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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


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

(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

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

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

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

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