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.
Without his agreement, final discontinuation of proceedings could not be decided on.
It was known to my client that a diary of the kind produced by the prosecution was kept in the Reich Ministry of Justice. This was done by the first adjutant of Minister GUERTNER, Herr von DOHNANY mentioned in this trial several times -- in 1938 transferred to the Supreme Court for reasons of his descent and who later became a victim of the 20 July. If there ever was a man who took a serious view of those incidents when screening them, it was von DOHNANY.
As I said before, the document produced by the prosecution contains short excerpts from the files only, not sufficient to establish any details. However, one point can be established. No cases of the kind mentioned in the document FRANZ and Dr. KATZ happened during my client's tenure of office. Dr. BARNICKEL feels that this was caused by a change of the personnel in the camp headquarters. Some time before my client took over his office, the first camp commander was relieved because of the conditions in the camp for which he was responsible. I may mention that among tho extracts produced there is a case in which the dead body of a detainee showed traces of violence and ill treatment. It was impossible to ascertain the perpetrator. It must not be overlooked, though, that the inmates did not consist of political detainees only, but also of a number of previously convicted criminals, so that serious brawls occurred among the detainees themselves.
The decisive point for the evaluation of the document, however, is the fact that the extracts do not contain any material on tho activities of Dr. BARNICKEL. As far as he nay have played a part, his decision was screened by the Reich Minister of Justice.
This document, too, can, therefore, not be used for the purpose of forming an opinion of his personal character. This may suffice for clarification of those documents. With regard to my client's personal attitude toward the Political Police, I would like to refer to an incident contained in Ms diary.
In the beginning of December 1934, the Political Police submitted to him a number of files which concerned a Gestapo official. Soon afterwards, the Political Police requested Mm to return those files, in order to deal with the proceedings themselves. Dr. BARNICKEL refused to return the files and noted in Ms diary, that he was still reserving the right to have an opinion of his own. In this connection, he describes the objections caused in his mind by Himmler's organization. He states that he cannot imagine that all this will work out well in the long run, because the German people doesn't tolerate a Tcheka. Finally, he expresses the hope that the Wehrmacht would not allow another armed force to be established permanently. Unfortunately this hope was frustrated. But if the prosecution was under the impression that Dr. BARNICKEL started on and filled Ms new post as Senior Public Prosecutor in Muenchen as a willing tool of the political factors, this is absolutely wrong.
With regard to the further behavior of my client while he held the office of a Senior Public Prosecutor, I shall only broach it in a few words, His factotum at that time, Max HUBER, who was closest to Dr. BARNICKEL among all the officials, describes Ms character in BARNICKEL Exhibit Nr. 5. He calls him the most just bosshe had during his 35 years of service. He further tells us that there were only two other members of the department with whom Dr. BARNICKEL had very acrimonious disputes in the long vow both holders of the golden emblem of the NSDAP, for political reasons only. Dr. BARNICKEL fully asserted himself in his relations with these two people.
May I further refer to the conflict Dr. BARNICKEL had with the Muenchen police in 1938. It never found a solution. It was terminated only by Dr. BARNICKEL's being transferred to Berlin. In this respect I refer to the BARNICKEL-Exh. Nr. 25.
Now it happened that my client was transferred as Reich Public Prosecutor to Berlin was described in detail by him when on the stand. It is sufficient hero to point out that he did not apply for this position, but that it was his aim to return from the career of a Public Prosecutor to the jurisdiction in civilian matters. The reasons which frustrated his endeavor in this direction are deposited in the BARNICKEL-Exhibit Nr. 6. Thus he came to Berlin as Reich Public Prosecutor to the office of the Reich Public Prosecution at the People's Court on 1 December 1938.
It was only a short while before that the Muenchen conference of September 1938 had taken place. Dr. BARNICKEL had witnessed himself the exulting homages done to the representatives cf the Western Democracies in Muenchen. Hitler had scarcely experienced such a jubilation in Muenchen. Even the coldest sceptic could hope for a long peace at that time. This was the hope alive in my client when he entered on his duty in Berlin.
The office of the Prosecution submitted in this case the material from the time of his activity as Reich Public Prosecutor at the People's Court, from which material it deduces the reproaches cf the accusation against Dr. BARNICKEL.
I do not want to enter into the details cf the service as Public Prosecutor at this place, They are made clear to the High Court by the taking of evidence. That the German office cf the Public prosecution was an office which was tied to its instructions is as well known to the High Court as the fact that the office of the Public prosecution was under the principle of the legality, that it had therefore to prosecute every punishable act, independent of the wishes of the Public prosecutor concerned in regard to the prosecution. The Court knows as well that the Public Prosecutor was not entitled according to German law to omit the application of a law because he thought it too severe. All this was sufficiently discussed. Only the kind of his position should be sketched in short once more.
For this I may point to the BARNICKEL-Exhibit Nr. 43, the affidavit of the well known specialist on criminal procedure Dr. Emil NIETHAMMER, Tuebingen, who was Reich Public Prosecutor at the Reich Supreme Court for long years himself. He states in his expert opinion that a Public Prosecutor was not a governing official. The Reich Public Prosecutor was nobody's superior, he had no inferiors, neither at the Reich Supreme Court nor at the People's Court. Superior of all officials was alone the Reich-Senior Public Prosecutor. Only he had the right issue instructions to the officials of the higher service and the offices which were attached to the Reich Public Prosecutor in order to assist him. Only the Reich Senior Public Prosecutor had also the duty of supervising the services of these officials. Of details concerning this complex I only would like to mention the fact that the service at the office of the Reich Public Prosecution was regulated by instructions in every direction. Every law for instance and every executive order issued by the Ministry to a law was still separately introduced at the office of the Reich Public Prosecution of the People's Court by a service instruction of the office manager.
The Reich public prosecutor as department chief could not give definite instructions to his sub-department chiefs. Only the chief of office (Behoerdenleiter) was authorized to do this. He could even give instructions to the sub-department chief over the heads of the Reich public prosecutor and often made use of this possibility. All orders of decisive importance, that is indictments and dismissals of a charge, as well as remissions of sentences had to be signed by the chief of office, if he was present. The authority of a Reich public prosecutor was therefore more restricted than the authority of a public prosecutor in a District Court. Motions had to be submitted to the Senior Reich Public Prosecutor, whenever there was even a remote possibility of a death sentence. He alone decided in such cases.
Besides several minor subjects, the Reich Public Prosecutor had a certain freedom of action only in reference to one matter, This was the transfer of the proceedings to the General Public Prosecutors at the Courts of Appeal.
These principles, which are of decisive importance in judging the activity of my client, have been completely clarified by the evidence proceedings. In reference to this, may I just briefly point to BARNICKEL Exhibits Nos. 8, 9, 10, 11, 12.
One word more, perhaps, on the question of deputizing for the chief of office. Only the Reich public Prosecutor who had been appointed by the Minister of Justice as permanent representative could deputize for the Senior Reich Public Prosecutor generally and to full extent. This was the oldest in office, Reich Public Prosecutor PARRISIUS, not Dr. BARNICKEL.
I interpolate: Contrary to the view voiced in the final plea of the Prosecution, Dr. Barnickel therefore was not the deputy of the Senior Reich Public Prosecutor. As I have just stated, the person who held that position was the senior in office, Reich Public Prosecutor Parrisius. Only if the chief of office and Reich Public Prosecutor Parrisius were absent at the same time Dr. Barnickel was the deputy for the chief of office.
That happened infrequently and even then only for a short period of time, as I was able to ascertain from a report which was passed by the Senior Public Prosecutor to the Reich Ministry of Justice.
I continue: When my client deputized for chief of office in the case of simultaneous absence of the Senior Reich Public Prosecutor and of his permanent representatives, his authority was limited. He was bound to follow the general directives of the office as proscribed by the Senior Reich Public Prosecutor and by the ministry.
Instructions which may have been given by the chief of office to other employees before his departure, were, of course, not binding for Dr. BARNICKEL.
In order to complete my statements, I have to mention that since November 1943 my client was no longer requested, to deputize for the chief of office, because of increasing disagreements. In reference to these questions, I may point to BARNICKEL Exhibits No. 27, 28, 29 and to the already mentioned BARNICKEL Exhibit No. 9.
This position in the office, with all its restructions, has to be considered, if the activity of my client during the years at the People's Court is to be judged rightly, because only with this background in view can his activities be fully understood. Only in view of these facts, the material presented by the prosecution against BARNICKEL can also be judged rightly.
The prosecution charged that he, as all other defendants, had committed crimes in the name of the Law. The Chief Prosecutor stated on 5 March 1947 in this Court-room that the defendants, as leaders of the German Administration of Justice, consciously and intentionally suppressed the Court, disguised tyranny infamously as justice, and transformed the German system of justice into a machinery of despotism, conquest, plunder and massacre.
It was to be expected that the prosecution would not also prove with a great amount of irrefutable evidence these most serious charges which it had made against all defendants. I myself have only to examine, to which extent the evidence, submitted against my client BARNICKEL, bears out this most serious charge. Here I can state that not even the assertion that my client belonger to the leading officials is correct, not to speak of all the rest.
Of many hundreds of documents, which the prosecution submitted in this trial to the court for examination, a total of 12 apply to my client. These documents, however, do not justify in the least the charges made against him by the prosecution.
I believe that I may also be brief in the discussion of the prosecution material. The few documents, which concern my client were discussed by him exhaustively on the witness stand. Besides, they have been clarified and reduced to their true value as evidence, among others also by the witness for the prosecution Dr. HECKER.
I can collect into a group the first documents which were submitted against my client. They are exhibit No. 133 - Document NG 642, Exhibit No. 134 - document NG 497 - Exhibit No. 137 Document NG 596 Exhibit No. 140 Document NG 377. All these documents concern judgments or indictments which had been circulated at the department chiefs and sub-department chiefs. The name of my client is among many others on the included notes of circulation. The significance of such a circulation is evident. The person who signs a note of circulation assumes no responsibility whatsoever for the circulated document. Whether or not ho approves of the decision in question, whether or not he knows of its contents, from technical reasons he has to sign the note of circulation. Because of the great number of indictments and judgments, which Md been circulated during the years of war, nobody was requested to read all this circulated matter. But even in the case that a circular Md to be read no factual or legal connection to the document was established by this.
I believe I may assume that similar habits exist everywhere. No connection to the circulated documents in the sense of the Control Council Law No. 10 can be deducted from tho notes of circulation. These documents are therefore in no way suited to serve in support of the charges of the prosecution against Dr. BARNICKEL.
Furthermore, the prosecution submitted exhibit No. 493, document NG 925 against Dr. BARNICKEL. This document concerns tho proceedings against the German citizen Erich DEIBEL, because of treason. The prosecution did not claim that Dr. Barnickel had himself any connection with these proceedings. It only presented this document against him, because he was charged with the execution.
As Dr. Barnickel stated in the witness stand, he was by the Senior Reich Public prosecutor appointed to be present at the execution, interchanging with the other Reich Public Prosecutors. Besides, this presence was prescribed by the law. I do not have to emphasize that a Public Prosecutor who for these reasons assists at an execution does not carry any material responsibility, neither for the judgment nor for the execution. It is not within his authority to prevent the execution of a legally valid judgment, ordered by the duly appointed offices. It does not matter if he approves of the judgment or not. I can, therefore, not consider this incident as a fact of the case designated by Law No. 10 as a form of participation.
The next document presented, prosecution exhibit No. 136 -document NG 595 concerns the proceedings against BRATEK because of assistance to the enemy. The indictment is, also in this case, not sir nod by Dr. Barnickel. The investigation files merely contain several letters by him.
Only part of it carries his original signature. In reference to these letters it is to be stated that they served generally to call witnesses for the interrogation who had been requested by the accused himself.
My client has testified in the witness stand with reference to these proceedings that he and his department had nothing to do with the pronouncement of the judgment because this manner of proceedings had been transferred to another department at the latest at the end of April 1943, while the judgment was only passed on 20 May 1943. The file notes were not changed at a change of department.
I interpolate. It has been established that Dr. Barnickel only participated in the investigations of this case, but in connection with the investigations the application of the law against Poles played no part whatsoever. If at a later passage the Prosecution claims that the defendant had wrongfully been charged with high treason by Barnicle, we must point out first of all that indictment or the work on it was not Barnickel's field. Quite apart from that, however, the view of the Prosecution is erroneous, for the concept of a duty of allegiance played no part in the case of high treason, but in the evaluation in terms of criminal law.
I do not leave to go into details, concerning the problems resulting from the application of German law against Poles. They have already been clarified by my colleagues. In this reference I point to their statements.
I can state in reference to these documents that in my opinion the participation of Dr. Barnickel in these proceedings does not represent an action which can be considered as facts in a case to be evaluated in terms of criminal law.
At Dr. Barnickel's cross-examination the Prosecution presented documents Exhibit No. 562, Document NG-926 and Exhibit No. 563, Document NG-875. They concern the proceedings against Birk and Dress because of treason and seditious undermining of the defense spirit.
In both cases, the proceedings concern German citizens. The indictments are not signed by Dr. Barnickel, his name can only be found under several unimportant investigation letters. Here, as also with all other documents, no real connection exists.
Further, Exhibit No. 266, Document NG-598 was submitted against Barnickel. It concerns the proceedings against Franz Szopa.
The letter submitted here by the Prosecution does not carry Dr. Barnickel's original signature in the photostat. His name is only written on it with the typewriter. My client has explained on the witness stand, from which reasons it often occurred at the Reich Public Prosecution that file copies carry other signatures than the originals. For these reasons it is not proven that Dr. Barnickel signed the letter, submitted by the Prosecution, at all, the document has therefore no value as evidence.
As to its contents, this letter of S March 1943 concerns merely the measure of the sentence of the Polish prisoners. The Public Prosecution claimed indeed in its adducing of evidence that Dr. Barnickel had requested the commandant of the prison camp to transfer prisoners to the Gestapo. The incorrectness of this interpretation however, is already evident from the contents of the document which in this respect speaks for itself. The letter merely proposes to postpone the pronouncement of the measure oi the sentence until the end of the war, in the case of prisoners who, on instructions by the Reich Minister of Justice were to be transferred to the Gestapo. This is a. clear proof for the fact that the transfer of these prisoners has not been ordered by Dr. Barnickel, but directly by the Reich Ministry of Justice and also for the fact that these prisoners were certainly to be returned into the custody of the legal administration. This is, however, proven by the fact that the Reich Public Prosecution know nothing about the extermination program against these prisoners, as charged by the Prosecution. May I emphasize that the Prosecution witness Dr. Hecker in his interrogation of 7 July 1947, page 4856 of the English transcript, has given the sane explanation for this document.