Paragraph 5 of the ordinance says the competence of the People's Court remains unaffected. From that I concluded that one might uphold the view that the People's Court was, in any case, not bound by the provisions concerning procedure. That is to say that in respect of the indictment at the trial and concerning the application for reopening of trial, those provisions only could apply which were of general validity. Of greater doubt was the question as to whether the provisions of substantive law of this ordinance could also be viewed from that legal angle. To start with, that was the view I took. But the Ministry of Justice told me that was wrong, for the punishment which, on the basis of the law against Poles could be passed were different from the punishments laid down in the General Penal Code. These punishments were terms in a camp and not in a prison or a penitentiary.
Q. I just want to interpolate a question, witness. What in you knowledge would "penal camp" mean?
A. Naturally I was interested in the question as to what penal camp was to mean. I in those days contacted the witness Hecker who name here to give testimony. At the time he tole me Penal Camp means that the prisoners as far as they are of Polish origin, during their imprisonment are to be separated from other prisoners, in particular from German prisoners, and are to be housed in separate institutions of the German Administration of Justice which will be provided for them. He mentioned the camp Schiratz as being one of those camps. That was situated between Poznan and Litzmannstadt. That camp has been mentioned in this trial. It was mentioned with the witness the clergyman Wein testified that the Polish prisoners at Schiratz when the Soviet troops approached were sent to central Germany. Otherwise I knew nothing about that question, nor did it affect my sphere of work, as I had nothing to do with the prisons.
Q. You have just told us something about your view concerning the significance of the law against Poles for the practice of the People's Court. What view did the senates of the People's Court take?
A. The senates of the People's Court were divided in their opinion. Concerning the provisions of substantive law they applied then all. Concerning the provisions of procedure, the second senate which we are discussing now took the view that the procedure before the People's Court had to be conducted according to the provision of the law against Poles. In this case the result was that the application for reopening in the case of Piotrowski could not be admitted. So that the defendant, that is to say the person who had been condemned should not suffer any disadvantage, I treated that application as a clemency plea and later on forwarded it to the Ministry of Justice together with the clemency plea files for when a clemency plea was made, it was possible in respect of actual remarks if they were evidently correct, and if they were contrary to the findings of the court, to take those into consideration in favor of the condemned person.
Q. Witness, may I revert to Exhibit 125, the Kawka case. You told us earlier on that if an indictment was to be filed before the People's Court in cases concerning Poles the approval of the Ministry of Justice was requested. Do you know whether in this case, too, as in the other two cases which we have mentioned here, that is Exhibit 134 and 137 that instruction from the Ministry of Justice was not paid any attention to? And a trial was held without the approval of the Ministry of Justice.
A. No, I believe you misunderstood me, Doctor. Consent in every individual case was not required, but generally when such indictments were filed that was due to an instruction from the Reich Ministry of Justice.
Q. You did have to send copies in of the transcripts, did you?
A. Yes, copies of those transcripts had to be forwarded to the Minister so that he could look at them whenever he deemed it necessary.
Q. I am now coming to Exhibit k38, that is the Koslowski case. What are your comments on that case?
A. As is evident from the document, Kozlowske was not a Pole. He was a German citizen and he was civil servant of the Reich. He is a German civil servant even though his antecedents were Poles. If in time of war in the inland -- this case did not occur in the incorporated eastern territories, it happened in Germany, -- if such a German civil servant in the inland works for the breaking up of the German Reich in favor of establishing a greater Poland, some steps will have to be taken against such a man.
Q. This exhibit reveals that since 1914 Koslowski had been a German civil servant. Does that indicate that Koslowski had been a German citizen at least since 1914?
A. As a German Reich official he certainly had German citizenship, and by virture of the Versailles Treaty he had been entitled to go to Poland. Evidently he made no use of that opportunity.
Q. I am now coming to Exhibit 135. This exhibit deals with the case of the Gogler Brothers. What is your comment on this case?
A. In this case, too, the offense was committed in the Reich territory and these were the facts of the case in brief. In the view of the prosecution the brothers Gogler had helped interned British prisoners of war, members of the RAF, to escape to enable them to enter the war against Germany once again. Very frequently the Reich Military Courts dealt with such cases and there they were treated no different than they were here. An indictment for aiding the enemy could not be avoided. The judgment shows that one of the two, and it was Joseph Gogler -- was acquitted by the senate because there was not sufficient evidence.
That shows that the prosecution had not been fully successful.
Q. Witness, I have to revert briefly to the law against Poles which you mentioned earlier on. By virture of this law against Poles alone was it possible to file an indictment before the People's Court?
A. That would not be possible.
Q. It was, therefore, always necessary that the facts of the case in themselves came under the competency of the People's Court?
A. Yes, the People's Court as such had to be competent for the facts of the case and then the law against Poles only had this importance: if a prison sentence was passed, the Court could not pass a sentence for prison or penitentiary, but for penal camp. The scope of punishment, which was provided by the law against Poles, did not go beyond the penal provisions governing high treason and treason. But because this is of importance for other cases, I would like to add these remarks. If an indictment, for example, for high treason had been filed, or shall we say, if such an indictment had been filed with the Penal Chamber for serious theft, and at the trial, the court -- shall we say the Penal Chamber -- establishes the fact that no serious theft has been committed -- the thief only entered the house because he was hungry and wanted to satisfy his hunger -- or in the case of high treason, the Court were to establish the fact that high treason had not been committed but that perhaps it was only an offense under the law against malicious acts, in such a case the Court which passes judgment is not in a position to transfer the case to a lower court but it has to decide the matter itself and it has to base its opinion on whatever legal point of view it considers correct. That, at any rate, is what is in accordance with German law.
THE PRESIDENT: In that connection, Dr. Lautz, may I ask you: if the charge was brought for a crime which was within the competency of the People's Court, and the evidence failed on that charge, but that there was evidence of violation of the law against Poles, would the same rule apply that you have just stated?
THE WITNESS: Yes, Your Honor. That was why I made my statement.
THE PRESIDENT: Thank you.
MR. LA FOLLETTE: If Your Honors please, may I address the Tribu nal for a minute?
I would not do this except, I think, for an emergency. It is shortly after the time that the Court fixed for the fil ing of written answers in the Petition to show cause for contempt. I have just been advised 15 minutes ago that Frau Karin Huppertz has the intention of leaving Nurnberg and the immediate jurisdiction of this Court on either tomorrow or Monday, and not to return. I don't know whether she has filed a written return. I had prepared, to be submitted for the Court's consideration, a general order, assuming that a written return had been filed, and hope that we could hear this matter on Tuesday, the 29th. However at this time I would like to send a copy of this order in English and German for the Court's consideration for subsequent ruling later on, but at this time I ask the Court to issue its bench order directing Frau Huppertz not to leave, the jurisdiction of this court, at least not to leave the city of Nurnberg -of course, the jurisdiction of this Court extends beyond that. I think I am justified in asking the Court to take that action at this time.
THE PRESIDENT: I understand that the request of counsel is at this time only for a restraining order and an injunction restraining her from leaving the city of Nurnberg or her present residence?
MR. LA FOLLETTE: Exactly, that is it, Your Honor.
THE PRESIDENT: That order is made. She is restrained and enjoined from leaving the city of Nurnberg or from concealing herself therein.
MR. LA FOLLETTE: And would Your Honor request that the Secretary General or the Marshal give notice forthwith of that order to her?
THE PRESIDENT: The Marshal is directed to inform the individual charged of the order of this court.
MR. LA FOLLETTE: Thank you, Your Honor.
THE PRESIDENT: It should be done in writing.
MR. LA FOLLETTE: Thank you, Your Honor. May I now send to the Secretary-General, for the consideration of the Court, a form of order which the Court may, of course, reject. I simply prepared it generally on the matter of a hearing on this matter for the Court's consideration later on today.
THE PRESIDENT: Have any answers been filed by either defendant?
MR. LA FOLLETTE: If they have been, the Court's previous order was that they be filed with the Secretary-General, Your Honor.
THE PRESIDENT: That is right. I ask if they have been filed?
MR. LA FOLLETTE: I have not been informed. The time has just expired.
THE PRESIDENT: You may proceed with the examination.
BY DR. BRUBE:
Q. I am now coming to the cases of the Polish Legion. As you know, cases were tried before the People's Court where Poles, according to the assumption of the Reich Prosecution, had attempted to contact the Polish Legion abroad. These are the documents I am referring to: Exhibit 128, 129, 130, 132, 133, 491, and 136. However, in only two out of these seven cases is there an indictment which bears the signature of the witness Lautz. They are the indictments contained in the Exhibits 132 and 136. In this connection, I would like to say this. At the session of the 24 of March 1947, the Prosecution in submitting this exhibit 129, stated, "Unfortunately, no indictment was available." It was not in the possession of the prosecution. The prosecutor then quoted at that session of 24 March 1947, after the affidavit by the defendant Lautz, Exhibit 126 -- and he quoted several passages. The affidavit, which the defendant Lautz gave, contains a remark to the effect that generally speaking he signed the indictments. With reference to that statement, in Affidavit Exhibit 126, on that day, 24 March 1947, the Prosecution said that evidently it was the defendant Lautz who had signed those indictments; that is to say, the indictment of the Mazur case.
A few weeks later, following my request for all subsidiary files regarding the cases with which the People's Court had dealt, as a result of that request all I received was three thin files. I am now handing this file to the witness. This is one of the three which the Prosecution gave to me. (Witness is offered the file.)
Witness, please see first whether this is a file of the Reich Prosecution.
A. This is a so-called working file of the Reich Prosecution; that is to say, it is a file in which the official documents were kept which were destined for the internal use of the Reich Prosecution or any other prosecuting office. That is to say, such a file usually contains the indictment, the sentence, and all reports which were made on the case.
Q. Please have a look to see to what defendants the indictment makes reference.
A. The file refers to the defendants Mazur, Kubisz and Nowakowski. The indictment was filed on 9 March 1942.
Q. Those are the same defendants who are mentioned in Exhibit 129 where the sentence appears?
A. There is no doubt about that.
Q. Does this file contain an indictment?
A. The original of the indictment and a clean copy appears on pages 8 and following, and on page 12 and following.
Q. Who signed the indictment?
A. According to the contents of the file, the original, as well as the final copy, were signed by Reich Prosecutor Parisius, who was my deputy in those days.
Q. Thank you. Would you also turn to page 10, please.
A. Yes, I found page 10.
Q. What does it say on that page?
A. On that page there is an ordinance, the so-called accompanying ordinance. It deals with the steps which were taken after the indictment was filed; that is to say, it says to what agencies the indictment was forwarded.
Q. Does that page show that a copy of the indictment was also sent to the Reich Ministry of Justice?
A. Yes, that can be seen from Figure 3 where it says expressly that the indictment has to be submitted to the Reich Minister of Justice.
Q. Furthermore, does this page show that from the very beginning reports were made from day to day to the Ministry of Justice?
A. It is evident that in accordance with general rules, after the sentence was passed, all those reports were made which had been ordered by official instructions, and that those reports were made currently.
Q. You said before that Parisius -
THE PRESIDENT: Before you proceed---The Tribunal will recess until one-thirty this afternoon.
(A recess was taken until 1330 hours).
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 25 July '47) ERNST LAUTZ - Resumed DIRECT EXAMINATION (Continued)
DR. TIPP: (Attorney for the Defendant Barnickel) Before Dr. Grube continues with the direct examination Your Honor, my colleague, Dr. Marx, asked me to submit a request on his behalf.
By order of the Tribunal he was ordered before twelve o'clock noon today to make a statement in regard to the well known occurrences. Dr. Marx has just told me that in view of the bad state of his health, he was not in a position to submit this statement at the time that it was ordered. Therefore, he requested me to submit his request to the Tribunal to postpone this time limit until five o'clock this afternoon. Within that time limit he will be able to make a statement.
THE PRESIDENT: We are advised that Dr. Marx had already filed some kind of a statement. We are advised that Dr. Marx had already filed some kind of an answer. He may, however, have until five o'clock this afternoon in which to file such answer as he may desire. It is, of course, known to you that either Dr. Marx or the other person named in the petition for a show cause order -wither one of them is entitled to be represented by counsel of their own choice.
DR. TIPP: Yes, Your Honor. Thank you very much.
DR. GRUBE: May I continue the examination of the witness Lautz?
THE PRESIDENT: Proceed.
BY DR. GRUBE: (Attorney for the Defendant Lautz)
Q: Witness, I again want to come back briefly to the law against Poles.
Before the recess you stated that the senates of the People's Court were of the same opinion as the Ministry of Justice. May I now ask you which senates of the People's Court this statement refers?
A: They were the senates which had to deal with the cases against Poles according to the work schedule. According to the work schedule of that time, that is, 1941, to which the Prosecution documents refer, they were, if my memory does not deceive me, first of all the second senate -- that was discussed here -- and then the third senate.
Q: Thank you. I now come back to the question of the Polish Legion. What do you have to say in general in regard to the problem of the Polish Legion?
A: At a later time than in the ease of the Czech Legionnaires, about which I spoke already, the Reich Military Court, via the OKW and the Minister of Justice also transferred the cases concerning the Polish Legion to the Reich Public Prosecution at the People's Court. In point of numbers, they were less than the Czech cases. However, I shall come back to the numbers later on. The counterintelligence service of the OKW in their expert opinion had pointed out that the Polish Legion which fought on the side of the enemy had considerable strength and continuously received new recruitments; and, as far as possible, this should be stopped. From the army reports, moreover -- front reports -- there was evidence according to which Polish units, the strength of which at the end had grown to about one hundred thousand men, fought on the side of the enemy.
Q: Witness, I again hand you the working files of the Chief Reich Public Prosecutor at the People's Court in the criminal ease against Mazur, Did the Reich Public Prosecution at the People's Court, on their own, institute investigations as to whether in Switzerland recruiting offices for the Polish Legion existed?
A: The facts were as follows: During the course of the campaign in France, parts of the Polish Legion had been withdrawn across the Swiss border into Swiss territory; there they were interned; and Switzerland behaved absolutely correctly as a neutral country, but this was not the issue here. But rather, the German counter-intelligence service had found out the following: That in Switzerland, perhaps in connection with the interned Legion --- or, not in connection with it -- an illegal recruiting and transport service had been instituted which made it its task to have Polish citizens provided a way to get to Africa through Switzerland and Southern France. This fact which we first made certain, as can be seen by the Mazur file by an inquiry to the competent Border Police Director, Stuttgart, was part of the basis for the filing of an indictment, since they supported the suspicion which formed the basis of it. From the Mazur file and the order contained on page 6 in this file it is also evident that the Reich Public Prosecution, before it prosecuted further, waited for the receipt of the answer to this inquiry. Unfortunately, the answer is not contained in this file. According to the work schedule it could not be because it was included in the general file which had been made up for this case as a whole.
Q: Witness, do you still remember what information you received in regard to the question whether recruiting
A: I said that already. From the answer of the head office of the Border Police, Stuttgart, it was apparent without doubt that according to the information which they had from Switzerland that there was an illegal recruiting and transport service which helped Poles to get to Switzerland and to Africa; but to that extent Switzerland apparently did everything that it was possible to do, and as far as it could; and, from the files, it is occasionally apparent that the Swiss border officials returned the Poles who had crossed the border from Germany, but in all cases they probably did not succeed.
Q: Had the Ministry of Justice also informed you to what extent recruiting offices for the Polish Legion existed in Switzerland?
A: IF I remember correctly, the same information had also reached us from the Foreign Office via the Ministry of Justice.
Q: Thank you. The prosecution seems to assume that the indictments were not the results of attempts to join the Polish Legion, but were a means to prosecute Poles because of their flight from Germany and their places of work. Please comment on this.
A: For us that certainly was not the motive for the filing of an indictment, because we were convinced that the suspicion was justified. Moreover, against such allegations the fact probably speaks which can be gathered from Exhibit 259 of the Prosecution. From that it can be gathered that particularly at the time in question here, hundreds, perhaps thousands of Poles left their places of work in the Reich, and if only a very small number of these were tried before a court because they wanted to join the Legion, this makes it apparent that they were not tried only because they left their place of work.
The other participating offices, that is the police, the counter-intelligence of the OKW were probably also of the opinion that here we were faced not only with flight from the place of work, but flight for a special purpose.
The general situation was just as I described it. During the war the German Reich, as any warring power, had closed its borders and this had been done for reasons of the security of the state and was, therefore, necessary because everybody who crossed the border and reached neutral country or an enemy country took along with him important experiences and knowledge which he had gained in the warring country. Poles knew that too.
Q Witness, you have already stated before that a Pole, only for the reason that he had left his place of work on his own, could not be tried and sentenced by the People's Court. Now, according to your determinations in the individual cases in which Poles were indicted because of attempt to reach the Polish Legion, did other reasons for suspicion also play a role which supported the suspicion on the basis of which then, in accordance with the law, you were obliged to raise an indictment?
A I just wanted to talk about that.
Q Will you please state what reasons for suspicion have regularly played a role also?
A If somebody crosses the border with a certain purpose in mind and he is caught in the act, then in the most infrequent of cases will he be inclined to say, and be ready to say, what intentions he had in mind, for in so doing he would damage his own case. Criminal cases which were conducted under this point of view--and this is probably not the case only in Germany --therefore, arc based to a large extent on the justified conclusions one can draw from the facts available.
Now, it was here known generally what I have already stated, that this was led to the Polish Legion if one started out on it. Secondly, it was known that among the Polish workers in Southwestern Germany these conditions and the recognition were widespread. Furthermore, it was generally known to those workers too that favorable conditions for work could not be expected in Switzerland; and, finally, it was in accordance with the experiences which had been gathered in other trials that a large number of these people who crossed the border after their arrest did not even deny this intention.
These general considerations alone would have, in my opinion, justified such a strong suspicion that in accordance with German criminal power sufficient suspicion for the filling of an indictment existed, and that thus the indictment had to be filed in accordance with the law.
The two indictments which bear my signature are the Bratek and Stefanowitsch cases. The following element, however, is added. Bratek had referred to the fact that he only wanted to cross the border in order to avoid work.
DR. GRUBE: In the Bratek case here we are concerned with Exhibit 136.
A (Continuing): As I said, the claimed it was only for the reason to attempt to seek work that he did wanted to cross the border. By means of the additional investigations which the division chief instituted, however, it had been found out that he did not like to work; that he had already left other places of work so that his statement, that he wanted to seek new work in another country in which there were difficult conditions of work, did not seem very credible. So that for that reason his statement had to be accepted with reservations.
In the Stefanowitsch case the additional factor was that already once, when he attempted to cross the border to Denmark, he had been caught and this crossing of the border to Denmark, a country which was occupied by German troops, could, according to the situation at that time, have been caused by no other intention than the intention to reach England. In England too it was possible to join Polish units.
Q I would like to say here to Stefanowitsch case is contained in Exhibit 132.
A Those were the facts which, after investigating the case, as was my duty, caused me to file an indictment at that time. And today too I have no cause to correct that conviction.
Q Another question, witness. In the case of the Poles who were tried and sentenced because of their attempt to join the Polish Legion, were they forced labor or displaced persons?
A The contrary is proved by the Prosecution documents themselves.
Q Please, will you first say what file I have handed to you?
A This is the file of the People's Court in the criminal case against Stefanowitsch and Lenczevski.
Q The same case as Exhibit 132?
A Yes, it is the same case.
Q Please turn to Page 14.
A I have it.
Q What is this notation on Page 14?
A Page 14 and subsequent pages contains the transcript of the investigating judge of the People's Court in Innsbruck, of 3 October 1942. According to this transcript by the investigating judge Stefanowitsch, in his statements to persons, said, "I reported voluntarily for commitment of labor to Germany."
Q Did he sign that statement?
A Stefanowitsch signed it too.
Q Please, now turn to Page 18.
A I have it here.
Q What do you have there?
A This too is a transcript by the investigating judge of the People's Court in Innsbruck of 6 October 1942, and this concerns the interrogation of the defendant Lenczevski, L-e-n-c-z-e-v-s-k-i-.
Q Can you state briefly what is expressed in this interrogation?
A Lenczevski too told the judge, according to this transcript, "I reported voluntarily for commitment of labor to Germany." He too signed the transcript.
Q Can you still remember whether, in other documents submitted by the Prosecution, there are also indications which show that these parties came to Germany voluntarily?
A If I am not mistaken, this is evidenced also from the Bratek file.
Q Yes. I may say here that the Bratek case is contained in Exhibit 136. Do you wish to make any additional remarks about these legion cases?
A In those cases in which the senate, deviating from the indictment, sentenced the people on the basis of the law against Poles, I shall make a statement about these later on. However, already now I could point out the following: From the Stefanowitsch file, in which the transcript of the trial before the People's Court is also contained, there appears the following: that the defense counsel of the defendant Lenczevski, attorney Dr. Goeringer from Nuernberg, who appeared as expert before this Tribunal, in his final plea asked that the court sentence his client on the basis of the law against Poles.
Q Witness, what do you have to say about the figures which are mentioned in your affidavit, Exhibit 126, and in the letter by the Counter-Intelligence Office, Exhibit 127?
A When the interrogator questioned me I was asked only about the Polish cases. I think this was the second interrogation of a total of three. I was asked how many cases altogether came before the People's Court. First I stated that it was hardly possible to state that from memory, but that that figure was not considerable, and that I estimated it to be at the most 100 to 200 cases. Today I am convinced that there were much less.
When Prosecution Exhibit 127 was submitted -- that is NG-419that is a prosecution document which concerns the cases of the Czech Legion -- that is an entirely different group -- in submitting it the prosecution pointed out that from this last-mentioned exhibit a much larger number resulted and that, therefore, my statements in the interrogation under oath could not be correct.
I can only say in answer to this that during the course of further interrogations which did not take place I would have made some statements about the Czech cases too, I would, no doubt, have named these figures which I should have remembered still at the time. I don't believe that I involved myself in contradiction.
Q I now come to the NN proceedings. As is evident from the documents which the prosecution submitted for the sentencing in so-called NN cases, originally four special courts were competent.
Witness, when the People's Court involved in the jurisdiction in the NN cases?
A The competence of the People's Court was based on the decree of the Reich Minister of Justice of 14 October 1942. That is Exhibit 313, NG-226. Thus, it was at a time when the General Administration of Justice had for over half a year been involved in the NN cases already. And when the regulations were issued for the executions of special procedures for these cases, proceedings had been already handled for several months, to NN cases, because they had to be called top secret, were just as unknown to me at the time as to other public prosecutors.
Q Did the Peoples Court became competent in all trials against NN prisoners?
A No, the regulation was as follows: That the Peoples Court handled only the most serious cases for which the Peoples Court was as such, competent according to law--that is, espionage cases, high treason, and lending aid comfort to the enemy.
Q Did you have an influence upon the issuance of the RJM -Reich Justice Ministry decree, through which the competence of the Peoples Court and also the competence of the Reich public prosecution was based?
A I was not asked whether I agreed to it. When it was issued I was confronted with a fait accompli. That happened quite frequently in other matters, too.