In reference to this point the Prosecution submitted numerous documents, above all, the documents in document book VIII-A, bearing the exhibit numbers of the Prosecution 383 to 401. Under figures 15 and 27 of the Indictment, you, among other persons, are also charged with special responsibility for and participation in these crimes. Would you please comment on that?
A In answer to this I can only say that I never had anything to do with questions of sterilization and euthanasia, and that officially I could not have had any connection with these matters because they had nothing to do with the special competence of my office. The decree of the Reich Minister of Justice of 22 April 1941---that is document NG-265, Exhibit 392--was submitted to my office only for the purpose of information, for my attention. At first I did not understand its meaning: therefore, I inquired at the Ministry of Justice as to what the meaning was. I was told that according to the knowledge in the possession of the Ministry of Justice, apparently things had been going on in mental institutions which were not in order. The Ministry of Justice therefore placed great emphasis on the fact that they wanted to know from all offices of the Administration of Justice whether, within their sphere, any observations had been made, the knowledge of which was essential for the Ministry of Justice. As for my office, no such observations were made there.
DR. GRUBE: The witness has just stated that such measures did not at all come under the competence of the Reich Prosecution. In this connection, may I refer to the following exhibits which I introduced yesterday: 23, 32, 33, 39, 40, and 41.
Q Witness, under figures 18 and 30 of the Indictment, the Prosecution stated that the Ministry of Justice, by suspending the Prosecution stated that the Ministry of Justice, by suspending and quashing penal procedures, had contributed to Hitler's program to incite the German civilian population to the killing of Allied fliers who had been forced down within the area of the Reich.
The Prosecution, for that purpose, submitted the following documents: Exhibit 108, 109, 110, 417, and 440. In reference to this point, under figures 18 and 30 of the Indictment, the Prosecution stated that, among other individuals, you also are charged with special responsibility for and participation in these crimes. Therefore, I ask you to comment on this.
A I never have understood upon what foundation the Prosecution based this statement. I was never a member of the Ministry of Justice; I could never have participated in penal provisions which would have had for their subject the killing of Allied fliers. Therefore, I was not in position and could not have come into a position to have an influence on the suspension or quashing of any such penal provisions.
Q Witness, would you please comment on document NG-412, which is Exhibit 77 of the Prosecution.
A What document are you referring to?
QNG-412, Exhibit 77. It refers to a case of treason committed by a German in the Memel District.
A The document reveals that the Chief of the Legislative Department of the Ministry of Justice, and his Referent, wanted to know, based on my practical experience--they were preparing a certain draft for a law--whether any experience existed on which the draft could be based; that is to say, whether certain cases had occurred with the Reich Prosecution. As far as I am able to remember, my answer was to the effect that there was only one single case pending at that time, where it had been learned afterwards that before 1933 an extraordinarily serious case of treason had occurred on the part of a German in that district which, according to the prevailing opinion of its punishability, could not be sufficiently punished according to the opinion which had prevailed before. However, I could not tell at that time whether or not there would be any more proceedings of that kind in the future.
Q Witness, that information to the Ministry of Justice was not offered by you on your own initiative, but it was given upon an inquiry made by the Ministry!
A This is the way it happened. That question was not only of importance to the regular Administration of Justice, but, to a much further extent, to the justice departments of the Armed Forces, because during the war treason and espionage were, first of all, dealt with by the Reich Military Court. The Reich Military Court and High Command of the Armed Forces--that is to say, the Legal Department-and the Ministry of Justice, discussed this question and both, the Legal Department of the Armed Forces, as well as the Ministry of Justice, in order to come to a final decision, inquired about the front experiences, if I may say so.
Q Witness, will you then please refer to the document submitted by the Prosecution under NG 548, Exhibit 347. This document is a letter to the Reich Minister of Justice of the 23rd of February, 1942, which contains excerpts from a letter by Himmler of the 13th December 1941.
A That report was necessary because in an individual case or in several individual cases a decision had to be obtained from the Minister of Justice as the whether a penal prosecution should be initiated for an act committed abroad for proceedings of that kind could only be initiated after the Minister of Justice had given his approval. As can be soon from the letter, its essence is a letter from the RSHA which shows that the RSHA did not agree with the opinion of the Reich Prosecution and the People's Court as to these proceedings. For that reason also it was necessary to obtain a decision on the part of the Minister of Justice. At the end of that report the two procedures are described by me briefly, which were the main problems in this case. If one takes notice of the facts such as they are described there, I do not believe that any fair minded person could have any objection to the fact that these circumstances words made the basis for criminal proceedings but according to the nature of these cases only a German Court could have tried them.
Q The Prosecution also submitted a situation report of the 19 of February 1944. That is document NG 671, Exhibit 220.
THE PRESIDENT: As I said before you will accommodate us if you will give the exhibit number first.
BY DR. GRUBE:
Q In paragraph E of that Exhibit 220, you stated in connection with the subject "Treason by Neglect' the following, and I quote:
"Considering the serious danger to the conduct of the war which arises particularly from the violation of the duty to secrecy within the meaning of paragraphs 90-D and 90-E of the Penal Code, it is necessary that the existing threats of punishment be considered not sufficient." Will you please comment on that?
A The reference made to those two penal provisions is really a reference to the great difference existing between an accomplished fact of treason and the so-called treason by neglect. (Fahrlaessig). Both provisions presuppose that a person has betrayed a secret of the state to another individual. The difference, however, between a true case of treason and a case of treason by neglect lies in the following: In the first case the betrayer intends that the secret should come to the knowledge of the enemy; in the second case he has no such intention. Those differences are expressed considerably in the measure of punishment. True treason has to be punished by death. Treason by neglect can only be punished by a prison term of at most twelve years. To distinguish between these two cases in practice is extremely difficult because it is very difficult to look inside a person, and we were convinced that the Courts in many cases would have decided in favor of the milder provision concerning treason if the punishment threat would have been more severe. There occurred a particularly tragic case which gave cause to make that suggestion on my part. The facts were the following briefly: An armament plant in Germany which dealt with the production of a now weapon hitherto unknown had been destroyed to a great extent by the British Air Force.
To assure that the engineers and workers of that factory did not remain unemployed, they were put into another industrial plant somewhere else in Germany. One of the engineers in a hotel on the occasion of a dinner party met several inhabitants of the city where he now worked and since that city had also been seriously damaged by air attacks and the morale of the population was very low, he permitted himself to say following at the dinner table: One need not worry. In the future things would improve because what he know, would guarantee that the war would change for the better. But he did not leave it at that but in a quite unambiguous way described the weapon that he had helped manufacture. In this case the Chief of the Reich Prosecution had filed an indictment for charges of treason by neglect. The first senate of the People's Court on account of the intention of actual treason sentence the man to death and explained that case of treason was so serious in its consequences that the culprit would have had to expect that by an indiscretion his information might have come into the possession of tho enemy. And the department did not succeed by suggesting clemency in preventing tho execution of that sentence. I was convinced that tho first senate, if it could have decided for a penitentiary term, would have done so. Therefore, that suggestion was made.
Q After you have discussed these questions and explained what you had to do with the Reich Supreme Court and the Ministry of Justice, I shall revert now to your position as Chief Reich Prosecutor with the People's Court. Until 1944 you were Chief Reich Prosecutor of the People's Court, weren't you?
A Yes, until the surrender.
Q In that capacity you were in charge of the office of the Chief Reich Prosecution with the People's Court, werent you?
A Yes.
Q What kind of an office in the administration of justice, was that Chief Reich Prosecution with the People's Court?
A The position of Chief Reich Prosecution was about the same as the Prosecution with the District Courts. It differed from those, only, however, in that the Chief Reich Prosecution was immediately subordinate to the Ministry of Justice, and that it's officials in view of their tasks were better paid.
Q And are the same conditions true about the Chief Prosecutor of the Reich Supreme Court?
A Yes, that is true.
Q Could you briefly describe the development of the Chief Reich Prosecution, particularly from what kind of an office it evolved?
A The Chief Reich Prosecution as far as its personnel was concerned developed from the Chief Reich Prosecution of the Supreme Court. When the People's Court was established in 1934 a branch of the Chief Reich Prosecution with the Reich Supreme Court was transferred to Berlin. It was subordinate to a special Reich Prosecutor, who at that time was still subordinate to the Chief Reich Prosecutor at Leipzig. That was changed in 1936 when the People's Court was put on the budget and was granted a Reich Prosecution office of its own. Its Chief was no longer subordinate to the Chief Reich Prosecutor in Leipzig but to the Minister of Justice and from 1937 on he also had the title of Chief Reich Prosecutor.
Q In this connection, may I refer to the Exhibits 19, 20 and 21 which I have submitted. Witness, what was the structure of the Reich Prosecution to the People's Court when you were Chief Reich Prosecutor there?
A It was sub-divided into departments. At first there were four, later there were seven. At the top of each division there was a Reich Prosecutor or a Chief Prosecutor. Each department, in order to take care of its routine tasks had one or two offices and the necessary office personnel.
Q In order to give an impression of the size of that office, could you tell us something about the number of personnel and the Judges between 1939 and 1945?
A I believe that I can only say for the appointment of higher officials, that is to say, the officials of the rank of Prosecutor, when I took over that office, it was in September 1939, there were about 35.
Q One moment, witness, 35, you mean Prosecutors?
A Yes, Prosecutors or Judges who were used at that time as Prosecutors, but in this connection I have to say that already the mobilization order had withdrawn several individuals from that office. Toward the end of the war there were about 17 public prosecutors or judges in the function of prosecutors. The constant change which occurred during the war by induction into the armed forces of officials meant that frequently people who were not fully qualified had to be used.
Q Would you now quite generally describe your activities as Chief Reich Prosecutor?
A The Chief Reich Prosecutor, that is the Chief of Office, had as his main task to supervise everything, to see to it that tho laws or directives of the Minister were abided by and for that purpose it was his task to sign the indictments, to sign directives by which any proceedings might have been suspended, and the most important reports to the Minister of Justice.
As far as the Chief Reich Prose cutor could not do that himself in individual cases, his permanent deputy, or if he was not present, the senior Reich Prosecutor had to sign for him. I myself in the course of the war frequently had to be represented by someone else if I was away on an official trip, sick or on leave. For a considerable time I had to be represented by a deputy, when in the fall of 1944 I was kept busy exclusively by matters pertaining to the attempt of the 20th of July. In this connection I would like to say the following: In November 1943, by an Allied air raid on Berlin, the people's Court was destroyed greatly. Three departments had to be transferred to Potsdam and throe senates. As for the departments in Potsdam Reich Prosecutor Weyersberg deputised for me because it was impossible for me to go to Potsdam every day in order to take care of matters there also.
Q Witness, were the Chief Reich Prosecution on the one hand and the People's Court on the other quite independent legally and as to organization?
A Yes.
Q Was the office of the Reich Prosecution at the People's Court subordinate to the People's Court?
A You mean to the President of the People's Court?
Q Yes, to the President?
A That was not the case, but as long as Thierack was President of the People's Court, he frequently tried to obtain influence on the Reich Prosecution.
The Prosecution here submitted a document a from which that can be seen. It is Exhibit 437, document NG 919. In this connection may I say the following: According to legal provisions, which my defense counsel has submitted here in evidence, the Chief Reich Prosecutor was authorized concerning a certain number of offenses he had to deal with, to request that the cases be transferred to the District Courts of Appeals, if he considered these cases to be of minor importance. Of this authorization I made use always as far as it was possible. When Thierack was President of the First Senate, he frequently was indignant that by this manner cases were withdrawn from his influence, it was known to me that he made efforts that these transfers, to which the Chief Reich Prosecutor was authorized, should depend upon the approval either of a President or a senate. He thought that the opportunity had coma to obtain that when the Ministry under Schlegelberger in 1942 wanted to extend further that authority granted to the Chief Reich Prosecutor. The draft for the law was dropped later, apparently because Thierack pulled wires against it rather strongly.
Q You just mentioned your practice in transferring cases to the District Courts of Appeals; was the procedure of transfers of cases supervised by anybody?
A It was not supervised or checked but from reports submitted to him the Minister of Justice found out about it and repeatedly, particularly during Thierack's time, interfered.
Q The Prosecution has submitted various documents concerning the appointment of Lay Judges for the People's Court. Did you have any influence on those appointments?
A No.
Q Did you have any influence on the appointment of the Judges for the People's Court?
A No.
Q Did you have any influence on the composition of the individual senates?
A No, I didn't have that either.
Q. To clarify the position of the Reich Prosecution with the People's Court, I must briefly refer to the structure of the Prosecution throughout the Reich. What was the structure of the Prosecution in the whole area of the Reich?
A Every court that had to deal with penal cases had a Prosecution office. The local Courts had the local Prosecution office and the District Courts and District Courts of Appeal had what is called "Staatsanwaltschaften" (Public Prosecutors). The People's Court and the Reich Supreme Court had what was called the Reich Prosecution. The Senior Public Prosecutor with the District Court was the superior of all the Prosecutors and the local Prosecutors of the District. The General Public Prosecutor with the District Court of Appeals was the superior of all the Prosecutors or local Prosecutors of his district, and the Minister of Justice was the official superior of all the Prosecutors throughout the Reich, including the two Chief Reich Prosecutors.
Q You, therefore, were only the superior of the officials of the Reich Public Prosecution with the People's Court?
A Yes, only of the officials within my office.
Q Therefore, you had no right officially to supervise the Prosecution with the District Courts of Appeals, the District Courts, including the Special Courts, and the Lower Courts?
A No.
Q What was the official address of the Reich Prosecution with the People's Court?
A It was to the Chief Reich Prosecutor with the People's Court.
Q The address of the office, therefore, was identical with the address of the Chief of that office?
A Yes.
Q If I may make a comparison to conditions here it would mean that the address of the office of the Chief Prosecutor for War Crimes would be replaced by that of "To the Chief of Counsel for War Crimes."
A Yes
Q The fact that the offices was addressed by addressing the chief of the office, was that customary in Germany with other agencies too?
A That was the case with all offices in Germany which were under a single chief. The consequence was that also the least important correspondence too was made under that address.
Q According to the routine in the office of the Chief Reich Prosecutor in the People's Court, was it so that all mail received addressed to the Chief Reich Prosecutor with the People's Court was in fact submitted to you personally?
A No. In consideration of the large extent of that correspondence that was not oven possible.
Q What letters that wore addressed to the Chief Reich Prosecutor with the People's Court and received at the Chief Reich Prosecution were actually submitted to you?
A First of all, new penal cases, decrees by the Ministers; letters from main offices of the state and the armed forces and the so-called "top secret" Reich matters, "Geheime Reichssachen". Top secret Reich matters were matters which could only be opened by me personally and looked at and which could only be passed on from person to person under certain circumstances, that is to say above all those matters which had to be kept top secret.
Q The letters which were submitted to you, were they in any way marked by you?
A If I was of the opinion that I had to pay particular attention to this particular matter, then I put a green cross on the. That meant that the prosecutor immediately had to report the matter to me and got my instructions.
Q And in the rest of the cases if a letter was submitted to you, did you make any notation indicating that you had seen the letter?
A I initialed them in these cases. Mostly I also put the date on.
Q Then what happened to other mail received which was not submitted to you personally?
A It went directly via the office to the various departments.
Q Witness, I come now to the question as to who was authorized to sign official matters in the office of the Chief Reich Prosecution of the People's Court. The question as to who was authorized, was that settled by any official directive?
A That was established by a provision from the year 1936 establishing authority to sign which had been approved by the Minister of Justice.
Q Could you still tell us what that provision was?
A Essentially it provided that the chief of the office, or in his absence, his permanent deputy, had to sign the indictments, the disposition for suspension -- the most important reports to the Minister of Justice, and other letters of particular importance, particularly then when the chief of the department believed he could not assume responsibility alone.
Q What matters were signed by the department chiefs in general?
A They signed everything else that had any importance at all.
Q Witness, as for the documents which the Prosecution has submitted here, did you find in them any examples from which one could see how that authority to sign worked out in practice?
A That can be seen in the cases of Vatek, Geibel and Gogler, but I cannot give you the number.
Q May I mention here, the cases to which the witness has referred are contained in Exhibits 136, 493, and 135. Witness, you just told us in what cases you signed yourself. Did that State of Affairs remain in force until the end of the war?
A I have already said that at the end of 1943 by the airraid on Berlin a partial transfer to Potsdam and also a transfer of the right to sign was required by circumstances.
Q In general in Germany if letters are not signed by the chief of any office concerned, one has to distinguish between letters which arc signed "in Vertretung" and "im Auftrag." That, is, letters which are signed as a deputy and by order. Was that distinction also made at the Reich Prosecution?
A Yes.
Q Now who was authorized in the Chief Reich Prosecution to sign as deputy?
A When I was not able to sign, only my permanent deputy could sign for me. That was Reich Prosecutor Parisius, and if Parisius was absent too, which occasionally occurred, then the defendant Barnickel as senior member was authorized to sign. But that was only until the end of 1943. In Potsdam it was the Reich Prosecutor Weyersberg.
Q Could you tell us what the legal import of his signature was under a document?
A It meant, of course, that I assumed responsibility for that matter. I had to be able to depend on it that the facts had been represented truthfully, because I was not required to study the files myself. In view of the great number of files that could not be asked. In spite of that it was a matter of course that particularly in the case of officials where I doubted their qualifications I made spot checks to find out whether the matter had been dealt with appropriately.
Q And who was responsible that the contents of the files, which were tho basis, let's say, for the indictment, were complete and completely presented?
A That was first of all the responsibility of the Prosecutor.
Q One more brief question concerning the Reich Prosecution. What was the letterhead of those letters of the Reich Prosecution with the People's Court which you did not sign yourself, but a department chief or referent?
A They had the same letterhead, saying the Chief Reich Prosecutor with the People's Court.
Q Was it required that letters which could be signed by a department chief or a referent had to be submitted to you first for approval, or even for your taking notice?
A No.
Q I come now to the general principles valid for German prosecution. Witness, could you toll us first what the principle, the two main principles were for t he German prosecution?
A The German prosecution is founded on two principles, the principle of legality and the fact of being bound to directives.
Q May I ask you briefly to comment on that second principle of being bound by directives? What did that principle mean in the German penal proceedings?
A It meant that an official who is bound by directives in carrying out his task has to put himself on the point of view which is prescribed by his superior, either generally or by special directives.
Q That principle of Weisungsgebundenheit, being bound to directives, did that exist before 1933?
A Yes, and much use has been made of it by the Ministers of Justice.
Q Was that principle a typical German institution, or was it taken from legal systems of other peoples?
A The structure of the German prosecution emanated from the French penal procedure, and with it also the fact of being bound by directives.
Q Witness, you have said already before that concerning directives to which you were subject, one had to distinguish between general directives and individual specific directives. Would you explain to the court what you mean by general directives?
A General directives with interpretation and application of the laws in general, with the measure of punishment that the prosecutors had to demand. They dealt also frequently with individual cases whore it could even be prescribed as to whether a certain case for factual reasons, for circumstantial or legal reasons, should be prosecuted and what punishment the prosecutor should demand in the main trial.
Q You have just briefly mentioned that the Ministry could issue such directives. Were there any other offices who were authorized to issue such directives to you apart from the Ministry?
A No, only Hitler could have done that.
Q Since you were only the superior of the Reich prosecution, were you authorized to issue any directives to the prosecutors of other courts?
A. That I could not do.
Q How did it come about when you transferred a case to the prosecution with a special court, if you were of the opinion that it was not a case of undermining military strength but a case of malicious attack?
A Then the prosecutor was not absolutely bound by that opinion. He could have submitted the case to the Minister of Justice in order to obtain a different decision. But, of course, I never met any chief prosecutor who did that.
THE PRESIDENT: Will you postpone your further questions until after the recess of 15 minutes?
(A recess was taken.)
THE MARSHAL: Persons in the courtroom will please find their seats.
The Tribunal is again in session.
DR. GRUBE: May it please the Tribunal, before I continue with the examination of the witness Lautz, I would like to address two requests to the Tribunal. The first request refers to the following: Due to the fact that the expert, Professor Dr. Niethammer, was not available in time, I am forced, in order to be able to clarify the position of the defendant Lautz, to go into more detail in the case of some legal regulations than would have been necessary if Niethammer would have been available in time.
THE PRESIDENT: We assure you that we will be able to apply the testimony of Niethammer to the case Lautz whether that testimony precedes or follows the testimony of the defendant Lautz. That is a matter which would not present any difficulties to the Court at all.
DR. GRUBE: Your Honor, it is not quite certain whether Niethammer is going to appear at all. We have learned ---
THE PRESIDENT: If you want him you shall have him. The Court has assured you that the power of this Court is sifficient to bring a witness here. It's entirely up to you whether you want him or not.
DR. GRUBE: All right.
The second request refers to the following: Due to the fact that part of my documents books, especially that part which contains the affidavits, was not returned in time by the translation branch, as embarrassing as it is for the defendant Lautz and myself, I am forced, in regard to some cases which are in his favor, to dicuss them here. We did not want to create the impression as if the witness Lautz wanted to make himself appear holy, but, in order to form a complete picture, we have to go into cases of that kind now.
THE PRESIDENT: The Tribunal has not limited you as yet. You may proceed with your examination.
BY DR. GRUBE:
Q Thank you.
Witness, we had last discussed the question as to how it was when you had referred a case to the Prosecution at a special court, because, in the opinion of the Reich Public Prosecutor, it was not a case of undermining of military strength but only a case of socalled malicious acts. In that case, was the senior public prosecutor at the special court bound to agree with your opinion?
A I have already stated that he did not have to, but that he had the right, via the officials channels which were at his disposal, via the general public prosecutor to the Minister of Justice, to bring a different decision. I did add, however, that I did not know any senior public prosecutor who had brought about such a severe decision.
Q How did you act, if an instruction, which the Ministry of Justice had issued to you, was not in accordance with your opinion?
A I was frequently in that position. There wore only three ways open to me. Either the oral or written representations of the contrary opinion. I frequently chose that method and frequently I was successful. If that method was not open to me, then if there was a certain scope, I carried out the decree as I considered it to be right. If, however, it was unequivocable - that is, the decree- I frequently could do nothing but obey it as it was worded.
Q What institution existed and still exists within the German public prosecution in order to assure that the Ministry of Justice, in every important case, makes use of its authorization to issue instructions?
A That is due to the extensive duty to report which the prosecutions had. Through that it is assured. I have already discussed that point.
Q Can you still state in which cases you had the duty to report?