1.Definition of cases of “Undermining” [Military Efficiency] and cases of “Malicious Political Acts”[512]
1.Definition of cases of “Undermining” [Military Efficiency] and cases of “Malicious Political Acts”[512]
The relations between the law on malicious acts against State and Party, article 2, paragraph 1, and the decree concerning special penal law in wartime, has changed during the fourth and fifth year of the war. The development was speeded up by the events at Stalingrad and in Italy. This found its outward expression in the following measures: setting up a special committee for cases of undermining the morale—for serious and acute attempts at undermining morale—in the Reich Ministry of Justice, a corresponding agreement with the Reich Security Main Office, by taking steps concerning the distribution of work at the People’s Court and by a press campaign. A number of Special Court districts and also certain criminal divisions with the district courts of appeal have not yet followed the new practice. The severity of their sentences does not agree with the penalties of the sentences at the People’s Court. Conditions are to be made clear by this report and by a Judges’ Letter.[513]The temporary defensive attitude at the front means a burden for the home front. The enemy is looking for weak spots, and thinks he has found them in the will for self-assertion of the inner front, as it was 1914–1918. Since the Italian events he has been intensifying this attack. The not very numerous cases of defeatism resulting from it have led to a new line in the administration of justice in cases of undermining of military efficiency, which is to be organically followed in the treatment of cases concerning malicious political acts. The following cases dealt with by the Reich Ministry of Justice, are intended to illustrate this line.
Clear cases of serious undermining of the military efficiency
Case Dr. Geiger—a 52-year-old physician, Party member, no prior convictions.
Offense—In summer 1943, the condemned man made a remark during the treatment of the pregnant wife of a Hitler Youth Leader who was at the front at that time that she had courage in having a child now. For if things went wrong, we would be in a bad way. After the events in Italy the war was lost for us, avictory of the Russians meant our physical death, a defeat by the English and Americans was still the smaller evil. She—the patient—was too much under the influence of Nazi propaganda. To the scared question of the pregnant woman, what was going to happen to all of them, the condemned man answered that persons living such an “exposed” position (as her husband) naturally would be dealt with in the first place. Then there would be a mass Katyn.[514]
Sentence of the People’s Court—8 September 1943—death sentence. Request of the public prosecutor—death sentence. Plea for clemency was refused.
Case Weber—a 60-year-old dentist, Party member, no previous convictions.
Offense—In August 1943 the condemned man made the remark to a patient—hardly anybody still believed in victory. Medieval methods of torture were applied in our concentration camps; especially homosexuals were being too harshly dealt with; we had murdered a million Jews and therefore had incurred a grave burden of guilt. Rudolf Hess was the right man but not the Fuehrer. The condemned man went on literally: “Moreover, in 4 weeks’ time, the Fuehrer will no longer be alive. You will hear about it.”
Sentence of the People’s Court of 15 September 1943—death sentence. Request of the public prosecutor—death sentence. Plea for clemency was refused.
In cases of undermining the morale the consideration of the actual nature of the facts must not be excessive. In the fifth year of the war every German has to think about the effect of his remarks to other people. The same applies to foreigners, who are working here and enjoy German hospitality. Critical, for instance, authorized discussions of the political and the war situation are not punishable only as long as they are not calculated to shake the convictions of others.
Up until now, no need has been observed to give the prerequisite “publicly” in article 5 of Extraordinary War Penal Ordinance a more rigid interpretation than is done in cases of malicious political acts.
As such to be considered are remarks falling under article 2 of the law against insidious attacks on State and Party, which do not result in influencing other people. Two examples are the cases of Krejci and Kochzius.
Case of Krejci—41-year-old home worker, no previous convictions.
Offense—In spring 1943 the condemned woman told the following joke:
“Who is the biggest farmer in Germany”?“Adolf Hitler, he owns a lame dog, a fat pig, and many million sheep.”
“Who is the biggest farmer in Germany”?
“Adolf Hitler, he owns a lame dog, a fat pig, and many million sheep.”
(With the lame dog and the fat pig she meant Goebbels and Goering.)
(With the lame dog and the fat pig she meant Goebbels and Goering.)
Sentence of the Special Court II Berlin of 5 October 1943—6 months imprisonment.
Case of Kochzius—a 57-year-old printer.
Offense—At the beginning of 1942, the condemned man answered the greeting, “Heil Hitler,” with, “Shit.”
In December 1942 when Fuehrer parcels were distributed in the plant, he made the remark that he did not want the Fuehrer and these parcels, he was no beggar.
In January 1943 the condemned man declared, that the Fuehrer was a tramp; a vagabond without a Fatherland who came from abroad where only beggars lived; he intended to make the Germans into beggars too; he was making the people ridiculous in the eyes of foreigners by the street collections. The entire government as well as the Party consisted of tramps and rascals.
To a Party member he remarked, that he had better hurry up and get out, otherwise he would be hanged from a tree later on. Sentence of the Special Court II Berlin of 28 September 1943—1 year imprisonment.
Border line cases are the cases of Graf, Kessel, Eckert, and Heinitz.
Case of Graf—a 65-year-old farmer, no previous convictions.
Offense—In spring 1943 the accused declared, “Hitler must abdicate, then the war will stop.”
In autumn 1943 he made the remark, “The war will not stop until Hitler abdicates.”
In October 1943 he remarked, “The Germans bled to death in the advance, and now they bleed to death in the street. In summer, one runs to save every little berry, and now one has to watch how everything perishes. It only depends on a few gentlemen. With the war it is just the same thing. All their throats should be cut.”
In agreement with the general public prosecutor, the Chief Public Prosecutor proposes not to order prosecution under article 2 of the statute against malicious political acts but to warn the defendant by imposing a fine. The defendant had a good reputation and was a participant of World War I, had several sons at the front, and had already backed the NSDAP before it had taken over.
The opinion of the field offices that this case was one of malicious political acts cannot be agreed to. It rather represents a case of undermining the morale, which has already been submitted to the Chief Public Prosecutor for examination.
*******
Case Eckert—domestic servant, 50 years of age, single, no previous convictions.
Offense—In the afternoon of 14 September 1943, the accused, in a shop, said to the female proprietor in front of partly unknown persons, “By Christmas, the war will long be over. Germany has long since been divided up.” Obviously she alluded to a defeat in the very near future. When asked by an employee of the local health insurance office, how she thought it would be if the war were lost and we would all have to go to Russia, the accused replied, “Very well, let them send those 5 million SS men there. During the last air raid on Mannheim the SS, those bloody swines, chased the people out of the shelters with rubber truncheons for fire-fighting and clean-up work.”
The Chief Public Prosecutor with the approval of the General Public Prosecutor wants to base the charge on article 2 of the law against malicious political acts or insults to the State or Party (Heimtueckegesetz)[515]and to propose a prison term of 9 months. This is a border line case. Certainly the statements made by the accused in their second part fulfill the conditions of malicious political acts or insults to the State or Party. Regarded as a whole, however, the accused obviously had in mind to injure the listeners’ will to pull through, as can be seen from the first part of her statements. When she met with resistance in doing so, she tried to support her opinion by abusive language and by telling atrocity stories. The trend of her statements therefore was directed toward undermining [the military efficiency].[516]Therefore, the accused will, in the first place, have to be prosecuted under this provision.
*******
PARTIAL TRANSLATION OF DOCUMENT NG-671PROSECUTION EXHIBIT 220
EXTRACTS FROM THE SITUATION REPORT OF DEFENDANT LAUTZ, CHIEF PUBLIC PROSECUTOR AT THE PEOPLE’S COURT, TO THIERACK, 19 FEBRUARY 1944, CONCERNING THE UNDERMINING OF MILITARY EFFICIENCY
EXTRACTS FROM THE SITUATION REPORT OF DEFENDANT LAUTZ, CHIEF PUBLIC PROSECUTOR AT THE PEOPLE’S COURT, TO THIERACK, 19 FEBRUARY 1944, CONCERNING THE UNDERMINING OF MILITARY EFFICIENCY
Copy
Berlin W 9, 19 February 1944Bellevuestrasse 15
The Chief Public Prosecutor of the People’s Court
4206 E—2.36
[Initials]Kl[Klemm]
[Stamp]
SECRET
To the Reich Minister of Justice
Berlin W 6
Wilhelmstrasse 65
Decrees of 25 October 1933—IIIa 19570/35 and 29 October 1942—3130-Ia91746-.
Enclosures: 2 copies of the report.
[Handwritten illegible marginal notes]
[Handwritten note] M.D. IV Mr. B.S.S. request to be informed in regard to p. 9.
[Signed]Martius28 February
Situation Report
A.High treason and undermining of military efficiency within the Reich territory (except for the Protectorate)
I.General.
*******
In accordance with the expectation expressed already in my previous report of 8 October 1943, the number of incoming reports on investigations concerning undermining of military efficiency has again increased considerably. At present the daily average amounts to about 25 cases. Since, in addition, numerous investigations which are not handled by special proceedings and which could not yet be concluded are pending, I am forced at present due to the pressure of business in my office and the further difficulties caused by the effects of the terror raids to make more extensive use of my right to turn matters over to another office. However, in the interest of a uniform jurisdiction the indictments will principally be served before the People’s Court in all cases where—
a.The undermining activity involves members of the Wehrmacht.
b.Greater significance is ascribed to the statements of the accused because of his position in public life or in the economy.
c.The accused has become known as an enemy of the State on principle or a systematic instigator either according to his personality or because of the nature of his offense.
d.The personality of the accused in connection with the nature of his offense or the effect he strived for seems to point to special treatment.
e.The offender belongs to the clergy.
In view of the necessity of turning over proceedings, even in which the offense can be called a serious one without question, I have generally informed the chief public prosecutors concerned in advance of the altered way in which I am going to handle my right to turn matters over to another authority. In addition to this they will in each single case be especially informed about my conception of the case and will be requested within the limits of my right of turning cases over to them, not to consider taking on less serious cases but to strive for the highest possible penalty if the state of the investigations at the moment the case is handed over gives a sufficiently clear picture of the case in this respect. In comparison with the previous report, no essential new experiences were gained regarding the nature of the offenses and the personality of the offenders. Especially could it not be determined that the number of punishable offenses increased, particularly in those territories subject to a special air terror of the enemy. It is rather characteristic that the manifold rumors about alleged riots among the population in the cities damaged by air raids often arose in regions not at all or only slightly affected by the air terror. This leads, on the one hand, to certain conclusions as to the intentions of the propagators of these rumors. On the other hand, however, it can be taken as a pleasing sign for the truly disciplined attitude of the population that suffers most from the enemy’s air terror.
II.Special Proceedings.
*******
[Typed] signed:Lautz
EXTRACT FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[517]
DIRECT EXAMINATION
*******
Dr. Kubuschok(counsel for defendant Schlegelberger): According to the document I have before me, Document NG-412, Prosecution Exhibit 77,[518]the Ministry of Justice made a suggestion to increase the severity of penal provisions concerning the preparation of treason. Would you explain this?
Defendant Schlegelberger: The situation with regard to the law was the following: Preparation for treason [Landesverrat] could not be punished by death. Treason, that is to say the betrayal of the native country in my opinion, is the most severe and mostserious political crime, and the danger inherent in that crime reveals itself already in its preparation. As can be seen from the document, the question had come before the public and had been discussed in public on the occasion of the Sklarek case, and had become the subject of a heated discussion. It was known to me that Hitler once before in a cabinet meeting had taken the position that preparation for treason should be punished by death. It was quite obvious for me that as a consequence of the Sklarek case and, on that, Hitler’s point of view was also known to other people, a new storm would come up; in fact it was the expressed purpose to force matters upon the administration of justice so that afterward one could make use of these matters, by saying that the administration of justice itself was not strong enough to find the right position, or in order to institute and justify proceedings outside the administration of justice. I considered it appropriate, therefore, to bring this question into the stage of a legal regulation as quickly as possible. In the draft the death penalty was provided for very serious cases, cases of aggravating circumstances, and that provided the guaranty at least for the fact that in ordinary court proceedings it would have to be examined whether that really was a severe case. The danger was quite acute that unless in time such a law would be promulgated, other elements, namely, the police, would have seen to it and would have taken care of it wholesale without examining individual cases. Since the cases in question were cases of the past, retroactive measures had to be permitted. That is well within all legal guaranties.
*******
EXTRACTS FROM THE TESTIMONY OF DEFENDANT LAUTZ[519]
DIRECT EXAMINATION
*******
Dr. Grube(counsel for defendant Lautz): Mr. Lautz, is it correct that in 1938 you received an offer to become senate president in the Reich Military Court?
Defendant Lautz: That is correct. I was well known to the Ministerial Director at the High Command of the Wehrmacht, Lehmann, who appeared as a witness before this Tribunal and who offered me in 1918 to become senate president at the Reich Military Court.
Q. Just a moment, I believe you made a mistake, you meant to say 1938?
A. Yes, 1938.
Q. At that time, would you have improved your financial situation if you had accepted?
A. Yes. The position was much better paid.
Q. Why did you not accept that position?
A. I did not accept it only for the one and decisive reason that I did not want to leave the beautiful district of Karlsruhe for the time being.
Q. For how long were you general public prosecutor in Karlsruhe?
A. Unfortunately, only until 1939.
Q. May I now ask you, who was Parey?
A. Parey was Reich Public Prosecutor since 1936, later chief Reich prosecutor [Oberreichsanwalt] at the People’s Court in Berlin.
Q. And for what reason did Parey leave his office as Chief Reich Prosecutor at the People’s Court?
A. At the beginning of November 1938. He had an automobile accident.
Q. When did you find out for the first time that you were being considered as Parey’s successor?
A. At the beginning of December 1938. The then Under Secretary Freisler, on order of Minister Guertner, informed me that Guertner had chosen me as his—that is, Parey’s—successor.
Q. Did you make any efforts to obtain that position?
A. Not at all.
Q. Did you do anything against your appointment as chief Reich prosecutor at the People’s Court?
A. I was very much interested in getting out of being appointed to that position, and because of that I consulted with the personnel division of the Ministry as to how I could prevent my appointment. However, I was told that Minister Guertner attached importance to my taking that position, and therefore, being a civil servant I complied.
Q. May I ask you why you had an aversion to that office?
A. First of all, because of the exclusive occupation with political penal cases and in connection with that the absolute dependenceupon the Ministry which was my superior was not an inducement for me; even though, at that time, I could not have the remotest idea that war would shortly break out, that Minister Guertner would die, and that through all these events a course would be followed in politics which, in any case, was not in accordance with the one that I imagined.
That was my main reason. My second reason was that I wanted to remain in Karlsruhe.
Q. When were you appointed Chief Reich Prosecutor?
A. I was appointed on 1 July 1939.
Q. At that time, did you still count upon becoming Chief Reich Prosecutor, since Parey had already left the office some time before?
A. Since it took such a long time I had the hope, quietly, that perhaps another person would be found.
Q. Did you ever find out whether any office of the Party or any other organization of the Party was in favor of your appointment as Chief Reich Prosecutor?
A. I never heard anything about that.
Q. When, in effect, did you assume your office as Chief Reich Prosecutor at the People’s Court?
A. Due to illness, I only assumed office on 20 September 1939, in Berlin.
Q. However, you had already been appointed on 1 July?
A. Yes.
Q. Mr. Lautz, may I ask you this? Before 1933, did you belong to a political party?
A. From 1924 to 1930, I was a member of the German People’s Party. That was the party of Minister Etresemann, who became well known through the policy of understanding which he followed toward the victorious countries of 1918, and whose efforts, in particular to reach an understanding with France in order to bring about peace in Europe, I welcomed very warmly and supported.
Q. When did you become a member of the National Socialist Party?
A. On 1 May 1933.
Q. Will you please tell the Tribunal for what reasons you joined the Party?
A. Before the spring of 1933, I belonged to the Prussian Judges’ Association, in which organization I worked on press matters asa member of the board of directors. The Prussian Judges’ Association decided to urge its members to join the Party. I joined because, according to the situation prevailing at the time, I considered it to be the correct and proper thing to do.
Q. Mr. Lautz, at that time in 1933, did the joining of a party have the significance of 100 percent approval of the Party platform? Was it not rather like this, that since the Weimar era joining a party by no means implied that one approved of its ideology?
A. In the case of many persons who joined the Party at that time, that was so.
*******
Q. Through my documents in Lautz document book 1, I have already shown that the competence of the People’s Court to sentence defeatist cases was introduced only beginning in February 1943. Witness, for how long did the special penal regulations for wartime exist on which these trials against undermining of military efficiency were based?
A. This special wartime penal order is from 1938[520]which was put into effect only on 26 August 1939.
Q. Originally the Reich military court was competent for those cases of undermining of fighting force or the other military courts, is that correct?
A. Yes. That is correct, not only for members of the Wehrmacht but also for civilians.
Q. In 1940 the competency in regard to civilians was transferred to the general courts?
A. Yes. That is correct.
Q. Who became competent at that time for the cases of the so-called public undermining of military efficiency?
A. Public undermining of military efficiency was prosecuted by the senior public prosecutors at the special courts and/or was to be tried by the Special Courts.
Q. When in 1943 the cases of so-called public undermining of military efficiency were transferred to the People’s Court, had the law, in effect, been applied for 4 years?
A. Yes.
Q. Is it correct, Witness, that the decision as to whether a public undermining of military efficiency was proved depended uponthe following two points: first, what does the legislator mean by an attempt to undermine; and second, when was this attempt to undermine committed in public? Is it correct that those were the two nuclei in this question?
A. Yes.
Q. Is it furthermore correct that, when in 1943 the People’s Court became competent, these two basic questions of undermining of fighting efficiency were based on a general jurisdiction originating first from the Reich Military Court, then the Reich Supreme Court, and then of the Special Court—that these decisions existed already?
A. The Reich Military Court had in several very basic decisions decided these questions without any doubt.
Q. In regard to these points from which it is especially evident that the definition of “public attempt of undermining” had already been laid down definitely in 1943, I shall prove by some further documents. Witness, how did the individual cases of undermining come to your office?
A. That differed. In part, the senior public prosecutor at the Special Court who considered the case as leaving room for no doubt submitted the files to me. If, on the other hand—and that occurred in the majority of cases—he harbored doubts whether this was not merely a malicious act, then, as was his duty, he reported it to the Minister of Justice, and the Minister of Justice decided whether a case was to be regarded as undermining of fighting efficiency and should be transferred to the chief Reich public prosecutor.
This is evident from the affidavit by the witness Franke, which the prosecution submitted.
Q. May I refer to the fact that this is Exhibit 515[521]submitted by the prosecution. Furthermore, I am referring to Exhibit 97[522]of the prosecution. Witness, did it continue the way you described it just now, later on too?
A. Later on, two more basic changes occurred. A very severe decree of 13 August 1943 was introduced. Minister Thierack required a more expeditious and more emphatic trying of certain especially serious cases of undermining of fighting strength. Forthis purpose, it had been ordered that the RSHA submitted those cases which were not very numerous, either through the hands of the Minister of Justice or directly to me. I submitted them to a special division because the division which treated other cases of undermining of military efficiency was no longer in a position, merely due to the large number of cases, to take over this new work also. These cases in the main are those in which the so-called quick trials [schnell termine] took place which have frequently been discussed here already. Due to the importance of the cases, Freisler also did not let anybody deprive him of trying these cases basically in his senate. Moreover, due to a later decree by the Minister of Justice, it was laid down that in the preliminary investigation of the cases which were to be submitted to the chief Reich Public Prosecutor, that the presidents of the district courts of appeal should be included in order to avoid too many of these files being submitted to the office of the Reich Public Prosecutor.
The final decree which concerns these cases, and which I am citing because perhaps it is important in the von Braun case, is the following instruction by the minister. If an indictment is filed before the Special Court in a malicious acts case, and during the trial the Special Court decides however that possibly this might be an undermining of military efficiency in which case the Special Court was not competent to sentence, then the Special Court should not through an uncontested decision refer this to the People’s Court, but the Chief Reich Public Prosecutor should ask for an adjournment so that the chief Reich public prosecutor could examine the case in every individual case. If he considered it not suitable, he was to return it to the Special Court. In this way, it was intended to prevent that through such decisions against which it could do nothing, the People’s Court was burdened with cases which did not concern it.
Q. Witness, how were pending cases treated? How were the cases which came to it treated by the office of the Reich prosecutor, and especially how was the conduct of the members?
A. When the order came into effect—the order of 29 August 1943—at which time the People’s Court became competent, at that time I was on an official trip outside of Berlin. When I returned, I found out that the defendant Barnickel, who at that time was my deputy, had handed over the handling of the cases which came to his division. At that time, he was of the opinion—at least, that is what he told me—that his division was less burdened and therefore was in the best position to be able to handle the new influx of cases. I let matters stand as they were.
First, we introduced the following treatment of the cases and we also maintained this for several weeks and months. At certainintervals of 2 or 3 days, every case that was handled by the expert or the Referent in the presence of the division chief was reported to me, and then we made a decision as to whether we wanted to file an indictment before the People’s Court and for what reasons this was necessary. Varying reasons governed this. In part, the cases were so serious that there was no doubt about this. In part, we considered it necessary in order to bring about certain basic decisions on principle—to bring about the sentencing by the senate of the People’s Court. During that time, the number of prison sentences that were pronounced was without doubt larger than the number of death sentences. The enormous incidence of new cases, however, brought it about, and this is also apparent from the situation report which the prosecution submitted, in the beginning of 1944—
Q. I may interpolate here that the defendant is speaking of Prosecution Exhibit 220.[523]
A. That at the end of the year 1943, quite a considerable number of cases were in arrears. Therefore, I decided that in regard to the cases of undermining of fighting strength to gather them in a special division which would have the task—especially in regard to the backlog cases—to clean it up as quickly as possible. Among these, there were a number of cases of arrest whose expeditious handling was necessary especially because in a large number of these cases the transfer to a subordinate court was necessary. Therefore, I could not act in any other way. No division chief was anxious to be given this new division. Therefore, I decided that the defendant Rothaug should take it over.[524]First of all, he was the youngest division chief, and up to then he had been in charge of a division which was so small and insignificant that it was easiest to replace him by a senior public prosecutor.
From the situation report which I mentioned, it is also evident what the number of cases was which came to us at the time. They amounted to about seven to eight hundred a month. This figure shows me that when I was interrogated preliminary to this trial, I made a wrong estimate. At that time I thought it was twice as high as it actually was.
Q. Witness, you have just said that the number of cases in the undermining of military efficiency increased to about seven to eight hundred cases a month. I would like to put another question to you on that subject. Did that mean that before the People’s Court seven hundred to eight hundred cases of undermining of military efficiency were tried every month?
A. No. That figure refers to the number of cases which were submitted to the Reich prosecution for examination. As I will mention later, only a small percentage of those cases—I estimate about 10 percent—were kept back. All other cases were returned to subordinate courts. In my situation report, if I may repeat that, I only gave the number which I did mention there because only at the trial here I saw that situation report again. I ascertained that the figures which I had given in Exhibit 126,[525]from memory were evidently incorrect.
Q. By that you mean to say that the figures in Exhibit 126, the figures which you gave from memory, are too high?
A. That is what I did mean to say.
Q. How did you, in general, treat these questions of undermining military efficiency?
A. To a large extent the treatment of such cases depended on the clear instructions from the Minister of Justice. It also depended on the basic importance of these cases. To mention one example, I would like to revert once again to the situation report of 9 February 1944, that is Exhibit 220. In that report it says that the undermining of military efficiency when committed by clergymen would have to be tried before the People’s Court. That was due to a decree by the Reich Minister of Justice. Generally speaking, however, in treating these cases I attached the greatest importance to having every single file examined carefully by the head of the department so that those points would not be left unobserved which would justify treating that case in a more lenient manner. For in particular the transfer of these cases as being cases of lesser importance to the district courts of appeal or to the Special Courts, to that I attached the greatest importance, as far as it was at all possible. That is proved not only by the testimony of the witness Gruenwald[526]before this Tribunal but it is also evident from Prosecution Exhibits 178, 474, and 100.[527]For the numbers of cases where criticism was exercised by the ministry on sentences passed by lower courts, and in particular at the Weimar conference [NG-674, Pros. Ex. 100] would remainincomprehensible unless many cases which were more serious had been transferred to the lower courts by the Reich prosecution.
In the last analysis, perhaps the percentage of cases which we kept back, as I mentioned before, and of the cases where an indictment was filed, at the People’s Court, I estimate those cases at 10 percent.
*******
Q. Witness, do you still remember what information you received in regard to the question whether recruiting offices for the Polish Legion existed in Switzerland?
A. I said that already. From the answer of the head office of the border police in Stuttgart, it was apparent without doubt that according to the information which they had from Switzerland that there was an illegal recruiting and transport service which helped Poles to get to Switzerland and to Africa; to that extent, Switzerland apparently did everything that it was possible to do, and as far as it could; and from the files it is occasionally apparent that the Swiss border officials returned the Poles who had crossed the border from Germany; but in all cases they probably did not succeed.
Q. Had the Ministry of Justice also informed you to what extent recruiting offices for the Polish Legion existed in Switzerland?
A. If I remember correctly, the same information had also reached us from the Foreign Office via the Ministry of Justice.
Q. Thank you. The prosecution seems to assume that the indictments were not the results of attempts to join the Polish Legion, but were a means to prosecute Poles because of their flight from Germany and their places of work. Please comment on this.
A. For us, that certainly was not the motive for the filing of an indictment, because we were convinced that the suspicion was justified. Moreover, against such allegations the fact probably speaks which can be gathered from Exhibit 259[528]of the prosecution. From that it can be gathered that particularly at the time in question here, hundreds perhaps thousands of Poles left their places of work in the Reich; and if only a very small number of these were tried before a court because they wanted to join the legion, this makes it apparent that they were not tried only because they left their place of work. The other participating offices, that is the police and the counterintelligence of the OKW, wereprobably also of the opinion that here we were faced not only with flight from the place of work, but flight for a special purpose.
The general situation was just as I described it. During the war the German Reich, as any warring power, had closed its borders and this had been done for reasons of the security of the State and was therefore necessary because everybody who crossed the border and reached neutral country or an enemy country took along with him important experiences and knowledge which he had gained in the warring country. Poles knew that too.
Q. Witness, you have already stated before that a Pole, only for the reason that he had left his place of work on his own, could not be tried and sentenced by the People’s Court. Now, according to your determinations in the individual cases in which Poles were indicted because of attempts to reach the Polish Legion, did other reasons for suspicion also play a role which supported the suspicion on the basis of which then in accordance with the law you were obliged to raise an indictment?
A. I just wanted to talk about that.
Q. Will you please state what reasons for suspicion have regularly played a role also?
A. If somebody crosses the border with a certain purpose in mind and he is caught in the act, then, in the most infrequent of cases will he be inclined to say and be ready to say what intentions he had in mind, for in so doing he would damage his own case. Criminal cases which were conducted under this point of view—and this is probably not the case only in Germany—therefore are based to a large extent on the justified conclusions one can draw from the facts available.
Now, it was here known generally what I have already stated, that this way led to the Polish Legion if one started out on it. Secondly, it was known that among the Polish workers in south-western Germany these conditions and knowledge thereof were widespread. Furthermore, it was generally known to those workers too that favorable conditions for work could not be expected in Switzerland; and finally, it was in accordance with the experiences which had been gathered in other trials that a large number of these people who crossed the border after their arrest did not even deny this intention. These general considerations alone would have, in my opinion, justified such a strong suspicion that in accordance with German Code of Criminal Procedure sufficient suspicion for the filing of an indictment existed, and that thus the indictment had to be filed in accordance with the law.
The two indictments which bear my signature are the Bratek and Stefanowitsch cases. The following element, however, isadded. Bratek had referred to the fact that he only wanted to cross the border in order to avoid work.
Dr. Grube: In the Bratek case here we are concerned with Prosecution Exhibit 136.[529]
Defendant Lautz: As I said, he claimed it was only for the reason to attempt to seek work that he did want to cross the border. By means of the additional investigations which the division chief instituted, however, it had been found that he did not like to work; he had already left other places of work, so that his statement that he wanted to seek new work in another country in which there were difficult conditions of work did not seem very credible. So for that reason his statement had to be accepted with reservations.
*******
CROSS-EXAMINATION
*******
Mr. King: I ask you if it were possible to commit treason against an individual who was not of German citizenship in the period which we are discussing.
Dr. Grube: I object to this question. This is a question which is asking only for the personal opinion of the witness.
Presiding Judge Brand: The objection is overruled.
Defendant Lautz: If I understand you correctly, Mr. Prosecutor, you want to know whether the act of treason was punishable only when it, the act, was directed against the State as such, or also when it was directed against an individual person.
Mr. King: Yes. My following question was going to refer to the differences which you raised. But actually you have stated it very well. I want to know whether at this time the period which we are concerned with at the moment, if during that period treason could be committed against an individual who was not a German citizen, and I take it that your answer on that is no, is that correct?
Defendant Lautz: That had been different ever since the law of 1934.
Q. Yes. I know but I am speaking of the law prior to 1944.
A. No, what I said was 1934. I said the law before 1934. I am referring to the law 1934 with article 91 [of the Reich Criminal (Penal) Code] which then became a law.[530]
That article says that the act of treason can be directed against a German national as an individual, and it was a question of interpretation whether “German” should here be interpreted as being of German blood or being a German citizen, and the famous document in which I made a report to the Reich Ministry of Justice deals with that question.[531]It is that report which concerns itself with that question. The courts in the Reich interpreted article 91 to the effect that it was not the nationality which was decisive but the race, the blood.
Q. Yes. Well, it is that letter to which I want eventually to refer. I wanted, however, to get your understanding of the earlier laws before we get around to discuss the question of that letter. What you have just said was that article 91 which was adopted in 1934 expanded the concept of treason to the extent that there could be treason against an individual who was a Reich national; is that correct?
A. Against a German. And who is a German? That was a question of interpretation. I believe I can best make myself clear if I come back to the example which is mentioned in this report. After the occupation of the eastern territories, that is Poland, that is to say after the occupation of those territories, which formerly had been German, the following case came to our knowledge. An ethnic German, a person who was a German by blood, had had the following experiences. Behind his back a Polish agent had hidden espionage material in his home without the German knowing that that material had been hidden there. The Polish agent then chased the Polish police after him, and his home was searched by the Polish police. The material was found and the German who was completely innocent but who could not prove his innocence was tried in Poland before 1939 and he got a very heavy prison sentence. I don’t think you would approve of that, would you? When we occupied the eastern territories that case came to our knowledge—
Q. Excuse me, Dr. Lautz. Is this the Krippner case to which you refer, or is this the Moses case? There are two of them which you mentioned in this report.
A. No, no. I cannot remember the—
Q. Would you like to see that exhibit?
A. I cannot remember the name unless you would show me the document. The name doesn’t matter. It is the facts of the case that matter here.
Q. I think you will find this report referred to in document book 5-B, beginning on page 73 of the German text.
Presiding Judge Brand: Dr. Lautz, will you finish what you were saying when counsel interrupted you?
Defendant Lautz: Yes. I will. After the occupation of Poland that shameful case, to use a mild expression, came to the knowledge of the German authorities; and we were now concerned with the question as to what could be done; and the application of article 91 of the German Criminal (Penal) Code was interpreted so that in this case treason had been committed against a German. Treason had been committed against a man of German blood, treason which could be prosecuted.
Q. It was treason against one of German blood who was not then a German citizen.
A. He was not a German citizen, but he was of German blood.
Q. The date of that again? When that happened, when it came before this department?
A. Your Honor, may I just have a look at the report? May I have a look at the report to make sure of the date?
Q. Yes.
A. That is the case Goleck, which is mentioned in the report. The false accusation against the person of German blood was made in the year 1938, that is to say, it happened before the war.
Q. And it came up to the Ministry of Justice after the war to decide?
A. That happened during the war when Polish files were confiscated.
Mr. King: Dr. Lautz, you have the letter before you now?
Defendant Lautz: Yes.
*******
Q. May I ask you to refer to the top of page 75 in the German text, I believe it is? It is the middle of page 68 in the English.
Presiding Judge Brand: What exhibit are you referring to?
Mr. King: I am referring to Document NG-548, Prosecution Exhibit 347, Your Honor.
Now, could we look at that separate opinion of yours at the end of the letter?
Defendant Lautz: Yes.
Q. Go ahead, please.
A. It begins with the words, “With the Reich Leader SS and the President of the People’s Court I agree with this.”
Q. Dr. Lautz, see if you can find this portion in the document which you have. I am sorry you don’t have the document book as it was originally distributed. I had it paginated for that. Can you find this statement? You say, “Therefore”—and I believe this is part of your letter—“Therefore, I find it necessary, on principle, to protect by means of the German Criminal (Penal) Code those racial Germans who have seriously suffered through action such as mentioned in article 91, paragraph 2 of the Penal Code, provided that action deserves punishment in accordance with sound German sentiment but where such punishment, considering the elements of wrongdoing of that particular case, cannot be brought home on the strength of any other directly applicable penal regulation.”
Those are your words, are they not?
A. Yes.
Q. And then you say in the final paragraph of the letter, “In the majority of the cases it will be offenses which have been committed by foreign nationals abroad against racial Germans.” Is that correct?
A. Yes, it is.
Q. That is correct, and those are your words?
Presiding Judge Brand: Will you answer audibly so that reporters may get it?
Defendant Lautz: What the prosecutor stated just now is what I reported.
Mr. King: And then you asked for approval of your interpretation; is that correct? That is the very last sentence in the letter?
Defendant Lautz: Yes. I had to ask for that because the decision lay with the Minister of Justice.
Q. Yes. Now, in subsequent cases that came before the People’s Court in which you were required to file the indictment, you based the charges on the interpretation which was subsequently approved by the Reich Ministry of Justice, the interpretation which you ask here? Is that right?
A. From case to case the Minister of Justice afterward decided as to whether that procedure was to be adopted or not. He did not issue a general instruction or directive.
Q. Do I understand you correctly? Let me restate it. Did you mean to say that even after you asked for this interpretation itwas necessary in the future when cases came up involving these facts that the Minister of Justice give his approval before you filed your indictment? Is that correct?
A. The indictment was drafted, and the draft was submitted to the Minister of Justice, and he approved it or did not approve it.
Q. But the draft of the indictment was based on the law which you suggested be interpreted as we have discussed it. Then having drafted the indictment based on this interpretation you got approval or disapproval, as the case might be, from the Minister of Justice. Is that right?
A. Yes.
Presiding Judge Brand: What was the answer?
Mr. King: The answer was yes, Your Honor.
*******
EXTRACTS FROM THE TESTIMONY OF DEFENDANT BARNICKEL[532]
DIRECT EXAMINATION
*******
Dr. Tipp(counsel for defendant Barnickel): Witness, please describe further events.
Defendant Barnickel: About the end of 1937—beginning of 1938, I was in Berlin again. I told the personnel Referent, who was a different official then, about my wishes for the position in Munich, but the case was not that far yet. To my great surprise, on 30 November 1938, I received the communication that, on 1 December 1938, I was to be appointed Reich prosecutor with the People’s Court.
*******
Q. When and how did you assume your new position?
A. As I have already explained, I received the formal appointment on 30 November 1938. The Minister granted me a few days to straighten out my affairs in Munich, and thus, I assumed office on 6 December 1938.
Q. What position did you hold in the beginning?
A. On 3 November 1938, the chief Reich prosecutor of the People’s Court, Parey, had had a fatal accident. His permanent deputy, at that time the only Reich prosecutor, Parisius, was inthe hospital seriously injured. On 1 December 1938, three new Reich prosecutors had been approved for that office. Of those, two were from the office proper, and I was the third one. Upon instruction by the minister, I was to be in charge of the office as a deputy because according to my age I was the oldest of the three Reich prosecutors there.
Q. Witness, in this connection, I should like to discuss a document submitted by the prosecution. It is Prosecution Exhibit 347, Document NG-548. The letter has the heading “Chief Reich Prosecutor with the People’s Court” and is of 23 April 1942, and is directed to the Reich Minister of Justice. In this letter, another letter by the Reich Leader SS and Chief of the German Police of 13 December 1941 is quoted. The latter letter is directed to, and I quote, “The Chief Reich Prosecutor with the People’s Court, attention: Senior Reich Prosecutor Dr. Barnickel, or deputy.” You are therefore addressed as Chief Reich Prosecutor with the People’s Court, Witness. Can you please explain how it may have come to that designation?
A. I cannot answer that question with absolute certainty because I do not happen to know why the office which sent that letter did it. It is, however, certain that I was never Chief Reich Prosecutor with the People’s Court. I was only Reich prosecutor at all times, although, during the first 2 months, I deputized for the Chief Reich Prosecutor, but during the first few years of my activity I frequently received similar letters. The first few times, I actually opened them. Later, I sent them to the office for incoming mail unopened. I assumed at that time that some office of the Gestapo, by mistake, had entered my name as Chief Reich Prosecutor on their records because, in the beginning, I was in charge of the office as a deputy. But the main point seems to be the following. I can see from the letter which is addressed to me, that it is quite clear that I never had anything to do with the answer to that letter. I see that with absolute certainty from the contents of the letter.
Q. For how long after you assumed the office were you in charge of the affairs of the Chief Reich Prosecutor?
A. Until 1 February 1939.
Q. Did it happen frequently later that you had to deputize for the chief?
A. Yes, but not very frequently. The Chief Reich Prosecutor and his permanent deputy appointed by the Minister, Reich Prosecutor Parisius, of course, tried to arrange not to be absent at the same time. Only if that did happen, I, as the oldest Reich prosecutor,had to take care of affairs. I have to correct myself, that is to say, after Reich Prosecutor Parisius, I was the oldest. Since the end of 1943, I was no longer used to deputize. I was evacuated to Potsdam at that time and Reich Prosecutor Weyersberg was the deputy of the Chief Reich Prosecutor.
*******
Q. * * * May I ask you now to direct your attention to Prosecution Exhibit 159, which we have already mentioned? That is the Prosecution Document NG-381.[533]It appears in document book 3-G, on page 22 of the German and page 19 of the English text. The subject of these proceedings is the trial of Oscar Beck, for undermining the military efficiency.
Presiding Judge Brand: A correction, for the purposes of the record. Exhibit 159 is in document book 3-D, at page 17 of the English.
Dr. Tipp: Thank you.
The indictment appears on page 2 of the document, and following pages. On page 4 there is the signature, “As deputy, Dr. Barnickel.” That is to say, you signed that indictment. Apparently you did so when you were deputizing for the chief who was away. At any rate, the document does bear your signature. Would you please tell us why that indictment was filed with the People’s Court?
Defendant Barnickel: Because of the fact that I was so overburdened with work at the time, I cannot remember any details of the case. However, I can say for certain that the reason for filing the indictment with the People’s Court was not—I am referring to the fact which has been mentioned here before—that Beck was of mixed descent, first degree. I think I have explained sufficiently my attitude to that question in general, but I shall revert to that subject later. That attitude of mine had remained the same for 10 years, and I did not change it in 1943. The fact that it was a Vienna Ortsgruppenleiter who denounced the man—that fact, too, is of no importance. I believe it is hardly necessary for me to mention this, but for my department, too, which submitted that case to me, it was of no importance either.
As I look at that indictment now, I am inclined to assume that we wanted to arrive at a basic decision. The novel element in the proceedings against Beck was the fact that he had criticized the employment of women. That was a measure which only started in the first weeks of 1943. It was designed to keep up production, and it had been ordered by the Reich and not by the Party. Ibelieve that all the belligerent countries had introduced measures of that kind.
According to the date when the indictment was filed, it is possible that this indictment of Beck was the first one of its kind. Not only the legal questions decide what the basic element of such a case is, but novel facts of a case also can constitute a basic element.
For the rest, ever since I had been acquainted with the Reich prosecutor’s office, occasionally less significant cases, where one was not expecting a very serious sentence and certainly not the death sentence were indicted with the People’s Court if they were of a certain importance for the whole country.
Q. Witness, you say, then, that you believe the indictment was filed with the People’s Court because the case was important for the whole country and because it contained a novel element?
A. Yes, that is possible.
Q. Does the form of the indictment show that it was the intention to ask for the death sentence?
A. No, on no account. When the indictment was phrased, and in particular because of the legal provisions which were cited, in all that there is nothing to indicate that it was intended to ask for the death sentence. On the contrary, and I should like to refer to the enclosure, the letter which was sent with the indictment. It was written on 30 July 1943, to the presiding judge of the People’s Court.
In the second paragraph of that letter, which is also signed by me, it is expressly pointed out that under article 2 of the law of 20 December 1934, prosecution under that law had been ordered. That law was the Insidious Acts Law, which has been mentioned here a great many times. I should think that is a proof for the fact that we considered the application of that law also possible, for otherwise it would have been stupid to make reference to it. The maximum penalty for violation of the Insidious Acts Law would have been a 5-year sentence. I think it is possible that not only the question of the employment of women was the cause for taking this case to the People’s Court, but also the question of the application of the law in general.
Q. Witness, what was the senate with which your department cooperated in the field of undermining military efficiency?
A. It was the fourth senate, and the presiding judge was Dr. Koehler, whose name has been mentioned in a favorable context repeatedly here. May I state that in 1944 Dr. Koehler was transferred from the People’s Court to Stettin, because Freisler didnot approve of him. The fourth senate dealt mainly with high treason cases. Later on it also had to deal with the undermining of military efficiency. However, when the distribution of work was changed again, it had to return those cases because there was dissatisfaction with the sentences that that senate had passed.
*******
Presiding Judge Brand: I wonder if you could tell me what was meant by the last phrase in that letter, where you say, “The prosecution under article II of the law of 20 December 1934 has been ordered as a precaution.” The part, “the prosecution has been ordered as a precaution,” what did you mean by that?[534]
Defendant Barnickel: Your Honor, by that I want to say that that passage points out that if sentence was not to be passed on the basis of undermining military efficiency, prosecution under the Insidious Acts Law would be made.
Well, that was a case of a measure which might be taken, Your Honor.
Q. I understand. Was it the practice to appoint defense counsel even in cases where the death penalty was not expected, in your court, in the People’s Court?
A. Your Honor, at my time—I don’t know what happened later—but at my time, every defendant who appeared before the People’s Court had to have a defense counsel without exception. That had nothing to do with the death penalty.
Presiding Judge Brand: Thank you.
Dr. Tipp: Witness, may I repeat my question. I may ask you to tell us what were these general prerequisites for filing an indictment?
Defendant Barnickel: Well, that question has been touched upon repeatedly here. There had to be sufficient suspicion that the defendant had committed the offense, that is to say, a certain probability was sufficient.
Q. In connection with the undermining of military efficiency particularly in this case, I think a further question is important. The question, what did one mean when one said the undermining of military efficiency in public?
A. According to the jurisdiction of the Supreme Reich Court and the Supreme Military Court, military efficiency was underminedin public even if statements had been made in front of only one person, if the offender had to expect that that person would pass on his statements to an indefinite number of other persons.
Q. These two prerequisites, therefore in your opinion in the Beck case, did exist?
A. Yes.
Q. Now, one more question concerning the undermining of military efficiency cases in general. Were all those cases dealt with by your department?
A. To start with, yes; from the summer of 1943, however, certain categories of cases were transferred to Department I, which collaborated with Freisler’s senate. According to the distribution plan of the People’s Court, Freisler could also deal with certain cases from my department, at his senate.
Q. How long was it that your department dealt with those undermining of military efficiency cases?
A. Until 31 December 1943. Then they were transferred to another department.
*******
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG ON THE LOPATA CASE[535]
DIRECT EXAMINATION
*******
Dr. Koessl(counsel for defendant Rothaug): The Lopata case was first tried by another court and not by the Special Court in Nuernberg.[536]Please tell us what was the first court that tried his case and whether that court was a Special Court.
Defendant Rothaug: The case was tried for the first time on 28 April 1942, before the local court at Neumarkt in the Upper Palatinate. The local court was not a Special Court.
Q. What were the facts which were the subject of the proceedings against Lopata during the trial at Neumarkt?
A. The defendant had been charged only with having approached a woman in a way which was sexually offensive, although that woman again and again tried to get rid of him. He was also charged with irregular behavior, which, however, in the course ofdevelopments played no important part and that charge was dropped.
Q. Please tell us what was the personal description of the defendant which was given by the local court at Neumarkt?
A. In the judgment, it is pointed out that the defendant looked well groomed, but he was insolent, lazy, and he had been guilty of the offense with which he was charged in a way, and I quote, “Which showed an unheard of extent of shamelessness and insolence of which only a member of the Polish nation would be capable.” However, that is a statement made by the local court at Neumarkt.
Q. Did the local court at Neumarkt have anything to do with the Special Court at Nuernberg?
A. Nothing. No.
Q. Was the judgment by the local court at Nuernberg upheld?
A. The judgment by the local court at Neumarkt was by decision of the Reich Supreme Court of 14 July 1942 annulled by way of a nullity plea, and the trial was transferred to the Special Court at Nuernberg.
Q. What was the criticism of the Supreme Reich Court in the judgment passed by the Neumarkt local court?
A. The Reich Supreme Court criticized the fact that the local court at Neumarkt, concerning certain generally known conditions which were connected with wartime conditions, although that had been obvious in the case in question, had not taken such conditions into consideration, and therefore apparently had ignored the fact that the offense with which the defendant had been charged also violated article IV of the law against public enemies. For that reason, it was necessary to refer the case to another court so that the case be examined from that point of view, and if that should be found right, so that article IV of the law against public enemies could be applied, if that were found applicable. Further reasons for the decision which are given are that the application of article IV of the law against public enemies would mean that a considerably higher penalty could be pronounced, and that for that reason the case would have to be tried again.
*******
Q. In its opening statement the prosecution quoted the following sentence from the judgment: “The inferiority of the defendant lies in his character, and the reason for it evidently is that hebelongs to the subhuman race of the Poles.” Is that quotation correct?
A. Well, there is a typing error here which rather distorts matters because actually it says in the judgment—it doesn’t say “the subhuman race,” but it means the subhumanity of [Polnisches Untermenschentum], and that is something essentially different. We have subhumanity in Germany and we have developed our own laws against that and when we speak of Polish subhumanity we do not mean the Polish people as such; that is what we would have meant if we had spoken of the subhuman Polish race, and for that idea and opinion there is a concrete reason.
In many cases we had found that among the Poles who had been brought to Germany there was a considerable number of highly criminal types from Poland. The agencies which dealt with getting labor from Poland did not select properly and thereby created a great danger. We discovered people who had been previously convicted for murder and had been sentenced to penitentiary for life, but who on account of the outbreak of war had been set free, and who had now come to Germany. That point of view played a part in considering all these questions. That is to say, we did not speak of the subhuman Polish race but we spoke of the subhumanity in Poland.
Presiding Judge Brand: May I interrupt, please? The question of translation has arisen. The Tribunal would be glad to have a check made by the prosecution as to the original document and the proper translation of it. That will dispose of this entire matter.