"The result was the following:
"The Case Schmidt in Exhibit 145 was tried before Lautz's appointment, and he is therefore not connected with it. The cases Deibel and Gehrmann were concerned with dangerous and very active Communist attempts at disintegration, while Sievers and Friedrichs worked by using definitely serious means towards the overthrow of governmental leadership, first from within Germany and then from without. They were both German-born. Finally, Havemann in the course of his interrogation could not deny that he had worked towards the overthrow of the government during the war, and that he had also contacted aliens and agents of enemy nations to further his purpose.
"According to the law then in force, it was defendant Lautz's duty to file an indictment charging the above-mentioned crimes. In so far as he did so - which is proved only in the cases Friedrichs and Havemann - this happened without any distortions of the unequivocal facts.
"We shall now turn to the cases tried under the provisions concerning disintegration of the military potential: they are exclusively concerned With Reich Germans and were submitted to the People's Court only after the decree of 29 January 1943. Lautz had had no connection with the writing of this decree. The numerous ordinances issued by the Minister of Justice during the subsequent period of time, especially the ordinance of 13 August 1943 in my exhibit 186 (L-288, IV B 54) show that Thierack in his capacity as Minister was bent on an increasingly severe course. This was just the reason that Lautz considered it necessary that the cases tried under the provisions concerning undermining of military strength were examined with punctilious exactness, even though they occurred in great numbers, and that suitable (Tr. 5889), that is, in which either capital punishment seemed actually justified, or in which other reasons made it seem advisable to have a decision by the People's Court irrespective of the possible punishment expected (Tr. 5889, 5892).
"Apart from this, his foremost endeavor war to transfer as many cases as possible to the District Courts of Appeal with the motivation that they were of minor importance or by denying that the constituting facts of undermining military morale were existent, thus leaving the further prosecution of the case to the Chief Public Prosecutor at the Special Courts as a violation of the Malicious Acts Law. Lautz did this disregarding frequent criticism on the part of Thierack, in order to prevent, if possible - an increase in the severity of the jurisdiction (Tr. 5892/93).
"The documents of the prosecution, namely prosecution exhibits 178, 474, 541 and 542 show 48 verdicts pronounced by district courts of appeal in cases of undermining military moral, which had been criticized by the Minister of Justice, because of their leniency and with regard to which it was intended to examine whether an extraordinary objection should be raised. This could not have happened if Lautz had lodged indictments against the cases submitted to him, at the People's Court to the extent expected by the Minister in spite of Thierack's criticism of those sentences, Lautz did not propose to him to order the extraordinary objection. For those 48 cases at any rate, no proof has been shown in this direction. Exhibit 541 rather reveals that in tho case of Bollow he objected to having the extraordinary objection raised. If he were the strict Public Prosecutor, whom the prosecution wants to depict here, he would certainly have advocated tho extraordinary objection in all those cases. The statement of the witness Gruenwald who told about his favorable experiences, especially with regard to Lautz' referring cases involving the undermining of the morality of the Wehrmacht as cases of minor importance, also are a proof for the fact that Lautz did not share that attitude.
"The prosecution presented in the cases of Riedel, Dress and Birck in exhibit 144, 562 and 563 indictments which Lautz had signed for such cases, whereas the indictment in the case of Beck; exhibit 159 was signed by the defendant Barnickel as his deputy.
"In the cases of Zinser, Kotzian and Bonness of exhibits 140, 158 and 181, only the sentences were submitted. In the cases of Panchen, v. Brincken and Solf finally other documents were brought in as evidence. With the exception of the Birch and Dress cases which were only introduced during the cross examination of the defendant Barnickel, I have discussed all the relevant facts with the defendant Lautz at his interrogation. I therefore rever to his statements made then with regard to each individual case (Tr. 5893 ff.). I would like to add only the following:
The prosecution seems to assume that in the Beck case the fact that the accused" -- and may I interpolate here that this was the only document concerning an indictment against a non-Aryan which was produced by the prosecution -- "was a half-Jew was the reason for bringing his case before the People's Court. This assumption -- not to mention other circumstances -- has also been refuted in Exhibit 541. The correspondence contained in this document concerning the Tietz case namely reveals that the Reich Chief Public Prosecutor had transferred it as a case of minor importance to the Court of Appeals of Hamburg in spite of the fact that Tietz was a half Jew and in spite of his previous convictions and his political past."
May I interpolate here? The reference to the half-Jew capacity of Birck was made pursuant only the decree of the Reich Ministry of Justice presented by me as Exhibit 263 in connection herewith.
"However Lautz not only endeavored to keep the number of cases of seditious undermining of the defense spirit as low as possible before the People's Court by classifying them liberally as cases of minor importance; he also saw to it that this decision was reached quickly, if only for the purpose of roducing the detention pending trial in the interest of the accused to a tolerable degree.
"Lautz therefore had to take steps when the number of new cases -- at the close of 1943 there were, as shown in exhibit 220 (NG-671) already 700-800 cases a month - increased so much that in Department IV where the preliminary work for those cases was to be handled, several hundred records piled up for weeks, yes even months.
He saw no other way out of it except to assign the cases of undermining of military strength to a department newly to be established. Lautz selected the defendant Rothaug for this because it was the easiest for him to turn over his small and rather less important department to a Chief Public Prosecutor and because as junior Reich Public Prosecutor had had to accept this task which was generally looked upon asnot enviable (Tr. 5890). The differences between the defendant Barnickel and Lautz which were mentioned by the former in his interrogation did not enter into this decision which was to become effective on 1 January 1944. The reasons for these lay elsewhere. They may be seen from my exhibit 262 (L-305, VI 9). Otherwise it would be impossible to understand why it was exactly Thierack who ordered the transfer of Barnickel - although only 11 months later - to the at least equally high post of a Reich Public Prosecutor at a Supreme Court.
"The Prosecution however does not stop at the charges of illegal Penal Proceedings. It also makes the assertion of criminal abuse of the Criminal Proceedings. One of the weightiest accusations brought against Lautz in this connection is that he made excessive use of the reformatio in pejus, namely the extraordinary appeal whenever he did not agree with a sentence. The purpose of re-opening a case as a rule was to have been the death penalty and the extraordinary appeal was supposed to have been used always to the disadvantage of the accused.
"The incorrectness of this charge, and that in every point, has been established today. I do not have to repeat here what I have stated in Part II of my written pleadings. Only this is to be emphasized once more: The Reich Chief Public Prosecutor of the People's Court, here Lautz, had nothing whatsoever to do with the nullification plea. And the Government (Staatsfuehrung) alone could decide upon lodging the extraordinary appeal, but not the Reich Chief Public Prosecutor. The two Reich Chief Public Prosecutors, each in his sphere of jurisdiction, were merely instrumental to pass on the declarations - by order of superior authority - that proceedings were to be started, which declarations according to German Law Procedure were final.
Lautz also proceeded accordingly. Never did he arbitrarily lodge the extraordinary appeal (Tr. 5938). The attempt of the Prosecution, in the absence of other evidence to the contrary, to refute this in the cross examination of the defendant Lautz, failed completely (Tr. 6016 ff.). The Prosecution also would not be justified in limiting its assertion to the extent that Lautz, although he never had lodged the extraordinary appeal, had through suitable proposals on his part suggested it to the Minister of Justice. The opposite of this has also been established:
"Lautz stated at his interrogation that he had only very rarely, as result of his own decision, suggested that an extraordinary appeal should be lodged, and that the cases in which such had occurred in favor of the person sentenced, corresponded in number to those cases in which a sentence was demanded which was less favorable for the person sentenced (Tr. 5939 et. sep.)" THE PRESIDENT:
We will take our recess at this time. The film is exhausted for the moment.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: May I continue, please? I had come to a halt at the statement that Lautz only very rarely suggested, that extraordinary objection should be made and I will continue:
This statement is supported by the deposition of the defendants Rothaug and Barnickel, especially also in the latter's affidavit in Prosecution - Exhibit 174, in which they testified that they had in matters of their department never lodged an extraordinary appeal.
Moreover, the defendant Lautz has emphasized that also in cases in which the Minister of Justice asked him to report, he had generally voiced his opinion as being against the extraordinary appeal (Tr. 5940). This statement is confirmed by the declaration of the defendant Klemm referring to Exhibits 178 and 474, according to which in all cases mentioned therein, the defendant Lautz had in the report that was requested of him, expressed himself against the extraordinary appeal. This is also supported by a letter of the Reich Prosecutor's Office, dated 13 October 1943, in Exhibit 541, in which "in spite of considerable hesitation", it is suggested, to the Minister that the order concerning the extraordinary appeal should be set aside. With this state of affairs it is understandable that it was impossible for the prosecution to submit even a single document which contained a suggestion of the defendant Lautz for the lodging of an extraordinary appeal.
And now a few words as to the number of the extraordinary appeals and their results:
The Prosecution has submitted two documents referring to proceedings before the Special Senate of the People's Court after the extraordinary appeal had been lodged, namely Exhibit 512 and 513. Exhibit 152 concerns time case Zelzny which was heard, on 4 August 1943. If bears the reference number B.S. 7/43, which means the 7th case of the Special Senate of the People's Court in the year 1943. Exhibit 1943 deals with the case Chlupa.
This case was heard before the Special Senate on 21 September 1944, and it was, as shown by the reference number B.S. 45/44, the 45th case of the year 1944. In taking as a basis that the proportional numbers for the years 1943 and 1944 remained the same, this would mean a total number of 72 extraordinary pleas for the two years together. If one takes into consideration that the People's Court alone - i.e. without the, Court of Appeal -passed 1312 sentences during 1943, this number can hardly be expressed to be terrifically "large". Exhibits 512 and 513 prove besides that the result of the extraordinary appeal remained here restricted to a sentence of imprisonment. In the case of Will, who is mentioned in Exhibit 495, the extraordinary appeal was undoubtedly lodged in favor of the person sentenced, even if it remained unsuccessful.
Another accusation by the Prosecution - in so far as they refer to the procedure applied in individual cases - is that the defendants were refused any trace of regular proceedings. Regarding the proceedings before the People's Court itself I have defined my attitude to this accusation for the entire Defense in Part I of my Brief.
I may refer to it. But in so far as the charge is directed against the Reich Public Prosecution and thus against Lautz, it was made without grounds. The evidence has produced convincing material to this effect.
Lautz, who had completed his training as a jurist in Germany at the time of the Kaiser and who had climbed the first step in his career in the days of the Weimar Republic was, as one would say, a jurist of the old school, As such it was for him a matter of course that also in that part of criminal proceedings entrusted to the Public Prosecutor, the so-called preliminary proceedings, justice demands that every charge be verified with the greatest case and especially that the defense evidence brought by the accused be conscientiously examined. It was also just this correct view of the Defendant Lautz, of which I may remind you once more in this connection, which led to the fact that in September 1941 when martial law was declared in Bohemia and Moravia, he was taken out of the criminal proceedings Elias and Klapka and that, furthermore, it was intended to withdraw all criminal proceedings from him in this area and transfer them to the summary court.
This intention was later frustrated by the Defendant Joel.
If the cases in the hands of the Reich Public Prosecution were to be handled with the conscientiousness which for Lautz was a matter of course, then this would presuppose the utmost exertion in view of the large amount of work. Lautz never considered himself in this respect; however, he demanded the same of his section chiefs and public prosecutors. Not all his subordinates made the required effort. There was thus no lack of criticism and differences of opinion. Chief Public Prosecutor Spahr, who was a section chief, also describes these conditions in the affidavit in my Exhibit 206 (L-296, IV. C 52).
The first principle in the preparation of an indictment was in Lautz's opinion, that no denunciation can be the basis for any decisive measure until it has been carefully reviewed, whether this denunciation emanate from the police, from some other office or from a private individual. In his view this applied, however, equally to the results of investigations carried out by the police by virtue of the duties assigned to them by Article 163 of the Code of Criminal Law. He always considered it necessary that his public prosecutors should carry out their own inquiries and interrogations should be made by the investigators in order to check the results of the police investigations. In this he attached particular importance to the fact that the question of whether it was necessary to detain the accused should be clarified as quickly as possible by the decision of the judge and that the accused should be given the opportunity of producing all the objections which he has to make against the charge.
Numerous proofs confirm this. First of all, it may be seen clearly from the indictments and judgments submitted by the Prosecution that such judicial decisions regarding the question of detention have been issued and that the accused have already been examined by the judge in the preliminary trial. Moreover the witness Bren described during his questioning in cross-examination on the 22 May 1947 how this work carried out by the investigator completely free and independent of any influences whatever. And the Czech Hlavec also bore witness in cross-examination on the 30 April 1947 to the fact that during his interrogation by the investigator he was able to express himself freely. And finally Lautz has described here how he repeatedly exerted a personal influence on the conduct of the investigations and in doing so was not afraid of clashes with the Gestapo. In this connection I may refer to the English transcript pages 5813-19. and to the cases Najork, Borngaesser, Both, Erbe, Rauh, Brouwer, Jungdeutscher Orden in my Exhibits 233 to 239. Lautz knew how to secure for himself complete independence in his decisions towards the measures of the police, in that he never entered into any official or extra-official connection with the men in authority in the RSHA. He never once spoke to Himmler and only met Heydrich and Kaltenbrunner once at a conference called by the Minister of Justice (Transcript page 5971).
In accordance with these views he had immediately, after his entry into office as General Public Prosecutor in Karlsruhe, discontinued the communal use of the same prison by the judiciary and the police - in spite of opposition from the Gestapo -- which practice had hitherto been customary in Karlsruhe, introduced a sharp distinction and allowed the police to interrogate prisoners in judiciary custody only if the interrogation took place in the Justice detention house. This is shown by the affidavit by Lautz' former colleague, Chief Public Prosecutor Weiss, which affidavit I have submitted as Exhibit 220.
It is well known that Hitler had allowed the police to use methods of force in their interrogations in certain especially difficult cases, but only within their own sphere of competency. The Minister of Justice had been informed of this accordingly. To Lautz it was a matter of course to give his special attention to these cases. He was of the stern point of view - and the Senates of the People's Courts adopted the principle - that a record which had come into being in such a way could not in any account be used to the disadvantage of that person who was incriminated by the statement.
During his interrogation he proved this through various examples. I am referring to the cases of v. Bismarck and Goerdeler, which are to be found, on pages 5879, 5881/82 and 5967/69 of the English transcript.
Lautz, however, was not satisfied with seeing to it that officially everything was done in order to obtain a true picture of the situation. within his official area of activities he gave orders that the accused as well as the counsels for the defense, as far as they started with their work before the indictment was lodged, should be given every permissible opportunity for the conduct of their defense. For this reason he restricted correspondence and visits to the persons detained for inquiry only to the extent absolutely necessary in keeping with the directives of the Minister of Justice shown in Exhibit 457. The counsels for the defense were likewise given every possible assistance. As shown in my Exhibits 63 to 65, according to the order of trials valid since 1879 they had no right to study the documents until the indictment was lodged.
In the Office headed by Lautz, it was, however, customary that nevertheless the counsels for the defense were allowed to study within certain limits the documents before the indictment was lodged, that, at least the Prosecution would give them those data from the files which they needed in order to prepare the defense for the accused, whom, by the way, they had a right to see at any time.
Concerning the study of the files the witnesses Gruenwald, Boden and the defendant Lautz, concerning the permission to communicate the witnesses Wergin, Gruenwald, Boden and the defendant Lautz have given testimony.
The witnesses Gruenwald and Boden also emphasized that the officials of the Reich Public Prosecution conducted themselves fair in every respect and were very generous in taking up suggestions to treat cases concerning the undermining of the morality of the Wehrmacht as cases of minor importance. In the same way as the defendant Lautz was anxious to obtain a solid and unbiased basis for the treatment of the individual cases by the measures just mentioned, he considered it his duty, on the other hand, to eliminate all unobjective influences from the preliminary proceedings. For this reason he had no relations whatsoever to any persons or offices outside the judiciary branch, from which such influences could be expected. For this reason in the case of Elias and Klapka he declared that he was in no position to lodge a hasty indictment; for this reason, although he did not deem it important, he did not quote the criminal code for Poles in indictments for high treason until there was a special order for it, because he did not want to create the impression, as if those facts, apart from the offense mentioned in the indictment, could play any part at all; and, therefore, he refused in the case of v. Brincken in Exhibit 160, to consider the matter as a less serious case, solely because the accused had been described as politically reliable by an influential SS-Fuehrer.
And nothing lay further from the Defendant Lautz than to conduct any criminal proceedings for political, racial or religious motives. To him the principle applied that in law all were equal. There is conclusive evidence for this.
He did not intervene only in the cases already mentioned of Both and Borngaesser, for the purpose of saving representatives of the Protestant Church from unjustified or non-objective severe prosecution, but he also brought the severe measures of the Gestapo against members of the Young Teutonic Order back to what he deemed to be just.
It was he who - as shown in my Exhibit 206 - after the successful Allied invasion, proposed to the minister of Justice, that a change should now be made in the punishment of certain criminal acts by French or Belgian workers in the Reich; because, in practice, a state of war now existed again with France and Belgium, and this circumstance brought a fundamental change in the position of these workers. Any work they now performed in the German armament industry, would in practice now operate against their native country. That meant for them a compulsory state of emergency, which could not be ignored. (Tr. 5810/11).
In the affidavit of my exhibit 206, the witness Spahr describes also the case of a Polish captain who, by the way, is identical with the officer mentioned in document NG-675 (III B 151), which the Prosecution has not introduced. Lautz successfully opposed for a long time the prosecution proceedings demanded from him in this case.
The same attitude, free from any fanaticism, proves finally - as shown in Exhibit 488 (NG-823, III SA 139) that when ordered by the Decree of the Minister of Justice of 18 May 1942 to be very cautious in transferring Austrian cases to lower Courts, Lautz replied immediately with the counter-proposal that the cases which had so far been transferred, should not be revoked under any circumstances. And so I could bring up many instances, which all show that Lautz let himself, in the execution of his duties, never be led by any thoughts of terror, oppression or extermination, but that he, on the contrary, acted with a sober mind and correctly and objectively. He never discriminated at all. I believe it will suffice, if I further only quote the case of the Catholic nun Rostituta in my Exhibit 258; the case of the physician Dr. Treuter, regarding which the defendants Lautz and Rothaug have testified as witnesses; the cases Hoeppner v. Bismarck, Lindemann, Woermann, etc. from the complex of 20 July 1944., on which Lautz also expressed his opinion (Tr. 5897, et sep) and the cases of the shorthand typist Ihde and the two teleprinters in my Exhibit 205 etc.
This entirely unprejudiced attitude of defendant Lautz did not only come to light during his dealing with the criminal cases entrusted to him. It also showed in other ways. For instance, the Alsatian lawyer Wiederkehr, who had become closer acquainted with Lautz, testified in the protocol of my Exhibit 207 (L 294, IV C 60) which has been kindly put at my disposal by the French Government, that Lautz had never made spiteful or unfavorable remarks about the Allied States, as was quite usual to do during the war even for Germans from good families. And the witness Spahr who has already been mentioned repeatedly, testified in the affidavit of my Exhibit 206, as to how the defendant Lautz had protected him, when he encountered difficulties by reason of Decrees of the German Government, on account of his marriage to a Swedish woman and his relationship to citizens of the United States of America.
It can hardly be said of a man of such conduct and attitude that in the execution of his official duties, and especially in the matter of prosecutions, he acted otherwise than impartially and as in duty bound.
Apart from a few cases in connection with the incidents of 20 July 1944, Lautz did not appear personally in the main trials. In so far as he did so, however, he always acted in a correct and sober-minded manner. This has been corroborated by all the witnesses. I need only bring to mind the depositions of the Lawyers Wergin, Gruenwald and Boden on pages 3857, 3895 and 6208/10 of the English protocol. Further also the affidavits of v. Bismarck and Reinecke in my Exhibits 187 and 240. The witness Wergin has added thereto that the other Public Prosecutors had in the sittings of the People's Court also acted with discretion and had refrained from making any insulting remarks concerning the defendants. Thiw was in accordance with the strict instructions of defendant Lautz who, by the way, also in the more difficult cases reserved the right to control the applications of the Reich Public Prosecutors intended for the main trial. He took his decisions without any contact with the Senates and - as far as he was not bound by the law and express instructions of the Minister - he never exceeded and demanded more than seemed just to him. All this is shown in his own interrogation. (Tr. 3843/45).
In order not to overlook this not unimportant point either: If Lautz had been a political intriguer, he would for instance, in the criminal case v. Witzleben and associates, hardly have intervened and detained the defendant Hoeppner from making statements which had nothing to do with the case and would have exposed his wife to the dangers of a criminal prosecution (Tr. 3877/78). And then the witness Suchomel would hardly, as he confirmed in the affidavit delivered to me in Exhibit 189, have referred the Austrian Lawyers to Lautz, when they sought assistance and advice in matters of treason and high treason.
Just as little as Lautz in preliminary proceedings or in the main trial urged strong measures, just as little did he put up with sentences with which he did not agree. In this connection, and to characterize his fundamental attitude in the clemency question, I beg to refer in the first place to my Exhibit 206, in which the former Chief Public Prosecutor Spahr says about Lautz that he had laid great stress on it that the clemency reports contained an exhaustive and objective representation of the position from the actual, the legal and the humane points of view. His attitude towards clemency pleas had in principle always been favorable, but especially towards small people and women he had taken a lenient attitude, and he had been entirely free from any fanaticism or hate against other nations. Moreover, the evidence has brought documentary proof of this conduct of Lautz' by a series of impressive examples. They show clearly how his heart went out to the individuals concerned, how he assisted petitioners who called to see him, by word and deed, and how he personally - very often in excess of his immediate official duties - endeavored to make the clemency pleas successful. It grieved him that he did not always succeed in this. Without repeating the details, I may restrict myself to quote once again the most important of the cases brought up here.
There was the case of the Austrian Stuergkh in my Exhibit 190, and the Alsatian case Weringer and associates in my Exhibits 207 and 208, of which Lautz also spoke during his interrogation (Tr. 3949/52), then the Austrian cases of the nun Rostituta in my Exhibit 258; Heintschel-Heinegg in my Exhibit 260; and Fischer-Ledenice in my Exhibit 261.
Only one thing I must point out, in this connection: In the case Whinger the Alsatian lawyer Wiederkehr testified in my Exhibit 207 that the 23 Alsatians sentenced to death - one of them, that is Weninger, himself, as is known director of the French legal control branch in the French zone of occupation, only escaped with his life because Lautz was successful in dissuading the Reichsstatthalter (Reich Governor) from his view point of rejecting every petition for pardon. Lautz has confirmed this point (Tr. 5952). He took this step risking that the Reichsstatthalter and the Minister would take this interference amias.
In Lautz' examination in connection with the extraordinary appeal (Tr. 5939), he explained that means other than requests for pardon he used in order to assist defendants, who in his opinion, had been unjustly sentenced. But, he also tried in such cases to have the judgment amended by applications for a reopening of the trial. An example of this is referred to in the affidavit of the Austrian attorney, Dr. Zitta in my exhibit 264. (VII 1).
In view of Lautz' subordinate position as a Public Prosecutor he had to content himself in all these measures with mere applications and suggestions. But at all times did he openly express his dissenting opinion. When submitting the files to the Minister, he clearly expressed his grave disapproval of the verdicts especially also in the cases of Stafanowicz and Myslinski-Ledwon. These are the cases, dealt with in Prosecution Exhibits 128 and 132, in which, contrary to the Prosecution and to applications by the Reich Public Prosecution even submitted during the case in chief, the Second Penal Senate sentenced Poles, accused of attempted escape in order to join tho legion, for damage to the welfare of the Reich by quitting their jobs on the basis of the Law against Poles.
Summarising the findings of my statement, the following picture presents itself.
Lautz has been charged under count I, II and III of the indictment. Due to the general decision, which in the meantime has been made with regard to the elements of offense of the conspiracy, I need not deal with the charge of conspiracy from a factual and legal point of view. But since count I contains beyond that the charge of illegal participation in the planning and carrying out of war crimes and crimes against humanity, I shall deal with these points in my statement concerning counts II and III. In Count ii No. 10, 16 and 17 and on count II No. 22 26 and 29, the Prosecution raised no charge against Lautz either in the bill of indictment or in its opening statement. Up to date, the Prosecution has also not submitted any evidence to incriminate him.
However, in the bill of indictment the Prosecution has declared the defendant Lautz, guilty of joint responsibility in connection with Count II No, 15 and 16, and Count III No. 27 and No. 30. These arc cases of Euthanasia, of sterilisation and of the killings of Allied aviators. But in its opening statement, it has in no way substantiated this charge of responsibility and it has presented no evidence against Lautz, in the hearing of the witnesses. I, on the other hand, have clearly proved that Lautz was in no way connected with the incidents referred to.
The charges under count II No. 12 or count III No. 24 of the indictment , that is participation in the drawing up of the legislation for the incorporated or occupied territories, have been refuted by me.
Concerning Czechoslovakia, this legislation dates from a period when Lautz was still General Public Prosecutor at Karlsruhe. He, like any other German Public Prosecutor or judge, was informed of the laws in question through the usual channels, that it is by the Reich Legal Gazette.
The charges contained in count II No. 14 and count III No. 26 of the bill of indictment do not incriminate the defendant Lautz either. The hearing of witnesses had proved that he was not concerned with penal institutions and thus could not be connected in any way with alleged illegal incidents in these institutions. Moreover, his letter of protest on the occasion of mass executions in Ploetzensee proves that he strictly opposed these incidents.
Count II, Paragraph 13 and Cont III, Paragraph 25 of the Bill of Indictment arc concerned with the NN (Nacht und Nobel) program. Even though Lautz is, on this score, not considered to be among those responsible, during the presentation of evidence I pointed out clearly that within the scope of this program, he took part in the administration of justice only, that this was carried out correctly, and that Lautz did not collaborate in the other measures, much less sanction them, as is clearly shown by his conduct.
I shall therefore confine myself to a few short remarks about the charges against the administration of justice at the People's Courts. They are contained in Count II, Paragraphs 9 and 11, and in Count III, paragraphs 21 and 23 of the Bill of Indictment.
Within the scope of the administration of justice, at the People's Court the defendant Lautz had become active, partly by his own work and partly through his deputies, in preparing and lodging the indictment, in representing the indictment at the trial, and in the measures taken immediately after the judgment. In connection with this, I must first make a few general statements.
The Prosecution Authority asserts that the administration of justice at certain German Courts constituted a war crime and a crime against humanity, because it promoted the conduct of an aggressive war which was contrary to international law, and also promoted National Socialist despotim. This argumentation is in gross contradiction to the opinion of the IMT and of Law No. 10 of the Control Council.
Even though the judgment of the IMT is based upon the premise that the 2nd World War was, on Germany's part, a war in violation of international law, and even though it constitutes a complete condemnation of the National Socialist State, it does not proceed from the principle, for example, that for that reason, the activity of the German soldier was basically criminal; the IMT merely condemns the killing or wounding of the enemy, which took place contrary to the rules of warfare. (Tr. of the IMT 16880). The IMt assumes the same attitude towards the civilian sector. Its decision in the Fritzsche Case, for example, proves this; the INT a.s is known, acquitted Fritzsche of the charges of conspiracy, war crimes, and crimes against humanity, even though in its judgment, it stated clearly that in his function as head of the radio department of the Propaganda Ministry, he had pursued the aim "of arousing rational enthusiasm on behalf of Hitler and of the German war effort." (INT Transcript 17070). In this connection, the following statement in the judgment is characteristic; "Fritzsche definitely made violent statements of a propagandistic nature now and then in his radio addresses. But the Tribunal does not assume that these statements were to incite the German people to commit atrocities against defeated peoples, and one can therefore not state that he took part in the crimes of which he has been accused."
In the Fritzsche case as well, therefore, the decision of the IMT is based merely upon the question of whether or not he participated in illegal acts. Law No. 10 of the Control Council agrees with this decision: for example, it is not the fact that the end result of an official's activity was support of the conduct of the war and of National Socialist sovereignty, that is characterized as a war crime or a crime against humanity, but the fact that he committed acts of violence or crimes.
The fact that through its activity the Reich Prosecution (Reichsanwaltschaft) and the People's Court, exactly as did the other German authorities in the administration of justice, contributed to the security of the state and to the maintenance of war morale, can thus not be a subject of discussion at this trial. The penal proceedings carried out by the People's Court can therefore not be a subject of discussion at this trial, even if they resulted in acts of violence or in crimes. In this connection, an additional limitation is at once evident: the element of an act that makes it a war crime or a crime against humanity necessarily presupposes an attack upon a person's life, liberty, property, etc. An indictment raised by Lautz therefore, can, as such, not contain the elements which constitutes such a crime.
1.) if and when the execution of a verdict of the People's Court may constitute an offense or a crime as defined by Law No. 10 and
2.) if Lautz shares a criminal responsibility for the execution of this sentence if he had caused the indictment to be served.
It is known that Law No. 10 does not create new law but constitutes only the codification of these legal principles existing already among all civilized nations with regard to the facts constituting War Crimes or Crimes against Humanity and criminal responsibility in this connection. An act can only be an offense or a crime as defined by Law Ho. 10, if it is criminal according to the legal conception of all civilized nations. Facts or relations not criminal or punishable according to the legal principles of even one civilized nation, particularly, of course, according to the legal principles of one the signatory powers of this law, do not fall under this law, therefore, are not unlawful in the meaning of this law. This being true I want to consider individual charges made by the Prosecution with regard to the jurisdiction of the People's Court.