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?
A Basically, every indictment, every quashing and every death sentence had to be submitted. Beyond that in many cases, however, beginning with the submission of the files currently at certain interims, the course of the case had to be reported on.
Q Is it correct then in the case of some groups of crimes or some groups of persons the filing of an indictment can be made only upon order of the Ministry of Justice?
A That was the case in the case of certain crimes committed abroad.
Q I shall return to that chapter later on. I only mention it here because of the connection.
You have already testified how the German public prosecutor was organized, that it was in accordance with the organization of the courts. From the exhibits which I submitted yesterday - Nos. 39 and 40 - it was already apparent that the substabtive competence of the individual public prosecutions was in accordance with that of the respective courts where the public prosecution was acting.
Witness, according to this, thus the Reich Public Prosecution at the people's court was competent only for the prosecution of those crimes for the sentencing of which the people's court itself was competent?
A It was competent exclusively for those offenses and not outside of those.
Q Already yesterday, through Exhibits 23,32, and 33, I already stated for what offenses the People's court was competent. How does this competence of the people's court compare or the competence of the Reich public prosecution compare to the competence of the State Tribunal for the Protection of the Republic and the Reich Supreme Court, before 1933?
A In the comparison with the competency of the State Tribunal for the Protection of the Republic, the competency of the people's court is much narrower. It goes beyond the competence of the Reich Supreme Court.
The prosecution, in this trial here, is of the opinion that the competency of the people's court is beyond that of the Reich Supreme Court to a large extent, but it is mistaken. In any case, if one substracts undermining of military force, which was added only in 1933, it is much less extensive because, for high treason and treason, the Reich Supreme Court was competent to the same extent. Likewise, for attacks on the life of the head of the State. Economic sabotage, which the people's court had to deal with since 1936, was not important at all because there was not a single indictment filed on that charge during the nine years, and the case of serious damage to armament were not very numerous either.
Q Did the Reich Public Prosecution at the peoples' court have competence for the prosecution of crimes of murder?
A Not on the whole, generally speaking, but only in the infrequent cases in which the crime of killing was directed against the head of the state or had been committed in order to excercise high treason. Political motive alone was not sufficient, the murder of the Embassy Counsel Von Rath in Paris - it was intended to bring this before the people's court because it was possible to point out that the murder was committed in carrying out high treasonable aims. Against the proof of such an assertion I was very skeptical from the very beginning and, therefore, already at the first meeting which took place in the Ministry of Justice in that matter, I pointed out that Gruenspan referred primarily to the fact that his crime had been occasioned by indecent relationship which he had had with Von Rath.
Q In regard to the statements which the witness just made in regard to the Von Rath and Gruenspan case I would like to refer to the Prosecution documents, Exhibits 69, 420 and 463.
About the very important principle of legality I submitted my documents already, Exhibits 83 and 84. Would you please, therefore, make some brief statements on this subject, witness?
A You mean the meaning of the legality principle?
Q I mean the legality principle, yes.
A The principle of legality meant that the public prosecutor on the basis of the law is obligated to prosecute a crime as soon as he finds out about by any means whatsoever. There were exceptional cases only in certain trifles, small crimes and in such crimes in infrequent cases it was necessary to have the minister issue an instruction or order.
Q Witness, those offenses for which the People's court was competent, did all of those fall under the principle of legality?
AAll of them, with the exception of certain foreign crimes about which I have already spoken.
Q Yesterday in Exhibits 85 and 86 I already proved what legal consequences resulted if a public prosecutor would have refused or would have refrained from filing an indictment -- if the law provided for prosecution. They were Articles 346 and 139 of the Penal Code. Witness, can you state whether in your case a further point of view, a further element would have been added if you had refrained from instituting proceedings, for example, in a case of high treason?
AA prosecutor who would not have prosecuted a high treason case -- high treason was in preparation -- would have become guilty of being an accomplice.
Q By submitting Exhibits 87 to 109, in Document Book III-A, I already showed yesterday that no German civil servant was authorized to review the laws which he had to apply as to whether they were contrary to natural law, to custom, or to international law. From the same documents it was also evident that the official is not authorized to refuse to apply the law for those reasons. But, I would like to ask you -
THE PRESIDENT: I was just going yo ask you to refrain from summarizing the documents that you have issued, and ask the witness a question.
You were about to do so; go ahead.
Q Witness, but I want to ask you now what purely personal opinion did you have in regard to the question whether Germany was authorized in regard to the inhabitants of occupied territories to prosecute them according to German law for political crimes and before German courts, and sentence them, and, what did you base your opinion on?
A Occupatio Bellica; that is probably what you are referring to.
Q Yes.
A This Occupatio Bellica authorizes or justifies the occupying authority for the purpose of its own security, and this must be concerned, to pronounce sentences by courts. The occupying authorities in the Rhineland also did so.
Q May I ask you how did you look upon the legal situation in the protectorate of Bohemia and Moravia when you were instructed to prosecute there under criminal law?
A When I entered upon my position as Chief Reich Public Prosecutor, the German criminal law in the Protectorate existed only in part of the Protectorate, and that part was the part which served for the security of the state. It had been introduced a few months before I assumed office. I did not consider myself authorized to object to this legislative act.
Q At that time was the protectorate considered a part of the territory of the Greater German Reich?
A The protectorate in the jurisdiction of the courts, and uniformly so, was treated as part of the territory of the German Reich. The actual conditions from the point of view of constitutional law that is the historical events which brought about this incorporation, and which became known only during the Nuernberg trial, were just as unknown to me at that time as they were to other Germans. I only noticed that the diplomatic relations with the Reich and other large powers continued to exist and I believe that I heard that the diplomatic representatives of the other European powers were withdrawn from Prague after the occupation.
And at that time, in any case, I did not hear anything to the effect that the government in Prague had to submit to force.
Q You have already mentioned that the jurisdiction of the highest and Supreme Courts uniformly started with the assumption that the Protectorate was part of the Reich. May I now ask you how the first case which was pending at the People's Court -- or the Reich Public Prosecutor -- was treated.
A The first indictment against the resistance group Narodna Obrawa had to be submitted to the Minister of Justice in draft form. As far as I am informed, the Minister of Justice at that time was still Minister Guertner; Minister Guertner reported that case to Hitler first also. In any case, I was given unequivocal instructions what conception of law was to be made the basis of the indictment. I shall come back to that in detail later on when I shall discuss the problem of Czechoslovakia as a whole.
Q But the result was, in any case, that the Ministry, too, began with the assumption that this was a treaty of states and that the German courts were competent in the territories of the Protectorate of Behemia and Moravia.
A It was without doubt the way the instructions were to be construed.
Q You stated before than even if one assume that Occupatio Bellica existed, even in that case Germany would have been justified in applying its laws there. In that case could one have justified the competence of the German civil Courts?
AAccording to German Law, Military Courts would have been competent; the military courts, however according to the Military Penal Code, according to Paragraph 3 and 18 thereof, could have handed the cases over to the general courts.
Q Thank you. Witness, what was your attitude toward the same questions as far as they concerned the Incorporated Eastern Territories?
A In the Incorporated Eastern Territories, that is to say, essentially on those parts of the former Polish Republic, which until 1918, for about 150 years had been a part of the Kingdom of Prussia, after the Polish defeat in 1939, German law was introduced and this was done after the Soviet Union and Germany of that time had concluded a treaty concerning their mutual interests in the Polish State. In that case, too, I did not have the right and I did not consider that I was authorized to doubt that legislation, because I believe that the public prosecutor is the last person who can object to the conception, which is the conception of the government whose instructions he is to follow.
Q In this case too, did the Ministry of Justice state its opinion on the basis of instructions as to whether German law has to be applied in the Incorporated Eastern Territories?
A The first cases from the Incorporated Eastern Territories also reached me, together with a basic instruction from the Ministry.
Q What was the legal situation in regard to Austria?
AAustria in the spring of 1938 had connected itself to the Reich; since that time Austria was regarded as a part of the Reich.
Q The inhabitants of Austria were since 1938 never considered as foreigners?
A No.
Q: Witness, may I now ask you quite generally what was your attitude toward the criminal prosecution of foreigners?
A: I never considered the penal prosecution of foreigners under racial, political or religious points of view. I filed the indictment in such cases as I was prescribed to do by law.
Q: You could probably file an indictment in effect only if there were facts that violated the laws?
A: Of course.
Q: This was only because a person had a political attitude and the indictment was never raised in the People's Court?
A: That was absolutely impossible.
Q: In an affidavit which I shall submit later on it is described what your attitude was toward foreigners, especially this affidavit describes your attitude in regard to foreigners from Belgium. Will you please make some statements on the subject?
A: Yes. In the Reich there were many workers and employees of all professions working who came from France and Belgium. They were not forced workers but workers who had volunteered to work in the Reich. When the Allied invasions had been successful and when a French-Belgium Freedom Army again appeared at the Front, in effect the armistice between Germany and France and Germany and Belgium no longer existed it was, of course, understandable that many of these workers tried to return to their home countries. These attempts were to a large extent achieved by having officials of the German railroads put railroad cars which wore going to the West Front and which actually wore supposed to transport goods for the German Army, secretly at the disposal of such workers.
The organizers of this escape, if they were caught -- in part they were Germans and in part they were foreigners -under the point of view had to be prosecuted because they were damaging the German military power.
At that time I was of the opinion that as far as foreigners were concerned here, the conflict of duties in which those people were involved, that is, the conflict between continuing to work in the Reich against their own country, which now no longer was under treaty with Germany, required a special standard for treating these cases. Therefore, I discussed this matter with the Ministry of Justice at the time. However, I did not succeed with my point of view. However, I did achieve the following: that through the corresponding statements to the Senates of the People's Court, death sentences were in those cases only very infrequent exceptions.
One of the last reports which I had to make to the Minister of Justice was concerned with the fact that a number of sentences by the People's Court were, by the RSHA, objected to as being too lenient, and I was requested to state my opinion to the question as to what extent the extraordinary objection could be raised and I did not suggest it in any case and it did not come to pass any longer.
Q: Witness, in that connection may I address another question to you? If you or any other public prosecutor in Germany had the material for an indictment against a foreigner because of a crime which he had committed abroad, would you or the other prosecutor file the indictment on your own against the foreigner?
A: No. I already said that the Minister had reserved the right to issue an instruction and in normal times there were only those infrequent cases in which one caught foreigners.
Q: The prosecution against a foreigner because of an offense committed abroad, thus took place in every case only if there was an instruction by the Minister of Justice?
A: Yes, that is provided by the Penal Code.
Q: Were there other cases too in which the Reich Public Prosecution could file an indictment only if the Ministry ordered it?
A: In the field of secret treason there were such cases and also in the malicious acts cases which have been discussed here frequently.
Q: Were there cases in which the indictment could be filed only after other agencies, for example, the OKW, The High Command of the Army, had been consulted about it in advance?
A: That was a case in treason cases. According to the State secret that was violated an expert opinion of the OKW, of the Foreign Office or the Minister of the Interior had to be obtained.
Q: Leaving out of consideration the cases you have just enumerated, however, as you stated already before, in every individual case, even in the case of indictments against Germans, a copy of the indictment had to be sent to the Ministry by the Reich Public Prosecution?
A: Yes. I have already said that.
Q: In individual criminal cases did the Reich Prosecution act out of its own initiative?
A: If I understood your question correctly, you want to know whether the Reich Public Prosecution prosecuted cases in which they received knowledge of the crime through other than official channels.
Yes. For example, from the newspaper, yes. During the time I was in charge of the Reich Public Prosecution this was not the case.
Q: From what agencies were cases submitted to the Reich Public Prosecution for further prosecution?
A: As a rule, the results of the investigation, which had been conducted by the political police, that is to say, the Gestapo, were submitted via the Chief Public Prosecutor, Oberstaatsanwalt. This was done for the reason that the Oberstaatsanwalt, the Senior Public Prosecutor, would be in a position to make immediate request to the Tribunal for the arrest of the person or possible investigation; but cases still occurred in which the Gestapo submitted the results of their investigation directly to the Reich Public Prosecution. In Bohemia and Moravia I had made the regulation that the Gestapo should send the results of the investigation first to the investigating judges so that without loss of time these could begin their activity and I told them to send the files to me only afterwards. And finally the files of the military courts -they came in part directly and in part via the Minister of Justice and the OKW.
Q: In the new denunciations investigations of the police, that is to say, the Gestapo were concerned, were these investigations accepted by the Reich Public Prosecution without any doubt as being true facts?
A: About the relations of the Reich Public Prosecution to the police and about the proceedings at the police, I shall have to speak in detail later on. It is obvious that these events were examined carefully and checked.