Breda Four

The Breda Four (Dutch: Vier van Breda), later known as Breda Three (Dutch: Drie van Breda) and subsequently Breda Two (Dutch: Twee van Breda), were the last four imprisoned German war criminals in the Netherlands following the Second World War. The group consisted of Willy Lages, Joseph Kotalla, Ferdinand aus der Fünten, and Franz Fischer [nl; de]. From 1952, they were incarcerated in the Koepelgevangenis in Breda,^[1] which inspired their collective name.

Lages, Aus der Fünten and Fischer were involved in the deportations of the Jews, while had been deputy head of Kamp Amersfoort. The Breda Four were initially sentenced to death, but in 1951–1952 were among those whose sentences were commuted to life imprisonment. However, they were the only four German prisoners who were not released before 1961.

In the following decades, Ministers of Justice were confronted with clemency requests and considered releasing them. The West German government also worked towards their release. The requests for release coincided with increasing awareness of World War II and the psychological impact on victims. The proposals were therefore opposed by a large part of society and parliament, causing the ministers to refrain from release.

Lages was released on sick leave in 1966 and died five years later in Germany. Kotalla had died in prison in 1979. The remaining two were given clemency on 27 January 1989 and died the same year.

Crimes and sentencing

As part of the Special Jurisdiction, the Breda Four were among the 240–242^[2] Germans tried for war crimes and crimes against humanity in the Netherlands after the Second World War.^[3] Eighteen Germans were sentenced to the death penalty, which had been reintroduced for the Special Jurisdiction. Four of them were convicted in absentia and never apprehended.^[4]

Franz Fischer

Franz Fischer [nl; de] (born 1901) was transferred to the Referat IV-B4 in The Hague in November 1940. Although Wilhelm Zoepf was the head, Fischer was in practice in daily charge of the deportation of Jews and the tracking down of Jews in hiding. He was initially sentenced to life imprisonment on 17 March 1949, which was converted to the death penalty on appeal on 12 July 1950.^[5]

Willy Lages

Willy Lages (born 1901) was head of the Central Agency for Jewish Emigration in Amsterdam and therefore responsible for the deportation of Jews to Poland and Germany. He was also responsible for the execution of resistance fighters.

Ferdinand aus der Fünten

Ferdinand aus der Fünten (born 1909) joined the Central Agency for Jewish Emigration in Amsterdam in September 1941.^[6] He eventually became deputy chief under Lages, through which he took daily charge of the deportations in Amsterdam. He was also involved in the clearance of various institutions, including Het Apeldoornsche Bosch [nl; de].^[7]

Joseph Kotalla

Joseph Kotalla (born 1908) was appointed as a guard in the Police Prison in Scheveningen in February 1941,^[8] where he was considered to be one of the worst.^[9] In September 1941, he was moved to Kamp Amersfoort as punishment for mishandling a prisoner in a cell.^[10] Nevertheless, Kotalla made a career there and in early 1943 he became head of administration and de facto deputy commander of the camp.^[11] His harsh and violent treatment of prisoners earned him the nickname "Executioner of Amersfoort."^[12] He was also involved in 78 executions.^[a]^[13]

He was sentenced to death both at the initial trial and on appeal.^[14] During the trial, the question of whether he had diminished responsibility was at issue;^[14] he had obsessive-compulsive disorder as a result of brain damage suffered at the age of nine.^[15]

Commutation to life imprisonment (1951–1952)

Despite public support for the death penalty, the Schermerhorn–Drees cabinet – primarily consisting of Catholic People's Party (KVP), Labour Party (PvdA) and Christian Historical Union (CHU) – feared that too many executions would negatively impact society. In February 1946, the cabinet adopted secret guidelines for clemency.^[16] In January 1947, Minister of Justice Johannes Henricus van Maarseveen (KVP) included the most serious German war criminals as a category eligible for execution.^[17] The clemency policy faced criticism from the judicial branch, Queen Wilhelmina – who temporarily refused to approve clemencies in 1947 – and various parties in parliament.^[18]

Fischer, Aus der Fünten and Kotalla

In 1948, Juliana ascended to the throne as the new queen. She held conscientious objections to the death penalty and refused to deny some clemency requests.^[19] Minister of Justice Teun Struycken (KVP) reached a compromise with Juliana. The death penalty would be carried out only if both the initial trial and the cassation resulted in a death sentence. Consequently, the sentences of Aus der Fünten and Fischer were commuted to life imprisonment in January 1951, while Julius Herdtmann was executed in exchange.^[20]

The commutation sparked indignation, particularly among the Dutch resistance and Jewish organizations. On 22 May 1951, communist parliamentarian Benno Stokvis [nl] interpellated Struycken's successor, Hendrik Mulderije (CHU), regarding the clemency policy. Stokvis, along with the Anti-Revolutionary Party (ARP) and the CHU, criticized the policy. A significant majority, led by KVP and PvdA, opposed a motion by Stokvis to publish the clemency guidelines. However, a majority supported a motion by Leen Donker (PvdA), expressing concern about the potential conversion of life sentences into temporary ones.^[21]

Mulderije decided in December 1951 to commute Kotalla's sentence to life imprisonment based on grounds of diminished responsibility.^[22]

Lages

Lages had been sentenced in cassation in July 1950. He requested clemency, which took until September 1951 the Special Court of Cassation to advice on. The delay was mainly because of the highest man of the Public Prosecution at the Special Jurisdiction, who used Lages as witness in other cases and supported his clemency request. Juliana also opposed his execution, further delaying a decision.^[23]

The long time between his sentence and the execution became the main reason for minister Donker to commute Lages' sentencs to life imprisonment on 29 September 1952.^[24] The decision to commute Lages' sentence sparked social unrest, with a protest on 12 October 1952 in Amsterdam involving 15,000 to 20,000 demonstrators opposing the commutation.^[25] Donker made the reservation in parliament that, as far as he was concerned, there would be no question of a second pardon in this exceptional category. He also said that, in his opinion, ministerial accountability applied to clemency decisions, which meant that such a decision would be influenced by parliament and thus society.^[26]

The last four (1960–1965)

Since the introduction of the Criminal Code [nl] in 1886, it had never happened that a life sentence in the Netherlands had not been commuted (generally after 15–17 years). Former Minister Struycken later stated that he expected the commuted death sentence to mean a maximum of 20 years in prison.^[27] In line with this practice, all war criminals except for the Breda Four were released by 1964.^[28] This included the five other German prisoners initially sentenced to death,^[b] who were released between December 1958 and May 1960 in relative silence.^[4]

The public interest in the Second World War increased in the early 1960s,^[31] with the Eichmann trial (1961), the release of Jacques Pressers book Ashes in the Wind: The Destruction of Dutch Jewry [nl] (1965) and the broadcasting of Loe de Jongs television series De bezetting [nl] (The occupation, 1960–1965).^[32]

During a debate in 1959, Minister of Justice Albert Beerman (CHU) said the four would qualify for clemency and emphasized that clemency was a prerogrative of the Crown.^[33] Encouraged by Beerman, progressive criminal law experts Jacob Maarten van Bemmelen [nl] and Willem Pompe [nl] pleaded in Nederlands Juristenblad [nl] in 1963 for the release of the four prisoners.^[34] The publicity backfired and led to public outrage, which made Beerman refrain from clemency.^[35]^[36] His successor Ynso Scholten rejected their clemency requests on 24 October 1964.^[37]

Former chairs of the Foundation Supervision of the Political Offenders (Dutch: Stichting Toezicht Politieke Delinquenten, STPD) Frans Duynstee [nl] and Jaap le Poole [nl] wrote a reaction in support of Pompe's and Van Bemmelen's article a month after its publication. Le Poole, who had been active in the resistance and was a former PvdA MP, continued behind the scenes to convince influential individuals of clemency. He introduced Kirchen-präsident of the Evangelical Church in Germany Hans Stempel [de] to various Dutch journalists and politicians.^[38] Stempel had taken on organised care for German war criminals since at least the 1950s^[39] and was also a member of the Stille Hilfe.^[40]

Le Poole had some success with Ivo Samkalden, who had started as Minister of Justice on 14 April 1965. He rejected collective clemency, but was open to individual clemency, in particular for Kotalla given his psychiatric evaluations.^[37] Meanwhile, the Supreme Court also changed its advice on clemency for Kotalla, from negative in 1960 to positive in 1962 and 1963. Public opinion and the view from National Institute for War Documentation historian Ben Sijes [nl] that release might hinder the prosecution of war criminals in Germany and Austria, prevented Samkalden from giving clemency.^[41]

Sentence interruption of Lages (1966)

In May 1966, Willy Lages had hospitalised with colorectal cancer, and doctors did not expect him to survive surgery.^[42] Minister of Justice Ivo Samkalden (PvdA) granted him a three-month suspension of his sentence to receive treatment in Germany. He was transferred to a hospital in Braunlage on 9 June 1966.^[43]

Samkalden's decision sparked protests, especially in Amsterdam. His own party was particularly divided, with some Jewish members of the PvdA expressing disbelief that the Jewish Samkalden had made this decision. Despite the unrest, the decision was accepted by the coalition parties.^[44]

Less than a month later, Samkalden was informed that Lages did not have colorectal cancer, but severe bowel obstruction.^[43] This was life threatening, but not acutely fatal. He was however not able to imprison Lages again, because of Lages' medical condition and the fact that the West German constitution did not allow extradition. Another protest was held in Amsterdam and a debate in the House of Representatives, where he kept the support of the coalition parties and the CHU.^[45] Lages was released from the hospital in November 1966, but stayed in Braunlage, where he died in 1971.^[46]

Minister Polak

At the end of the 1960s, the three remaining prisoners again requested clemency. Minister of Justice Carel Polak was planning to, but abandoned this after the Supreme Court of the Netherlands advised against.^[47]

Minister Van Agt (1971–1972)

In 1971, Dries van Agt (KVP) took office as Minister of Justice. Within the field of criminal law, he was considered progressive. During his first meeting with journalists, he indicated that he planned to release the Breda Three. In what he later referred to as self-deprecating humor, Van Agt remarked that it would probably be more difficult for him as an 'Aryan' than it had been for his predecessor. This comment immediately sparked outrage.^[48]

During a budget debate in October 1971, Van Agt promised that he would consult the House before releasing the Three.^[49] He later regretted the promise.^[50] After receiving positive and unanimous advice from the judiciary, the cabinet wanted to proceed with clemency. They consulted the parliamentary leaders, which revealed that a majority would agree.^[51] On 16 February 1972, the cabinet sent a letter about the intention to the House.^[52]

The proposal for release was done during a period of increased focus on the suffering of war victims. This attention was partly due to the research conducted by psychiatrist Jan Bastiaans and his documentary "Now Do You Get It Why I'm Crying?" (1969).^[53] The plan to release them received extensive media attention and stirred strong emotions.

War victims and former resistance fighters established an umbrella organization, the Central Organization of Former Resistance and Victims 1940–1945 (COVVS), with the primary aim of preventing the release of the Breda Three.^[54] In this effort, both communist and non-communist resistance organizations collaborated after decades of opposition.^[55] There was also pressure from abroad, with the Israeli cabinet objecting to his release.^[56] Many members of parliament received phone calls at home, including threats, and Van Agt had to go into hiding with his family.^[56]

Public hearing

Although the cabinet hoped that the House would refrain from a painful discussion, a hearing was initiated by Anneke Goudsmit [nl] (D'66). The decisive factor was Goudsmit's remark that victims had never had the opportunity to bring up the suffering they had endured in parliament.^[57] A day before the hearing, the documentary "Now Do You Get It Why I'm Crying?" was shown to members of parliament, which made many of them doubtful already, and three days later on national television.^[58]

During the hearing on 24 February 1972, fifty speakers representing 43 organizations spoke, the majority of whom were against release.^[56] The hearing was emotional, as became evident from the commotion surrounding a speech by criminal law scholar Louk Hulsman on behalf of the association for criminal law reform, Coornhert-Liga [nl]. After three psychiatrists, including Bastiaans, argued that releasing the Breda Three would have negative consequences for the victims, Hulsman advocated for release. When he argued that keeping the Breda Three in prison did not help the victims, shouts of "Yes, it does" came from the spectators. The hearing had to be temporarily halted because there was a threat of physical altercation among spectators.^[59]

1972 Debate

The hearings and public discussion had persuaded a significant number of members of parliament to vote against the release. Despite the opposition to the release, Van Agt wanted to proceed. According to him, the expulsion of the three was preferable to repeatedly reopening wounds that had only partially healed.^[56] On February 29, 1972, the debate on the release lasted thirteen hours. As the debate progressed, there was increasing applause and shouting from the public gallery. A motion by Joop Voogd [nl] (PvdA) calling for the individual not to be released was adopted with 85 votes in favor and 61 against. A large number of parties were divided in their voting.^[60]

Government statement

On 3 and 4 March, the cabinet discussed the outcome of the debate. Amongst others, ministers Kees Boertien (ARP), Van Agt, Piet Engels, and Pierre Lardinois (both KVP) wanted the cabinet to proceed with granting clemency. Others, including Norbert Schmelzer (KVP) and Hans Koster [nl] (VVD), were opposed. Molly Geertsema (VVD), who had always been against the release, even threatened to resign if they were released, according to De Tijd. The initial draft proposal was to release Fischer, keep the clemency request of Kotalla, and to reject that of Aus der Fünten. However, due to objections, this plan was reconsidered.^[61]

Ultimately, on 4 March, the cabinet presented a government statement in which they abandoned the collective release. The cabinet emphasized that it retained the right to grant clemency on an individual basis. They announced additional investigations into the physical and mental condition of the detainees. In the event of any clemency, the cabinet stated that they would seek advice from experts, including individuals who are trusted in circles of resistance members and the persecuted.^[62] The debate on the release also contributed to provisions for victims of World War II.^[63]

To get advice from resistance members and the persecuted, a 'trust committee' was established with a delegation of seven members from COVVS. This committee, whose composition changed overtime, consisted at the start solely of opponents of the release, including Hans Teengs Gerritsen [nl] (chairman) and Herman Milikowski [nl]. In addition to the government investigation, they appointed their own expert, Hans Hers [nl], to determine the health condition of the detainees.^[64]

Kotalla's death (1973–1979)

On 30 October 1973, Kotalla suffered a hemorrhagic stroke, resulting in partial paralysis.^[65] His health deteriorated further due to a pulmonary embolism he contracted in the hospital, leading officials and the minister to believe that he would not survive. Hers visited Kotalla in the hospital and concluded that although Kotalla was in poor condition, he was not yet in the dying phase.^[66] The trust committee remained opposed to release, although they understood if the minister decided to proceed with it. Due to a lack of support, Van Agt refrained from granting clemency.^[67]

From the German side, the stroke was a reason for renewed pressure. Priest Ernst Wilms [de], who was concerned about the last imprisoned German war criminals in Europe, sent a telegram to the ministry urging the release of the three. The German ambassador to the Netherlands, Adolf Max Obermayer [de], also insisted on it, but without success.^[68]

It wasn't until December 1974 that Kotalla was transferred from the hospital back to Breda, a move he had pushed for, in part, through a hunger strike. His lawyer Nouwen filed for a preliminary injunction, arguing amongst other that prolonged detention of Kotalla was inhumane. When this failed, he appealed all the way up to the European Court of Human Rights, who also rejected it.^[69]

In subsequent years, Kotalla's physical and mental health continued to decline.^[70] A prison doctor concluded around June 1979 that Kotall's death was near. The new minister of Justice, Job de Ruiter (CDA), made preparations for release and sent Hers to visit Kotalla on 6 July 1979. Hers told the trust committee he wasn't able to say how long he was going to live, but that he wasn't in immediate life-threatening danger. Based on this, the trust committee opposed release as he wasn't "in the eye of death". Without their support, De Ruiter thought that releasing Kotalla would be political suicide, so he decided not to proceed.^[71]

In the next weeks, Kotalla's health detoriated further. On 31 July 1979, Kotalla died in prison.^[72]

Release

Minister of Justice Frits Korthals Altes and his party, the People's Party for Freedom and Democracy, had always opposed clemency. However around 1988 he changed his mind, arguing that it might be better for the victims if they were released, so the publicity would not resurface every time clemency was discussed. Korthals Altes would later also say that the decisive reason was that the intensive individual medical care they received, did not belong in a prison. To find a reason for clemency, he requested medical examination, which however provided no reason.^[73]

Around the same time, 5 July 1988, Korthals Altes and Prime Minister Ruud Lubbers received a letter pleading for the release of the two. It was signed by nineteen (prominent) Dutch people, including resistance member Bib van Lanschot and former minister Samkalden.^[c] During a debate in January 1989 about the proposed release, Korthals Altes referred to the letter.^[73] The House of Representatives supported the release.^[75] On 27 January 1989, Fischer and Aus der Fünten were released and dropped by an ambulance across the border near Venlo as unwanted aliens.^[73]^[75]

German support

The Breda Four received support from the West German government starting in the 1960s. They were provided with legal assistance from three lawyers, allowances, and magazine subscriptions. The German government raised the issue of their release in bilateral meetings. Public support also grew in Germany, with leaflets distributed at the border and hundreds of thousands of signatures collected in petitions calling for their release.^[76]

Notes

^ Because they overlooked a victim, he was only charged and convicted for 77.
^ These included Johann Friedrich Stöver,^[29] Friedrich Bellmer [nl],^[30] Bernard Georg Haase [nl]^[30] and F. Frankenstein^{[citation needed]}
^ The full list of signatories:^[74] Peter Baehr, Dien Barendsen-Cleveringa, S.W. Couwenberg, Christiaan Justus Enschedé (lawyer) [nl], Frans Feij, Til Gardeniers-Berendsen, J.J.Ph. Hers, C.C. van den Heuvel, Piet de Jong, Bib van Lanschot, Theo van Lier, W. Nijsse, Gerard Peijnenburg, Eric Roest, Ivo Samkalden, D. Simons, Max van der Stoel, Hans Teengs Gerritsen, W.J.C. Tensen

Citations

^ Hoving 2019, p. 221.
^ Piersma 2005, p. 205.
^ Piersma 2005, p. 7.
^ ^a ^b Heiden, Leenders & Lijser 2012, p. 365.
^ Piersma 2005, pp. 34–36.
^ Piersma 2005, p. 37.
^ "F.H. Aus der Fünten vorige week overleden". NRC Handelsblad (in Dutch). 28 April 1989.
^ Hoving 2019, pp. 53–54.
^ Hoving 2019, p. 61.
^ Hoving 2019, pp. 66–67.
^ Hoving 2019, pp. 72–80.
^ Hoving 2019, p. 103.
^ Hoving 2019, pp. 95–100, 152.
^ ^a ^b Piersma 2005, p. 44.
^ Hoving 2019, p. 311.
^ Piersma 2005, pp. 21–22; Merriënboer & Bovend'Eert 1992, pp. 534.
^ Merriënboer & Bovend'Eert 1992, pp. 534–535.
^ Merriënboer & Bovend'Eert 1992, pp. 535.
^ Piersma 2005, pp. 55–56.
^ Merriënboer & Bovend'Eert 1992; Merriënboer 1997, p. 507.
^ Merriënboer 1997, pp. 507–511; Piersma 2005, p. 48.
^ Merriënboer 1997, p. 514; Piersma 2005, p. 44.
^ Piersma 2005, pp. 55–64.
^ Piersma 2005, p. 55, 64.
^ Piersma 2005, p. 51.
^ Piersma 2005, p. 65.
^ Hoving 2019, pp. 208–209, 359.
^ Hoving 2019, p. 291.
^ Hoving 2019, p. 243.
^ ^a ^b Piersma 2005, p. 102.
^ Bohr 2017, p. 419.
^ Piersma 2005, p. 87.
^ Piersma 2005, p. 66.
^ Piersma 2005, p. 69.
^ Piersma 2005, pp. 72–74.
^ Kessel et al. 2010, p. 252.
^ ^a ^b Piersma 2005, p. 78.
^ Piersma 2005, pp. 75–79.
^ Bohr 2018.
^ Bohr 2017, p. 421; Bohr 2018, pp. 64–65.
^ Piersma 2008, p. 81.
^ Kessel et al. 2010, p. 252; Piersma 2005, p. 88.
^ ^a ^b Piersma 2005, p. 88.
^ Kessel et al. 2010, pp. 253–256.
^ Kessel et al. 2010, pp. 256–258.
^ Kessel et al. 2010, p. 258.
^ "Veertig jaar geleden: de Drie van Breda" (in Dutch). Retrieved 18 July 2024.
^ Piersma 2005, p. 110.
^ Merriënboer & Geurts 2022, p. 545; Piersma 2005, p. 111.
^ Piersma 2005, p. 112.
^ Merriënboer & Geurts 2022, p. 545; Piersma 2005, p. 114.
^ Piersma 2005, p. 113.
^ Piersma 2005, p. 105.
^ Merriënboer & Geurts 2022, p. 546; Piersma 2005, p. 123.
^ Piersma 2005, p. 123.
^ ^a ^b ^c ^d Merriënboer & Geurts 2022, p. 548.
^ Merriënboer & Geurts 2022, p. 546; Piersma 2005, p. 115.
^ Merriënboer & Geurts 2022, p. 546; Piersma 2005, p. 126.
^ Merriënboer & Geurts 2022, p. 549–550.
^ Merriënboer & Geurts 2022, p. 549.
^ Piersma 2005, pp. 135–136.
^ Piersma 2005, p. 137.
^ Piersma 2005, p. 141.
^ Piersma 2005, p. 142.
^ Hoving 2019, p. 281; Piersma 2005, p. 144.
^ Hoving 2019, p. 282.
^ Piersma 2005, pp. 144–145.
^ Hoving 2019, pp. 271, 281–282.
^ Hoving 2019, pp. 290–293.
^ Hoving 2019, p. 296.
^ Hoving 2019, pp. 298–302.
^ Hoving 2019, pp. 301–302.
^ ^a ^b ^c "Waarom kregen de Duitse oorlogsmisdadigers 'de Drie van Breda' gratie?". NPO kennis (in Dutch). 9 April 2024. Retrieved 18 July 2024.
^ Piersma 2005, p. 247.
^ ^a ^b Piersma, Hinke (14 August 2020). "De Drie van Breda". brabantserfgoed.nl (in Dutch). Retrieved 18 July 2024.
^ Van Walsum, Sander (14 January 2019). "'Er werden honderdduizenden handtekeningen verzameld voor de vrijlating van oorlogsmisdadigers'". De Volkskrant (in Dutch). Retrieved 18 July 2024.

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