Court No. III, Case No. 3.
Q In that connection, may I refer to the Prosecution's Exhibit 48. Witness, according to your observations at the time, did the Nationalist and Communist resistance groups in Bohemia and Moravia actually constitute such a danger for the Reich, that indictments for death penalty because of high treason and rendering comfort to the enemy seemed justified?
A The territories of Bohemia and Moravia, the longer the war lasted, was the more important for the armament and therefore for the resistance power of the Reich. Due to the air war; a number of the most important industries of the Reich had been moved to the territories of Bohemia and Moravia. Moreover, it was military territory for the advance toward the East and the Southeast. It is obvious that a disturbance of order in that territory would render considerable disadvantages to the occupying power. Both groups, the National Socialist as well as the Communist, therefore, had to be taken seriously. They had numerous weapons at their disposal and a great deal of money. They continuously received support from the air by English and Soviet fliers who dropped weapons and radio sets. In parts, armed groups formed, who in the forests of Bohemia and Moravia, constituted a considerable danger for security and order. Unfortunately cases of that nature were not presented in the material submitted by the Prosecution.
Q From certain documents submitted by the Prosecution, is the danger of these resistance groups, however, not indicated after all?
A From the documents submitted by the Prosecution, one can in any case deduce the following; for example, from Document 509, NG-837, that is the indictment against Scharbert and Associates. This case deals with a trial against the illegal K.P.C. (Communist Party of Czechoslovakia) the Chotzan. What ideas the defendants had in their mind when they formed their communistic activities and distributed their leaflets can be seen from the statements in the indictment. The defendant Bartha, for example, stated that it was their aim to prepare the overthrow; the incitement of the masses, and to cause damage by sabotage. The defendant Sychra stated that their aim was to carry out Court No. III, Case No. 3.world revolution in all countries, to establish the dictatorship of the Proletariat, and to establish a Soviet State in the territory of Bohemia and Moravia.
From Document Exhibit 185, NG-350, Yambruscy and Associates, it is apparent that the defendants were active functionaries of the Czech Communist Party in the mining enterprises, which of course, was of considerable importance during war time. From this sentence, it is shown that Bruverka, who was not very active, was sentenced only to imprisonment. From Exhibit 513, that is NG-1472, it follows that the defendant wanted to procure dynamite for political purposes--or rather that he did procure it. In Document Exhibit 184, NG-356, it shows that here we were concerned with the distribution of Communist leaflets.
Q Witness, was the Reich Public Prosecution, in view of the facts which are apparent from these documents, obligated to serve an indictment?
A Doubtlessly, it was.
Q The Prosecution submitted three cases in which members of the Protectorate of Bohemia and Moravia were sentenced by the People's Court or indicted before the People's Court because they were active for the Czech Legion which existed abroad, or tried to join it. We are concerned with Documents, Exhibit 131, 512 and 514. What did you know about the existence and the danger of this Czech Legion?
A In the countries of the foreign enemy powers, in England and other countries, the groups of this legion fought, and that was well known. It was known also in France, since parts of this Czech Legion had been captured and deprived of their arms in southern France. That the Legion continued to exist, however, was apparent also from reports of the Intelligence Division of the OKW. As the document submitted by the Prosecution, which you already referred to, shows the Reich War Court was first concerned with sentencing these cases.
Q I may state here briefly we are concerned with Exhibit 127.
A This exhibit, however, shows also that the military courts, especially the Reich War Court, later on left the sentencing of these cases to the People's Court. According to the code of procedure, they were Court No. III, Case No. 3.authorized to do this.
This document, however, also shows that the support of this Legion from within Czechoslovakia--that is from Bohemia and Moravia-- should not have been underestimated as to the degree of its danger, because the border had been crossed in groups, who in part were led by armed persons, and led to armed conflicts with the German border officials. There were recruiting offices in the Protectorate who mediated for joining the Legion. They provided, those who were interested with false papers, money, and whatever else they needed in the way of equipment. The taking over of the proceedings by the People's Court is based on a regulation by the Minister of Justice, which is alos included in the same document.
Q I may here also repeat the question which I had already put to you in regard to the other documents before. Was the Reich Public Prosecution bound by law, in view of the existing facts which are shown in Exhibit 131, 512 and 514, to serve an indictment before the People's Court?
A It had to do so.
Q The documents which the Prosecution submitted in regard to the so-called Czech Legion cases refer exclusively to such Czechs who were living in the Protectorate. Did you hear of cases in which Czechs, who were working in the rest of the Reich territory and tried to cross the border, were sentenced because they tried to join the Czech Legion?
AAt the moment, I don't remember such a case. The majority of cases, however, in any case--and this differs from the Polish workers-concerned people who were living in the Protectorate of Bohemia and Moravia: students, business men, and other nationalistic Czechs who wanted to fulfill their patriotic duty by joining the Legion in this way. This can also be seen from another case.
Q The Senetza case?
A Senetza is a Polish case.
Q No--Oh, you mean Document 512?
A Yes.
THE PRESIDENT: Exhibit?
BY DR. GRUBE:
Q.- Exhibit 512.
The Prosecution, in regard to the Elias case, submitted documents 374, 375 and 430. The documents show that the Reich Public Prosecutor, through the Gestapo, had been excluded from the Elias case and that the Gestapo filed the indictment before the people's court. Did this happen with your agreement and approval?
A.- Not at all. Under no conditions.
Q.- What steps did you undertake when you found out that the Gestapo appeared as prosecutor?
A.- This exclusion of the Chief Reich Public Prosecutor, without my knowledge, was brought about by an agreement between Thierack and Heydrich. The documents explain how this agreement came about in such an unequivocable manner that I do not have to repeat it here. During the critical days I was on a business trip outside of Berlin. On the morning of the 29th or 30th of September, I believe, I was called by the adjutant of Under Secretary Freisler and told that Elias and Chlapka were being tried in Prague without my bring told when and I was told that I should keep in readiness so that I could take part in this trial. Since I was in Vienna, I replied that he should call me again and tell me the date that had been set for the trial and that, if this would be very soon, it would be better that I would go directly from Vienna to Prague. Thereupon, I did not receive a new telephone call. Therefore, I called around noon and I called my office in Berlin. I spoke to my deputy and asked him what the state of affairs was. He replied that in Prague the Gestapo would represent the prosecution and that he had been instructed by the Chief of the Division of the Ministry not to do anything. Thereupon, I decided to return to Berlin, immediately. The next morning I arrived in Berlin. I went to the Ministry of Justice immediately and there I heard that actually, between Thierak and Heydrich, this agreement had been reached.
I asked the Acting Minister immediately and emphatically to see to it that I, in my position, could appear in Prague at the trial. The attempt to bring this about during this hour, however, failed.
Q.- Did you then reconcile yourself to this that the Gestapo pushed you to the side?
A.- I did not, but I asked the Acting Minister to immediately relieve me of my official duties.
THE PRESIDENT: Who was the Acting Minister, Dr. Lautz?
A.- The defendant Schlegelberger. This matter has been discussed already.
THE PRESIDENT: I just wanted to fix the date. Could you state the date of that trial?
A.- That must have been on the 30th of September, 1941.
Of course, I thought about the reasons for this measure, what they might be, and already at that time I came to the conclusion that it could have only been aimed at my own person. Heydrich, moreover, I met only one single time during my entire time in office and spoke to him. This was during an official discussion in the Ministry of Justice when Minister Guertner was presiding. Although I only met him this one time I already had had a clash with him due to the investigations which were conducted in November, 1939, due to the attack on Hitler in the Buerger-Braeu-Keller in Munich. At that time, early on the following day, I had immediately been sent to Munich by the Minister in order to participate in the investigations conducted by the Gestapo. I did so only after some resistance and only incompletely and with the utmost effort and thus found out the most superficial facts. Therefore, I returned to Berlin and reported about this and left the public prosecutor, who accompanied me, in Munich. He was then told, in Munich, if the Reich Public Prosecution did not keep out of these investigations it would be kept out of them by force.
This was due to Heydrich's interference from Berlin and Heydrich doubtlessly knew well that in February 1942, due to my visit in Prague, I had in advance found out that civilian court martials were to be established, a plan which was later given up because Neurath and Guertner, who could have carried it out before, had brought about the decision by Hitler. About the result of my report in the Ministry of Justice on the occasion of the Elias case, I immediately informed my division chiefs because the ill will about this terrible event extended among a large number of people. All of them were of the opinion that this had to be protested against energetically and, on their own, wrote a protest and submitted it to the Minister of Justice. The matter was then settled by having, in front of the Chiefs of the German administration of justice, who were gathered a few weeks later, a statement read by Thierack by which he explained that his attitude represented an exceptional case, justified by state emergency, that it was not directed against the public prosecution or the Reich Public Prosecution, and that it would not be repeated.
BY DR. GRUBE:
Q.- I now come to another group of cases. These are prosecution documents which refer to cases of the so-called German high treason. The first one of these documents is the Schmidt affidavit, exhibit 145. The Prosecution, as can be seen from the document, originated at the end of June, 1939, and the trial took place on the 14th and 15th of September, 1939. Do you know anything at ail about the case?
A.- No, that was before my time.
Q.- But will you please, in spite of that, comment on this case briefly by referring to the affidavit?
A.- One can only gather the following from this document. Schmidt and his accomplices were indicted because of high treason and treason, but after a representative of the OKW, during the trial - Schmidt apparently calls him, by mistake, a witness, but he probably was an expert Well, after this representative had made his statement, given his testimony, the indictment because of treason was not followed up any further but the person was sentenced alone because of preparation for high treason.
This shows that the court deviated from the indictment.
Q.- The next document is Exhibit 493. From this document it is apparent that the document was signed by Parrisius. Do you remember the facts still from your activity as Chief Reich Public Prosecutor?
A.- No, without seeing the document I don't remember it either.
THE PRESIDENT: What exhibit was that, please?
BY DR. GRUBE:
Q.- 493.
Do you know what penalty the representative of the Reich Public Prosecution, after he had submitted his evidence, asked for?
A.- Of course, I cannot tell you that. I could only tell you that if I would see the files.
Q.- In that connection, may I ask you anyhow to state your opinion to the case. To what extent do indictments or sentences, which the prosecution here submitted, give a clear picture about what was the basis for the Reich prosecution when they filed their indictment, or rather, what they knew at the time?
A It is very difficult and almost impossible to draw such a conclusion without seeing the files, but from this document one can see that the defendant Deibel twice -- once on 29 April, and once 22 July 1941-- had written Marxist communist pamphlets, in the latter case as an incitement strikes -- a call for a general strike; and that is a strike in favor of the Soviet Union, and he directed the workers of an armament factory; moreover, he was being charged with listening to foreign broadcasts--enemy broadcasts.
Q Due to those facts, was Parisius obligated to sign the indictment?
A The indictment had to be served.
Q The next document is Exhibit 492. In this case we merely have the sentences of the People's Court of 24 June, 1942. Do you remember whether you signed the indictment?
A Due to the large number of indictments which I signed, I can no longer recall that. However, after I had read the document I again recalled the case, and that is because it was one of the more serious, doubtful cases in the Frankfurt district which had so far been reported to the authorities.
Q Do you still remember what penalty the prosecutor of the Reich Prosecution who was present in the trial asked for after he had submitted his evidence?
A I could only tell you that if I could see the files.
Q The next document is Exhibit 240. This is the Havemann affidavit which was already been repeatedly mentioned. In regard to this Havemann case you have already stated your opinion in your situation report of the 9th June, 1944; that is Exhibit 220.
In this situation report you mentioned the European Union. Please state briefly what it was all about -- this European Union.
A The European Union was, as the witness Havemann told here before this Tribunal, a secret organization which, without any doubt, wanted to bring about the overthrow of the government of the Third Reich -- or desired it.
And without a doubt, according to the conception of the indictment, of that time, also tried to bring it about; in effect, it was all for the immediate, and not for the distant future. This was apparent already from the fact that the participants in this group, the members of this group, were in touch with, or tried to get in touch with foreign resistance groups, and had taken up contact with the foreign intelligence service and wanted to obtain large numbers of foreign workers for their aims--and also succeeded in getting them. According to the German criminal legislation, this went beyond high treason, it was espionage in war time.
Q Can you still remember whether you signed the indictment in this case?
A I certainly signed the indictment.
Q Do you know what the attitude, what opinion the prosecutor, who was the representative of the Reich Prosecution in the trial represented, after the submission of evidence and what penalty he asked for?
A The Havemann affidavit, which was not introduced, but in it Havemann said that that the representative of the Reich Prosecution asked for the death penalty. I have no reason to doubt this. In view of the situation, I would like to even assume that. I would also like to assume, although I cannot remember it any more, but I consider it possible that I authorized him to make an application for this penalty.
Q In this affidavit Havemann stated, also, here when he was examined as a witness, the execution of the penalty was postponed because he was needed for scientific work. Is it correct that after the first postponement of the penalty you were in favor of a pardon for Havemann because you considered it not humane to leave him in uncertainty regarding his future fate?
A I considered it my obvious duty to point out that if one had once decided not to execute the sentence, it is absolutely impossible and unbearable -- it would seem so -- from two to three months again to make this decision every time and to leave the condemned person in uncertainty, and at the end of this respite carry out the penalty any how.
Q The Prosecution further submitted Exhibit 161. This concerns the Felsen case. Here neither the indictment nor the sentence has been submitted. The document, which apparently is from the working file of the defense counsel, shows that the trial took place in December, 1944, and Felsen was sentenced to death. At that time Felsen asked for a re-opening of the case, but he was insuccessful.
Do you know that case?
A No.
Q Can you explain why this case escaped your attention?
A In virtue of the innumerable cases with which we were occupied, it is entirely impossible years later to remember every single case. It would be different if the files could be submitted to me and I could say something by referring to the files, and could say that I remembered the case again from the documents which were submitted; but, this way it is impossible.
Q The subject of the care was, as can be seen from the trial, among others, also the fact that Felsen had monitored radio messages from the enemy. The Prosecution in this trial here, in the index to the document book concerned states that Felsen was sentenced only for listening to enemy broadcasts. Therefore, I am asking you could Felsen only for listening to foreign broadcasts be sentenced to death?
A On the basis of the law against listening to foreign broadcasts, certainly not.
Q Would the People's Court have been competent for the sentencing of Felsen, if Felsen had merely been indicted for listening to enemy broadcasts?
A Only for that offense, he could not have been indicted before the People's Court.
Q This probably can be seen from the competency regulations which I introduced as exhibits yesterday?
A Yes.
Q According to this Felsen must have been sentenced also for other offenses. Do you remember anything at all about it?
A No, but one has to assume that without any doubt.
Q The next document is Exhibit 490. It concerns the Fredrichs case. Here the indictment, which you signed, has been submitted. However, from the indictment fourteen pages are missing. From the sentence only the formula, but not the opinion has beer submitted. Do you still remember the facts which formed the basis of the indictment?
AAfter I had read the document, I again remembered the case more less. From the document I see that he was a stateless person person who was born in Germany, from Altona, that is from Germany, that he advocated communism, and later did so abroad.
THE PRESIDENT: May I have the number of that exhibit again?
DR. GRUBE: Exhibit 490, your Honor.
Q Can you explain how the court decided upon a prison sentence of five years in the penitentiary in this case?
A Do you mean to indicate that it was only a five year penitentiary sentence?
Q Yes.
A That apparently is due to the fact that the offense was committed before the outbreak of the war; that most of it was committed in a foreign country; and that it was not especially serious. But, since the opinion of the sentence has not been submitted, this is only an assumption on my part.
Q The next document is Exhibit 483. It is the Sievers case. Here only a Fuehrer Information has been submitted. Do you still remember the facts of the case?
A Even by referring to the Fuehrer Information, I cannot say from memory what the details of the facts of the case were.
I conclude from that, since on the basis -- I have a pretty good memory -- of that case, and since the significance of the case would doubtlessly recall more matters to my mind, than was contained in the Fuehrer Information, it is my belief that I did not handle the case personally, but I cannot say that with certainty either.
Q The next case belongs to the group of the 20 July 1944. On the 20 July 1944 the attack on Hitler's life was made, as is well known. Please, first of all, describe briefly what circumstances also were involved in that action: What was the aim and what crime did the participation in this action constitute?
A In this action of 20 July actually persons from all levels of the German people were involved with the exception, perhaps, of the Communists. The action itself was a deed committed exclusively by a group of officers of the Wehrmacht. The aim, and there is no doubt about it, was the removal of the Hitler regime. What was supposed to happen afterwards, in view of the extensive lack of agreement of the participants among themselves, was not clear at. all and a great deal of scope was left to improvisation even. As to the aim, how one was supposed to act toward the outside world, those who participated were not in agreement at all. A part of the conspirators hoped to be able to bring about an agreement with the Allies of the West while the others wanted to deal with the East. One thing was certain, that those participants who belonged to the left counted with certainty upon the fact that the government of generals which might have resulted would soon collapse and then bring them to power.
Q What was the conditions of the attack itself under criminal law?
A It was an infrequent case of complete high treason.
Q Those who participated in the attack directly were, as you said, almost exclusively members of the Wehrmacht. Thus they should have been sentenced by the Reich Military Court.
A For the entire case, that is, for the soldiers as well as for the civilians, the Reich Military Court would have been primarily competent for two reasons: first, during the war the Reich Military Court was competent for high treason and treason primarily, regardless of whether the person who committed the crime was a soldier or civilian.
However they were authorized to say that they were no military interest involved and to transfer the case to regular courts. The Reich Military Court in general did this to a large extent and in individual cases also.
In addition, in this special case, it was competent for civilians also because, since there was a connection between the military and the civilians, the mutual competence was well-based in the case of the Reich Military Court also against civilians.
Q As Exhibit 119 indicates, and as is well known generally, the proceedings however were carried out before the People's Court. Did you initiate that these trials be carried out before the People's Court and became pending there?
A No. After the attempt was made known I regarded it to be absolutely certain that the proceedings, as I have already explained also those against the civilians, would be tried before the Reich Military Court.
Q What did you find out as to what the decisive reasons were for having the trial carried out before the People's court instead of the Reich Military Court?
A On the morning of the 1 August 1944 I was just about to make a trip to Bad Reichenhall where my seriously wounded brother-in-law had arrived in a military hospital from the east. Since I thought that he would die I wanted to see him again. When I was just about to leave the house I was ordered to come to the Ministry on an urgent affair. I was prohibited from starting on my trip. In the Ministry of Justice were Freisler had been ordered to report also there was a discussion over which Thierack presided and the undersecretary at that time, Klemm, and Obergruppenfuehrer Kaltenbrunner were also present. Herr Thierack surprisingly told us that the trial, because of the attempt, would take place before the People's Court;
that Hitler had ordered this after an Honor Court composed of officers of the Wehrmacht had expelled the guilty generals, captains and majors from the Wehrmacht. The first results of the investigation could be expected already in a few days. On the 7 of August 1944 it would be possible to hold the first session of the trial. The manner of executing possible death sentences was also discussed and those who participated in this discussion had no doubt at all that a possible execution would be carried out by shooting. The only doubtful factor was whether the Commando for this would be furnished by the Wehrmacht or the police. Two days before the trial, however, Thierack issued a different instruction to the effect that, given the case, death sentences would be pronounced, ho would use the law of April 1933 and have the sentences executed by hanging even in the case of the soldiers, and therefore, he desired that the opinion, that is, the reasons on which the sentences arc based, if the case would lend itself to this, would be formulated in such a way that they would form a basis for such a decision on his part.
The public prosecutor too, if he considered the facts suitable, if there was especially dishonor, lack of honor in the attempt, he would have to point this out.
Accordingly to my conception of that time already this was the reason primarily why the trials were taken away from the Reich Military Court because a sentence pronounced by the Reich Military Court could never have been executed by hanging.
Until the time of this trial I was of the opinion that it was an idea of Hitler's, but from the document which the prosecution submitted, it is apparent, and this is NG-416, Exhibit 44, that it was Thierack who, via Bormann, had spontaneously taken up the idea--as the document says: approached the Fuehrer, that is to say, Hitler; that the Reich Military Court made this decision according to which the People's Court should handle the trial.
The sentence pronounced by the Reich Military Court would not have been different in most cases, but the manner of conducting the trial and the manner of execution would have been carried out in a way which would have speared the Administration of Justice that humiliating experience, which this Tribunal could gather from the film which was shown here.
THE PRESIDENT: We will adjourn at this time until tomorrow morning at 9:30.
(At 1630 hours, 24 July 1947, a recess was taken until 0930 hours, 25 July 1947).
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al., defendants, sitting at Nurnberg, Germany on 25 July 1947, 0930-1630, Justice James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3. Military Tribunal 3 is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: My it please your Honor, all of the defendants are present in the courtroom with the exception of defendant Engert who is absent due to illness.
THE PRESIDENT: Defendant Engert is excused. You may proceed with the examination of the defendant Lautz. Just a moment. The question has arisen in the minds of the members of the Tribunal as to whether it would not make for more orderly procedure if a slight change were made in the order in which the defendants present their cases. We wish this morning to suggest to defense counsel that the three defendants who were judges in the special courts should present their cases at the end rather than having them intersperced with the cases involving a different type of issue.
Our suggestion would be that the defendants Rothaug, Cuhorst, and Oeschey should present their cases one after the other at the end of the other defendant's cases.
We shall be glad to hear the views of the defense counsel involved as to whether that might not make it easier for all parties concerned to appraise the evidence. We will not make a ruling on it at this time, however. I think the only result would be that there would be a longer period of time intervening prior to the Rothaug defense if this procedure were followed. Of course, that would move the other cases up correspondingly.
We should like to hear what counsel thinks about that before we rule upon it.
EARNST LAUTZ - Direct - resumed BY DR. GRUBE:
Q. Witness, yesterday at the end you were stating your opinion as to how the transfer of competence in the cases concerning the 20 July to the People's Court came about. What was your personal attitude to this transfer? In regard to this point I merely want to address one more question to you.
The basis for the competence of the People's Court in these cases was, however, possible by law, wasn't it, and was also carried out in accordance with law?
A. It became possible by having the participating soldiers expelled from the Wehrmacht by an honor court and thereby made them into civilians.
Q. In that connection I want to refer right away to the affidavit of Dr. Roeder and go into detail. It is Exhibit 46 of the Prosecution. Roeder states in his affidavit that in 1944, after the attempt of the 20 July 1944, the jurisdiction of political cases was taken away from the Administration of Justice of the Wehrmacht from the Justice authorities of the Wehrmacht. Please comment on this.
A. By the document which was already mentioned during my examination yesterday -- that is NG-416, Exhibit 44 in Document Book 1-B -- it is evident that this measure which the witness Roeder testified to also was due to the influence of the Thierack Ministry. From the witness Lehmann, who has already testified before this Tribunal on this question, I had found out already a long time before that such plans existed, but I never considered it possible that they would be Carried out. However, this exhibit taught me the opposite. This problem was not as follows, that material reasons for it existed. How ever, it may be that one did not trust the Wehrmacht Justice authorities, but I see no read on for that.
From the fact that only political cases the Minister of Justice had to make a choice as to which of them he wanted to submit to the General Administration of Justice, it was clearly apparent that in this way a political influence on the Wehrmacht was supposed to be gained.
It is a fact that not a single one of these cases came up for trial and the reason for these are two fold: first, the extraordinary difficulties, for example, in regard to cases of undermining of military fighting force which had occurred at the West Front or on the Fast Front or in Italy to bring these cases shortly for trial in Berlin. Above all, however, the reason was that the course of the events was so fast and brought about the collapse and also there the collapse of the Wehrmacht Administration of Justice.
Q. Witness, the trials against the participants in the attempt of 20 July 1944 and against the circles who were in back of these criminal people took place under the presidency of Freisler before the first senate of the People's Court. It is correct that in the first cases you yourself represented the prosecution in the trial?
A. Until about the middle of October 1944 I myself took part in all the trials personally because, first of all, I had an express order by the Minister to do so and, secondly, I did not want to turn this difficult and thankless task over to any of my officials.
Q. Please comment on Prosecution Exhibit 192, Document NG-1019.
A. The treatment of not all but of some cases by Freisler, as presiding judge of the first senate, was humiliating for everybody who thinks in a decent manner, not because of the result because in view of the facts the result could hardly be different. Most of the defendants also confessed their deed and did not try to deny it, and they said expressly that they had been conscious of the fact that if their plan should fail they would lose their lives.