The defendant who had been in cross opposition to Freissler already for years, a fact which was also known in the Reich Ministry of Justice, ( see German record p. 4996, English record p. 5084 was then eliminated by Freissler from the presidency at the new main trial when he was sick and had to be absent.
Thereupon he asked Thierack and later on Ministerial Director Letz, head of the personnel department of the Reich Ministry of Justice, to be transferred from the People's Court, but met with a refusal. (See Nebelung Exh. 28, German record p. 4996, English record p. 5085/5086).
Concerning other hearings directed by the defendant, the witness attorney-at-law Gruenwald says likewise that the defense counsels had all been very glad whenever Nebelung took the chair.
Never, and this should be a rare case for any judge, have defense counsels and defendants criticized Nebelung's manner of directing hearings or passing judgment. (See the statement of the witness for the prosecution Wargin, German record p. 3821-22, English record p. 3861-62, of Pastor Buchholz, German record p. 3693/94 English record p. 3732/34 and of the witness for the defense attorney-at-law Boden. German record p. 6038/44, English record p. 6214/6219.)
The exh. of the prosecution 567 has been taken from the files of the Reich Ministry of Justice, It contains the indictment served on Nohawicka and the death sentence of the IVth senate of the People's Court, dated 24 October 1944 which had been attached to the Clemency report of the Reich Prosecutor Parisius, the decision on clemency and the execution of the sentence. The files of the People's Court which had been attached to the clemency report of 1 November 1944, have not been submitted by the prosecution.
Briefly, the following facts are disclosed in the opinion:
In spite of legal prohibition, the 41 year old national of the Protectorate Nohawicka, a merchant, formerly a functionary of the Czech Labor Party and of the Sokol, an organization inimical to Germany, since early 1943 listened in approximately 30 times to instigating transmissions of the London broadcast which were inimical to the Reich and made in the Czech language, and asked about 12 people of his acquaintance to listen in.
They participated in the listening in in groups of always 2 or 3 and discussed the transmissions later. He even continued listening in by switching in a flat iron, after the short wave cail of the receiver had been removed by orders of the authorities and informed a woman of his acquaintance of this possibility to hear the London station.
One Krus who was working for the former Sokol, which was hostile to Germany, as a functionary and was living there illegally, told him that the merchant Mastny provided illegal persons with food and concealed them in the forest near Kremsier. At the same time Krus asked Mohawicka to introduce persons living there illegally to Mastny. Upon request he gave Krus 1300 Kronon to support the persons looked after by Mastny. In September 1942, Nohawicka sent to Mastny a certain Fiala who was being sought by the Gestapo and had attempted to cross the Slovakian border in order to join the partisans, and suffered his wife to give to Fiala linen, clothing and 30 Kronen.
I believe the next passage has not yet been translated:
Under date of February 1943 he heard that Fiala intended to derail a train and that later he did so.
I continue:
and furthermore, that he had committed burglary in the hunting lodge of the Reichsfuehrer SS, and robbed a merchant's wife during which time he wore a mask. Inspite of all that, Nohawicka, contrary to the law, did not report Fiala, but continued to aid and conceal him. Finally, in 1943 he also distributed inflammatory anti-German pamphlets.
On the strength of these irrefutable facts the Fourth Senate of the People's Court sentenced Nohawicka to death for treasonably giving aid to the enemy (article 91 b Reich Penal Code), but declined to sentence him for preparations to commit high treason.
The juridical evaluation of the facts as constituting treason was in keeping with the constant practice of the Supreme Military Tribunal and the Reich Supremo Court which was already established before such cases of treason were brought up for trial before the People's Court (cp Lautz Exhibit 24 in conjunction with 26 which in Nebelung's opinion being the more lenient law, was also applicable retrospectively 193-215 The sentence was pronounced by the professional judges Nebelung and Haumann and the lay judges Goetz, Stutzer and Schaefer-Hanse.
In keeping with the provisions of law, the written opinion is signed by Nebelung and Haumann alone.
In presenting this document the prosecuting authority did not assert that Nebelung was responsible for, and approved of, this death sentence, and that he cast his vote for it. It only stated that he had signed it (German record page 7620, English record page 7929). The signing of the sentence of a German bench by the judges taking part in tho trial only proves that the majority, but in no case all of tho judges, have approved the sentence to its full extent. This was demonstrated almost daily during the presentation of the evidence against tho defendants Rothaug Cuhorst and Oeschey. The assistant-judges of these presidents who had been heard as witnesses for the prosecution have confirmed that they were partly against the pronounced sentence, but had to sign it. In Germany dissentient votes always were, and still are, prohibited on account of the secret character of the deliberations, the so-called secrecy-in-council. It would have been easy for the Prosecution to call in the assistant judges as witnesses to prove that the defendant Nebelung has voted for a death sentence. It is almost certain that one or the other was heard by the prosecuting authority, but was not called to the witness box later. This also explains why tho Prosecution, in presenting this exhibit, only stated that the defendant had signed it.
Tho Prosecution, then, did not even maintain, let alone prove that the defendant Nebelung had cast his vote for the death sentence. Considering this situation the defense did not deem it necessary to offer counter-evidence.
III.
The indictment demands Nebelung's punishment according to the Control Council Law No. 10 on account of war crimes, crimes against humanity and membership in criminal organizations.
a) Control Council Law No. 10 has been enacted at a convention of the four great victorious powers. Without being able to go into details I take the liberty to state that while this law does aim at substantive justice in fails to take into consideration the principle of International Law "nulla poena sine lege" (no punishment without law) in all its implications.
b) Membership in criminal organizations. The Prosecution failed to prove that the defendant was local leader of the NSDAP after 1 September 1939. It has been established, on the contrary, by tho argumentation of the defense, that he has not been local group leader since May 1939.
c) War crimes and crimes agains humanity. According to the statements in subsections 8 and 20 of the indictment no charge has been brought for participation in war crimes or crimes against humanity according to section II, 2e, but according to Section II, 2a, b, c, and d. On comparing section II 1 with section II, 2 it becomes evident, I think that section II, 2d alone is the form of participation in the main delict of crime against peace. The very wording of tho passage "was connected with plans or enterprises" points already to the facts that it only refers to the material facts of Art, II, 1a, in which planning is mentioned.
This is not opposed to the findings of the IMT in so far as they there are directed against Streicher and von Schirach; as a detailed examination proves that both were condemned as perpetrators. Streicher because of persecutions, incitement to murder for racial reasons and Schirach because of deporting Jews from Vienna. These acts were connected with war crimes, - the IMT was only empowered to judge these, - and only those factors have been established. If Art. II, 2a, b, c and c were applicable as a form of participation to war crimes and crimes against humanity as well, then the provisions of Art.
II, 2a, b, c and e would be superfluous, as all of them are contained therein. Guilt, aiding and abetting, instigation, command, consent and membership in an organization are after all but parts of "connection with plans and enterprises."
Otherwise, in the proceedings before the IMT, to define only certain organizations and groups as criminal ones, would have been superfluous as well. Finally, in the acquittal of Fritzsche, Schacht and von Papen in the IMT trials, we find evidence to support this view.
To that extent therefore, the Control Council Law lacks the legal basis for the indictment.
In subsections 11 and 23 of the indictment, the defendant Nebelung is charged with special responsibility for and participation in war crimes which are not specified in detail, his name is however mentioned in the charges, while under subsection 9 and 21 all defendants are mentioned without being named.
There is insufficient evidence against Nebelung to lead to his conviction for either of the following acts; perpetrator, accessor, commander, instigator, consenting by participation, nor as one having any connection with the crime. From his activities as Supreme Court President and the manner in which he was appointed President of the Penal Chamber of the People's Court, the way he behaved as Presiding Judge of tho Penal Chamber IV and by his repeated requests for a transfer from the People's Court and his methods of procedure, this is quite evident.
Quite apart from the fact that the prosecution failed to bring proof to the effect that Nebelung approved of the death sentence being imposed upon Nohawicka, the sentencing of a member of the Protectorate who has been proved guilty of having treasonably aided the enemy does not fall within any of the categories enumerated in the under above subsections.
Even the Czechoslovak State paper of 29 September 1943, in German record p. 2559 - 2561, in Eng.
record p. 2570-2572, objects on the grounds that it is definitely illegal only to the sentencing of Czech nationals for preparations of high treason. In a case of a sentence imposed for treasonably aiding the enemy, it is of no importance whether the creation and occupation of the protectorate is, from an abjective point of view, contrary to International Law; for the occupation carried out contrary to International Law does not in itself remote the legitimacy of those actions committed by the said occupation authorities during the period of occupation, which correspond to martial law the usages of war and the military necessities.
The fact of the occupation alone, demanded of the German Reich as well as of the population of the Protectorate that both acted in a manner agreed upon by International Law in the event of war. (see also the detailed arguments in the IMT findings, concerning the criminal activities of the defendant von Neurath in Czechoslovakia.)
Occupation law is dominated by military necessity, even though it is of course always, at any time and in all occupied countries resented by those concerned as being specially rigorous measures. Each member of the occupation authorities must and is entitled to demand, in particular during the time of battle, that the inhabitants of the occupied territories refrain from any action in any way directing against him, and if necessary enforce loyalty by means of severe punishment and security measures, (compare Klemm Exh. 24, in particular VO No. 1 of Military Government, Germany and Mettgenberg, Exh. 15a). According to the generally accepted principles of International Law, the inhabitants of the occupied territory must obey only the occupying authority but not their sevoreigns and his allies. The will of the occupying authority alone is ruling decisive and he is the executor of this own will (compare letter of prosecution dated 23 June 1947).
The Hague Convention governing War on Land and the Usages of War have taken the middle course between the sovereignty of the occupying forces and the human rights of the individual. They do not, however, protect any political rights of the inhabitants of the occupied territories.
The term military necessity which, by the way, has been translated in the official German Translation of the Hague Convention on War on Land by the German Foreign Office as military interests, can be interpreted in various ways.
It is clear that these necessities have precedence over the moderation of an occupation and that the occupying power cannot make decisions in his own sphere, without limits or arbitrarily, concerning the extent of his powers. No occupying power, hower, will be able to accept acts such as were committed by Nohawicka, who was fully aware of their importance and had been warned, by many prohibitions, (c.f., also, KlemmExhibit, 241, V.O. No. I of the Military Government.) The penalty imposed on this man is severe, but who would decide without knowledge, at least without knowledge of the prevailing circumstances, of the oral main trial, of all the documents and the record of the main trial, that it was inhuman or criminally cruel. The opinion does not contain anything which was evident or generally known then. Just to mention one instance, the fact that a fortified forest camp existed in the forest near Kremsier, which was in charge of Mastny, and where the members of the underground were supplied with arms, and furthermore, that this camp situated behind the front, was stormed by troops after heavy fighting, is left out. Every experienced judge knows well how difficult it is to formulate a judgement in such a way that it can stand up to any investigation from whatever angle. In this respect I need not go into any further details concerning Judge Oliver Holmes and his struggle for a well-formulated opinion and the attacks of the press against his obscure opinions which are also difficult to understand.
In my opinion, my legal arguments are valid International Law, for the examination and application of which the Tribunal has been appointed since the Tribunal has to judge in accordance with valid International Law, i.e. according to the Law which was valid at the time of the sentencing of Nohawicka. Not even Law No. 10 of the Control Council can change this.
Even if I were mistaken in this respect and the IV, Senate of the People's Court had made in re Nohawicka a decision in contravention to International Law, the question would have to be put as to whether, in view of the above facts of the case, this mistake should be prosecuted as a war crime and a crime against humanity. To ask this question means to answer it in the negative. Few people in this world have been able to establish the insufficiency of their own perception in such a way as a judge can do it.
His belief in tho immutable law impelled him to strive for the office of judge. His spiritual and mental conception of the law made him realize the time element involved.
From the turn of tho 18th century on, he saw in the rise of the historical school of law of Savigny the diminution and ultimate disappearance of the old belief in a natural law binding for all times and for all peoples. The judicial Positivism, forced him - in any event, in Germany - to acknowledge the binding power of each and every Reich Law, even through the Weimar Constitution and its interpreters, and did not allow him to enter upon an examination of the laws with respect to commandments of natural law, of morals, or of international law. Other public offices were empowered and responsible for this examination. It must therefore be conceded, what the French Chief Prosecutor de Menthom has set forth in his prosecution address before the International Military Tribunal on 17 January 1946, in the morning session, when he said "It is evident, that in a state organized along modern lines, responsibility is confined to those who act directly for the state, since they alone are in a position to judge the legitimacy of the given orders; they alone can and should be prosecuted".
It was and still is tho duty of the German judge and I suppose of the American, the English, the French and the Russian judge, to apply the state laws even then, when they violate International Law. (c.f, for example:
Court, III Case III
1.) A. Hensel: The scale of Law Sources, Manual of the German State Law by Anschuetz and Thoma II (1932); page 323.
2. ) Supremo Court of the United States of America in re Whithey versus Robertson US. (1888) 190.
3. ) Constitution of the United States of America of 1787 Article VI; 2, "anything in the Constitution or laws of any State to the contrary notwithstanding".
4.) Oiciotto: The relations of International Law to the Law of England and of the United States, page 125.
5.) Prof. G. Keeton - 1944 - at the Session of the Grotius Society (Transactions page 22): "Obviously in the first place, no English Court can accept or apply a rule of international law which conflicts with a British statute".
6. ) Decision of the privy Council in re Chung Chi Chung versus the King (1939). H.C. 160, 1O7 "they will treat it as incorporated into the domestic law so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals!"7. ) Prof.
Andre Gros at the Session of the Grotius Society 1944 (Transactions of the Grotius Society; Volume 30; page 40): "Just as the French judge is not a judge of the French Constitution, he is also not a judge with regard to the agreement of the new law with International Law". Over and above that, it is maintained that the English and American judges are bound to the political decisions of the executive (branch of government) (e.f., for example, 1 ) Keeton of the Grotius Socioty in 1944, Transactions volume 30, page 22, 2.) Supreme Court of the USA in re Max Jutsch, 29 May 1931 (Lauterpacht Annual Digest of Public International Law Bases) "and the fourth limitation arises from the fact that the Courts will necessarily have to rely upon decisions of the executive in matters of policy, though that is not a doctrine peculiar to the application of international law in English Court".Therefore, a judge cannot be made responsible with respect to International Law, for having taken part in a violation of International Law through a decision sanctioned by him.
It is his duty to obey his legislature. The opposite stand is predicated on a world-state, on world citizens and world law - thus not International. Law - and disregards the sovereign state and the relation of the judges of this state to the laws placed at their disposal (c.f. also Oeschey exhibit 31-33).
Neither is Control Council Law No. 10 contrary to this conception.
It claims to be the expression of International Law, and therefore it cannot eliminate existing International Law. Nor can the conception which is laid down in the International Military Tribunal, that individuals have international obligations, be interpreted in any case in this way, that every individual in a state, irrespective of whether such an individual has a definite responsible station in the organization of the state, is to assume international obligations which take precedence over deviating national obligations. Control Council Law No. 10 and the Statute of the International Military Tribunal obviously share this view.
Control Council Law No. 10 Article II, 4 b shows that an order does not cover the responsibility in the sense of International Law, but he points out that he acted in accordance with the laws and law decrees published in the Reich Law Gazette and placed at his disposal, and in this connection the correctness (truth) of Prof. Jahrreis's oral expert opinions may be left open.
Control Council Law No. 10, Article II, 4a, precludes any reference by the defendant to his official position as head of the state or as responsible official in a government department. But if it is already doubtful whether a German judge can be regarded at all as a government official in the sense of the Control Council Law, at any rate it is plain and unequivocal that he is no government official responsible for the application of laws which are inconsistent with International Law; and this is the only and decisive criterion.
Even if one did not want to admit this conclusion, any punishment will however fail in any case on tho grounds that the defendant's personal guilt in not proven beyond any doubt. The IMT sentence in the official German version I, Page 287, rightly says: "One of the prime legal principles is that guilt under penal law is a personal one".
Guilt under penal law includes the knowledge of and volition to commit acts relevant to penal law, together with the conscious acting in contravention of the law. Thus Control Council Law No. 10, too, knows of no negligence, that is no compulsion to know.
Therefore, the French Chief Public Prosecutor, de Menthon in his opening statement of 17 January 1946 explicity emphasized: "The defendants know that the encroachments upon tho inviolability of the physical person, property and human lives of enemy nationals were crimes for which they would have to answer before international justice. Tho governments of the United Nations had warned them repeatedly since tho outbreak of the war."
According to this the defendant Nebelung must be shown proof that ha had acted in spite of International Law and in full consciousness of committing a crime or even of just doing wrong.
The Prosecution in the case of Nebelung was unable to show proof in regard to this knowledge. Tho complete cutting off of all foreign news and the systematic misleading of the public never allowed him to learn about such warnings. To this must be added that at least until the outbreak of the war neither the establishment of the People's Court nor its composition nor the regulations for the procedure had been questioned by the governments of other nations or perhaps by the professional legal press. The same applies to the material legal provisions for the delicts, for which the People's Court had jurisdiction. It must further be said that the establishment of the Protectorate Bohemia and Meravia was recognized at least de fact and that the introduction of German jurisdiction in the Protectorate and the jurisdiction of the People's Court for the inhabitants of the Protectorate was not questioned, by the responsible organs of any nation all over the world, as this was done, for instance, in these days in the case of the Petkoff sentence in Bulgaria.
Nebelung, in my opinion, is therefere not guilty in the sense of the indictment.
During the whole length of this trial it has become evident to what degree tho German judiciary fought for its self-preservation. It cannot be hold responsible for the ever-increasing power of the police and Gestapo, which finally set its stamp on the entire public life.
Nebelung's individual fate was interwoven with the fight for existence of his people. It cannot be separated from the latter.
Whether at the front or in the war of bombs at home, we have marched along with our people through a veritable inferno and we are not yet out of it even today.
How could he, who was not among us, and with us understand our language and appreciate our feelings, no matter how sympathetic he might be!
THE PRESIDENT: I take it is understood that the Tribunal has ordered that all of the portions of these arguments which are in the manuscript and have not been read are to be incorporated into the Transcript?
Tito Tribunal will recess until tomorrow morning at the usual time.
(The Tribunal recessed until 0930 hours 16 October 1947)
Official Transcript of American Military Tribunal III in the matter of the United Stales of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 16 Oct. 1947, 0930-1630, The Honorable James T. Brand, Presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom.
DR. TIPP: Dr. Tip for Dr. Barnickel.
Mr. President, Your Honors, I should like to make a. technical remark to start with. The pleas of the Prosecution made it necessary for me to add some supplement to my plea. Those are not contained in the translation. I have handed the German text to the interpreters and whenever I come to those passages I shall point them out.
THE PRESIDENT: Has the Secretary General a copy in English of the balance of your address?
DR. TIPP: Yes, Your Honor.
Mr. President, Your Honors.
When the aged Cato happened to be a defendant, he stressed, in his defense plea, that a defense could only be put across to people who had shared the defendant's life. This sentence broaches the most fundamental problems involved in the office of a judge. For it is the task of the judge to evaluate matters past, and he has to evaluate them now, whereas he does not know, as a rule, the past by Ms own experience. For this reason, a judge who strives to pass a just judgment on the actions and the guilt of a defendant, must, above all, things, beware of applying that knowledge of past matters which he has acquired in the present time, retroactively as it were, to the period in which the acts were perpetrated, and of evaluating the past actions of the defendant by the standard of his present knowledge.
The behavior of the defendants on whom you are to judge cannot be separated from the ideology which surrounded them when committing the deed. Their actions cannot be separated from the knowledge and the convictions they had at the time they acted. However, no task is more difficult than to revive the past - as it was when the events in question happened - after so many years. The longer the period which elapsed since, and the more new events have intervened, the more difficult is this task.
Your Honors, in order to enable you to fully understand his former ideology, my client has answered a. number of questions dealing with political principles in the very words he had used when voicing his opinion on them at the period in which the events in question happened. In doing so, he deliberately dealt with a small cross section only, for he intended to show you not more than what was absolutely necessary. He tried to give you the idea of a wide landscape just by a number of shapshots. We indulge in the hope that we may thus succeed in re-transforming the past into present life, and thus to compensate for the shortcoming which Cato pointed out in his aforementioned speech.
In this connection, I feel that some short comments on the diaries quoted by my client, when on the stand, may be useful to the Court. He began writing up a diary when he was still a high school student and when he made a first long stay in Paris at that time. For about twenty years he has regularly written notes with the purpose of keeping a. record of his personal life and that of his family. In a more recent period only, when politics reflected on the life of every individual, he inserted political remarks, the same remarks part of which he quoted to Your Honors in Court.
He was aware of the fact that these notes - written up by him with undisguised bluntness, particularly in the first years after 1933 were a permanent source of danger. In 1943 when the risks of bombing warfare were steadily increasing, he, therefore, handed the diaries covering the past years over to friends in Bavaria for safe custody.
From the annual sets covering those years he had, in the beginning of 1946, extracts made and certified by a notary. In the beginning of January 1946 - when he was interned for the first time - those excerpts were submitted to the American Military Government as enclosure to a memorandum. The major part of the declarations made by the defendants on the stand originates from these extracts which had been in the hands of the occupation authorities for a long time. During the proceedings, I had the opportunity of having forwarded to me part of those diaries which had been left behind in Russian territory, namely those covering the years from 1942 onward. The remainder could not be found any more. Out of these diaries, too, my client and I had excerpts extracted and certified by a. notary, and the original intention was to introduce them a.s documentary evidence. According to the wish of the Court that no quotations be made from these documents, we have omitted to introduce them as documents in order to enable my client to answer a number of fundamental questions in the terms used by him at that time.
Whereas those diaries, taken as a whole, only reveal what my client himself thought about the Third Reich, the documents which I have introduced disclose what he uttered in the presence of third parties, and, above all, what he actually did. These documents prove that his actions were in conformity with his thinking, as far as the pressure to which everybody of us was subjected made this possible at all.
All the evidence produced proves that during the 12 yea.rs of the regime Dr. Barnickel did not for a single moment have the intent ascribed to him by the Prosecution, namely, the intention to fight any kind of political opposition, to persecute every enemy of the National Socialist regime and to take part in the extermination of other races.
On the contrary, it is show clearly that he did the opposite and tried to stand up to the demonical forces by which Hitler and his adherents led the German people and German justice into the abyss at an ever increasing pace. It may be mentioned that this development was greatly furthered by the fact that since the first World War the German people was living in a state of economic, political and ideological chaos, Bolshevism looming in the background more and more as a dangerous menace.
From 1933 onward, Dr. Barnickel recognized those dangers clearly and did not avert his eyes from them. It was his lot to experience in the end that those forces not only ruined his father completely, but on top of this nearly everything which previously gave meaning to his life and to that of a happy family.
However, before describing to you how my client tried, in his field of work, to protect the country in his care from the ever rising surf of the Third Reich, and before dealing with the indictment put forward by the Prosecution, I shall discuss two documents which concern a subject not covered by the indictment at all. During his cross examination, the Prosecution confronted my client with two documents - contained in Exhibits No. 564 and 565 - which were meant to connect him even with Dachau. The first one of these documents deals with the death of two detainees in protective custody called Franz and Dr. Katz. The second one is an extract from a so-called diary of the former Reich. Minister of Justice Dr. Guertner.
In his examination in chief, Dr. Barnickel had stated that on 1 August 1934 he was promoted to Senior Public Prosecutor at the Landesgericht Muenchen II. I have, unfortunately, tried in vain to obtain the Bavarian personal file of my client from the Prosecution. Otherwise, I should have been in a position to prove to the Court, based on the excellent character given to my client in this file, that he was not chosen for this post for political reasons, but that he was appointed to it for his professional qualification.
Furthermore, I should have been able to prove that he had applied at that time already for several judgeships in Muenich.
The district covered by Landesgericht Munich II included at that time the areas of 16 Amtsgerichte in Bavaria. One of them was the Amtsgericht Dachau in the area of which the notorious camp is located. This mere geographical fact is the only connection between the activities of my client and the camp.
In compliance with the wish of the Court that the defense restrict itself to the counts of the indictment, we did not breach this subject, though we had originally intended to do so, in the examination in chief, because according to the arraignment of the Prosecution no facts pertaining to the period before the war were to be considered elements of the indictments.
Still, I should at this juncture like to comment shortly on these two documents for the purpose of clarification.
The document Franz and Dr. Katz can easily be recognized as not extracted from the files of the public prosecutor Muenchen II but from the files of the former Bavarian Ministry of Justice. The events themselves took place in the fall of 1933, long before my client was appointed. For this reason, not my client, but his predecessor had dealt with them. The gist of the whole matter is, as clearly shown by the document, that the Political Police, the only competent authority for investigations in the camp, flatly refused any assistance in the clearing up of these incidents, so that the authorities of justice faced the impossibility of ascertaining the perpetrators and their crimes.
In the whole file, one piece only is signed by my client. It is the decree dated 27 September 1934 by which it was decided to discontinue the investigation proceedings. From the affidavit of the President of the Court of Appeal Dr. Stepp submitted by me - Barnickel Exhibit No. 46 - it follows that Dr. Barnickel can have issued this order of discontinuation of proceedings only under direct instructions of the Minister of Justice Dr. Franck and of the Chief Public Prosecutor, who were his direct superiors.
It is hardly necessary for me to explain that these instructions were absolutely binding. Besides, the Minister would have been in a position to decide on the discontinuation of the proceedings himself. Whereas the public prosecutors as such are governed by the principle of legality, this did not apply to the administration of justice in the Laender. This had been clarified unambiguously as early as in the times of the Weimar regime. It was also the opinion professed in the leading textbook on the German Code of Criminal Procedure, Loewe-Rosenberg. It is impossible to establish by the documents which data were available to Dr. Barnickel when he signed the order of discontinuation of proceedings. Dr. Stepp, who in the beginning of September 1934 had an interview with the Minister on one of the points of the matter, mentions this in his deposition. However, this may have been, the absolute correctness of the order for discontinuation cannot be doubted. Because of the attitude of the Political Police - in respect to which even the administration of justice was powerless - it was impossible to continue the proceedings. Therefore, the perpetrators had not been ascertained and could not be ascertained. The Minister had given instructions to discontinue proceedings. The Chief Public Prosecutor, as well known professional official of long standing who was not even a party member, had passed on the directive to the Senior Public Prosecutor. According to the principles of the Code of Criminal Procedure, the Senior Public Prosecutor had to effectuate this directive.
If, therefore, we have, as I explained just now, to base our conclusions on the fact that the most important part of the document namely the official correspondence with the Ministry, never passed the desk of Dr. Barnickel, that the substance of the case was not dealt with by him but by his predecessor, and that it has not even been established which data he was given by Minister Dr. Franck when Franck issued the directive to discontinue proceedings, it is not surprising that my client can remember this incident only vaguely.
To form a proper judgment is even more difficult, because the very piece which is the most important one at this moment is missing in the document, namely the order of the Minister to discontinue the proceedings, and the corresponding directive of the Chief Public Prosecutor to the Senior Public Prosecutor. Even to a person not conversant with German official channels, it is clear that the document shows an important gap.
Under these circumstances, this document - which is not covered by the indictment anyhow - cannot humanly incriminate my client either.
I can deal more briefly with the second document produced by the Prosecution. Here again, the incidents covered happened before the period covered by the indictment. This document cannot claim to be of any value as evidence against Dr. Barnickel: the short extracts contained in it do not even give a clear idea of what actually happened, and even less of the alleged part played by my client in those incidents.
One more word in respect to the part the Public Prosecutor played in the incidents in the Dachau camp. It is known to the Court that the concentration camps did not come under the jurisdiction of the organs of justice and that the organs of justice were not concerned with their supervision. Only in certain cases which were defined very strictly and especially provided for by law did the Public Prosecutor have any dealings with a concentration camp.
As in all camps, in Dachau, too, causes of unnatural death occurred, mostly in the shape either of suicides or of incidents with the guards. As in all cases of this kind which happened anywhere else in the country, in these cases, too, investigation proceedings had to be started in order to ascertain the cruse of death and particularly in order to find out whether third parties were guilty.
The investigations in these cases followed exactly the sane principles which prevailed everywhere. This means that the decisive factor in those matters was the opinion of the doctor. If such cases occurred in Dachau, the additional ruling was that every individual case had to be reported orally to the Chief Public Prosecutor.