Judge Halevi: And also after the crime was committed? I am
referring to the interim period.
Attorney General: And even after the commission of the
crime, before he has been charged. Certainly before he has
been caught. For example, a letter specifying how the booty
of thieves is to be divided – would not such a letter be fit
evidence in a trial for theft? Even if no one saw the
accused signing it, I believe that this would be valid
evidence for all purposes.
Presiding Judge: It would appear that it is necessary to
clarify what is a statement for purposes of Section 37(2).
Possibly, there is further judicial authority on this point,
which has not yet been brought before us.
Attorney General: By all means.
Presiding Judge: Meanwhile, Dr. Servatius, what do you have
Dr. Servatius: I am of the opinion that this section does
not apply here.
Presiding Judge: Why do you say that, Dr. Servatius?
Dr. Servatius: We also do not have to concern ourselves
with expert opinions, since the crux of the objection is to
be found in a totally different direction. There is nothing
here to prove that the Accused has acknowledged that the
written material is a statement made by him. He merely
declared repeatedly – also in his interrogation by the
police – that there was a recorded conversation, but he did
not say that what was written down was the substance of the
Presiding Judge: I thought he said that it was for
publication in Life.
Dr. Servatius: That is not the case. The article in Life
is based on these alleged recordings.
Presiding Judge: Did he ever say that the transcript which
was made from these recorded tapes were not accurate – in
the material that we have before us, which is our T/48-51?
Dr. Servatius: The Accused was not aware at the time of the
contents of the recordings and has seen it only now. In
File 17, he expresses his comments on seventy pages. It is
possible to see from a study of the sixteen files that at
first he made only slight alterations, and, subsequently, he
added numbers in the margins and prepared detailed
corrections. Of course, there is only a small part here.
The rest is missing. But there exists better evidence – the
witness Sassen himself, who can be questioned as to whether
he truthfully noted down what was said. I shall be able to
prove that he twisted matters in accordance with his own
tendency. After all, he wanted to publish a tendentious
book. It will be possible to prove how he changed matters.
Presiding Judge: Are these remarks of his in writing a
criticism of the accuracy of the transcript of the tapes, or
are they substantive remarks concerning the contents of the
Dr. Servatius: They are corrections of the text which he
believes to be false. There are additional passages there
by Sassen. There he says: “This is the way we shall put
this,” but these are passages which were never shown to
Presiding Judge: But you have not yet replied to my question
– were these substantive amendments, or alterations to the
written text of the tapes?
Dr. Servatius: These are, in the main, substantive
amendments, but there are also, if my memory serves me well,
remarks where he says: “This is nonsense – I never said
that.” I merely want to point to one fact – that is on page
6. There he says: “I shall gladly jump into the pit, in the
knowledge that five million Jews or enemies of the Reich
have perished.” There is a discussion on that, and on page
6 he says: “That makes no difference – it ought to be
`enemies of the Reich,’ since I hated the Jews like the
others.” In the rest of his remarks, on no occasion can one
find such an expression coming from him. I do not know
whether I should weary the Court with the details of these
arguments of mine or submit them in writing.
Presiding Judge: We have not yet seen the transcript at all,
and hence there is no point in going into all these details.
Dr. Servatius: May I sum up shortly?
Presiding Judge: Please do. We have also not heard your
views on Section 37.
Dr. Servatius: This section refers to someone confirming
what he has read. Here, after all, he only confirms or
confirmed that he once recorded something, but not the
contents of the recording in detail.
Presiding Judge: You have read section 37(2), have you not?
Dr. Servatius: I would ask you to allow me a moment to
[After perusing it.] It says here that a statement by an
accused person, which has been made otherwise than at the
preliminary examination, can be proved by the evidence of
the person who recorded this statement, namely by Sassen
himself, and not by means of submitting a document. And it
says here: Whether it is in writing or a written statement,
or whether it is signed or otherwise verified by the accused
Now, here, the Accused did not confirm the contents, but
simply the process connected with it.
Presiding Judge: I understand, therefore, that you are
saying that the conditions required according to Section
37(2) do not exist here. Previously, I did not understand
Dr. Servatius: Yes. These documents are incomplete; proof
of the alterations is lacking. One hundred and ninety five
substantial amendments were made. We have before us here
File 17 with minor alterations, with about twenty small
alterations to details, but not complete. On examining and
analysing File 17, it seems to me that some forty
amendments, which someone has removed, are missing. I
gather from the remarks of the Prosecution that the recorded
tapes are still in existence, and they should have been
brought here, in order to check whether they correspond to
the transcript, the recorded notes. The best witness should
have been brought here, namely the witness Sassen, and those
who were present. May I be permitted to point out that this
entire recording was made in the course of a conversation
which was the result of provocation in a bar, where the
Accused was plied with a lot of alcohol, in order to get at
the truth for the sake of humanity.
Presiding Judge: Where is Sassen now – or one of the others
who was present?
Dr. Servatius: I have the addresses of two witnesses.
Presiding Judge: In what country?
Dr. Servatius: One is in Austria and the other is to be
found in Argentina, if he is not on one of his journeys to
Europe for the purpose of publishing his memoirs, Sassen’s
memoirs. I can give you their addresses. I do not have
them here with me at the moment.
Presiding Judge: And these are the men you would like to
hear – I want this to be clear – in the case of its being
Dr. Servatius: Yes.
Attorney General: If the Court would like to hear my reply,
I shall be brief.
With regard to the legal question, we shall furnish
authorities. I remember one authority, from the time of the
Mandate, I believe, for Section 37(2), but I shall check
these matters. We are not aware of any recorded tapes,
there is no obligation to preserve tapes, it is known that a
tape can be used several times, and I don’t know whether
those mentioned in those conversations preserved those
tapes, or whether they used those tapes a number of times
for other recordings.
Defence Counsel acknowledges that there was a link between
the Accused and the transcripts, he says it was obtained
under the influence of alcohol; those matters can be
explained to us, if necessary. There is an old adage which
says, “In vino veritas,” and an old Hebrew saying, “When
wine goes in, the secret comes out.” Hence, perhaps, I do
not know, this must be gone into, but it surely can be
explained, in the same way as other matters can be
explained, by means of witnesses, by means of a document.
I can promise Defence Counsel that I am submitting, I have
submitted to him, and I want to submit to the Court,
everything I have. I have not concealed from him any parts
of this statement and parts of these remarks. Whatever I
have, whatever has come into my possession – this is what I
wish to submit.
Presiding Judge: Is it complete?
Attorney General: The only information on this which is not
complete relates to the internal description of these
matters, since every tape is designated by a number. We
have tape No. 5, and, after that, there is a jump, and it
says tape No. 11. Hence, I do not know if there were five
tapes which it was decided to destroy, or which are in
existence somewhere or other. All that I know is that, I
have, after tape No. 5, the tape described as No. 11. It is
true that there are numbered comments. With regard to some
of these numbers, there appear comments which are in my
possession. It is true that there are numbers where I do
not have the corresponding pages of the comments, which were
likely, or had to, or were intended to follow; whether they
were made or not – that I do not know.
And thirdly: The amendments in handwriting which Inspector
Hagag found and identified are spread over all the pages –
they begin on page 18 and end on page 667. Out of a total
of 716 printed pages, it would be inconceivable that the
Accused only made a number of corrections in a number of
places and afterwards despaired of making these corrections,
and reserved his main corrections for a manuscript which is
not before you. The opposite is true: the corrections, more
than eighty in number, in his handwriting, are scattered
throughout the entire transcript.
Attorney General: We have sixty-seven tapes.
Presiding Judge: The transcripts of sixty-seven.
Attorney General: Out of these, we have to exclude tapes 6,
7, 8, 9 and 10 which are not in our possession – that is to
say, we have tapes 1-5 and 11-67.
Presiding Judge: Mr. Hausner, what about this possibility of
hearing witnesses, one of them from Argentina – where will
that lead us?
Attorney General: That will lead us to many difficulties.
Presiding Judge: Can you object to such an application?
Attorney General: I am very much afraid that I shall be
obliged to examine once again the past of Sassen. I do not
know about the second man who was mentioned, and I do not
know who he is, and it may well be that he is the right man
to bring to Israel; as far as I know, Mr. Sassen should
stand trial here, on the basis of his past.
Presiding Judge: So how do you view the procedure in this
Attorney General: I apply to have the transcript admitted in
Presiding Judge: After that, Dr. Servatius will apply to
hear Mr. Sassen in Argentina, and we shall sit here and
Attorney General: We shall send the material to Argentina,
and we shall take evidence on commission. From the point of
view of taking evidence on commission, Argentina is not any
further away than Germany, Your Honour.
Presiding Judge: First of all, that is not altogether
correct, but we are in a more advanced stage of this trial.
Attorney General: The transcript is of such great importance
that I think it justifies not to take into account the
advanced stage of the trial, and to make every effort, in
order that this document should be brought in evidence
before the Court.
Presiding Judge: It is, of course, your duty to make the
Attorney General: Yes, and we have definitely decided to
make every effort in this matter. In order that there
should be no misunderstanding, Mr. Sassen can be a defence
witness, and then the question should be asked whether he
can testify here, or whether his evidence must be taken
somewhere else. But, in regard to the admissibility of the
document at this stage, this should not be linked
necessarily to Sassen’s evidence.
Presiding Judge: I link it from the practical point of view
now; that also has legal significance.
Attorney General: Your Honour, I certainly acknowledge that
this is likely somewhat to protract the proceedings, and
possibly to take us to a later date, but I would very much
ask the Court to prefer giving weight to the possibility of
examining this document, which, in our opinion, is most
important, in order to establish the Accused’s connection
with the offences attributed to him – that is most
important. And I ask you to prefer this consideration to
the practical consideration of saving time.
Judge Raveh: In fact, according to what Dr. Servatius had
to say, it appears that, actually, he relies on Section
37(2) and maintains that the document must not be admitted
except through the man who heard what was said.
Attorney General: That is a completely different problem,
and I understand that His Honour, the Presiding Judge,
wishes to hear us separately on that point.
Presiding Judge: I see that Dr. Servatius, by legal
instinct, has arrived at the contents of Section 37(2); this
is how one could describe his objection.
Attorney General: If the Court wishes to hear a legal
argument on this point – certainly, I am fully prepared.
There is no problem at all as to that.
Presiding Judge: It is not that we want it – I think it is
your obligation to present the legal argument, and not only
because it is a very important document.
Dr. Servatius: Regarding the importance of the document, it
is not all that important, since the Accused himself
declared what is important, before he knew about the
Presiding Judge: We cannot know until we have read the
Dr. Servatius: Only the accompanying remarks are of
interest – those that the journalist added, in order to
carry it closer to the circle of his customers – the
Presiding Judge: Our difficulty lies in the fact that we
have not read the document. And I, for my part, believe
that we ought not to read it at this stage. Hence, it is
hard to judge this issue.
We shall adjourn now, and the next Session will be held next
Monday at 8.30 a.m. Then you will complete your legal
argument, Dr. Servatius will reply, and we shall also give
our decision in the course of the morning; we shall
endeavour to give our decision during the morning. Please
bring the remainder of your evidence on Monday, so that we
may be certain of finishing on Monday afternoon. How much
time do you estimate you will need – apart from the question
Attorney General: Two hours.
Presiding Judge: Then we at least have a good chance to
finish on Monday.
Judge Halevi: There has been reference to two witnesses.
Who is the second potential witness?
Attorney General: I do not know.
Judge Halevi: Perhaps you, Dr. Servatius, would care to
say. You are not obliged to do so. Is it the same Mildner
who is mentioned in Eichmann’s statement? I say this only
because the Attorney General raises the question whether the
potential witness will be able to testify in Israel or not,
and he does not know his identity. If you, Dr. Servatius,
are interested, you can tell us who he is.
Dr. Servatius: I did not understand properly to which
second witness you are referring. Is that in respect of the
Judge Halevi: Did I understand you correctly, Dr.
Servatius, to say that you thought it was necessary, from
your point of view, to call two witnesses? One of them, as
far as I have understood, is Sassen, and the second is not
known. Someone from Austria.
Dr. Servatius: No, he is not unknown. I have the address.
He is in Austria.
Judge Halevi: I wanted not the address, but the name.
Dr. Servatius: Yes, the name is Fritsch – his full name I
do not have – but his name is Fritsch.
Presiding Judge: We shall adjourn now. The next Session
will be on Monday, at 8.30 in the morning.