Only two of these documents contain indictments which were signed by Lautz, namely exhibits 132 and 136. I have discussed in detail with the defendant Lautz the reasons which led to these indictments. It was clearly established at that time that the information he had received from the German military counter-intelligence and the information which he himself had procured from the German border police - I refer to the entry in my exhibit 199, p. 15 of my document book IV C - as well as the general behavior of the defendants which was ascertained in the individual case by the examining magistrates, gave ample reasons for suspicion so that according to the law it was necessary to bring a charge of treasonable support of armed resistance.
This was also the opinion of the Minister of Justice who in every individual case approved the indictments submitted to him. It cannot be held against Lautz or Parrisius, that the Senates of the Poople's Court - as it becomes evident from various documents of the prosecution - sometimes did not consider this suspicion to be sufficient, because they had reached a different opinion on the basis of the result of the trial evidence. In order to avoid repetitions I want to refer in ill other respects to the discussions on page 5910 of the English transcript. Documents concerning criminal procedures which might have been carried out in other parts which were incorporated into the Reich do not exist. The prosecution exhibits 484 and 488 (NG-783, NG-823, III SA) give, however, information as to criminal investigations in the former Austrian Republic. Whereas exhibit 484 according to the statements of the defendant Lautz (Tr. 5975) refers to criminal acts committed by German soldiers who had deserted from the army exhibit 488 gives us an inside view of communist activities in Vienna, Salzburg, and other places which were connected with dynamiting, arson, and other acts of sabotage. The German authorities could not remain indifferent in the face of the particular danger involved in these activities.
The picture of the activity of the defendant Lautz, however, becomes only complete when we consider how Lautz conducted himself. The evidence has produced important information in this regard which, in my opinion, speaks absolutely in his favor.
From his description of the happenings in Bohemia and Moravia first of all the essential points must be kept in mind:
1.) When Lautz learned, after the first investigations which he had made around the turn of the year 1939/40 at the order of Minister Dr. Guertner that the Chief of the Security Police in Prague was planning to establish summary courts, he immediately tried everything in his power to frustrate this plan (Tr. 5845/48)
2) The "stop" signal at first ordered by Hitler led when it lasted over a longer period of time to an unfair extension of the custody ponding trial of those who wore incriminated to a lessor degree. Lautz intervened on their behalf with Guertner. Hitler's decision which was brought about by Guertner, ordered that henceforth the proceedings were to be carried out; at the same time it gave expression to his opinion that death sentences were not desired (Tr. 5849).
3.) Lautz obeyed this decree not only insofar as he forbade his Public Prosecutors to ask for death penalties in the main trial -- in other respects, too, the decree gave him the occasion to very possible leniency, Above all, Lautz referred proceedings - declaring they were of lesser importance - to the district courts of appeal in Dresden, Breslau and Leitmeritz to such an extent that he had difficulties with Thierack on that account who maintained that too many cases were withdrawn from the People's Court. This very difference in opinion concerning the treatment of the Protectorate cases caused Thierack, as Lautz has stated to undertake the attempt, proven by exhibit 437 (NG-919) to bring, with the help of the party chancellery, a change of the legal regulations to the effect that the power of the Reich Chief Public Prosecutor to hand over cases, was put under the control of the People's Court (Tr. 5793).
I have particularly emphasized these three points, because only, if we know the, we can understand the events which occurred on the occasion of the first state of emergency in the Protectorate at the end of September 1941. By that I mean the elimination of the defendant Lautz from the proceedings against Elias and Klapka and the transfer of his function to the Chief of the Gestapo in Prague. Thierack and the Chief of the Gestapo Heydrich brought this about behind the back of the Ministry of Justice and of Lautz, because Lautz had refused to prosecute these two cases without a particularly careful examination of the facts involved. In this regard I refer to Lautz' statements on page 5857 ff of the English transcript and to the prosecution exhibits 374, 375 and 480.
At that time Lautz demanded his release which was testified to by the defendant Schlegelberger as witness (Tr. 4499). As it is well known, however, his request was not fulfilled (Tr. 5976/77).
Only with greatest efforts and thanks to the negotiating skill of the defendant Joel it was possible at that time to prevent that the other Protectorate cases pending at the Reich Chief Public Prosecutor's Office were taken away from it and handed over to the summary courts ( compare testimony Lautz (Tr. 5852).
Lautz can certainly not be blamed that finally - particularly after the murder of the deputy Reich Protector Heydrich and the subsequent second state of emergency - the policies in the Protectorate also in regard to the administration of criminal law became more severe, it was rather a question of measures -- as it was testified to by the defendant Schegelberger - which the government was obliged to take , because of the changed situation.
Cases of high treason in the re-incorporated, formerly Polish territories did not play a significant part numerically in the jurisdiction of the People's Court - this has also become clear from the statements of the Prosecution. The reason for this, however, was not that nothing happened there. The Schlegelberger exhibit 157 (Schlegelberger document 163) gives proof to the contrary. Lautz explained the reason rather in this way that the Gauleiters of the incorporated Eastern territories had called the attitude of the Reich Chief Public Prosecutor as well as the jurisdiction of the Senates of the People's Court not severe enough; therefore, they had brought about an instruction from Hitler according to which these cases were to be tried by the district courts of appeal in Posen; Danzig and Kattowitz.
The demand for more rigid policies did likewise not induce the defendant Lautz, in cases of charges against persons from the incorporated Polish territories, to base the charge also on the penal regulations concerning Poles.
Lautz, as a matter of fact, disregarded this at first; he considered it superflous; because the facts of the cases concerned came under article 91 b of the Penal Code (treasonable favoring of the enemy) the penalty of which was equally severe. Later on however, he was directed by the Minister of Justice, as he testified as witness, to quote in the indictments also the decree of 4 December 1941, amongst the legal provisions which had been infringed, because this fact was according to the opinion of the Ministry, of importance in case of the pronouncement of a prison sentence; in that case a sentence to a penal camp had to bo pronounced. (Prot. 5904.) of course; the result was of no practical importance. The punishment described as penal camp was served in prisons of the administration of justice and not in camps or even concentration camps. A simple penal camp was considered equal to a prison sentence and a severe penal camp equal to penal servitude. After all, the difference only consisted in the fact that the Polish prisoners were separated from the other inmates. The witness Hecker (Prot. 4851,4866) testified in this sense and the SchlegelbergerExhibit.... Schlegelberger-Document 168, affidavit Marx) describes it in the same way. According to his testimony, the defendant Lautz did not know of further particulars. (Prot. 5904).
Therefore he did not expect and also could not expect, that the reference to the decree of the 4 December 1941 imposed upon him by the Ministry, could put the defendants in a worse position, either with regard to the length of the prison term or to the way it was served. He never introduced wrongly in any of his indictments the charge for high treason or treason in order to give the senate the chance to condemn a person because of a different charge, for instance because of breach of a working contract, through the subsidiary application of the Law against Poles and Jews. This is a statement of the Prosecution which can not be supported by any evidence. The prosecution refers in its pleadings to its exhibits 132 and 133. It is however evident from both documents that the Reich Prosecuting Authority holds the opinion in the indictment, an well as in its final pleadings, that the flight into the legion is proved and that therefore the elements for the crime of High Treason and of the aid to tho enemy are established.
Lautz, however, contrary to the statements of the prosecution, did not say in his direct examination or in his cross examination, that he had no reason to contest these verdicts; on the contrary, he stated that he had objected to this kind of jurisdiction, but that he was not able to state for sure in what way he had expressed his disapproval, without having the documents submitted to him. Tho Law against Poles and Jews had no influence whatsoever on the proceedings before the People's Court. The proceedings in cases concerning Poles were on principle tho same as against all the other defendants with the only exception that the second senate and only this senate, held the opinion, that according to the decree of 4 December 1941 the re-opening of the proceeding was inadmissible and such notions should be considered as motions concerning acts of clemency.
The facts which I mentioned according to the result of the evidence show beyond doubt that the defendant Lautz acted according to German Law, as he had to act, at least however, that he was convinced that he had to act in this way.
Evidently the prosecution starts from the assumption that the German Law should not have been applied in the cases mentioned above, because they concerned offences committed by foreigners in foreign countries. Even if this assumption of the Prosecution were correct that the cases concerned acts committed by foreigners in foreign countries, even the Lautz's activity would be in conformity with the German Law. The revolutionary movements in the Polish and Czech territories aimed not only at the overthrow of the then Reich government, but also at the annexation of territories of the Altreich. That menat the preparation for high treason against the Reich. Such an act come under the terms of the German Law, oven if it had been committed by a foreigner in a foreign country.
It required of course for its prosecution a directive by the Reich Minister of Justice. This directive has practically been supplied in all the cases which were discussed here. Lautz was forced to the prosecution with which he is charged now, through general directives of his Minister. In addition to it, he also obtained the Ministry's approval in each single case; since, according to the provisions which were in force - I may refer to my exhibits 157 and 229 (L - 261,III B 13; L - 142 IV A 62) the Minister was informed of all indictments in due time, so that he could have prevented the proceedings, if he had not desired them to be carried out. (Prot.6048) The Prosecution does not want to accept this as valid. It is of the opinion that the extension of the sphere of application of the German Law beyond the frontiers of the Reich, ensues from the unjustified imperialistic lust for power and that it therefore could not be accepted. The Prosecution, however, here overlooks the fact that this legislation was not a particular characteristic of the Third Reich, not oven a typical German invention. Already before 1933 namely in article 11 of the Law for the Protection of the Republic of 1922 - Germany applied the principle of the international law concerning political crimes, as it is pointed out in my exhibit 9 ( L-38, I -16). The Weimar Republic required such a legal protection which by the way was not contested by anybody, because very soon after its proclamation, the opponents of the new system - I only mention the separatist - persons guilty of High Treason in the Rhineland - had fled abroad and from there, supported by foreigners, had continued the struggle against their native country. Also during the discussions concerning the compilation of a new Penal Code in 1928, the Penal Law Committee of the German Reichstag, particularly the Social Democratic party, advocated again the principle of the International Law with regard to political crimes; This is evident from my exhibit 228 (L -91, IV A 49). It also has to be mentioned that at this time, they referred to the fact that this was the practice of other countries, for instance of Russia.
Indeed the German lawyers only knew that nearly every modern state applied for instance its provisions concerning Treason and High Treason to foreigners, even when the act had been committed abroad; I only have to mention the official statement in my exhibit 227 (L -54, IV A 45). It also actually is in conformity with the international custom that the person guilty of treason, the spy is prosecuted, even if he committed the crime in a foreign country as a foreigner, unless he acted officially in the service of an enemy country and hereby did not cross the frontiers of the country itself. The German Lawyer could therefore never take offence at such a Law. Lautz too was permitted and even had to start from this legal principle, and can not be reproached for it.
If one really wore to assume that the countries concerned were not German Reich territory, but occupied territory, then it must not be overlooked that the prosecution of all these criminal offences would not have been denied to the German Reich in its capacity as occupying power, since all these crimes were directed against the occupation. Therefore the defendant Lautz has pointed out in his direct examinationin my opinion very much to the point - that the judicial measures taken against the numerous acts of sabotage and against the incitements to revolt in the Polish territory and in the district of Bohemia and Noravia had according to his opinion been necessary, for the security of the German Eastern front, and were consequently required by military necessity.
It might well be without any significance that the prosecution authorities and courts which were charged with the prosecution and conviction of those offences, were, in part, no military organizations; i.e. no organizations composed of military persons. In the same way, it appears to us to bo unimportant - at any rate in the final result - whether the resistance activities were prosecuted and punished on the strength of special penal threats of the occupation army or whether they were class ified as aiding and abetting the enemy or as preperation for high treason in accordance with the common German Penal Law, which, by the way, as far as the penalty threatened is concerned, was the more lenient one.
This should not have constituted a problem for Lautz, the less so, as after the first World War offences of German nationals directed against the occupation army in the Rhineland zone wore prosecuted and tried by the courts of the Allied and Associated Nations, according to their national laws, i.e. according to French, English, American, etc. laws. I may be allowed to remind you here of the note of the four Allied Governments of 29 July 1919 which I have reproduced in my exhibit 226 (L - 126, IV 39). The protect of the German Government dated 12 July 1919 against the application of foreign penal laws in the occupied Rhineland zone belonging to the German Reich, was, as is known, answered by the four Allied Governments, stating that " according to the principles of international law, the Military Tribunals of the Allied and Associated Nations can only apply the laws which have been issued in their national states."
The prosecution objects against the criminal prosecution as conducted by German authorities in their capacity as an occupying power: that the Reich had waged agressive war; that all territorial actions which had been taken to prepare it and carry it out, were illegal and would not establish any rights arising out of the Hague Rules of Land Warfare. Evidently, the prosecution itself is not convinced of the correctness of this opinion. For in paragraph 8 of the indictment it takes the opposite point of view. There it speaks of persons who were kept in the custody "of the German Reich in the exercise of belligerent control"; in other words, there it recognizes Germany's rights arising out of the Hague Rules of Land Warfare. A different position, however, could not be upheld. It would overlook the fact that the Hague Rules of Land Warfare consider the occupation of the territory of a foreign state from a matter of fact point of view and formulate their conclusions irrespective of the possibility that the state of affairs might have been brought about in contrast to the law.
Accordingly, the verdict in paragraph 8 on pages 16925/27 of the English transcript of the IMT trial is based upon the interpretation that the Hague Rules of Land Warfare were binding for Germany. This binding force, however, can-according to its very nature - only be complete, that is a reciprocal one which also recognizes the right for Germany arising out of it. This is also the position taken by the Control Council in its Law No. 10. For example, Article II, paragraph 1, letter b of this law, only considers those devastations a war crime which could not be justified as a military necessity.
To these rights of Germany as a belligerent power belongs, however, (as I have already emphasized and as the prosecution admits in paragraph 8 of the indictment) the controlling right of a belligerent power, i.e. the right to defend its occupational regime against attacks. And a last point World War II was brought upon by the Polish-German conflict.
Even before its final and military termination the well-known note of the Soviet Government to the foreign governments of September 17, 1939 was published in the Reich. There it says:
"The Polish Government has disintegrated and shows no sign of life. This means that the Polish State and its government actually have ceased to exist.
The Soviet Government intends to take all measures to lead the Polish people out of a war into which it was plunged by its unreasonable leaders". (Schlegelberger Exhibit 149, Schlegelberger Document 155).
Which German could have derived from such an announcement of a large State that his own State leadership had provocated the war in a criminal manner and had done violence to a foreign State's territory after the successful conclusion of their war?
One may look upon the facts from all possible points of view one thing one will be able to establish again and again, i.e. that defendant Lautz has acted as he believed he had to act according to the laws and orders guiding him.
In paragraphs 13 and 25 of the indictment which deal with NN matters exclusively, the Reich Ministry of Justice is accused to have participated in carrying out of the Nacht and Nabel Decree. The persons who are considered particularly responsible are consequently without exception employees of the Ministry: but Lautz is not mentioned. When the prosecution in its Opening Statement of March 3, 1947 took position to the NN action, it enumerated the defendants who "participated in and were principally responsible for the important part which the Reich Ministry of Justice played in the Nacht and Nabel Action."
Here, during the oral proceedings, the Prosecution mentioned defendant Lautz for the first time along with the employees of the Ministry, although this accusation still was directed only against the Reich Ministry of Justice. I should like to point out that something similar happened an Case I, i.e. the Doctors' Trial where defendant Rose was not accused in the indictment but only later, in the course of the oral proceedings to have participated in the Malaria experiments. Tribunal I, however, stated in its verdict that it would consider it an outspoken injustice toward the defendant if it would find him guilty of a crime of which he was not accused, as it clearly follows from the indictment. I leave it to the decision of the Tribunal whether or not this principle is to be applied also in the case of Lautz in regard to the accusation that he participated in the NN Action to a special extent.
But I am convinced too, that Lautz cannot be considered responsible quite aside from these formal grounds. The Circular Decree of the Reich Minister of Justice of 2 June 1942, Prosecution Exhibit 308 (NG 232, CI, 18) proves that when the civilian judiciary administration adopted the NN procedure, the jurisdiction in these matters was trans ferred by the Reich Minister of Justice to the following four Special Courts:
Cologne; Dortmund; Kiel and Berlin. Tho People's Court and consequently also the Reich Prosecution at tho People's Court did not participate at that time. Therefore, neither the various documents of the prosecution - which relate to the participation of the general judiciary in the NN procedures -- nor the testimonies of the witnesses which were made in connection with this matter - as e.g. Dr. Lehmann's give an indication that Lautz had anything to do with the participation of the judiciary administration or with the compiling of decrees, directions etc.
Defendant Lautz stated as a witness on 25 June 1947 (Tr. 5923) that the existence of the NN procedure was not known to him until October 1942; when he was officially acquainted with it for the first time. Not until 14 October 1942, did the Reich Minister of Justice order the transfer of a relatively small part of NN cases approximately 9% of all NN cases - to the People's Court, viz. those cases which to begin with fell under the jurisdiction of the people's Court, e.g espionage giving aid and comfort to the enemy etc. This follows from Prosecution Exhibit 313 (NC -226 VI 51). This action was based upon a decision of Thierack, as stated in the remark of Ammon of 26 September 1942 in Exhibit 312 (NG- 228-VI 47). Here too there is no proof that Lautz had participated in making this decision. On the contrary, Lautz stated at his hearing on 25 July 1947 (Tr. 5923/24) that Thierack's decree of 14 October 1942; confronted him with a completed fact, without even having been consulted. Neither did he participate in any later decrees of the Ministry of Justice, His task was limited to the office of the Prosecutor and as such did not differ from the activities of the other prosecutors who had to make indictments in NN cases before the Special Courts.
The People's Court and consequently the Reich Prosecution participated in NN procedures by order of the Minister of Justice only at a time where majority of NN Prisoners already had been brough to Germany and when the basic decrees of the Reich Minister of Justice already had been practiced for several months.
The Prosecution accuses the Criminal Courts which dealt with NN cases and apparently also accuses the prosecutors at these Courts consequently Lautz too, of conducting these trials in spite of the fact that the defendants had no opportunity to obtain a proper defense, because they had been brought to the Reich and because of their strict isolation from the outside. In addition to th at it apparently wants to establish that Public Prosecutors and Judges approved of the NN program by consent and that they continued the proceedings, even after they gained knowledge of the more stringent measures by Thierack, for example the release of exonerated persons to the Gestapo?
The first reproach would be justified, if the special circumstances which prevailed when the NN decrees had to be executed by the courts had led to materially incorrect and thus unjust sentences. Particularly in this point the prosecution has not produced proof. Even its own witness Roemer has confined the contrary without any doubt. He has examined a large number of sentences of the People's Court in NN matters and this was done in a very critical way. (Tr. 2654). In spite of this he reached the conviction, that the sentenced persons had committed that which had been set down in the sentence as incriminating them. (Tr. 2669) This conviction was strengthened by the fact that in the last letters of the persons sentenced to death he always read, that they did not feel innocent at all (Tr. 2669/70) Roemer considered individual verdicts extremely stringent, but he added, that according to his information they corresponded to the valid Law of Warfare, that all circumstances which were in favor or not in favor of the defendant had been considered and that in none of the trials the defendants were left without consel (Germ. Tr. 2639, 2641, 2652/53).
This statement of the witness Roemer, who is beyond suspicion, is completely in line with the assertions of the defendant Lautz (Tr. 5926, 5929) who had stated, that the Reich Prosecuting Authorities and the People's Court had treated just the NN-proceedings with particular care, that not infrequently additional evidence had been collected in the occupied territories and that no defendant ever had been left without a counsel (Tr. 5926/27, 5828). One can hardly assail the administration of justice as such in view of the fact that the defendant Lautz had declared in addition that he only had brought serious cases before the People's Court, the prosecution of which was said to be in compliance with the usages of war, that he had in no way insisted on a rigorous treatment, that furthermore his report of 15 May 1944 Exhibit 469 - did not advocate such treatment.
However, it is quite true that the prosecuting authorities charged with NN matters consequently also the defendant Lautz - had been informed of a number of measures handed down by the Ministry of Justice which are considered by the prosecuting authorities to be of a criminal nature. Here I have in mind Pros. Exh. 315,317,322 and 328. However, it has not been proved so far that the defendant Lautz had participated in the execution of these measures. This applies particularly to isolating the inmates from the outside world and to placing them under the control of the Gestapo, Lautz had stated in this respect that the execution of these measures had been assured by the Ministry of Justice issuing corresponding orders directly to the penal institutions (Tr. 5924, 5931).
This is also confirmed by the witness Hacker (Tr. 4835). To be sure, the prosecution maintains that it is clearly evident in the case of Law - Exh. 309 - that "Lautz's office" had requested the prison officials to carry out measures of isolating prisoners. It is to be said in this respect, however, that the order on page 18 of the document had not been addressed to a prison but to the police and that it concerned the transport of defendants to Berlin for the trial and that it was made to make certain "that under any circumstances the defendants could be prevented from communicating by letter or otherwise with the outside world during the transport."
These were precautionany measures also customary in other cases. However, I shall not omit to point out that it can be seen from the document that the entire case had been handled by the Reich Public Prosecutor Parrisius and his assistant, the Chief Public Prosecutor Volk, while substituting for the defendant Lautz, th at is, because the latter was absent. Measures applied in that case can therefore not be charged automatically to Lautz.
Furthermore, Lautz had in no way adopted a more passive attitude concerning the special measures an regard to NN-prisoners, for which measures he was not responsible. This can be seen from the following: Dr. Lehmann, who had been called as a witness in this matter, had stated in his affidavit - my Exh. 221 (L-124, IV A 23) - that Lautz had summed up his opinion of Thierack as follows: "This man has no heart at all, he is just a solid chunk of ice, any human sentiments rebound from him as from an armour." Any attempt to influence such a man for the purpose of mitigating the fate of the NN-prisoners would have been to no avail. Lautz had just as little opportunity to do something for the NN-prisoners even if he had requested the institutions of the administration of justice to relax the isolating measures; for he had no competence to issue orders to them. Therefore, he applied to the Wehrmacht, as this procedure held the only promise of success. As Lautz had stated in his examination on 25 July 1947 (Tr. 5924), he had on several occasions visited the witness Dr. Lehmann, who had hold the position of a Ministerial Director in the OKW, and also Dr. Sack, tho Chief of Military Jurisdiction who, as it is known, had been on friendly terms with Lautz and who had seen arrested by the Gestapo for having participated in the conspiracy of 20 July 1944 against Hitler and who subsequently was shot in Flossenbuerg. He shewed them letters written by NN-prisonors and asked them several times to make an appeal to Hitler via the Wehrmacht for the purpose of bringing about a less stringent application of isolating measures in regard to NN-prisoners.
In addition, Lautz did the following: When it had become evident that in some cases the indictments had not been translated for the NN-prisoners in time, he again took the initiative in favor of the NNpeople and he proposed to the Reich Minister of Justice that in future the NN-prisoners should be provided with a copy of the indictment, written in their native tongue. The foregoing can be seen from Exh. 323(NG-281, VI 94). Lautz had no official responsibility in this respect insofar as it was the court's concern and not his to serve the indictments, as may be seen in para. 201 of the Code of Criminal Procedure - my Exh. 57 (L-219; II A 44). The motive for this step is to be looked for in his humane attitude and in his intention not to render the defense of the NN-people more difficult.
And yet a third point; Hitler did not permit the execution of death sentences in the case of women from the occupied Western territories; however, a final decision concerning a possible act of pardon should be made only after the war had come to an end, Hitler, however, also had decreed that it was not permitted to inform the women concerning the postponement of the death sentence; therefore they had to reckon that the execution might take place at any time. It was impossible for Lautz to put up with this inhuman decree of Hitler. As can be seen from Exh. 325 (NG-247, VI 105) and from the examination of Lautz on 25 July 1947 (Tr. 5935/36) and from Ammon's examination of 4 August 1947 (Tr. 6195) it was Lautz who had pointed out the severity of Hitler's decree to the Reich Justice Ministry and who had proposed that the truth should be told to those women concerning their fate.
I believe, these few examples clearly illustrate Lautz's reactions to the "NN-Aktion". A man who - without considering questions of competency - revolts against the rigours inherent in NN-proceedings, cannot have taken part in a decisive way in this action nor could he have approved it.
When, on orders of the Minister of Justice, he had to take over the prosecution of a small number of the NN-cases, he found himself face to face with the following situation:
The Military Court operating in the occupied territories had transferred their jurisdiction in these cases to the Civil Courts, to which they were entitled in accordance with para. 3 of the decree concerning military jurisdiction during war. The prisoners had been brought into the Reich without Lautz having had a hand in it and the People's Court was competent for the cases transferred to it with regard to the locality and the matter involved. Lautz, therefore, could not very well doubt his duty of instituting proceedings in the presence of a well-founded suspicion.
He was not permitted to take exception to the fact that these offenses were made the subject of a penal action by the counts insice of Germany. For regulations for such a possibility had been explicitely provided in the German Military Penal Code and it was justified in doing so far by the Convention the Rules for Land Warfare in no way limited the right of the occupying power to proceedings within the occupation zone. Lautz also said so in his testimony (Tr. 6042/43). He had also put stress on the fact that it could be seen from the prisoner's petitions to the Reich Public Prosecutor and to the Senates of the People's Court that the prisoners also did not consider it unfair to be sentenced by a court within the Reich, but that they complained above all about restricting their mail with their home lands. That the Minister of Justice introduced measures quite independent from the criminal procedure which he justified by reason of requirements of military necessity did not give the defendant Lautz the right to refuse penal prosecution, even less so in view of the fact that this matter had been going on for months before he had to to take part in it for the first time.
When the "NN-Aktion" came to a conclusion in September 1944 as far as the administration of justice was concerned - a matter discussed in Hecker's affidavit - Exhibit 416 (NG-737, VI 156) - the time of the defendant Lautz was occupied to such a degree as a result of the events of 20 July 1944 that he was obliged to lot Parrisius, the Reich Public Prosecutor, take care of his remaining official duties.
He, therefore, had not been active at all in connection with the conclusion of this "Aktion", but he had also not heard at a later time that any transfers to the Gestapo had taken place from among the few NNproceedings still pending at the Reich Public Prosecutor's office.
Thus, Lautz described this phase of the NE-proceedings as witness and his statements were not refuted; (Tr. 5933) his testimony is supported by the statements of defendant v. Ammon. He confirmed that, with reference to the NW-cases of the Reich Public Prosecutor in the fall of 1944, he had negotiated exclusively with Reich Public Prosecutor Parrisius and not with Lautz.
"The criminal proceedings I have just described concerned very definite criminal actions, that is to say, the acts of resistance expressed in many ways, which occurred in the territories incorporated into or occupied by the Reich. These acts consisted of espionage, sabotage, and the preparation of armed rebellion which was to be carried across the borders of the old Reich in the case of its success. This is the reason why the governmental report of the Czech republic, submitted by the Prosecution as Exhibit 378, does not at all deny that there was agitation against the Reich within the territory of Bohemia and Moravia. The report only criticizes the reaction which followed these occurrences and maintains that the administration of justice was carried too far in punishing insignificant crimes with exemplary severity. The Prosecution adopted this point of view, and has minimized the case Charvat et al. in Exhibit 509 to the extent of stating that they were people without previous convictions who had spread leaflets which only protested against the occupation. However, the Prosecution overlooked that the defendants were Communists, that they had built up an extremely active illegal organization, with the aim of overthrowing the state and substituting a Soviet republic, and also that the leaflets contained a challenge towards sabotage and resistance. The ruling power could not possibly be expected to stand by all this quietly, whereby it was irrelevant whether this power based its rights on "government" or merely on "occupation". Also in other places -- and not only in time of war --- there are examples for the fact that the spreading of leaflets is severely punished, even if their contents remains limited to the slogans of the Communist Manifesto.
"The Prosecution furthermore attempted to prove that within the Reich itself German penal law was abused towards a terroristic suppression of political opposition by additions, extensions and distortions. Obviously, the prosecution finds these additions, etc. -- in so far as the administration of justice by the People's Court is concerned - in the new version of the provisions concerning the preparation of an act of high treason dated 24 April 1934, and in the penal provisions concerning the disintegration of the Military potential dated 17 August 1938.
"I shall permit myself the following general preliminary remarks in connection with this point?
"The new version of the provisions concerning the preparation of an act of high treason was made by using almost verbatim the draft of a bill which had been worked out already in the years before 1933 by the Reichstag of the Weimar Republic. This draft contained those legal principles which, as is shown by my Exhibit 246, were developed by the Supreme State Tribunal (Staatsgerichtshof) for the protection of the Republic, and by the Reich Supreme Court in its decisions concerning the question of preparation for an act of high treason. Therefore, the new version of the law of 1934 corresponded to a legal point of view which was generally accepted already before 1933.
"We are now turning to the individual cases of internal high treason in Germany. In connection with this, the Prosecution submitted Exhibits 48, 145, 240, 490, 492, and 493. They are concerned with the cases: Sievers, Schmidt, Havemann, Freidrichs, Gehrmann, Deibel. It must be said that only Exhibit 490 contains an indictment which is signed by Lautz; and this also is only a segment of the indictment as it was actually filed, and does not, therefore, give a comprehensive survey about the actual facts.
"In the course of his interrogation I discussed all these cases with the defendant Lautz (Tr. 5859/85).