was probably always put whenever there came a split in the body politic through internal or external confusion. Literature offers many examples. I have but just now cited Talleyrand and one of the most famous Americans, Benjamin Franklin, also seems to have dealt with this problem. He says in his autobiography that he made it a rule never to ask for a public office, never to decline one and never to resign from one.
Perhaps the question might also be answered by a counter-question "What do you do, if you notice that the ship threatens to sink? Do you as a member of the crew get at once into the life-boat or do you rush to the pump in order to do all you possibly can to prevent the ship from sinking?" In order, now, however to answer the question for my client in a concrete fashion: Already in the year 1939 he declared himself ready to ask for his dismissal from his office with the Chief Public Prosecutor of the Reich, in case the conflict already mentioned with Himmler and Heydrich should end with the defeat of the Chief Public Prosecutor of the Reich. Unfortunately, however, the conflict was not fought out.
In the Summer of 1942 he asked to be transferred back to the position of a General Prosecutor (Generalstaatsanwalt), as he wished to free himself from the political administration of justice which was weighing increasingly on him and from the strained relations with the Reich Public Prosecutors which were becoming increasingly oppressive to him. In this connection I may refer to the depositions of the witness Miethsam on 7 July 1947, p. 4874 of the English protocol. Dr. Miethsam, at that time sub-department chief of personnel (Personalreferent) in the Reich Ministry of Justice declared that Dr. Barnickel went to see him repeatedly on this account and wrote him several letters, that he appeared to him to be very much depressed and that he was willing to waive all claims accruing from the more highly paid office of the Reich Public Prosecutor.
This request of my client was refused, when Thierack became Reich Minister of Justice.
Dr. Barnickel had no claim to dismissal, promotion or superannuation It is sufficiently proved by documents and witnesses that already in the first year of the war it was made practically impossible by a decree for officials to resign and there were not the conditions of health laid down in the Civil Service Law to warrant superannuation in the case of Dr. Barnickel.
Consequently it was impossible for my client to leave the Reich Public Prosecuting Authority and so he made up his mind to hold out as long as possible in order to prevent a radicalization of his sphere of activity, which would necessarily had been bound up with each new appointment at that time.
In the Summer of 1943 he spoke about this with the present Bavarian Prime Minister (Minister-president) Dr. Ehard. He knew him, since Dr. Ehard had worked in the same room of the Public Prosecuting Authority in Munich in the year 1924 on the prosecution against Hitler. He had remained in touch with him. Dr. Ehard says in Barnickel Exhibit No. 45 concerning Dr. Barnickel:" I know that he saw the dangers of the NS regime throughout with open eyes, but thought he might yet mitigate these dangers substantially, if he could not avert them, by appropriate co-operation in the party or perhaps in the framework of professional possibilities. From his general attitude he did not give me the impression that he wished to identify himself with the regime. In the second half of the year 1943, maybe, he talked with me about the development of political administration of justice. In doing so, he expressed his concern about its further development, and especially viewed the growing influence of Thierack and Freisler with apprehension Dr. Barnickel said repeatedly that he was seriously thinking of withdrawing from the Reich Public Prosecuting Authority in Berlin, but that after mature reflection, ho considered it right after all to endure to the end, for if he were to withdraw a successor would only be appointed who would show himself more amenable to the National Socialist endeavors.
At the end of 1943 Dr. Barnickel changed his point of view. Friction at the office increased rapidly. The cases of seditious undermining of the defense spirit were handed over to another department. Likewise the cases of high treason which had hitherto been worked on in his department. His co-workers, likewise, went into other departments when this happened. He made up his mind that his time had come. He had suffered so much in health that an application for superannuation might perhaps succeed and so he made plans in this direction.
His attitude to his profession generally cannot be put more clearly than in the words which ho wrote in his diary on 8 February 1947:" It is a misfortune that just I entered on this course. Even if one is willing to adopt the attitude that everything is foreedained, I cannot possibly understand in any case how I have deserved this."
Exactly a week later he lost his home was injured in the fire and thus his activity came to an end for some time.
In the early Summer of 1944 it was suggested to him that he should retire. After some time there came a summons to appear before Thierack who threatened him with a disciplinary transfer to a judgeship of a local court - the lowest judicial position in the administration of the law - or compulsory superannuation.
Since the fight was not on the place of legal policy but was taken on to another plane Dr. Barnickel remonstrated. After a further consideration at the end of 3 months the Minister transferred him as a Reich Public Prosecutor to the Supreme Court of the Reich.
I interpolate: The Prosecution has broached the question as to the reasons for which Dr. Barnickel was transferred to Leipzig. The Prosecution's contention that the transfer occurred on account of insufficient severity is untrustworthy in view of the statement made by the co-defendant Lautz.
The documents I have introduced show that between Dr. Barnickel and the Chief of Office there had been difficulties over a period of many years. It would have taken too much time to deal with these questions here. It is a fact though that Dr. Barnickel wished to deal with this question in detail but he gave way, and finally mentioned the view that that was the resulting point from this procedure or rather that that was in compliance with the exigencies of this procedure. My client stated on the witness stand that the struggle was a division on one side on the formal side of business, whereas on his side the struggle was on the legal political side and occurred more than once. He posed the question to the Senior Reich Public Prosecutor as to whether his course was not right. More particularly he put this question as to defeatism to the Senior Public Prosecutor but he never gave him an open reply. But Dr. Barnickel in his personnel file in Berlin found a remark setting forth a lack of severity in dealing with defeatism and that he should therefore be removed from his position.
The defendant Lautz, in his final plea yesterday, disputed that statement made by my client after defense counsel stated the reason as to why Dr. Barnickel was relieved from his position, and that it played no part at all. Thus he tried to shake Dr. Barnickel's credibility on a decisive point. Much to my regret, I therefore find it necessary once again to clear up this decisive point for him, and I am very pleased to say all I can. By presenting clear documentary evidence I am in a position to clear up the matter. I have a photostatic copy of the extract from the personnel file of the office of the Reich Public Prosecutor, Dr. Barnickel, with the People's Court. From that file the defendant Lautz has already submitted extracts. This file contains a letter from the Senior Public Prosecutor, dated 14 Sept. 1944 and signed with the initials of the defendant Lautz.
On page 7 of this report it says, and I quote: "Towards the end of 1943 his cases were in arrears; and since there were not quite 200 cases at that time I thought a considerable number of arrears was due to the difficulties which had arisen on account of the fire in the People's Court, but after many weeks I had made up my mind to make some changes on the 1st of January 1944 in these matters. Reich Public Prosecutor; Dr. Barnickel, in my view lacked the necessary energy to push on and also he lacked the necessary severity in judging these cases and because of that I did not take any steps immediately."
This shows quite clearly that not a.s Herr Lautz submitted in his plea yesterday, the amount of arrears in Dr. Barnickel's department brought about a change but it was exclusively Dr. Barnickel's lack of severity.
The other reasons which are submitted are reasons of a similar nature and were of less importance although the Senior Public Reich Prosecutor had made both reasons for his report to the Minister of Justice and Dr. Barnickel in his discussion with Ministerial Director Letz, which took place after the Senior Public Prosecutor had examined the material; was told by Dr. Letz that the Minister had decide not to take into consideration the reproaches made by the Former Senior Public Prosecutor in the field of formal business. It is a matter of course that Dr. Barnickel would never have been sent to the Reich Supreme Court if the Minister or head of the personnel department had not thought he had the qualifications or reliability.
It is a different matter when we come to the charge of lack of severity. My client on the witness stand described Dr. Letz at that time, and told him he would much rather have that job than to be a Prosecutor with the People's Court. That shows Dr. Letz had a very reasonable and moderate point of view and in the course of this trial that has been confirmed by many persons.
Dr. Letz did therefore interpret the lack of severity in the transfer to the Reich Supreme Court as essen tially responsible for the transfer, and possibly the Minister too subsequently considered it a mistake that in 1942 that they had refused Dr. Barnickel's request to transfer him away from the People's Court although from this request alone showed he wanted to get away from the People's Court at any rate. Obviously, they now intended to make good that mistake by sending Dr. Barnickel to the Reich Supreme Court for which he had been suggested ever since 1932. One must also bear in mind that Dr. Barnickel was transferred as Reich Public Prosecutor, but that at the Reich Public Prosecution there was also a department for civil matters, and, therefore, it would have been only a question of a short period of time, to appoint him as a Judge for the Civil Senate.
The fact that Dr. Barnickel did not leave of his own accord at the first attack has nothing at all to do with the fact that he did not wish to give up his position. He would have preferred to go to-day, rather than to-morrow. But what concerned him was the kind of reproaches leveled against him.
On 1 December 1944 my client entered upon his duties with the Reich Public Prosecuting Authority in Leipzig. There he had a completely unpolitical position, and was happy about it, but unfortunately the collapse was soon to follow.
I must go back somewhat for one moment more for shortly before the transfer of my client he was involved in Berlin in the consequences of the events of 20 July 1944 and in this he let his attitude be quite specially soon.
Dr. Barnickel had nothing to do with the incidents themselves nor with the proceedings before the People's Court. But his advice and help were asked for by different individual who were closely connected with the men of 20 July 1944 and who knew what his attitude was. I refer in this connection to the deposition of Baroness Guttenberg.
Barnickel Exhibit No. 20, to the deposition of Dr. Fritz Full - Barnickel - Exhibit No. 3, further to the deposition of Frau Lilo v. Kramer - Barnickel Exhibit No. 32. The last paragraph of Baroness Schmidt's deposition - Barnickel Exhibit No. 21 is also of interest here. I will only deal shortly with the case of Baroness Guttenberg. She stresses the fact that she will never forget Dr. Barnickel's puright and energetic attitude. She says, too, that he opposed the sort of justice administered by the Nazi regime in the clearest words.
When one learns that Baroness Guttenberg, a relative of the would be murdered of Hitler, Graf (Count) Stauffenberg was also as early as 1934 one of the persons suspected by the Gestapo, one does not need to waste many words in pointing out to what dangers my client exposed himself at that time in order to be of assistance to her. Nothing was more obvious than that Baroness Guttenberg was being watched, for the official enquiries about the conspirators of the 20th July were still far from finished, Dr. Barnickel, who was fully aware of these dangers through his profession, did not let himself be deterred from granting her his support in the way described in the deposition.
If the High Court remembers the way in which Graf (Count) Montgelas in Nuernberg fell into the hands of the Gestapo, I have no need to say anything further about these things. Dr. Barnickel exposed himself with open eyes to the same dangers, because he wished to remain loyal to his convictions.
My client's attitude to the events of the 20th July will show in the clearest possible way whether he really was the blind adherent of the Hitler regime which the prosecution tries to make him out to be, or whether he was an adherent of the old civilization and a friend of individual freedom and tolerance.
I ought perhaps to speak also, on this occasion, of the dangers 16 0ct-M-FL-5&6-10-Cook (Int.
Hahn) to which my client exposed, himself through his special attitude, during the whole time in which he practised his profession in Berlin, but I assume that I do not need to toll the Court this any more expressly.
I come to the end.
National-Socialism was always designated by its leaders as a philosphy of life, that is to say, it was to be for the German the source from which he shaped his whole inner and outer life. Dr. Barnickel realized always that this was a mistake and he also touched this problem in his diaries. Since 1920 he spent his spare time studying the important religions and the big philosophers of all nations. Thus, for instance, he spent years, studying Buddhism, and there is hardly a book or even a small publication published on this subject in Germany missing in his library. Not a long time prior to the taking ever of power he participated for 10 days in a camp in Holland in order to listen to what the young Indian philosopher Krishna-Murthi had to tell the 3000 people assembled there from all countries of the globe about his conception of life. This is also evident from the affidavit SchenkOBarnickel, Exh.
No. 41 submitted by me.
Dr. Barnickel always tried to look at the world from a distant point of view. Considering the distance which he kept from the affairs, he could identify himself neither with Nazism nor with its policy. But he was also a member of his nation and he did not want to withdraw from the duties which resulted from this fact.
During his interrogation he quoted the words of an ancient Chinese philosopher in order to show his position relative to the political conflict at the time of the taking over of power. The Chinese philospher of a later epoch, known throughout the world Kung Tse, who in Germary is generally called Confucius, compressed the wisdom of his predecessors into the following words: If it is proper to leave, then leave immediately. It it is proper to weather it through, then weather it through. The deeper sense of both quotations is the same.
If it is proper, means for Confucius: After consulting the conscience. My client consulted his conscience and acted accordingly. He already stated it: If one is not at liberty one cannot act according to one's will, but can only try to maintain one's own course whereever possible. There exists a limit after which courage becomes a completely senseless sacrifice; and to do more than Dr. Barnickel did would have been nothing else than suicide.
It was easy to work during the regime in a quite position away from politics and the political justice and not to get into difficulties on account of this work. But it was not easy to oppose the political jurisdiction of the Third Reich without being confronted with numerous conflicts which could not be solved by an individual person. My client already stated that sometimes he felt as if he had been put between millstones, but he followed his conscience whereover possible.
Whatever he could do at that time and in his position, namely: to help, to mitigate and to maintain his personal course, which was based on decades of intellectual work, whereover possible, he did indeed.
The Prosecution has stated in a Trial Brief that the defendants applied voluntarily the "Nazi laws" issued, but the submitting of evidence proved in favor of my client that this is not correct.
In the Trial Brief it is also stated that the judges did not make use of their discretionary power. The prosecution sees thus the guilt in not applying a discretionary power which actually pould be applied by the judges. My client feels that in this respect too, he is innocent.
He tried also during the regime of the Third Reich to serve justice, because he had not forgotten that justice and wisdom are the fundaments of the State.
My client trusts that the Tribunal will see his conviction and his actions in the correct light.
THE MARSHAL: The Tribunal is again in session.
DR. ORTH: Dr. Orth for the defendant Altstoetter. Your Honor, I shall here present only part of my final plea and those pages which are not orally presented here I request that they be incorporated as part of the record.
THE RESIDENT: That will be the order of the Tribunal that the entire address as presented to us shall be incorporated in the record. I trust that proper information of these orders with reference to the incorporation in the record will go to the proper departments through the Secretary General.
DR. ORTH: Your Honors.
When being questioned before the Tribunal, the specialist witness Professor Dr. Jahrreiss called the German lawyers' position truly tragic. This aptly describes also the position in which the men on trial here found themselves; for none of the defendants here can be called a criminal by nature or inclination. If any of their actions, decisions and verdicts should now have to be regarded as crimes against humanity, then their guilt was brought about the by combination of powers and forces to which they were subjected by fate. This trial has given us a deep and convincing insight into the tragic and often so dramatic position of these men, who were destined by their career as highly placed officials of our state to carry out Hitler's orders and the state laws.
The defendants were not, and are not, the only Germans, who bound up with the political life and fate of their nation - find themselves faced with this tragic situation. The entire German nation was led by its responsible government, either against its inner wish, or with its abused consent, on an unjustifiable path, which not only exposed it to complete ruin as a nation, but also the dreadful and damning reproach of collective guilt. Now the dice of fate have decided that the men accused here stand before the forum of this Military Tribunal. Their fate has made them conspicuous as exponents of historical events which became the political and moral catastrophe of our society, a catastrophe such as has befallen the nations of this world time and again, the white man and the black, the yellow and the red, and whose motive power was as much spiritual and philosophical delusion as criminal madness, and also trust and faith, and patriotism and a sense of duty.
Now if the defendants are to appear before the forum of true justice, it is the quest for justice that concerns us.
1. The purpose of justice can only be to analyse the personal guilt of a defendant, to weigh it up and to bring about punishment. The real responsibility must be established and defined. The deed is to be isolated from all implications of destiny and the influence of the inescapable and therefore the tragic; for "the tragic moment" is not intrinsic in justice. On the contrary. As the truly tragic always moves us to pity, a verdict which would ultimately provoke our pity would have to be considered unsatisfactory and therefore unjust. Mankind will approve only of that punishment which alone is appropriate for the defendant's personal guilt, and no other. It can, therefore, not be the purpose of true justice to put a tragic end to an action which had to be carried out because a legal obligation or inescapable compulsion dictated it, or because it originated in an error outside criminal jurisdiction. Rather is it the purpose of true justice to recognize where the perpetrator's personal responsibility begins or ends.
Therefore, one cannot feel it to be just if Control Council Law No. 10, in article 11, paragraph 1 c, quite generally precludes reference to the German national legislation on behalf of the perpetrator. If we do not wish to be the authors of essentially tragic destinies, we must recognize the legal position in force at the time of perpetration, and the perpetrator's confidence in this legal position, when weighing up his guilt and responsibility, as indeed "contravention of the law" is a real crime-constituting fact in the sense of criminal jurisprudence.
If the French judge in the great Goering trial, Donnedieu de Vabros, already issued a warning against the preclusion of "reference to higher orders" (see statement Dr. Jahrreiss, transcript page 4288), how much more justified - from the purely legal aspect - is the objection raised here against the retrospective transformation of facts constituting a legal action into unlawful facts.
2. True justice further demands clarity about the deed and the real motives of the perpetrator. But just as it is impossible to separate the deed from the perpetrator, so one cannot separate the perpetrator from his views and the opinions of his time. To judge, or what is more, to condemn lawyers for their legislative and judicial activities, one must be acquainted with the development of German jurisprudence and must know how it was possible for men of law to drift into the province of injustice. This relaization is important especially when the ultimate purpose of the trial is not just to punish the defendants if guilty or acquit them if innocent. That would only be the outward result of the trial. Therefore, if this trial is not to be in vain, the ultimate and deepest idea of the proceedings must be to show the German nation end the world that under the spell of subservience to the National Socialist state, legislation and jurisdiction also went astray.
Only then can the trial be instrumental in avoiding the same mistakes in the future. But for this purpose one must know the origin of these mistakes.
3. The defendant Altstoetter can demand, with more justification than anybody else, a complete clarification of all inner and outer circumstances and also a thorough study of the development of German law, because he is the first and the last person in this trial; the first, because these proceedings will carry his name for all time United States of America against Altstoetter and others; the last not only because he appears outwardly as the last in the list of defendants, but also because it was proved in this trial - and I shall have to deal with this later - that Altstoetter not only had nothing to do with any of the criminal activities forming the subject of the proceedings, but fought against every injustice wherever he met with it, like a man.
In the following statements of my final plea I shall refer to the development of German jurisprudence. I refer to these statements without presenting them here and now continue on the top of Page 9.
More and more voices were raised against this statutory law (Rechtspositivismus) of the declining 19th and the beginning of the 20th century, showing the urge for a deeper conception of law. As early as 1906, Flavius demanded a free law, independent of the state, and a rehabilitation of natural law in a new form, and several other teachers of law adopted his theories in more or less similar forms.
However this new theory had not yet established itself. Even under the Weimar constitution, we saw that the moral background and background in relation to international law of an act of legislation was beyond the scrutiny of an official, and that even the judge, as shown here by Professor Jahrreiss, had no right of examination in this connection. And, in fact, it was the fanatical followers of democracy who fought against such a right of examination ot the last. Now we experience the whole tragic character of legal development after National Socialism seized power. On the one hand National Socialism propagates a new "natural law" formed according to its theses of blood and soil (Blut und Boden), thus drifting toward the realization that statutory law could never provide the basis of a constitutional state. On the other hand, however, it used the philosophy of absolutism (Positivismus) to stabilize its power. It was only because absolutist legal thought predominated, that legal development in the German Reich could stray on to the way with which the Prosecution now reproaches it; for it was only because the majority of the German jurists had learned - and that long before National Socialism came to power - that law is the same as justice; that they had; according to that theory, to regard even unjust law as justice and had to apply it in the same way as the Fuehrer order that had become law.
This is of fundamental importance when inquiring into the guilt of the defendants, especially in the question of their subjective guilt.
4. In view of this exposition of legal policy on the German jurists' conception of justice and law, it becomes obvious that at all stages of this development, and especially during the period of the Third Reich, there were jurists and judges who, being followers of a generally recognized law or of a natural law, did not agree with the statutory law (Rechtspositivismus), who put a stop to unjust drafts of laws, who in their capacity as judges did not apply laws which they considered to be unjust. But this allusion could lead to unjust conclusions for, apart from the fact that it concerned an exceptional outcome only, the person who was taught statutory law and therefore advocated it, can be charged with personal guilt just as little as anyone who did not support statutory law from his own inward conviction and who drew a particular personal advantage from his support of natural law, for in both cases they have done what they considered to be their duty according to their knowledge and belief.
Therefore if I show in my following explanations how the defendant Altstoetter was struggling for justice - a man whose whole outlook made an adversary of positive law and who in principle was in favor of a justice above laws and who, as in the case of the draft of the law concerning treatment of a social elements (Gemeinschaftsfremdengesetz) placed this principle above statutory law, and if I explain how his point of view was opposed to all kinds of injustice, I do not want to claim any unusual and special merit for Altstoetter by this means. By this I only wish to prove that he did only what ho considered to be his duty, and what his whole outlook and his conscience made him do.
Court No. III, Case No. III.
The Indictment is based on the fundamental idea that in the Third Reich right and justice were abolished in order to establish and strengthen National Socialist despotism. By the abolition of right, independent courts were to be deprived of the power to examine the acts of National Socialism which were illegal and not in accordance with the law, and even the smallest balance of right which was still left to the suppressed in spite of the suppression caused by the legislation was to be abolished. In the pursuance of this aim, according to the indictment, breaches of International Law contrary to the Hague Convention for Land Warfare and crimes against humanity were committed.
At any rate, whatever the aims of National Socialism in legal policy may have been, in the filds of civil law and the administration of civil law, the pursuit of these aims was not specially emphasized and no crimes such as those described by the indictment and thus subject to punishment according to Control Council Law No. 10, were committed in this field.
I.
In a number of documents the Frosecution submitted as evidence the views expressed by leading politicians of the Third Reich. But also these observations refer chiefly to penal law only and not to civil law, though - with a view to creating a diversion - attempts were made to prove the National Socialist character of the civil law. The correctness of this point of view is proved quite clearly by examining the question of what changes of law were effected by National Socialism in the field of material and formal civil law during its 12 years of power.
I now refer to Page 12 and the subsequent pages to the question on the changes brought about by National Socialism in this sphere of law; and may I now refer to Page 15, Figure 3, and continue from there.
I will even go further -
THE PRESIDENT: Page 15 did you say?
DR. ORTH: Your honor, Page 14 at the bottom:
3) I even go further: The very administration of civil law was the fixed point in the Third Reich and for many unjustly persecuted people it was the place of safety during the period of the Third Reich. Is it not proved by Prosecution document, exhibit 561, submitted in the proceedings against the defendant Rothaug, that judgment was given in favor of a Jew by the District Court of Appeal of Nuernberg, although a Julius Streicher was the absolute ruler of this town; and does the affidavit of Genandt not not prove that, when the defendant Alstoetter was the judge to summit a report on the case, the German Supreme Court - in defiance of all might - stood up for justice even though it concerned a Jew? And those who were there at the time could add many more examples of this.
To what extent the field of civil law was free from National Socialist tendencies is best proved by the fact that men like Freisler and Thierack were not interested in this field of law. Even Adolf Hitler, whenever he occupied himself with questions of justice, always did so in the field of penal law. This applies especially to his speech of April 1942, which plays - perhaps unjustly an important part in these proceedings.
Therefore, everything that the Prosecution has produced in order to demonstrate the decline of the German legal system and jurisdiction, all the documents produced in evidence by the Prosecution, and all the testimonies of the witnesses - all this concerns the administration of penal law, and in no case was there proof of any action belinging to the field of administration of civil law which could be considered as being criminal.
I must give special emphasis to this statement because the defendant Altstoetter was only active in this field of civil law, since his professional interests lay only in this field of law and the scope of his duties was clearly separated from that of criminal law.
II.
In their document books the Prosecution submitted many documents on the question of conspiracy. However, since the Tribunal stated in its decision that conspiracy did not represent a criminal action by itself, it only remains to examine the question whether and to what extent these documents serve as proof of participation by the defendants, and in particular by the defendant Alstoetter.
1. With regard to the question of participation my colleague Dr. Haensel stated the case very clearly and several other colleagues referred to this problem in their final pleas. I may refer you to these statements.
As far as the application of these legal findings to the case of the defendant Altstoetter is concerned, I am not going to speak here of the definite accusations raised by the Prosecution against him for participation in NN matters and in the persecution of Jews. To these questions I shall refer later. I only wish to discuss here whether the statement of the Prosecution has proved that Altstoetter can be regarded as having participated in the crimes of which other defendants may have been accused.
In order to discuss this, only the method of participation, as set forth in rather general terms in Article 2, paragraph 2 d, of the Control Council Law No. 10 must be examined, for, in accordance with the actual facts, there is no question whatever that Altstoetter could not possibly be regarded as principal accomplice, or acessory, or that he was an intellectual abettor in the meaning of Article 2, paragraph 2 c.From the accessory nature of every participation it follows that also in the case d) a principal act must have been completed, i.e., a crime in the meaning of Article 2, paragraph a-c, must have been committed.
The mere planning of a crime can suffice as such a principal act only when it is recognized as an independent state of facts. This applies only to the cases in paragraph la. These cases are not included in the Indictment. It remains therefore that "to be connected with the planning or execution is only punishable if an accomplished principal act according to paragraph 1 b and c is proven. This is the opinion most favorable to the Prosecution. The following solution, favorable to the defendant, would also be possible and justifiable: The provision of paragraph 2d, similarly to paragraphs 2 e and f, represents only a special form of participation in those cases where the facts as laid down by criminal law are already met by planning and execution (attempt), without an accomplished principal act with criminal results otherwise necessary having been committed. Reasons connected with the structure of the law appear to favor this solution.
What are the prerequisites to be fullfilled to realize the act of participation in paragraph 2 d in the meaning of the Prosecution? These prerequisites in every form of participation are of an objective and subjective nature.
Objectively it would be sufficient for the defendant "to have been connected with the planning or the execution of a crime (proven as accomplished) pursuant to paragraph 1 b or c". What is the meaning of "to be connected with"? That is the decisive question. It is certain this does not mean collaboration or aiding and abetting with advice and action in the meaning of the usual assistance, but that less is sufficient.
However, it can not be assumed that any sort of connection of a person with the planning or execution would be sufficient, because this would lead to an unlimited extension of the cirle of persons involved. Not only each participant in a discussion which could be regarded as planning would be involved, but for instance also the technical staff concerned with the recording, the transmission to other offices, the registration ect. of such minutes. This cannot be the meaning, the more so as the subjective part would not always be of any help in such cases. This consideration alone shows that the meaning of "to be connected with" enlarges the sphere of causality but does not eliminate it. The connection of a person with the planning or execution of the act must therfore be a causal one for the act itself. That means, there must exist an immediate connection with the planning or the execution of the act in such a way that it affected the execution of the act itself - at least indirectly.
In subjective respect the general rules apply and must be applied, There is no obvious reason why and that it should be different with regard to this form of participation, as perhaps in the cases mentioned in Article 2 a-c. The Control Council Law No. 10 required for its application that the principal or the participant acted wilfully. Therefore also the "connection with" must have been wilful,
a) regarding the connection with the planning or the execution of a crime,
b) regarding the crime generally.
The defendant who is accused of this participation must therefore be proved to have known and desired one or several specific crimes to have been committed and that he himself became involved with the planning and execution of those crimes or that he had any desired and conscious connection with them.