Nuremberg Trial Proceedings Volume 2 : pages 26 - 28


Saturday 11/17/45

Morning Session

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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 matter is beyond probability that Bormann is dead. There is the clear possibility that he is alive.

In these circumstances I should submit that he comes within 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


17 Nov. 45

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 Taegliche 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 of the Soviet Delegation. I shall avail myself


17 Nov. 45

of the privilege granted by the Tribunal to express the complete concurrence of the Soviet Delegation, and to inform you of the attitude adopted by my colleagues where Bormann is concerned. We consider that the Tribunal has every justification, under Article 12 of the Charter, to accept in evidence all the material relative to Bormann's case and to start proceedings against him in his absence

THE PRESIDENT: The Tribunal will adjourn for a short time and hopes it will be able to give its decision shortly.

[A recess was taken.]

THE PRESIDENT: The Tribunal has decided that in pursuance of Article 12 of the Charter, it will try the Defendant Bormann in his absence, and it announces that Counsel will be appointed to defend the Defendant Bormann.

The Tribunal will now adjourn.

[The Tribunal adjourned until 1500 hours.]

THE PRESIDENT: The motion to amend the indictment by adding the name of Alfried Krupp has been considered by the Tribunal in all its aspects and the application is rejected.

The Tribunal will now adjourn.

[The Tribunal adjourned until 20 November 1945 at 1000 hours.].

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