THE PRESIDENT: I understand the Soviet Chief Prosecutor wishes to address the Tribunal.
COL. POKROVSKY: In connection with the evidence just submitted to the Tribunal by Counsel representing the interests of Defendant Streicher, I consider it my duty to inform the Tribunal that during the last interrogation made by the Delegation of the Soviet Union, the Defendant Streicher, about whom it is specifically said in the Indictment, Counts One and Four, that he had incited to the persecution of the Jews, stated that he had been speaking from a Zionist point of view.
This declaration or, more precisely, this testimony, immediately produced certain doubts as to the mental stability of the defendant.
It is not the first time that persons, now standing their trial, have attempted to delude us about their mental condition. I refer in particular to the Defendant Hess. In the case of Hess the Tribunal, to my knowledge already possesses. . . .
THE PRESIDENT: One moment. We are not hearing any application with reference to Streicher’s sanity now, nor any application with reference to Hess. We have simply informed Counsel for Streicher that if he wishes to make an application in respect of his defendant’s sanity or mental condition, he must make that application in writing. If he does make such an application in writing you will have full opportunity of opposing the application.
COL. POKROVSKY: What I have in mind is not to offer an opinion on the deductions and the petition of the Defense, but to inform the Tribunal of a fact which may cause much complication if we do not act on it immediately. Seeing that the Tribunal has at its disposal a number of competent medical personnel, it would appear to me most expedient that the Tribunal should entrust these specialists with the examination of the Defendant Streicher in order to establish definitely whether he is or is not in full possession of his mental capacities.
If we do not do so now, the necessity may arise in the course of the Trial and if the question of Streicher’s sanity arises after the beginning of the Trial, then it may delay the proceedings and impede our work. If the Tribunal deems my suggestion in order, we would, before the Trial starts, have sufficient time to request from this commission of specialists a statement on his mental condition.
THE PRESIDENT: One moment. If I rightly understand what the Chief Soviet Prosecutor says, it is this: That if any question of the sanity of the Defendant Streicher arises it will be convenient that he should be examined now at once whilst the medical officers of the Soviet Union are in Nuremberg. If that is so, then if you think it is more convenient that Streicher should be examined by doctors at the present moment on account of the presence of the distinguished doctors from the Soviet Union being in Nuremberg, you are at liberty to make a written motion to that effect to the Tribunal at any time.
Do any of the other Chief Prosecutors wish to address the Tribunal?
(There was no response.)
Then the Tribunal will deal with the application of the Defendant Streicher as follows:
His application for postponement, which is numbered 1 on his written application, has been withdrawn. His other two applications, numbered 2 and 3, which are agreed to by the Chief Prosecutors, are granted.
The Tribunal will now adjourn.
[The Tribunal adjourned until 17 November 1945 at 1000 hours.]
PRELIMINARY HEARING
Saturday, 17 November 1945
THE PRESIDENT: The Tribunal would like to know whether the Chief Prosecutors wish to make a statement with reference to the Defendant Bormann.
SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom): May it please the Tribunal, as the Tribunal are aware, the Defendant Bormann was included in the Indictment, which was filed before the Tribunal. There has been no change in the position with regard to the Defendant Bormann; nor has any further information come to the notice of the Chief Prosecutors. I think that the Tribunal are aware of the state of our information when the Indictment was filed, but it might be as well, if the Tribunal approves, if I explained what was the state of our information at the time of the filing of the Indictment, which is also the state of our information today.
There is evidence that Hitler and Bormann were together, with a number of Nazi officials, in the Chancellery area in Berlin on 30 April 1945, and were, at one stage on that day, together in Hitler’s underground air raid shelter in the Chancellery gardens.
On 1 May Bormann and other Germans tried to break out of the Chancellery area in a tank. They got as far as the river Spree and tried to cross a bridge over it. A hand grenade was thrown into the tank by Russian soldiers. Three members of the party who were with Bormann in this tank have been interrogated. Two think that Bormann was killed, and the third that he was wounded. The position is, therefore, that the Prosecution cannot say that the matter is beyond probability that Bormann is dead. There is still the clear possibility that he is alive.
In these circumstances I should submit that he comes within the exact words of Article 12 of the Charter:
“The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been found.”
In other words, it is not necessary to hold the man in these circumstances. The Tribunal laid down in its Rules of Procedure in Rule 2 (b) the procedure applicable to this situation:
“Any individual Defendant not in custody shall be informed of the Indictment against him and of his right to receive the documents specified in sub-paragraph (a) above, by notice in such form and manner as the Tribunal may prescribe.”
The Tribunal prescribed that notice to the Defendant Bormann should be given in the following manner:
The notice should be read over the radio once a week for 4 weeks, the first reading to be during the week of 22 October. It should also be published in four separate issues of a newspaper circulated in the home city of Martin Bormann.
The broadcast was given in the weeks after 22 October, as ordered, over Radio Hamburg and Radio Langenberg, that is, Cologne. The Defendant Bormann’s last place of residence was in Berlin. The notice was, therefore, published in four Berlin papers: The Tägliche Rundschau, the Berliner Zeitung, Der Berliner, and the Allgemeine Zeitung for the 4 weeks which the Tribunal had ordered.
In my respectful submission, the Charter and Rules of Procedure have been complied with. The Tribunal, therefore, has the right to take proceedings in absentia under Article 12. It is, of course, a matter for the Tribunal to decide whether it will exercise that right.
The Chief Prosecutors submit, however, that there is no change in the position since they indicted Bormann and that, unless the Tribunal has any different view, this is a proper case for trial in absentia.
I am authorized to make this statement not only on behalf of the British Delegation, but on behalf of the United States and the French Republic. I consulted my friend and colleague, Colonel Pokrovsky, yesterday and he had to take instructions on the matter, and I notice he is here today. I haven’t had the opportunity of speaking to him this morning and no doubt he will be able to tell the Tribunal any thing if he so desires.
I hope that that explains the basis of the matter to the Tribunal. If there are any other facts, I should be only too happy to answer any point.
THE PRESIDENT: It is suggested to me that you should file with the General Secretary proof of the publication to which you have referred.
SIR DAVID MAXWELL-FYFE: With proof of the publication! If it please My Lord, that will be done.
THE PRESIDENT: Thank you, Sir David. Then I will ask the Chief Prosecutor for the Soviet Union if he wishes to address the Tribunal.
COL. POKROVSKY: I thank the Tribunal for their wish to hear the opinion