Session No 91
27 Tammuz 5721 (11 July 1961)
Presiding Judge: I declare the ninety-first Session of the
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
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.
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
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
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
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
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