"The Senator reported that the question of the poor law concerning Jews has gained significance again. With the district court there were two cases pending. He requested that contacts with the district court and with the local court judges be made at once sc that a uniform line is followed to the effect that the Jews be denied the benefits cf the poor law. It would be entirely out of the question that Jews be granted the benefits of the poor law subsequent to the present development. This would apply especially to Jews who had been evacuated but in his opinion also to these who had not been evacuated."
About this time a report concerning the claim of the Jewish plaintiff, Israel Prenzlau, came to the attention of the defendant Rothenberger, The Jew sought the right to proceed in forma pauperis. The report on the case contains the following statement by a Gau Economic Advisor, which is couched in the usual Nazi language of sinister ambiguity:
"In reply to your inquiry I state my point of view in detail.
"In a lawsuit between a German national and a Jew, I consider the settling of a dispute by compromise settlement in court inadmissible for political reasons. The German national, as party in the lawsuit, pursuant to his clearly defined legal standard derived from his political schooling since 1933, can expect that the court will decide the case by a verdict, i.e., take a conclusive attitude toward the dispute in hand. What is expected is a decision which was arrived at not from purely legal points of view, as a result of a legal train of thought, but which is an expression to the way in which National Socialist demands concerning the Jewish question are realized by German administrators of justice.
Evading this decision by a compromise might mean encroaching upon the rights of a fellow citizen in favor of a Jew. This kind of settlement would be in contradiction to the sound sentiments of the people. I therefore consider it as inadmissible." The report shows that upon receipt of the opinion of the Gau Economic Advisor "the defendants" -- in that case -- "thereupon refused settlement with the plaintiff and now deny that they owe him anything". The court which had jurisdiction of the Prenzlau case granted to the plaintiff the right to proceed in forma pauperis.
On 13 February 1942, having before him the report of the Gau Economic Advisor, the defendant Rothenberger wrote to the President of the District Court, Hamburg, as follows:
"I do not intend to approach the Economic Advisor of the Gau for the time being, seeing from the documents that the ultimate beneficiary of the claim, the son of the plaintiff, emigrated in the year 1938 and his property therefore surely being confiscated. I fail to understand why the court granted forma pauperis rights to the assignee, a Jew, without first consulting the authority for sequestration of property."
A note dated 24 February shows that Rothenberger had issued a directive to two judges of his district to the effect that every case involving the claim of the right of Jews to proceed in forma pauperis must first be submitted to him.
On 5 March 1942 a directive was issued from the Reich Ministry of Justice in substantial conformity with the recommendation of the defendant Rothenberger. It provided:
"In future the granting of rights of forma pauperis to Jews can only come into consideration if the carrying disputes concerning family rights (divorce in cases of mixed marriages, establishing the descent)."
After the enactment of the foregoing ordinance, and on 7 May 1942, a courageous President of the District Court at Hamburg wrote to Rothenberger stating that in his opinion the right of Jews to proceed in forma pauperis would have to be granted. He added:
"I am convinced that it is in the common interest that an Aryan cannot evade without further ado a just claim against him merely for the reason that the court denies the forma pauperis right to Jews."
Notwithstanding this protest, and on 22 May 1942, the defendant Rothenberger, in reliance upon the ordinance which was based upon his recommendation, wrote to the President of the District Court of Hamburg that he considered it "adequate that the forma pauperis right granted to the plaintiff Prenzlau be canceled. Please have this taken into consideration by the court in a form which you deem appropriate."
The foregoing narrative takes on additional significance when summarized. First, Rothenberger recommends to the Minister of Justice that it is desirable to deny to Jews the right to proceed in forma pauperis, but that such denial is inadmissable because there is no law to justify it. He recommends the passage of such a law. About three weeks later, now having been passed, he recommends that the judges take a uniform line depriving the Jew of the right to proceed in forma pauperis.
A specific case now arises in which the right was granted to a Jew, and the defendant Rothenberger receives veiled suggestions from the Gau Economic Adviser to the effect that defendants should not be allowed to compromise a case brought against them by a Jewish plaintiff because the court should decide against the Jew in any event on political grounds. Concerning this suggestion Rothenberger ventures no comment. The defendant in the Prenzlau case takes his cue from the advice of the Economic Advisor and denies liability; the court grants to the Jew the right to proceed in forma pauperis. Rothenberger criticizes this action, although the lower court had acted in strict conformity with the law. In March the awaited law excluding the Jew from the benefit of the poor law is passed. In May Rothenberger overrules the protest of a judge and directs the canceling of the order which was made by the lower court. This dictation by the defendant Rothenberger to other courts and judges of his district was not done in the course of a legal appeal from the lower court to the court over which he presided. It was done after the manner of a dictator directing an administrative inferior how to proceed.
Rothenberger not only participated in securing the enactment of a discriminatory law against Jews; he enforced it when enacted and, in the meantime, before its enactment, upon his own initiative he acted without authority of any law in denying to Jewish paupers the aid of the courts.
It is true that the denial to Jews of the right to proceed in civil litigation without advancement of costs appears to be a small matter compared to the extermination of Jews by the millions under other procedures. It is nevertheless a part of the governmentally organized plan for the persecution of the Jews, not only by murder and imprisonment but by depriving them of the means of livelihood and of equal rights in the courts of law.
The defendant Rothenberger testified that various judges reported to him "that they had heard rumors to the effect that everything was not quite all right in the concentration comps" and that they wished to inspect one. Accordingly, Rothenberger and the other Judges visited the concentration camp at Neuengamme. He testified that they inquired about food conditions, accommodations, and the methods of work, and spoke to some inmates, and he asserts that they did not discover any abuses. This was in 1941. Again, in 1942, according to his own testimony, the defendant visited Mauthausen concentration camp in company with Kaltenbrunner, who was later in charge of all concentration camps in Germany and has since suffered death by hanging. At Mauthausen concentration camp the defendant Rothenberger again inspected installations, conferred with inmates, and inquired as to the cause of detention of the inmates with whom he had talked. He states that from his spot checks he "could not find out that there was any case of a sentence being 'corrected." Upon inquiry as to what the defendant meant by the "correction of sentences", he answered:
"A: By correcting of a sentence we mean that when the court had pronounced a sentence, for example, had condemned somebody to be imprisoned for a term of five years -- if the police now after these five years had been served, if the police arrested this man and put him into a concentration camp -- this is only an example of a correction. Or, even, and this is clearer, it happened that a person was acquitted by a court, and in spite of that the police put this man into a concentration camp. These are examples of correction of sentences."
The defendant stated that ho did not observe and could not discover any abuse at Mauthausen. In this connection the testimony of defense witness Hartmann is of interest. Hartmann accompanied Dr. Rothenberger on his visit to Mauthausen concentration camp. He testified that rumors were current in Germany to the effect that conditions were not what they should be in the concentration camps. Hartmann testifies that they went about the camp freely and observed everything closely. On cross examination by the Tribunal Hartmann testified as follows:
"Q: ***When you visited Mauthausen concentration camp, you knew, did you not, that the courts in the Ministry of Justice never sentenced convicted criminals to a concentration camp?*** "A: Yes.
"Q: Did Dr. Rothenberger know it?
"A: Yes.
"Q: Then you know that these ten people that he talked with, and the one or two that you talked with, were not there by reason of any action on the part of the Ministry of Justice or the court, but were there only by reason of action by the police or by the Party, did you not?
"A: Yes, that was preventive custody undertaken by the police."
The witness Hartmann testified further:
"Q: And they had already served their sentences as imposed by court before they were taken into this custody of the police; is that right?
"A: Yes, that is how I see it.
"Q: And at that time these twelve people who had served their sentences and had been taken over by the police -- that met with the approval of the defendant Dr. Rothenberger, as I understand you?
"A: Dell -- did not approve the concentration camp as an institution altogether, but first of all we wanted to achieve this: that it would no longer happen that a defendant was acquitted and then after acquittal the Gestapo arrested (him) in front of the courtroom. *** In those cases too, he did not approve the fact that these people were in a concentration camp because we were of the opinion that only the Administration of Justice should decide these questions of criminal law and nobody else.
But according to the power conditions within the State, as they happened to exist, our interest was first of all to remove the worst evils."
Upon redirect examination by counsel for the defendant Rothenberger, defense witness Hartmann testified as follows:
"Q: Therefore, was the situation sometimes for you and Dr. Rothenberger like this: that apparently you affirmed something with a smiling face, something which as a human being you had to disapprove of and reject?
To this question the witness answered that Dr, Rothenberger, "for reasons of power politics", had to accept the conditions though he did not approve them. After his inspection of Mauthausen concentration camp, Dr, Rothenberger took no action whatsoever with regard to the information which he had received.
I follows that the defendant Rothenberger, contrary to his sworn testimony, must have known that the inmates of the Mauthausen concentration camp were there by reason of the "correction of sentences" by the police, for the inmates were in the camp either without trial or after acquittal, or after the expiration of their term of imprisonment.
It must be borne in mind that this inspection by the defendant Rothenberger was made at Mauthausen concentration camp, an institution which will go down in history as a human slaughter house and was made in company with the man who became the chief butcher.
We are compelled to conclude that Rothenberger was not candid in his testimony and that in denying knowledge of the institution of protective custody in its relationship with the concentration camps ho classified himself as either a dupe or a knave. Nor can we believe that his trips to the camps were merely for pleasure or for general education.
He also advised other judges to make like investigations. We concede that the concentration camps were not under the direct jurisdiction of the Reich Minister of Justice, but arc unable to believe that an Under-Secretary in the Ministry, who makes an official tour of inspection, is so feeble a person that ho could not even raise his voice against the evil of which he certainly knew.
If the defendant Rothenberger disapproved of protective custody and the consequent employment of concentration camps, it must be because of a change of heart concerning which we have had no evidence. On 13 June 1941 Rothenberger wrote Secretary Freisler suggesting that many small cases were being tried by the special court and that this was not compatible with the importance of the court. He referred to minor offenses which came under the public enemy decree, "in which, however, protective custody will be requested by virtue of the offender's past life and his character". Again, he speaks of cases in which motion is made for the offender to be taken into protective custody.
On 5 January 1942 the defendant Rothenberger addressed a report on the general situation in the Hamburg area to the Reich Minister of Justice. From this document his attitude concerning the institution of protective custody may be ascertained. Concerning the "transfer to the public prosecutors of the right to decide about the duration of protective custody", he said:
"In a certain connection with this problem is the transfer to the public prosecutor's office of the right to decide about the duration of the protective custody. I regret that it is obvious that the courts are more cautious and reserved than they were previously in regard to the order of protective custody, because the duration of the protective custody is not any more within their control.
This attitude of the courts cannot be approved, but it is psychologically understandable, I am afraid, that the reform effected the opposite of the intended more vigorous practice in regard to protective custody."
In February 1939 the defendant Rothenberger and the Chief Public Prosecutor reported to the Hamburg judges upon a conference which had boon held in Berlin. The record of the joint report in which Rothenberger participated is as follows:
"A report was then made on the discussions on protective custody. The Ministry is of the opinion -- also held here -- that no objection can be raised to protective custody as long as it is purely protective, but that corrective measures, such as became known in certain cases, must not became a habit."
In conclusion, the evidence discloses a personality full of complexities, contradictions, and inner conflict. He was kind to many half-Jews, and occasionally publicly aided them, yet he was instrumental in denying them the rights to which every litigant is entitled. He fulminated publicly against the Schwarze Corps for attacking the courts, yet ho reproached judges for administering justice against Party officials and unquestionably used his influence toward achieving discriminatory action favorable to high Party officials and unfavorable to Poles and Jews. He wrote learnedly in favor of an independent judiciary, yet he ruled the judges of Hamburg with an iron hand. He protested vehemently against the practice of Party officials and Gestapo officers who interfered with the judges in pending cases, but ho made arrangements with the Gestapo, the SS, and the SD whereby they were to come to him with their political affairs and then he instituted "preview and review" of sentences with the judges who were his inferiors. He thought concentration camps wrong but concluded that they were not objectionable if third degree methods did not become a habit.
Rothenberger was not happy with his work in Berlin. In his farewell speech on leaving Hamburg, he exuberantly exclaimed that he had been "an uncrowned king" in Hamburg, but he would have us believe that he received a crown of thorns in Berlin. Soon he learned of the utter brutality of the Nazi regime and the cynical wickedness of Thierack and Himmler, whom he considered his personal enemies. He could not stomach what he saw, and they could not stomach him. The evidence satisfies us that Rothenberger was deceived and abused by his superiors; that evidence was "framed" against him; and that he was ultimately removed, in part at least, because he was not sufficiently brutal to satisfy the demands of the hour. He was retired to the apparently quiet life of a notary in Hamburg, but even then we find that he was receiving some pay as an undersecretary and was assisting Gauleiter Kauffmann in political matters in that city.
The defendant Rothenberger is guilty of taking a minor but consenting part in the Night and Fog program. He aided and abetted in the program of racial persecution, and notwithstanding his many protestations to the contrary, he materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the Party minions, and the police. He participated in the corruption and perversion of the judicial system. The defendant Rothenberger is guilty under Counts two and three of the indictment.
Court No. III, Case No. III.
THE PRESIDENT: The Secretary-General, by his deputy, Mr. Willsie, will continue with the reading of the opinion in connection with the case against the defendant Lautz.
MR. WILLSIE: "The Defendant Lautz.
"The defendant Lautz from 20 September 1939 until the end of the war served as Chief Public Prosecutor at the People's Court in Berlin. He joined the NSDAP in May 1933. During the period of his service the "higher officials" under his supervision increased from 25 to about 70. The office originally consisted of four departments which were later increased to five to correspond with the number of Senates of the People's Court. After the enlargement of the department there were five public prosecutors and one senior public prosecutor in each department. The defendants Barnickel and Rothaug were among the senior public prosecutors under the general supervision of the defendant Lautz. The crimes with which his office dealt were those over which the People's Court had jurisdiction. Of particular interest here were the prosecutions for undermining the German defensive strength, high treason and treason, cases of attempted escape from the Reich by Poles, and other foreigners, and NN cases.
A great number of prosecutions were brought under the decree of 17 August 1938 which provides that "Whoever * * * openly seeks to paralyze or undermine the will of the German people or an allied nation to self-assertion by bearing arms" should be punished by death. This was the law which effectively destroyed the right of free speech in Germany. The prosecutor's office was required to handle approximately 1,500 cases a month involving charges of this type. Under supervision of the defendant Lautz all of these charges had to be examined and assigned for trial to the People's Court in serious cases, or to other courts. In the cases which were assigned to the People's Court for trial "there was always the possibility that the death sentence would be pronounced".The defendant Lautz instructed his subordinates that only those cases were to be retained for trial before the People's Court in which it was "possible to assume full responsibility if the People's Court Senate pronounces the death sentence".Lautz did not whirk responsibility for the acts of his deputies.
He testified that the signature of his deputy "meant of course, that I assumed responsibility for that matter."
In connection with the work of his department it was the duty of the defendant Lautz to sign all indictments, all suspensions of proceedings, and all reports to his superior, the Minister of Justice. This work assumed such proportions that it became necessary to delegate parts thereof to his subordinates, but the defendant Lautz required that important matters be reported directly to him. In partial explanation of his activities and motives in connection with his enforcement of the law against undermining the defensive strength of the nation, Lautz stated:
"just as I think that it is a good thing that no one today can claim that this war was lost only through treason, I must also say that I regret that because of this war and through these death sentences many people, who were otherwise all right, had to lose their lives."
As an illustration of the type of case which was prosecuted under this law, we cite the case of the defendant who said to a woman: "Don't you know that a woman who takes on work sends another German soldier to his death?" This offense was described by Lautz and Rothaug as a serious case of undermining the defensive strength of the nation. The office of the Chief Public Prosecutor of the People's Court was vested with a wide discretion in connection with the assignment of cases to the various courts for trial. It will be recalled that the Malicious Acts Law of 20 December 1934 provided for A Dec 47-M-BJ-1C-3-Gaylord.
punishment of persons who made false or treacherous statements "fit to injure the welfare or prestige of the government and of the Reich", etc. Under this law moderate punishments by imprisonment were authorized, whereas, under the law against undermining the defensive strength of the nation, the death penalty was mandatory. If the prosecutor sent the case for trial to the People's Court on the charge of undermining, instead of sending it to a lower court for trial under the Malicious Acts Law, he determined for all practical purposes the character of the punishment to be inflicted, and yet the evidence satisfies us that there was no rule by which the cases were classified and that the fate of the victims depended merely on the opinion of the prosecutor as to the seriousness of the words spoken.
The connection of the defendant Lautz with the illegal Nacht and Nebel procedure is established beyond question. The People's Court acquired jurisdiction of NN cases under the decree of the Reich Minister of Justice of 14 October 1942. Lautz estimated that the total number of NN cases examined by his department was approximately one thousand, of which about two hundred were assigned to the People's Court for trial, but he added that each case could concern several defendants. No good purpose will be served by a second review of the testimony concerning the Nacht und Nebel decree. In harmony with the decision in the case of the United States vs. Goering, et al., this Tribunal finds that the secret procedure which was instituted and enforced through the Ministry of Justice constituted a war crime and a crime against humanity. The Chief Public Prosecutor of the People's Court zealously enforced the provisions of this decree, and his conduct in so doing violated the laws and customs of war and the provisions of C.C. Law 10.
Treason Cases Involving Border Crossings by Poles Lautz estimated that from 150 to 200 persons were prosecuted for leaving their places of work and attempting to escape from Germany by crossing the border into Switzerland.
These cases were prosecuted under the provisions of penal code concerning treason and high treason.
On 24 February 1942 an indictment against the Pole Ledwon was filed by Parrisius as deputy for the defendant Lautz. The indictment was marked "Secret Treason Case", and bore the stamp of the Chief Public Prosecutor at the People's Court. A letter signed by Lautz bearing the same date was addressed to the Presidents of the Second Senate of the People's Court and advises them that he is sending to the Court the indictment in the case Ledwon. The indictment alleges that on 28 July 1941 the accused left his place of work in Bavaria and attempted to escape by crossing the Reich border, and that he was stopped by a customs official whom he struck with his fist while evading the arrest. The indictment states that the reason given by the defendant Ledwon for his attempt to escape from Germany "does not deserve credence; it may rather be assumed that he intended to join the Polish Legion organized on the side of the hostile powers". The indictment states that the defendant knew that the aim of the Polish Legion was to restore a Polish State. On the basis of the foregoing specific allegations, the indictment charges that the defendant prepared within Germany: "(1) the highly treasonable enterprise to separate from the Reich by force a territory belonging to the Reich; (2) to have aided and abetted the enemy inside Germany during a war against the Reich, and thus, as a Pole, not to have behaved according to the German laws and to the directives of the German authorities; and (3) to have committed a violent attempt on a German official. * * *." The indictment was brought under the provisions of Sections 80, 83, and 91b of the Penal Code, and under the provisions of the law against Poles and Jews.
Section 80 provides for the imposition of the death penalty upon anyone attempting by violence or threat of violence to detach from the Reich territory belonging to the Reich. Section 83 provides for the punishment of any person who solicits and incites an undertaking of high treason. Section 91 (b) provides for imprisonment or death for any person who undertakes acts in favor of the enemy powers or causes a detriment against the armed forces of the Reich. On 10 August 1942 the case was tried. The court found the following facts: Defendant was a Pole who lived in Poland on 1 September 1959. (See: Law Against Poles and Jews). After the Polish campaign the defendant reported "voluntarily" for work in Germany and then tried to leave the country. The court states further that "the prosecution charges the defendant with the intention of going to Switzerland in order to join the Polish Legion there." It adds that the Polish Legion was interned in Switzerland and that many Poles had been caught at the frontier, some of whom could be convicted of planning to join the Polish Legion in Switzerland. The court, with unwonted candor, states that "the trial did not show any concrete evidence that the defendant * * * had any knowledge of a Polish Legion in Switzerland". It held that due to lack of evidence "the defendant could not be convicted of the crime of preparation for treason and of treasonably aiding the enemy". The opinion of the People's Court continues:
"The defendant is, however guilty according to the result of the trial, of an of offense against penal law ordinance relating to Poles, of 4 December 1941. The general conditions of this ordinance are and fulfilled, as the defendant is, by origin, education, and sentiment, a racial Pole and was on 1 September 1939 resident in the former Polish State. In leaving his place of work as an agricultural laborer, of his own accord, at the end of July, i.e., during the harvest, he disturbed the orderly procedure of the harvest work of his employer to the detriment of the harvest. His action, moreover, was detrimental to the whole of the German people for, in leaving his place of work in order to go abroad, he deprived the German people forever of his labor.
Germany, in order to cover her war needs and to ensure food supplies for the front as well as for home, however, needs all persons employed, including foreigners. Every worker who by escape deprives the German war economy for good of his labor,- reduces the number of the badly needed manpower and thus endangers the interest of the German people."
The court held that it was irrelevant whether the Pole knocked the customs official down because in any event he used force sufficient to prevent his arrest at the time. It observed that under the law against Poles and Jews "only the death sentence on the defendant can be meted out, unless a less serious case can be realized in his favor. The Senate was not able to recognize such case."
The opinion concludes as follows:
"But by using violence against the customs officer who was going to arrest him, and thus resisting the legal German authority, has proved himself such a fanatical and violent Pole that he has forfeited any right for leniency. After the grave bloody guilt which the Polish nation has carried since the weeks of August and September 1939, it is the duty of every member of this nation to obey willingly the rules of the German authorities. A Pole who, on the contrary, uses violence against a German official can only be punished sufficiently by the highest degree of punishment. Accordingly, this has been applied to the defendant."
The Pole was sentenced to death.
We are not here to retry the case. We may, therefore, ignore the ridiculour charge that the defendant desired to join an interned Legion and the allegation that he came to the Reich "voluntarily" after the invasion of Poland. We have already discussed the essential evil in the practice of prosecutors whereby they charged that Poles were guilty of high treason by attempting to separate from the Reich territory which had never been legally annexed to the Reich. In the Ledwon case the sinister subtlety of the Nazi procedure is laid bare. If the case had been brought only under the law against Poles and Jews, the People's Court would not have had jurisdiction, so the defendant was charged with high treason for attempting to separate from the Reich, territory which did not belong to it.
The proof of high treason failed. There remained only the charge that in attempting to escape from Germany and from forced labor there, the defendant assaulted a customs officer with his fist and that what he did was done as a Pole in violation of the law against Poles and Jews. It was under that discriminatory law that ledwon was sentenced to death and executed. The defendant Lautz is guilty of participating in the national program of racial extermination of Poles by means of the perversion of the law of high treason.
In a similar case, upon an indictment signed by Parrisius and filed by authority of the defendant Lautz, the People's Court sentenced three Poles to death upon a charge of preparation of high treason "because they, as Poles, harmed the welfare of the German people, and because in a treasonable way they helped the enemy and also prepared for high treason". The specific facts found by the court were that the defendant Mazur and others attempted to cross the border into Switzerland for the purpose of joining the Polish Legion.
By such conduct and by depriving the German Reich of the benefit of their labor, it was held that the efforts of the defendants aimed "at forcibly detaching the Eastern regions incorporated in the Reich * * * from the German Reich." The opinion contains an illuminating passage concerning treason committed by attempting to join an interned Legion. We quote:
"After the defeat of France in the present war, as is known to the Senate (Court) from other proceedings, detachments of the Polish Legion crossed the border into Switzerland and were interned in camps. The Legion continues under the command of the Polish officers and kept in readiness for military action against the Reich on the side of the enemy in the event of German troops invading Switzerland."
The evidence of intent to join the interned Legion is paltry but, as before, we will not attempt to retry the case on the facts. The court held that according to the law against Poles, the death sentence must be imposed. We quote:
"They wanted to deprive the German nation forever of their labor. Thus they have damaged the welfare of the German nation. This is the offense against the regulation on penal law for Poles. * * * .
"The precept of the Regulation of Penal Law against Poles applies to the defendants' offense, although it was committed before the regulation came into force for, according to Article I of the Supplementary Regulation of 31 January 1942, the Regulation of Penal Law against the Poles can be applied to offenses committed before the regulation was in force with the approval of the prosecutor.
This approval has been given by the Reich Chief Prosecutor."
In another, the Kalicki case, the record of which is marked "Secret", three Poles were sentenced to death for preparation of high treason upon the same grounds as in the previous case. The court held that "the sentence to be pronounced has to be taken from the decree concerning the criminal law for Poles, since this decree provides the heaviest penalty of all laws applicable to the case." The evidence does not disclose that the defendant Lautz personally signed the indictment, but it was certainly filed under his authority. The question of clemency in the Kalicki case was presented to the defendant Rothenberger. On 28 July 1943 he wrote:
" * * * I have decided upon authorization by the Fuehrer not to exercise my right of pardon but to let justice take its course."
The defendant Lautz filed an indictment against the Pole Bratek. The specific charge was leaving his work in Germany and attempting to cross the border into Switzerland to join the Polish Legion. The general charge was the treasonable attempt to separate from the Reich an area belonging to the Reich and the violation of the law against Poles and Jews.
The court said:
"At the same time he has made himself guilty of a crime according to article I, paragraph 3, last half sentence, of the penal decree for Poles, issued 4 December 1941.
Because, being a Pole, has intentionally inflicted damage to the interests of the German people by malevolently leaving his important agricultural job, above all during harvest time, in September 1942, and through meaning to rob forever the German people of his own labor by escaping abroad. * * * "According to Article 73, Penal Code, the penalty can be drawn from the penal decree concerning Poles which loc.
cit. demands exclusively the death penalty as a rule, this being taken from the most severe penal law applicable here."
A secret communication by the defendant Lautz to the Reich Minister of Justice is of especial interest. The proposal under consideration was for the prosecution of certain Poles upon the charge of high treason on account of acts done in Poland before the war. In his discussion Lautz quotes from Himmler, the Foreign Office, and the President of the People's Court. The facts on the basis of which opinions were expressed may be illustrated-thus: Within Poland and before the war, a Pole institutes proceedings against a Polish citizen of German blood, charging the racial German with Fifth Column activities directed against Poland. During the war the Pole who instituted the prosecution against the racial German is captured. The question was: Can the Pole be prosecuted in a German court on a charge of high treason against the Reich, basing the charge on the fact that he had prosecuted the racial German in Poland?