, almost exclusively, documents like those I have just examined more closely. Bormann scrupulously did only what was legal in Germany; this was revealed in the documents I submitted-for instance Documents Number Bormann-2, 3, 5, 7-in which he repeatedly pointed out to Party offices that no illegal action against Jews was permitted. It is characteristic of Bormann's case that measures against Jews could not be proved against him personally. He never did more than forward such instructions, divulge, or publish them, as this was prescribed by law and as it followed from his position as Party secretary. Even the big conference of 12 November 1938, which was held under the chairmanship of Herr Goering and from which emanated a series of laws against the Jews, can only be brought into relationship to Bormann insofar as Bormann forwarded to Goering Hitler's instruction ordering that such a conference be held. In any case it has not been made clear at all what influence Bormann himself had on these questions. But how can a just and fair Tribunal determine the extent of appropriate punishment, if the part played, if the participation of an individual defendant in an offense, is not clearly established? Nobody can say then that there is no doubt about the circumstances of the case. At first glance it seems to be most certainly proved by the document book of the Prosecution that Bormann was one of the most zealous in the fight against the Christian churches. Most of the documents quoted in the trial brief referred to this point. It is certainly correct to say that Bormann, because of his philosophy, was a violent opponent of the Christian doctrine.
DR. BERGOLD: But such attitude of mind, in itself, is neither an offense nor a crime before mankind, which embraces so many different conceptions of the world and which will perhaps give birth to many more. In modern times there are countless convinced atheists. In other countries of the world, too, there are officially recognized organizations which oppose the Christian doctrine; and at the turn of our century there were big associations in many countries which raised pure materialism to a philosophical system and openly proclaimed the negation of spiritual facts and truths. No one can be punished for wishing to teach others the precepts of his ideology or for wanting to convert them to his point of view. The modern world still recalls the horrors of the Inquisition. Therefore Bormann could only be punished if it were proved that he participated in a real religious persecution and not merely in an ideological struggle. In my opinion the two most important pieces of documentary evidence which the Prosecution have produced against Bormann- namely, Documents Number D-75 and 098-PS-do not show that the Defendant Martin Bormann on his own authority undertook anything against the churches as religious institutions. The gist of Document Number D-75 is contained in the sentence which says that from the incompatibility between National Socialist and Christian ideology it must be deduced that any strengthening of existing Christian denominations and any promotion of new ones is to be avoided by the Party. It is of no importance for what pressing reasons Bormann came to such a conclusion at the end of his letter. It goes without saying that failure to support a religious concept which one opposes on philosophical grounds does not constitute religious persecution. Nobody is obliged to support a religious view. It is not fair to consider his antireligious attitude and to disregard the fact that nothing came of it.
DR. BERGOLD: Furthermore, it is important in this connection to note that we received only one copy of this document, a copy which a Protestant minister by the name of Eichholz made out for himself. Whether the reproduction of the contents of Bormann's statement in this document is correct in every detail has not at all been proved. In any case the document in this form does not constitute authentic evidence. In Document Number 098-PS, which may be recognized as being authentic, Bormann takes a very definite stand indeed against the Church. It ends, however-and this is the only fact which should be considered for the verdict-by saying that no National Socialist teacher should be reproached for teaching Christian religion and even that in such a case the original text of the Bible should be used; any new interpretation of, comment on, or analysis of the text of the Bible is to be avoided. Therefore Bormann, despite his previous philosophical attack upon the Church, takes here the legal standpoint that Christian dogma may be freely propagated. Could a more loyal action ever be expected of such a strong opponent of a doctrine? The remaining documentary evidence does not reveal any real persecution either. The fact that Bormann, on Hitler's orders, prohibited the admission of priests or of members of certain religious associations to the Party and that, on Hitler's order, he forbade priests to be appointed to leading positions in the Party, in order to prevent dissension, is not religious persecution. The fact that during the war he demanded that the Church make the same financial sacrifices as other state institutions does not represent a criminal act undertaken for religious reasons. That, while closing many lay institutions in order to make use of the human reserves of the nation, he tried to close down religious institutions too; that, considering the limitation on the number of copies and number of pages of lay publications, he wished Church publications to be limited also, does not come under the provisions of Article 6 of the Charter.
DR. BERGOLD: It is true that in this respect he followed, among other things, his anticlerical attitude. But when, aside from this, the same measures were taken in Germany against other institutions and other publications-measures which were supposed to be only temporary war measures-one cannot speak of actual religious persecution. That Bormann might have been coresponsible for the persecution of priests has not even been submitted or proved at all. All documents indicate that Bormann always adhered to the legal stipulations in effect; and since he desired to comply in every way with Hitler's orders, it is to be assumed that he observed Hitler's decree at the beginning of the war which directed that all measures against the Church be discontinued. Therefore it may be said in conclusion that this matter, too, cannot be really cleared up despite the numerous documents presented. Documents alone do not suffice to dissipate all doubts on the case. Especially with respect to the importance and weight of Bormann's share in measures aimed at persecution of the Church, it seems necessary to determine Bormann's personal responsibility. This fact therefore also remains somewhat obscure. A basis for a just determination of the punishment to be inflicted cannot be established. I shall not take up the time of the High Tribunal by bringing up further details. I think that the indications I have just given are sufficient to show that even the documents presented by the Prosecution prove, in any case, only one thing with certainty-namely, that Bormann in his capacity as chief of the Party Chancellery held "as ordered by the law" an intermediary position in official and secretarial communication between the head of the Reich and the subordinate agencies and among those subordinate agencies themselves. Anything else is only an assumption which has not been definitely proved-in any case not with the certainty necessary to render a just verdict in absentia and without hearing the defendant and to determine the severity of the punishment.