A. The supreme duty of every public prosecutor, and therefore also of the Oberreichsanwalt, was to collect facts both against and in favor of the defendant so as to enable the court to arrive at a just sentence.
Q. That position of the Public Prosecutor under the German code of criminal procedure made itself felt in the various phases of the proceedings, and I would like you to tell us what happened when proceedings were instituted, whether the Public Prosecutor after an indictment had reached him was under an obligation to collect also facts which were in favor of the defendant.
A. Every Public Prosecutor - and I am talking here in particular from my knowledge of Bavarian conditions, because for a long time I was in the Bavarian Ministry of Justice in charge of the penal law division - every Public Prosecutor, in accordance with official instructions was under an obligation, even during the pre-examination, to collect also facts in favor of the defendant by producing the corresponding evidence. In doing so he could avail himself of the services of the police, but -- and this became more and more the custom later on -- he could do so by his own interrogations and could thus clarify the fact. He could interrogate witnesses both for and against the defendant, and on the basis of that material the so-called investigation proceedings which he, the Public Prosecutor, had to conduct, he then as a final result submitted an indictment to the court, or if the evidence was not adequate to convict the defendant, he for his own part, could quash the proceedings.
Q. Witness, do you happens to know where this provision which you explained just now is laid down in writing?
A. As far as Bavaria is concerned, it is laid down in the prescriptions for public prosecutors, which were originally written in the year 1910 and which I, myself, in 1925 or 1926 edited. And as regards the Reich, the same provisions applied and were laid down in directives for public prosecutors.
Q. They are also laid down in the Judicature Act?
A. Yes, it is laid down in the panel code of procedure.
Q. If I read this provision to you now, can you confirm from your memory that it says that the Public Prosecution does not only have to collect facts against but also it has to establish the circumstances in favor of the defendant?
A. Yes, that is correct. That is a material duty of the Public Prosecutor. That is Paragraph 116, Section 2, of the code of procedure.
Q. An interim question. Do you know since when the German Penal Code of Procedure exists?
A. As far as I remember, since 1879, yes.
Q. Further, do you happen to remember whether these provisions ever -- that is to say, since 1879 until the end of the so-called Third Riech, 1939, were ever amended?
A. Amendments of those provisions by any legal provisions did not occur.
Q. You spoke of the institution of proceedings and you confirmed that already at the very beginning of any proceedings under the German Penal Code of Procedure the Public Prosecutors had to establish also circumstances which spoke in favor of the defendant. I would now like to ask you whether this principle also concerning further essential institutions of the Penal Code of Procedure was laid down elsewhere. I don't want to examine you, but I am concerned with explaining the difference between the fact already mentioned, that the Oberreichsanwalt normally alone was able to submit the nullity plea, while on the other hand other persons who took part in the trial were able to make suggestions.
I would like it to be clarified that it was a function of the Public Prosecutor under the Penal Code of Procedure to do so. My last question, therefore, is as to whether the Penal Code of Procedure contained any other provisions which were based on the same principle.
A. You mean with reference to the Public Prosecutors?
Q. Yes, concerning the defendants. I mean, material in favor of then or against them. I should like to abbreviate this matter. It is the legal remedy with which I am concerned here, whether under the German Code of Penal Procedure there was generally a possibility for everybody concerned that the Public Prosecutor to work in favor of the defendant and whether he was in a position to use a legal remedy.
A. If I said yes to that question it was because I considered it a matter of fact for a German -
MR. WOOLEYHAN: We object to further probing of this point, since we contend it is repetitious and already established through the previous examination of this witness that tho defendant is allowed recourse to the plea.
THE PRESIDENT: It seems to me that this witness answered that question the same way not once but four or five times.
DR. SCHILF: Mr. President.
THE PRESIDENT: That you did not agree with him you can, if you will by repeating, of course, you can introduce evidence to the contrary, but surely this witness will make the same answer no matter how many times you ask him.
DR. SCHILF: One more word on this point, Your Honor. I am concerned regarding the nullity plea, about which a great deal has been heard in this court room, to have the witness, who was the last president at the Supreme Reich Court, and who perhaps regarded to be a particular expert, I am concerned to have him explain it to us. The questions which I have put, I put them so I wish to have them clarified that the nullity plea was not a thing which was directed against the defendant, but that it was an institution which just as well could work in favor of the defendant, so that the fact that the Oberreichsanwalt had the formal privilege --
THE PRESIDENT: I read your statement and is not that exactly what the witness has said more than once, that it can operate fully in favor of the defendant as well as against it.
DR. SCHILF: Your Honor, the witness first of all said that the public prosecutor was under obligation of the so-called investigating proceedings to establish a fact which was in favor of the defendant. My present question is aimed at the finding out whether the public prosecutor could operate in favor of the defendant, or even was under obligation to do so according to its findings. The object of my two questions, therefore, is not the same. The witness first of all told us --
THE PRESIDENT: Well, it will take less time to propound your question then it will to argue about it, so put your question now very definitely and we will see that the witness gives you a definite answer.
BY DR. SCHILF:
Q Witness, you already told us if you were not to answer this question simply by saying, yes, it was due to the fact that a German question as a natter of course would be put to you. Now I would like to ask you on account of the members of the Tribunal and on account of the defense counsel who do not have that information, to tell us to look upon something which to some of us as a matter of fact seems as if it were not so. Now, therefore, I may formulate my question merely again. If the provisions of the German Code of Penal Procedure under which the public prosecutor asked that that sentence had been passed, could you give that legal remedy under which it operated in view of the defendant?
A Under the German Penal Code of Procedure the public prosecutor can operate in favor as well as against; can operate the legal remedy in favor as well as against the defendant.
DR. SCHILF: That provision, I am only going to say for me to inform the Tribunal, itself in the German Penal Code of Procedure applies without any discrimination to all legal remedies. Now there is only one more question which I would like to ask in this courtroom, which concerns paragraph 302, section 1, number 2, under which the legal remedy applied by the public prosecutor in favor of the defendant can not be taken back without the approval of the defendant.
BY DR. SCHILF:
Q Is that right?
A Yes.
Q Witness, I should now like to hear from you whether these developments did not exert an influence on this institution of nullity plea that was introduced in 1940?
A The introduction of the nullity plea was only a sort of development of the legal settlement of the application of the legal remedy.
Q Did it have political importance? Did it mean that sentences were re-examined against the interest of the defendant?
A No, I don't think so.
Q In summarizing, I should like to say the fact that the Oberreichsanwalt and not the defendant submitted the nullity plea. Did that have the tendency to set up a certain pre-examination authority, so that the Supreme Reich Court did not become cluttered with nullity pleas, that is to say, not one word whether it was more an administrative institution that a particular eminent jurist should re-examine the nullity plea to see whether such a nullity plea was to be brought before the Supreme Reich Court or not?
A Naturally, one authority had to be appointed to decide as to whether the nullity plea was to be submitted or not, and the authority which seemed to be the most likely was naturally the Oberreichsanwalt, the Supreme Reich Court from my experience. I must add, however, that frequently suggestions reached the Oberreichsanwalt concerning this omission of the nullity plea which was dragged in, and from conversations with the Oberreichsanwalt I knew that repeatedly he tried to remonstrate with the Reich Ministry of Justice concerning the point that in certain cases of nullity plea should not be submitted, because it seems hopeless from the very beginning, and I saw frequently concerning that the Oberreichsanwalt abandoned these agenda because he achieved nothing by them, and he told me that the Reich Ministry of Justice intended to imply that the high political office was not satisfied with the sentence, and had demanded examination of the facts.
Q Just for the moment leave aside the question of the practice, and I am now concerned with the explaining to the Tribunal what the institution of such represented, and particularly the point that the Oberreichsanwalt was in all respects the only person to deal with the nullity plea. I would like now to ask something else. Will you agree with me when I say that the nullity plea had great similarity with the revision in the German Penal administration?
A Similarity, yes, but revision or review referred to one thing, and the nullity plea could also criticize the fact. Originally the nullity plea was only constituted for legal criticism; later on it was extended, and it extended the facts and circumstances.
Q Can you explain to the Tribunal by what provisions?
A Without the text of the law I don't remember the details.
Q First of all, my last question is this. Can you confirm that in connection with these legal institutions, such as legal remedies, reviews, and revisions, the Oberreichsanwalt did not formulate the fact that the traditional task of the Oberreichsanwalt upon taking the Penal Code of Procedure into consideration had gradually been in a position which could not be called purely a Party position?
A That is correct.
DR. SCHILF: I have no further questions.
THE PRESIDENT: I would like to inquire whether any one other than the public prosecutor could involve the nullity plea?
A No, no, only the Oberreichsanwalt was competent to submit the nullity plea. Suggestions for submitting the nullity plea could come from various sources, but the formal competency for submission of the nullity plea lay only with the oberreichsanwalt of the Supreme Reich Court.
Q If the defendant when he had received a sentence that was too severe, then wanted to have a nullity plea, how would he go about to get it?
A. In that case, he asked his counsel to suggest to the Oberreichsanwalt that he should submit a nullity plea and that has actually happened.
Q. The suggestion, however, was not very branding upon the prosecutor, I take it. The prosecutor could use his own discretion as to whether he would prosecute the nullity plea.
A. The suggestion from the defense counsel went directly to the Oberreichsanwalt in the Reich Supreme Court; thereby, the chief public prosecutor did not deal with it at all. The defense counsel dealt directly with the Oberreichsanwalt at the Supreme Reich Court, whom he approached to submit the nullity plea to the Supreme Reich Court.
Q. Was the nullity plea used more particularly to correct sentences that were politically unsatisfactory?
A. It is very difficult to answer that because political cases were not dealt with in my senate, but as far as I can judge it, naturally nullity pleas frequently did concern political cases. That is perhaps due to the fact that, as I have said before, frequently political authorities were the important part in suggesting nullity pleas; that it is a matter of course that it happened very frequently, and I, myself, dealt with it that in general penal cases which had no political background at all, a nullity plea was submitted-- perhaps because the defendant in the first instance, concerning the fact whether he was a habitual criminal or not, that not sufficient reasons had been found, or because the offense of the defendant had not been treated from the point of view of the public enemy law. Somebody could have submitted general offenses: robbery, theft, etc. and he could thereby become a public enemy. It does not follow at all that the nullity plea concentrated itself purely on offenses for the political background. Quite frequently, it was submitted in cases of a general criminal nature if the lower instance had not given satisfaction.
DR. BEHLING: Dr. Behling for the defendants Schlegelberger and von Ammon. Before I give my view of the group of questions which the witness during his direct examination mentioned concerning the trip to Berlin, I would like to be permitted to ask the witness a few questions concerning the person of the defendant von Ammon.
I should like to use this present opportunity to put these questions to the witness as he for some time worked with the defendant at the Bavarian Ministry of Justice and should therefore be in a position to know the defendant. I believe, therefore, that I can help the trial along if I put this question now, with the agreement of the bench and of the prosecution, because I think that thereby further summoning of this witness will not become necessary.
THE PRESIDENT: I think it proper that the Tribunal should warn you that if you proceed along that line of examination, you will make this witness your own witness instead of to merely cross examine this witness. Do you understand what I mean? You will be bound by his answers.
DR. BEHLING: Yes, I understand and I therefore will not ask questions concerning the defendant von Ammon -- the subject of my cross examination -- but I will leave them until later.
BY DR. BEHLING:
Q. Witness, in your direct examination, you discussed several questions which my colleagues in their cross examination discussed in detail, and it is not necessary to revert to those points. What I have in mind particularly is the question of a nullity plea and a basic question which refers to the Nurnberg Campaign in November 1938. If it's all the same, and I do talk on this point, I am forced to do so by your statement and the direct examination concerning your impressions of the defendant Schlegelberger. Would you kindly tell me what position Schlegelberger at that time, that is to say after 1938, held at the Ministry of Justice?
A. Under-Secretary Dr. Schlegelberger at the time in question, that is to say November 1938, was the first Under-Secretary at the Reich Ministry of Justice, and he was thus the deputy of the Reich Minister of Justice. Since I was not able to reach the Minister himself, I went to see his deputy, Dr. Schlegelberger; otherwise, at the Reich Ministry of Justice, he dealt with civil matters; in charge of penal matters was Dr. Freisler, the second Under-Secretary.
Q. Witness, you said that the Under-Secretary at the time, Dr. Schlegelberger, in general was the deputy of the Reich Ministry of Justice, but was it not the case that the competence of deputizing for the Reich Minister was divided according to the various spheres of activity, so that concerning questions of penal law and political questions when the minister himself was away, did one in that case normally go to see Schlegelberger or Freisler?
A. It is my view that the first Under-Secretary deputized for the Minister in general. That was my view. It is obvious that on individual questions, one had to make up one's mind, according to the facts, who one was going to see. If it concerned penal cases, one naturally went to see the competent Under-Secretary; in this case, Dr. Freisler. But if it concerned civil cases, if it was of sufficient importance, one went to see Under-Secretary Dr. Schlegelberger. This matter on which I wished to report appeared to me to be of such significance because I was trying to achieve a legal settlement, and as Dr. Guertner was not available, I approached Dr. Schlegelberger as the next high ranking official at the Ministry of Justice.
Q. Witness, you said that Under-Secretary Schlegelberger was the first Under-Secretary and you now specify that statement is to saying that he was the deputy in general. Was there in effect such a differentiation concerning the spheres of activity? Was it not a fact that the two secretaries were of the same rank?
A. The division of activities at the Reich Ministry of Justice is not known to me, but every authority usually gives high rank to one and Under-Secretary Schlegelberger was senior rank, and therefore in my view he was the deputy of the Minister, and I believe that laws which Guertner was to sign during his absence were generally signed by Under-Secretary Schlegelberger. But I may be mistaken here. In that respect, the division of work of the Ministry is not known to me, but the questions which I was concerned with and which referred to civil law I interpreted them in such a manner that I did not take them to Freisler, because I was sure that Freisler would not have listened to me and my only hope was that Schlegelberger would listen to me.
Q Were you of the opinion that Under Secretary Schlegelberger, as compared with Under Secretary Freisler, was more moderate?
MR. WOOLEYHAN: May the Court please, I object to this question on the ground that it asks for a personal opinion of this witness about matters that he has already stated he knows nothing about.
THE PRESIDENT: The objection will be sustained.
BY DR. BEHLING:
Q. I establish, therefore, that you spoke to Under Secretary Schlegelberger because you thought wrongly here that he was the General Deputy of the Reich Minister of Justice and that he was the deputy of all questions.
THE PRESIDENT: The English translation is not coming through Proceed.
BY DR. BEHLING:
Q. During the discussions at the Ministry of Justice on these Nurnberg problems, was there, as you said under direct examination today, did the Ministry of Justice not give a definite point of view of its own, but did they refer you to a settlement which was due shortly; did Dr. Schlegelberger tell you that a judge and every judge dealing with transfer of property should himself be able to deal with any entry into the registry or to refuse to carry it out.
A. This morning I reported in detail on these events, and I have nothing to add.
Q. You no longer remember that point?
A. I gave my views and I said that Dr. Schlegelberger asked me to leave the decision in every case to the discretion of the judge.
THE PRESIDENT: That is exactly what the witness testified to this morning, and surely ho will not testify any different.
BY DR. BEHLING:
Q. I am now coming to the next point which concerns the Special Courts. According to Paragraph 11 of the law concerning Special Courts, the Special Court decides, makes its decisions by three judges working together.
Paragraph 2 of that law reads as follows: The presiding judge and the permanent members as well as tho regularly deputized, in case one of the judges is prevented on tho basis of the law, concerning the distribution of work and cost, of the 24th of November 1937, by the president of the district court of appeal, are appointed from within the judges' under his jurisdiction. Witness, you sold that the evil which occurred under Rothaug's presidency were known to you, and that frequently you tried to do something about them. Were you not able on account of the order of the law which I quoted just now, of 24 November, 1937, were you not able to redistribute activities in such a way that Rothaug could have disappeared?
A. This morning I said that Rothaug, when I assumed my office in October, 1937, was already the presiding judge of the Special Court; and that he enjoyed the special favors of tho political authorities. If I had removed Rothaug from that office at my own initiative, it would merely have meant that I had prematurely dug my own grave. The support which Rothaug enjoyed was far superior to what I enjoyed. For me there was only the possibility to try to have him transferred from Nurnberg. I tried it a great many times, and I nearly succeeded for in 1941, I think it was in 1941, there was an inquiry from the Ministry asking whether Rothaug would be prepared to work at a Special Court in the east. That inquiry was a relief to me, and I asked Rothaug to come to see me and I asked him; he was indignant that he should be asked to do such a thing. I tried to persuade him, but I tried to persuade him to follow the suggestion from the Ministry, and I finally asked him to think it over. The next day Rothaug came to see me and said that for health reasons, and particularly because of some stomach trouble, he was unable to take up that department. Until then I did not know anything about Rothaug's stomach troubles. I was convinced that in the interim Rothaug had seen the political authorities about his moving, and I informed the Reich ministry of Justice that Rothaug was not prepared to take up that department. In the meantime I heard, in effect, political elements had got busy to prevent Rothaug's transfer, calling him the judge who had done such a lot for the Special Courts in Nurnberg.
Q. Witness, I would like to hold back my questions because Rothaug's defense counsel would like to come to those. I should only like to know whether concerning Rothaug's transfer you spoke to Under Secretary Schlegelberger.
A. Whether I discussed the matter with Schlegelberger I do not know. I did repeatedly discuss the matter with Minister Guertner and particularly discussed it with the gentlemen of the personnel department; I discussed it with Master and Guertner, and it is also possible that I discussed the matter with Schlegelberger, but I cannot remember for certain, for Schlegelberger was after all not competent for those questions.
DR. BEHLING: Thank you. I have finished my cross examination.
BY JUDGE BRAND:
Q. Mr. Witness, you gave very clear testimony to the effect that in the course of the investigation of a criminal case it was the duty of the prosecutor to produce whatever evidence he could, either for or against the prospective defendant; and you said that he was entitled to the aid of the police in securing evidence for the protection of the defendant's rights; did you not?
A. Yes, I did.
Q. Would you say from that that the public prosecutor was under the law entitled to have the aid of the SS and the SD in presenting evidence for the protection of the rights of the defendant?
A. The provisions were to the effect that the public prosecution, the public prosecutor could avail himself of the aid of the police, as laid down by law, and it originates from the days prior to the existence of the SD and the SS.
Q. Yes. I understand, but do you as an export understand, that under that law and after the SS and the SD were organized, that the law applied to them, and that the prosecutor was entitled to their aid in protecting the rights of the defendant?
A. The police formations varied; in general police cases, it was the criminal police that dealt with them; and in other words, those authorities which were purely SS agencies dealt with them; but it is altogether possible that in penal matters of a political character were regularly, the indictment being submitted by the Secret State Police; also that the State Police also supplemented other investigations; but as I said earlier on, the public prosecutor generally himself made his investigations or used the aid of the police and every public prosecutor who attached importance to clarify facts in an objective natter, probably in practice, on the basis of experiences made with the police, carried out interrogations himself in person.
Q. You were speaking of the law and not of the general practice, were you not? You were saying that the law required that the prosecutor fairly represent the rights of the defendant?
A. Under the law the police was an auxiliary of the public prosecution, and, therefore, just as the public prosecutor himself had the opportunity to establish facts against and in favor of the defendant.
Q. You did not intend to say then, did you, that these special police had in actual practice assisted the prosecutor in presenting evidence favorable to the defendant?
A. No.
THE PRESIDENT: Does any other Defense Counsel desire to cross examine this witness? Before beginning any further cross examination, we will take our usual recess.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. SCHILF (Counsel for the defendants Klemm and Mettgenberg): May it please the Tribunal, may I be permitted to put one more question to the witness, which was caused by the question put to him by Your Honor about the position of the public prosecution to the police?
THE PRESIDENT: Yes.
BY DR. SCHILF:
Q. Witness, may I ask you to tell us very briefly what, in your opinion, constituted the connection between the public prosecution and the police?
A. The police, just as the prosecution, had the duty to contribute to the clarification of the legal facts.
Q. Was the police bound to directives by the prosecution?
A. According to the existing provisions, certainly, but that, in practice, unfortunately, changed later on.
Q. You mentioned already, witness, that this was so because, in practice, the privilege of giving directives on the port of the prosecution was not always taken into consideration and, contrary to that, the practice involved that the prosecutor, as far as his interrogations were concerned, carried them out himself.
A. Yes.
Q. You mentioned auxilliary officials of the prosecution. May I ask you, as far as you are able to do so, to explain that as far as police formations were concerned; that is to say, who were the auxilliary officials of the prosecution and, in principle, who was bound by the directives coming from the prosecution?
A. Auxilliary officials of the prosecution, on the basis of existing provisions in Germany, were all police officials. And according to existing provisions, they were obliged to abide by the directives of the prosecutor. However, anyone who was in practice at the time knows that in the course of years--that is, from 1933 on-that provision, more and more, was confined to a provision on paper. I personally have experienced that the police disregarded directives coming from the prosecution, and that they did not carry out requests coming from the prosecution, or did carry them out in a manner which was not satisfactory or could not be satisfactory to the prosecution, so that the prosecution saw itself obliged to resort to the clarification of matters themselves.
Q. My question has been misunderstood. I meant to ask you what police organizations, what formations of the police, in principle, could be considered auxilliary officials of the prosecution. Though you have stated that this applied to every police official, that is quite known, and I would like to ask you to explain to the Tribunal what police formations wore covered by that. You mentioned already the Criminal Police, Kriminalpolizei, that is detectives. What other formations?
A. There was the Security Protective Police, Schutzpolizei; also the Gendarmerie, that is, the rural police, those would be the main police fromations which could be considered auxilliary organs of the functionaries of the prosecution.
Q. By not mentioning the SD, the entire SS, you lead me to the conclusion that these two organizations were not auxilliary organs of the prosecution.
A. The SD, in my opinion, was not a police organization but a Party organization; and in the same manner the SS, even though members of the police also belonged to the SS, was not an organization of the police or a formation of the police and should not be confused, for instance, with the Criminal Police, or Schutzpolizei, the Security Police--that is, the SS--but an institution or a formation of the Party, which in fact, however, based its actions on the police and was organized similarly.
Q. But neither technically nor in practice was it ever charged by the prosecution to conduct investigations in penal matters?
A. Nothing was known to me that a prosecutor ever turned to the SD or the SS if they wanted clarification. Whether that actually happened in practice, I don't know. I myself have not made any such observation.
Q. You have also been a public prosecutor at times, after 1933, if I understood correctly?
A. From 1935 until 1937 I was general prosecutor in Nurnberg, the Reichsanwalt, that is, Chief of the Prosecution, at the District Court of Appeals in Nurnberg.
Q. And, based on this experience as general public prosecutor, you could say that the SD, or the group generally called the SS, were neither auxilliary organs of the prosecution technically nor, in practice, ever used for investigations?
A. I do not know of any one case of that kind. Whatever occurred secretly is beyond my knowledge. Whether the prosecution in an illegal or irregular manner used these organizations, that I do not know, I could not state that under oath. It seems probable, if one knows and has experienced the fact that a prosecutor, in person, was a member of the SD--which is relatively completely new information that I received recently--of course, there it is easy to think that a prosecutor of that type, in a manner which is not quite regular, worked together with the SD.
Q. But that would have been an illegal exception?
A. Correct.
DR. SCHILF: Thank you; I have no further questions.
DR. DURCHHOLZ (Counsel for the defendant Barnickel): May it please the Tribunal, may I put some brief questions to the witness?
BY DR. DURCHHOLZ:
Q. Witness, after you have explained this morning for what reasons the defendant Rothaug, as Chief Reich Prosecutor, came to the People's Court, I should like to put the following questions to you in this connection. Do you know Dr. Barnickel, from where do you know him, since when, and in what juridical activity have you known him?
A. I know Dr. Barnickel from my activity in the Bavarian Ministry of Justice. Dr. Barnickel at that time was senior prosecutor at the District Court Munich 2; that is, he was the Chief of the Prosecution Office for the District Munich 2. Also, as the official in charge of penal law at the ministry of Justice, a position which I had since 1930, I had official contact with Dr. Barnickel.
Q. Is it anything extraordinary if Dr. Barnickel-who, since 1934, was a senior public prosecutor at the District Court Munich 2, at that time 50 years of age-if he, on the basis of his special knowledge and his good qualifications, in the year 1938, was appointed Chief Prosecutor of the Peopl's Court, and especially if I point out to you that the then superior of Dr. Barnickel, the District Court President, Dr. Kuennewein, in Munich, had recommended him already in the year 1932 for the appointment to the Reich Supreme Court?
