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.
This was necessary already because many an event had occurred which should not have happened but I shall make some statements about that later. Therefore, decisive importance was attached to having the judge, the investigating judge, examine the defendant so that the defendant could tell the judge before the indictment was filed everything that he had on his mind.
Q What did you yourself do when defense counsel or friends and relatives of a defendant pointed out to you that important material in favor of the defendant was available?
A Of course, I immediately saw to it that everything was done and that this evidence should be submitted.
Q Can you cite some examples from your practical experiences for this? May I remind you of the Najork case?
A Yes, I can give you some examples. I am forced if I should describe that case correctly to go into detail, but since it illustrates the conditions which I have already discussed and shall discuss further, perhaps it is quite instructive that I shall discuss it at some length. Najork, a director of the Hanomag in Hanover had a son about twenty years old. This twenty year old son had been a soldier and because of a serious lung disease he had left the Wehrmacht about 1941. At first he was in Switzerland for half a year for recuperation and later he was sent to Bad Karlsbad for convalescence. On the promenade there he met a young lady. He apparently also established a closer relationship with her. This young lady then suddenly asserted to the Gestapo in Karlsbad that this young Najork had in the most serious manner made remarks against the Government and Hitler. If the assertion had been correct there would have been no doubt he would have received a very severe penalty on the basis of these assertions of the girl. The young man was arrested and the files were submitted to the Reich Public Prosecution by the local Senior Public Prosecutor. This must have been about the fall of 1943. In any case, shortly thereafter the father of this young man appeared in my office. I did not know him at all and I would like to state here that a gentlemen from Berlin whom I knew had told me that the father would visit me. The old gentleman was apparently upset and he feared that the life of his son would be seriously endangered if the arrest should continue for a length of time and he requested me to help him. I told him I would help him. I had the file submitted to me and took them home. When I read the files I noticed immediately that the files did not begin with the denunciation as is usual but with the trans cript of an interrogation of the young girl and in this the statements that I have just described that she made were written down.
Then the young man was interrogated and he denied it. Between the lines of his interrogation, however, one could read that apparently he wanted to show that his relations with the young lady were broken and that, therefore, the denunciations against him had been made because of her hatred. The fact that there was no denunciation in the file and that it began with an interrogation caused me to think that she might have been an agent. Therefore, I instructed one of my public prosecutors to whom I gave the letter for that purpose, to go to Karlsbad immediately to interrogate the young lady again and to interrogate her personally. The embarrassing situation arose for the Gestapo that she was an employee of the Gestapo who had intimate relations with the young man and because he had broken off with her, she obviously said more than she could assume responsibility for. At that moment her statements were completely without value for me and I ordered that the proceedings be quashed but the RSHA was not satisfied at all with my decision. Finally, however, it was satisfied, because I pointed out that these occurrences could be very unpleasant for the Gestapo in Karlsbad if they were to be discussed in an open public trial and if the presiding judge or the defense through corresponding questions to the defendant, would come to discuss the situation. This was decisive and the young Najork was sent to a sanitorium in the Black Forest for convalescence.
Q Witness, another case is the case of Minister Borngesser. Will you please describe it briefly?
A I can be very brief in regard to this question. Borngesser was a clergyman in my home town of Wiesbaden. However, I did not know him at all. He was charged that when he went to visit sick people in several cases he made very derogatory remarks about the government and the conduct of the war. Since during the time in question I happened to be in Wiesbaden for a funeral and the superior in office of the clergyman Borngesser had found out about it, the superior, therefore, later asked me for a discussion and to call on me and I permitted him to do so. The superior told me that Borngesser was being charged unjustly because the witnesses were unreliable persons.
He requested me to see to it that the witnesses were checked. I immediately let this be done and it was true in part. The Gestapo of Wiesbaden found out about this and complained to the RSHA in Berlin and I had to justify my action to the Minister of Justice. I could only write him that the criminal code did not only authorize me but obligated me in such cases to undertake the necessary investigations. That finished that affair. Borngesser got away with a relatively short term in a penitentiary.
Q Do you remember the case Both?
A Both was a young man and was a leader of the Protestant Youth Organization in Frankfurt on the Main. He had an active correspondence with his comrades who were at the front, in other words, with the comrades who were German soldiers. He was charged that he influenced them in a defeatist manner in these letters. I also interfered in this proceeding and through the utilization of an extensive correspondence which Both led and the letters he received from the front, I could prove that the general attitude taken as a whole expressed in his letters did not justify the charges raised against him. This trial was quashed too and Both was released. I believe that is sufficient.
Q Did you issue such instructions on the basis of your own decisions? The last question I put to you was whether on the basis of your own decisions, that is, independent of whether defense counsel or relatives of the defendant interfered, you issued such instructions, if by looking through the files you became suspicious. Did you first of all review the facts if they were not quite clear?
A That was obvious. I did that frequently. Already when I examined the first information that I received I formed a picture as to whether in such a case something would not have to be done immediately.
Q May I remind you of the case of "Jungdeutscher Order"?
A Yes, that was the case in the Jungdeutscher Order. That was a youth organization that was prohibited after 1933. However, secretly it continued to exist and from time to time to carry out its Easter meetings during the war, and that was in 1939 or 1940, it lead to a sharp attack by the Gestapo of Hannover and later to numerous arrests under the point of view of high treason.
I immediately checked this action by investigations which we carried out as to its correctness, whether this was not a transgression or a violation of the State order against political organizations. There was no high treason at all that the young people were thinking of. The case was handed over to the People's Court of Hannover and relatively lenient sentences were pronounced there.
Q.- Witness, as such, it was not your own personal task, as Chief Reich Prosecutor, to check the accuracy of the police statement on your own initiative, or to cause its being checked?
A.- As such, of course, that was, first of all, the task of the people who worked on the case. However, I also considered it my duty to do everything that I could, everywhere, to see that this task was done.
Q.- Did you find out that this task was carried out, on the whole through your officials, very carefully?
A.- I attached great importance to that.
Q.- Were the number of cases that the Reich Prosecution had to work on so large that it was only with the utmost energy and large amount of work that these cases could be dealt with at all?
A.- The amount of work that was required of everybody -- in any case during the war -- was very large, If one wanted to do his duty correctly -- that is to say, to study every case from every angle -- one had to work very hard and had to do without many things which other people called pleasure.
Q.- Through Exhibit 43, which I submitted yesterday, I have already shown that the Public Prosecution also had to obtain material in favor of the defendant. This regulation also applied to the Reich Public Prosecution at the People's Court, did it not?
A.- Yes, it applied to every public prosecutor, but of course the prerequisite was that the prosecutor was in a position to find out about those points of view which were in favor of the defendant. One must not overlook one factor, namely, that according to the structure of the German criminal trial, a lot depends upon the defendant himself in that respect. There are innumerable defendants who reserve the facts which speak in favor of them until the trial, for the simple reason that when the point of the trial has been reached when the defendant reports on a new point of view which is a mitigating circumstance in his favor, the court in Germany, instead of adjourning, are apt to assume that the mitigating circumstances are the true facts, on the basis of the principle in dubio pro reo.
Q.- Witness, is it correct that the investigating judges were used to a large extent in order to examine the denunciations which the Reich Public Prosecution received?
A.- That was their function; that is what they were there for.
Q.- What did the investigating judge have to decide, above all?
A.- It was the task of the investigating judge -- if he wanted to fulfill his office as it was meant to be fulfilled -- his task was to the effect that he first had to decide whether, on the basis of the documents submitted to him by the police, a warrant for arrest should be issued by a judge. Then he had to interrogate the defendant, and had to undertake all other interrogations of witnesses and experts who had perhaps been mentioned in the interrogation of the defendant, be it in favor or be it against the defendant. Then, only after he had carried out all of these investigations and interrogations, he handed the files to the Public Prosecution. The transcript of the judge, in the case of an interrogation of a defendant, has quite a different significance according to the German Code of Criminal Procedure. If, in the preliminary proceedings before the trial, for example, a defendant has made a confession to the police, and he denies that during the trial, then, according to the Code of Criminal Procedure, this confession to the police cannot be used against him. However, that differs in the case of a transcript of a judge. A confession of a defendant in a transcript of the investigating judge, before the indictment is filed, can, if the defendant denies it in the trial, be read during the trial; and it can be used against him on the basis of this reading. That is the great significance and the value of this preliminary proceeding of the investigating judge according to German criminal procedure.
DR. GRUBE: In regard to the position of the investigating judge, may I, in this connection, refer to the exhibits which were introduced yesterday:
45, 46 and 47.
Q.- When the Prosecution witness Brem was examined here in regard to his affidavit, Exhibit 79 of the Prosecution, NG-316, the activity of the local judges and the investigating judges was discussed. In addition, the witness Wlawicz, the Czech, at that time, also discussed his observations of the investigating judge.
Witness, since you, after all, have a further insight into the activities of the investigating judge than the witnesses Brem and Wlawicz who, by the way, made positive statements in regard to the activity of the investigating judge -- may I ask you this? Did you ever -- either in the form of a complaint, or in any other way -- hear about a case in which an investigating judge of the People's Court acted differently during an interrogation than the investigating judge who examined and interrogated the witness Wlawicz, or differently than the one who interrogated the witness Brem?
A.- I never heard about such complaints, and probably none were ever made either, because the investigating judges always worked with great care and very conscientiously. Usually they submitted their files with a concluding remark, which was carefully prepared and documented, if they were of the opinion that there was no longer a reason for keeping the defendant in detention or that, even beyond that, the proceedings should be stopped. Those remarks were not at all seldom made.
Q.- Yesterday, by exhibits 53, 54, 57, 58 and 59, I showed that the Public Prosecution, by law, was obliged to file an indictment as soon as the investigations had been carried out.
Witness, together with the indictment, the Public Prosecution also had to send the files to the court, did they not? Did this apply to the Public Prosecution at the People's Court too?
A.- Of course, all of the files had to be submitted, and also, of course, together with them, the concluding reports which the Gestapo would attach to the files which they submitted, and which have already been discussed here.
These concluding reports of the political police were not at all used until after 1933. In the case of the political police, and also in the case of the criminal police, if capital offenses were concerned during the period before 1933; they were the rule.
THE PRESIDENT: You may suspend your examination until after the lunch hour.
The Tribunal suggests that the Prosecution, and any of the other agencies which may have to do with the assistance which should be rendered to defense counsel in securing evidence and witnesses, should make some fair investigation of the complaints which were made by Dr. Koessl at the opening of this session today. The Tribunal does not assume responsibility for the action of independent agencies, but it does desire to know the facts and it does desire that all possible facilities be accorded to defense counsel if they are entitled to anything in the securing of evidence. We will welcome any further information upon that matter. The transcript of this morning's session will set forth what Dr. Koessl had claimed.
We will recess now until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours?
24 July 1947.)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: I ask to be permitted to continue the examination of the witness Lautz.
ERNST LAUTZ- Resumed DIRECT EXAMINATION-Continued BY DR. GRUBE:
Q Witness, before the recess I had asked you whether it was the custom that in addition to the indictment all other files were added? especially the reports of police investigation. In answering this question you were interrupted by the recess. May I ask you again to comment on that question briefly?
A It was customary to add to the indictment all the files without exception. In the files before the indictment was filed there was according to the practice of the German police which had always existed in all capital and political cases, there was the so-called final police report but that was not the result of an investigation having probative value, but it was just a summary of the opinion of the police authority at which it had arrived on the basis of the interrogations of the person accused and of witnesses. And these final police reports at all times were not even taken into consideration by many presiding judges.
Q The prosecution submitted various documents to prove that between the time when the indictment was filed by the Reidh Prosecution and the main trial the period was very short at times. I am referring to documents submitted by the Prosecution, Exh, 145, that is the affidavit Schmidt, Exh. 146, that is the affidavit Wergin Exh. 147, affidavit Falck? Exh. 240, affidavit Havemann, and Exh. 283, affidavit by Gruenwald. Also when the witnesses Havemann, Falck, Wergin and Gruenwal were heard here from the witness box it was found that at times these short schedules were worked out. Therefore, I briefly have to refer to the so-called intermediate procedure or interim procedure.