AAfter the war had broken out other laws prevailed for civil servants, then it became impossible to resign from office unless one provoked an open break and one refused to carry out the duties of the office irrespective of the consequences.
Q Did you ever hear of anyone being sent to a concentration camp for resigning, or being subject to other abuses?
A No, I did not maintain that either.
Q Dr. Lautz, before you took this job as Chief Reich Prosecutor, you had achieved considerable stature and eminence as a lawyer in the Reich. With that reputation you could have made even a better living in Private practice, could you not, than to continue on as a public servant?
A That is correct without doubt. If I had resigned from my office one way or the other and had become a practicing lawyer, I could have become a rich man in taking care of cases of undermining the military morale. But, I considered it more important to associate in a state office, less well paid, that no abuses occurred.
Q Well, this morning you testified that later on in the war, 1942 or 1943, you were very much disgusted, your conscience troubled you, you knew what was going on then and considering the question you decided that because of your indispensability you would not resign. In 1939 there was no question of indispensability, was there?
A I believe you misunderstood me. This morning I said that I had decided to remain in my office, that I had not made that decision for the reason that I thought I was indispensable but for other reasons. I never considered myself to be indispensable in my official position. Even when I was a simple prosecutor or general prosecutor, I was always of the opinion that I could be replaced. But during the later course of the war, this question was connected for me with the other question how this replacement would look like, that who would follow me. I considered it absolutely sufficient if one official would use himself in this hard job; I would hot have wanted a successor to do it.
Q So that in 1939 when war was already under way, when you took a job with the People's Court, which you knew to deal exclusively or largely with political matters and when your health was a great factor, you took the job in order to contract abuses; is that what you mean to say?
A No, you again misunderstood me. On the 1st of July 1939 this question was not yet acute for me. On that day I received the document confirming my appointment. I had no experiences as yet at the People's Court. I met these experiences only when I came there during the course of the years.
Q You said in your direct examination that before you took office you realized that the People's Court dealt largely, but not exclusively, with political matters. You must have known it.
A Well, of course, that it would not concern itself with thefts I knew, that is why I did not like this office, and if I did take it over I did so because I obeyed my Minister, whom I revered, and he probably had good reasons for selecting me particularly. If, Mr. Prosecutor, you would know the District of Karlsruhe, Lake Constanz, the Black Forest, and Heidelberg, you would probably believe me that only under force and upon urging did I give up that District. I did not do so voluntarily. Moreover, I probably would not be here today if I had not accepted the position.
Q Was it greatly to your financial advantage, Dr. Lautz, to move from your position in Karlsruhe to your position with the People's Court?
A My defense counsel submitted some documents about that. Through the office of Chief Reich Public Prosecutor I received five thousand marks more per year, but that these five thousand marks were not the decisive factor I submitted in evidence by stating that half a year before I had refused to accept the position as Senate President at the Reich Supreme Court which carries the same salary as the Chief Reich Prosecutor because I preferred to remain in the resort town of Baden-Baden rather than live in the city of Berlin.
Q Now, on the 1st of July 1939 when, as you say, you were committed irrevocably to taking the job at the People's Court, was it your feeling that in that job you could stand above political parties and remain distant from political life! I want to be perfectly fair with you, Dr. Lautz, that is what you said -- a jurist in Germany was expected to follow a principle of behavior, and I am asking you if, when you took the People's Court job, if you thought you could continue to follow those precepts?
A Mr. Prosecutor, first of all it is a fact that as Chief Reich Public Prosecutor at the People's Court I was much less subject to party political influences than ever before in any official position, because no Kreisleiter and no Gauleiter would have dared to interfere in these matters, because these gentlemen respected treason and high treason. But the influences of the state leadership - that is to say, the influences which came immediately from the top, from Hitler, via the Minister, to me - these were the decisive influences, but they were not party political, they were state political.
Q Is it your position that while you were at the People's Court you were not subject to influence by high party people, including Gauleiters?
A Nobody tried it. No one came to me. Whether the Gauleiters made the influence felt through Hitler, I am not in a position to know, but one can assume so, since after I heard the Stuergkh case here, and I also know it from the case of the Strassburg condemned prisoners, which I reported to the Court here. There, too, the Gauleiter made serious efforts to influence the trial through Hitler, but he did not make these efforts directly to me. For the Gauleiters I was a little man, too.
Q You don't recall the case where you turned a. couple of Jews over for execution, without trial, at the suggestion of the Gauleiter?
A No, I can't remember.
Q Let's have a look at that document. Dr. Lautz, if you will turn to pages 6 and 7 of the German edition, I might say that this is document identified as NG-1454. I would like to read, for the benefit of your memory, the last sentence in the last principal paragraph:
"The two Jews in this case", you. say, "who are in custody, shall at the same time be hanged by the security police at the place of their crime."
Do you find the place?
A Yes.
THE PRESIDENT: On what page is that?
MR. KING: That is on page 6 of the English version, Your Honor.
BY MR. KING:
Q Do you recall the facts of this case?
A May I please look at that in peace?
MR. KING: Certainly.
A Yes, but the report shows clearly that I did not order this at all. I could not issue such an order. The following was at stake here: The Administration of Justice could not concern itself with these two Jews since the 1st of July 1943, and the police disposed of them in this summer. I could not prevent them from doing that. I would have liked to have done so.
Q You say you would have liked to have done so. Yet in this letter in which you refer to other recommendations of the Gauleiter you, as Chief Public Prosecutor for the People's Court, with ample authority to do something about it, turned two people over to the security police without triad, for shooting. You say you would have liked to do something about it. Why didn't you do something about it?
A Where does it say so, that I turned them over? On what page?
Q You look on pages 6 and 7. In your copy it is on page 7.
A Yes.
Q If that isn't turning them over, I would like to know the definition for it. You don't think telling the Reich Minister of Justice that these men are, so far as you are concerned, eligible to be shot, is in no sense turning them over? Is that your position?
A No. You interpret that incorrectly, Mr. Prosecutor.
Q Well, let's have your interpretation.
A Yes. I filed an indictment, and I had to file it, to the extent as the offenders were not Jews.
Q Just a moment. You didn't file an indictment against the two Jews you are referring to in your last paragraph?
A No, I could not. In accordance with the decree of 1 July 1943 that was impossible. And, therefore, I inform ed the Minister of Justice, here in this report, what the Gestapo intended to do with these two Jews.
Q Anything else to say about that?
A The two Jews whom I did not turn over. Id did not have any jurisdiction over them at all.
THE PRESIDENT: May I ask a question, please?
WITNESS: Yes, Your Honor.
THE PRESIDENT: I am examining the sentence which immediately follows the one which the prosecutor has read to you. It reads: "I have requested the President of the People's Court to arrange a particularly early date for the main proceedings." Do you find that place?
WITNESS: Yes.
THE PRESIDENT: Did it refer to the two Jews mentioned immediately preceding that?
WITNESS: No, no. It does not.
BY MR. KING:
Q Do you have any more to say about this matter?
A Perhaps I may be permitted to look through the file a little more carefully and again refer to it during the redirect. I can only say that I did not initiate this action against the Jews, but the Gauleiter did.
Q And you followed his suggestion?
A No! This instruction by the Gauleiter, and this intention of the Gauleiter, I reported to the Minister of Justice in my report to the Ministry of Justice, not because I wanted to recommend it but so that the Minister of Justice would find out about it.
Q Dr. Lautz, I intend to offer this document as an exhibit immediately after the luncheon recess, to be Exhibit 537. But if you wish to comment on it before it is offered you certainly may have the opportunity to do so during cross examination.
THE PRESIDENT: Let the Exhibit be marked for identification at this time, 537.
We will take our recess until one thirty this afternoon.
(The Tribunal recessed until 1330 hours.)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 28 July 1947)
THE MARSHAL: The Tribunal is again in session.
ERNST LAUTZ (Resumed) CROSS EXAMINATION (Continued) BY MR. KING:
Q: Dr. Lautz, have you had an opportunity to examine further, or think more, about the exhibit 537 which was marked for identification just before the lunch recess?
A: I have looked at it.
Q: Do you have any further comments to make upon it?
A: The report of 11 December 1944, page 6, in my view reveals quite clearly the following:
First: The Reich Prosecution had filed an indictment against three persons. That indictment was handed to the Minister of Justice for his information in accordance with the regulations. When that indictment was handed to him, I, at the same time, reported on another matter to the Minister of Justice. I passed on to him a notification from the Chief Public Prosecutor at Koenigsberg. That information from the Chief Public Prosecutor at Koenigsberg, of which I notified the Reich Minister of Justice in the form of an extract, resulted in the following: Completely independently from the proceedings, the Security Police in Koenigsberg had arrested two Jews who had had some relation with the matter on account of which an indictment had teen filed, but who could not have been prosecuted by the Administration of Justice because the law of July 1943 was contrary to such prosecution. The Gauleiter and Reich Defense Commissar, in agreement with the Chief of the Koenigsberg Security Police, therefore, had decided -- and this is evident from the report -- that those two Jews were to be liquidated illegally.
I informed the Reich Minister of Justice about that. I could only have prevented it by going to Koenigsberg with a revolver in my hand and saying to the Gauleiter, "You can't do that, or you will be a dead man." Any decision on my part, or on the part of the Minister of Justice, on account of those Jews, was never made, and that does not show from the document either.
For the rest, the intention of the Gauleiter -- at any rate, I cannot see that here -- was not carried out in the way it had been planned, because page 2 shows that at any rate one of the condemned persons -- that is to say, one of those who had been sentenced by the Administration of Justice -- at the instruction of the Ministry of Justice, had hot been executed at the place where he had resided, but at Koenigsberg, in the prison. To that extent, at least, the Minister of Justice did not comply with the wishes of the Gauleiter.
Q: You are not suggesting, are you, Dr. Lautz, that the letter on page 2 has anything whatsoever to do with the disposition of the two Jews mentioned on page 7 of your copy?
A: No, no, but the Gauleiter had expressed the wish that the execution of the two prisoners in the hands of the Administration of Justice -- if they were to be sentenced to death -- that that execution should take place simultaneously with the illegal execution of the two Jews whom the Security Police wanted to execute, and evidently that was not done.
Q: And do you consider that a considerable victory for the Ministry of Justice, the fact that they were hanged in the prison rather than at the place of the crime?
Was that a considerable concession to have wrung from the Gauleiter?
A: No, that was not what I said. I only reported the facts such as they arc evident from the files; and as far as the matter refers to me, this explains completely that I had nothing to do with that illegal execution.
Q: Is that all you have to say on this case?
A: Yes, it is.
MR. KING: I offer the Exhibit 537, which is NG-1454.
THE PRESIDENT: The exhibit is received.
BY MR. KING:
Q: Dr. Lautz, you told me this morning that you had read the Party Platform before you joined the Party, or at least you had read it some time in the past. I wonder if you could tell me, just as a matter of information, what you believe, or what you believed, point 19 in the Party Platform stood for. I will read it:
"We demand that the Roman law which serves the materialistic world order shall be replaced by a German common law."
Did you give any thought to that at all in the years before 1939?
A: That passage in itself proves merely that it was a slogan, a propaganda slogan, and that the person who coined that slogan had only a very slight knowledge of the law. I understood that point to mean that the law which was valid in Germany, above all the civil law, which in many ways is based on concepts of Roman law, should be given a new shape, or a new language, which was to make it more popular, because those who knew the law of the Civil Legal Code realized that that language was hardly understandable at all to a layman, a man of the people.
Q: Thank you. Had you finished, Dr. Lautz?
A: Yes, I have finished.
Q: Dr. Grube asked you the following question, and I want to read it to you, I think I can quote it verbatim. The question was: "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?" Your answer to that question was in the affirmative.
Now, I would like o ask you two questions concerning the meaning which you placed on, first, the word "foreigner", and secondly, the word "abroad". When you spoke of a foreigner in this sense, what did you mean? Was a Czech a foreigner; a Pole a foreigner? Or just how did you mean it?
A: Foreigners, within the moaning of German penal law, such as I had to interpret that law, were the following: The Czech, according to that interpretation, was not a foreigner. As far as German penal law had been introduced into the Protectorate, he was considered a German; it says so in the legislation on the Protectorate. Nor was the Pole a foreigner, who had been resident on 1 September 1939 in the Incorporated Territories, not the Pole who had for some time, at least who had before the war, been resident in Germany. However, foreigners were the French, the Belgians, the English, the Russians.
Q: Now it follows, I take it, that by "abroad" you meant France, Belgium, England, and Russia?
A: Yes.
Q: Yes, that would follow.
A: Yes, certainly, but insofar as those territories were occupied, those territories were not considered as foreign, but -- and that results from paragraph 161 of the Military Code -- from that point of view the penal law of the home country applied.
Q: That is, applied after the occupation in each case?
A: Yes; that is evident from the right of the occupying authorities. Otherwise, jurisdiction in the occupied territories would not have been possible.
Q: Yes, I understand; I understand your interpretation.
You spoke of the penal provisions a moment ago. Does the word "German" as it is used in article 4 of the Penal Code - and I am referring now to the Penal Code as it existed prior to the war -- does that mean of German blood, or German national?
I have the Code here if you would like to look at it.
A: Yes, please, may I see it?
(Volume submitted to witness)
A Yes?
Q Do you remember my question? My question was, does the word "German" as it appears in Article 4, does that refer to persons of German blood or does that mean a German national, a citizen of German?
A I cannot understand that question. In Article 4 in the first sentence it says German penal law, and German penal law is the law which is laid down in German law in fact.
Q Dr. Lautz, my citation may have been misleading. Would you look to Article 3 of the penal code?
A Yes?
Q Does that refer to a German citizen or to a person merely of German blood?
A It says here quite clearly for a German citizen, that is to say, a person who possesses German nationality.
Q In other words, I take it it is clear that the penal code in Germany, at least up until the war, did not know the crime of treason against individual foreigners, even though they were of German blood. That is based on the penal code to which you have just referred; is that correct?
A That is an error. A foreigner could only be prosecuted for treason and high treason if he had committed that act in Germany. Article 4, which you put to me before, shows however also that in certain circumstances it was possible to apply that when he had committed the act abroad.
Q Let me ask you, did that act have to be against the state or against an individual, and that was the import of my first question, or my last question, rather.
A You are now referring to high treason and treason?
Q I am referring to treason, and I am asking you if it were possible to commit treason against an individual who was not of German citizenship in the period of which we are discussing.
DR. GRUBE: I object to this question. This is a question which is asking only for the personal opinion of the opinion of the witness.
THE PRESIDENT: The objection is overruled.
THE WITNESS: If I understand you correctly, Mr. Prosecutor, you want to know whether the act of treason was punishable only when it, the act, was directed against the state as such or also when it was directed against an individual person.
BY MR. KING:
Q Yes. My following question was going to refer to the differences which you raised. But actually you have stated it very well. I want to know whether at this time, the period which we are concerned with at the moment, if during that period treason could be committed against an individual who was not a German citizen, and I take it that you answer on that is no, is that correct?
A That had been different ever since the law of 1934.
Q Yes, I know but I am speaking of the law prior to 1944.
A No, what I said was '34. I said the law before 1934. I am referring to the law of 1934 with Article 91 which then became a law.
Q That article says that the act of treason can be directed against a German national as an individual, and it was a question of interpretation whether "German" should here be interpreted as being of German blood or being a German citizen, and the famous document in which I made a report to the Reich Ministry of Justice which deals with that question. It is that report which concerns itself with that question. The courts in the Reich interpreted Article 91 to the effect that it was not the nationality which was decisive but the race, the blood.
Q Yes, well, it is that letter to which I want eventually to refer. I wanted, however, to get your understanding of the earlier laws before we get around to discuss the question of that letter. What you have just said was that Article 91 which was adopted in 1934 expanded the concept of treason to the extent that there could be treason against an individual who was a Reich national; is that correct?
AAgainst a German. And who is a German, that was a question of interpretation.
I believe I can best make myself clear if I come back to the example which is mentioned in this report. After the occupation of the eastern territories, that is Poland, that is to say after the occupation of those territories, which formerly had been German, the following case came to our knowledge. A folk German, a person who was a German by blood, had had the following experiences. Behind his back a Polish agent had hidden espionage material in his home without the German knowing that that material had been hidden there. The Polish agent then chased the Polish police after him and his home was searched by the Polish police. The material was found and the German, was completely innocent but who could not prove his innocence, was tried in Poland before 1939 and he got a very heavy prison sentence. I don't think you would approve of that, would you? When we occupied the eastern territories that case came to our knowledge -
Q Excuse me, Dr. Lautz. Is this the Kurzner case to which you refer, or is this the Moses case? There are two of them which you mentioned in this report.
A No, no. I cannot remember the -
Q Would you like to see that exhibit?
A I cannot remember the name unless you would show me the document. The name doesn't matter. It is the facts of the case that matter here.
Q I think you will find this report referred to in Document Book 5-B, beginning on Page 73 of the German text.
THE PRESIDENT: Dr. Lautz, will you finish what you were saying when counsel interrupted you?
THE WITNESS: Yes, I will. After the occupation of Poland that shameful case, to use a mild expression, came to the knowledge of the German authorities and we were now concerned with the question as to what could be done, and the application of that Article 91 of the German penal code was interpreted so that in this case treason had been committed against a German. Treason had been committed against a man of German blood, treason which could be prosecuted.
THE PRESIDENT: It was treason against one of German blood who was not then a German citizen.
THE WITNESS: He was not a German citizen, but he was of German blood.
THE PRESIDENT: The date of that again? When that happened, when it came before this department?
THE WITNESS: Your Honor, may I just have a look at the report? May I have a look at the report to make sure of the date?
THE PRESIDENT: Yes.
THE WITNESS: That is the case Bohleck, which is mentioned in the report. The false accusation against the person of German blood was made in the year 1938, that is to say, it happened before the war.
THE PRESIDENT: And it came up to the Ministry of Justice after the war to decide?
THE WITNESS: That happened during the war when Polish files were confiscated.
BY DR. KING:
Q: Dr. Lautz, you have that letter before you now?
A: Yes.
Q: May I ask you to refer to the top of Page 75 in the German text, I believe it is? It is the middle of Page 68 in the English.
THE PRESIDENT: What exhibit are you referring to?
MR. KING: I am referring to Exhibit 548, your Honor.
BY MR. KING:
Q: Well, Dr. Lautz, apparently I am not able to give you the precise point in the letter where I may refer you, but I will read the portion that I have in mind and perhaps you remember it or perhaps you yourself can find it.
THE PRESIDENT: It isn't 540
MR. KING: I am sorry. It is NG-548.
THE PRESIDENT: The exhibit number, please.
MR. KING: And the exhibit Number is 347.
BY MR. KING:
Q: You say in this letter which, in the original document book as it was distributed in the German, comes at the top of Page 75 -- and I will refer to it in that way -- you say in this letter, referring to the so-called Krippner case -- and I thought that was the one to which you were alluding a moment ago when you spoke of the Polish Case, the files that were discovered after the occupation of Poland. Apparently a similar decision was reached in the Krippner case.
In any event, to that decision you say the following: I would only consider it improper to lay down generally and legally the treatment applicable to treason committed by racial Germans by adding a supplementary regulation to the second article of Paragraph 91 of the Penal Code."
Then you say, "It is true that consideration regarding foreign policy would oppose this."
I particularly want to call your attention to the next sentence, and I shall read it. You say, "But on the other hand, and in my opinion, the lack of an express regulation, that is, in the penal code for the protection of racial Germans does not prove that Article 91-II Penal Code, should not be applied in any case." Have you found that?
A: No, I haven't found it yet. Could you tell me on what page of the report that is?
Q: I am sorry; I have it paginated for the manner in which the document book was originally distributed and that appeared, as I have said, on Page 74. Just a moment. I will try to -
A: That document has pagination at the bottom too.
THE PRESIDENT: Can someone point out the place in the German text to Dr. Lautz?
MR. KING: Yes, just a moment.
THE PRESIDENT: Someone who reads German.
A: (Continuing) Yes, counsel, I have found it. That didn't originate with me. I did not write that but that is a letter from the Chief of the Security Police to me. That letter forms the main part of this document. I submitted that letter to the Minister of Justice and give in brief my own opinion. That opinion of my own appears in the German text on the last page but one, and the one before that.
BY MR. KING:
Q: Yes; I want to ask you about that too. Your position is that the portion which I read and which you now found in the text, was included in Himmler's letter to you. Now, in your letter, let me understand you correctly, you quoted Himmler's letter. Is that how it happens to be included in this document?
A: Yes.
Q: So that the portions I quoted were not originally your words but were Himmler's words and you merely repeated them when you sent this letter to the Ministry of Justice. Would that be a correct statement of the -
A: Yes, but I did not do so because I approved of it. I gave my own opinion separately at the end.
Q: Yes. Now, could we look at that separate opinion of yours at the end of the letter?
A: Yes.
Q: Go ahead, please.
A: It begins with the words, "With the Reichsfuehrer SS and the president of the People's Court I agree with this." In my copy that is Page 4 of the document and that is the third page but last.
Q: Dr. Lautz, see if you can find this portion in the document which you have. I am sorry you don't have the book as it was originally distributed. I have it paginated for that. Can you find this statement? You say, "Therefore" -- and I believe this is part of your letter -- "Therefore I find it necessary on principle to protect by means of the German Penal Code those racial Germans who have seriously suffered through action such as mentioned in Article 91-II Penal Code provided that action deserves punishment in accordance with sound German sentiment where such punishment, considering the elements of wrong doing of that particular case, cannot be brought home on the strength of any directly applicable penal provision."
Did you find that portion of the letter and those are your words, are they not?
A: Yes.
Q: And then you say in the final paragraph of the letter, "In the majority of these cases it will be offenses committed by foreign nationals abroad against racial Germans." Is that correct?
A: Yes, it is.
Q: That is correct and those are your words?
THE PRESIDENT: Will you answer audibly so that reporters may get it?
A: What the Prosecutor stated just now is what I reported.
BY MR. KING:
Q: And then you asked for approval of your interpretation; is that correct? That is the very last sentence in the letter?
A: Yes. I had to ask for that because the decision lay with the Minister of Justice.
Q: Yes. Now, in subsequent cases that came before the People's Court in which you were required to file the indictment, you based the charges on the interpretation which was subsequently approved by the Reich Ministry of Justice, the interpretation which you ask here? Is that right?
A: From case to case the Minister of Justice after wards decided as to whether that procedure was to be adopted or not.