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.
He did not issue a general instruction or directive.
Q: Do I understand you correctly? Let me restate it. Did you mean to say that even after you asked for this interpretation it was necessary in the future, when cases came up involving these facts, that the Ministry of Justice give his approval before you filed your indictment? Is that correct?
A: The indictment was drafted and the draft was submitted to the Minister of Justice and he approved it or did not approve it.
Q: But the draft of the indictment was based on the law which you suggested be interpreted as we have discussed. Then, having drafted the indictment based on this interpretation, you got approval or disapproval, as the case might be, from the Ministry of Justice; is that right?
A: Yes.
THE PRESIDENT: What was the answer?
MR. KING: The answer was yes, your Honor.
BY MR. KING:
Q: Dr. Lautz, I would like to ask you just two or three questions concerning the matter of clemency appeals. As I understood your direct testimony and also from the study of some of the exhibits, you could suggest appeals in any case where you thought that was justified, if that right?
A: Yes, I could do that.
Q: And you gave two examples in your direct testimony: one, Steurgkh and the other a Strassburg case. I don't believe I have the name on that, in which you did ask for clemency and clemency was in fact given as a result of your efforts.
Is that correct?
A: Is it the name you would like to know from me?
Q: No; I am just asking you if my understanding of that situation is correct; that you could and did propose clemency and in fact obtained clemency in certain cases?
A: I suggested those cases as an example, that is to say, cases where my suggestion for clemency plea met with success.
Q I come now to the question of extraordinary objection. I just want to tell you what I have gained on the basis of your testimony and I ask you if my understanding of your testimony is correct. Did you not say that you, as Chief Reich Prosecutor, could not raise an extraordinary objection except on unequivocal orders from the Ministry of Justice?
A That is correct.
Q From the Minister of Justice, I should say, Now can you tell me, Dr. Lautz, how - and I am not speaking as to the physical form how the order, the so-called unequivocal order came to you from the Minister of Justice, in what form did that order reach you in most cases?
A In writing.
Q Were there ever any oral orders from the Ministry, a telephone call for instance?
AAt the moment I cannot recollect any such oral orders, but it does not seem to me that it was altogether out of the question, it could have happened but I don't believe it happened.
Q It would have been an extraordinary occurance if it would have occurred; is that right?
A Yes, that would have been quite a special case.
Q Yes. To you recollection, Dr. Lautz, did you ever raise an extraordinary objection without such an order from the Ministry?
A No, I could not do that.
Q Now, I have a case file here, Dr. Lautz, which I would like to have you examine and then I will ask you questions about it. I would like to have you examine it with this question in mind; what evidence is there in this particular case file that the Minister of Justice gave you orders to file the extraordinary appeal?
(The document is handed to the witness.)
This case file involves the sentence against Formanek, Riuar, Kriz, and can be identified by the numbers BBI-1685. I have marked, Dr. Lautz, with a paper clip, the portion which seems to have relevaute with the question or history of the appeal; do you find that case?
A I think it is page 20, the Chief Public Prosecutor Potsdam, what is it you mean?
Q Yes, that is it. It starts on page 20 in the copy which you have.
A Do you mean that one can take it from that document that we acted independantly?
Q I am curious about that, if that is not the case where do you find unequivocal orders from the Ministry?
A It is not there, the thing is not complete.
Q In what sense is it incomplete?
A The report, which I made to the minister and the decision which he made on receipt of the report are missing. The sentence was dated 18 May 1944. On the basis of that sentence a report was made to the Minister of Justice, that report is missing here. No doubt that report contains my view on the case of the extraordinary objection and the reply of the Minister is missing. Then, almost a year later, there is the report I had to make to the Minister of Justice that I am including the extraordinary objection such as ordered by the Ministry.
Q Do you find that place there such as that which is ordered by the Minister? That is an interpolation of yours just now; isn't it?
A No, that is the thing that is missing here. This file is not complete, I am sorry.
Q So that your point is that this case is not different than the facts to which you testified the other day, there had to be a written order from the Minister. In this case the order is missing is that right? and that normally in a complete case file the order of the Minister would be included; is that correct?
A If these files were complete, counsel, this file would have to contain the report by which I, as chief prosecutor, submitted to the Minister the sentence passed by the People's Court, that is missing too and furthermore this file should contain the reason why I informed the minister if I should have done that on my own account, that I don't know, but I would have submitted to him my suggestions for an extraordinary objection, that is missing too.
Q Then it does not strike you that it is peculiar that you make not reference to previous correspondence in the letter which begins on page 20?
A But, I am referring to the order or decree of 10 January 1945.
Q An earlier decree, but not an earlier letter.
A I hope I am making myself clear here. The sentence passed by the People's Court to which the extraordinary objection was served was dated 18 May, 1944. The report, which I submitted to the Minister, the text of the extraordinary objection, in that I refer to a decree by the Minister of Justice of 10 January 1945, that decree by the Minister of Justice of 10 January 1945, that is quite certainly the decree by which the extraordinary objection was ordered and you would have to be good enough to show me that decree as well, but it is not here.
Q And the orders from the Minister directing you to file an extraordinary appeal were usually referred to as a decree; is that correct?
A Yes, it was then the Minister of Justice ordered an extraordinary objection to be made. I have explained that he did it in writing and he also said what wording should be used.
THE PRESIDENT: May I ask you a question? The practice that was followed was that you could, when you thought it proper, recommend to the Minister of Justice that the extraordinary objection should be ordered and thereafter the final decision was that of the Minister of Justice; isn't that the situation?
THE WITNESS: Certainly, certainly. As a rule, your Honor, this was the way, first the minister asked me to report to him, then I made the report and his instructions were issued.
BY MR. KING:
Q In the case file, which you have before you, do you happen to recall whether you made the recommendation to the Minister originally or whether the idea came from him?
A I would not be able to answer that question unless you would permit me to look through that sentence at length as it is impossible to answer from memory in view of the fact that I dealt with from 6000 to 7000 cases.
A Of course, we understand that. In any event, the sentence originally was seven years and the sentence after the extraordinary appeal was death in this case, which leads me to the next question, which I would like to have you comment on if it not true, Dr. Lautz, that the great majority of extraordinary appeals were filed only to make the sentence against the defendant more severe?
A When I gave my testimony I left no doubt that the Minister of Justice was rarely ever inclined to approve an extraordinary appeal being made in favor of a person who had been sentenced.
Q Would you say that the statistic made by your former colleague and co-defendant Nebelung that 70% of the death sentences in the people's court resulted from extraordinary appeals; would you say that that figures was not reasonable? I don't want to pin you down to that but would you say that is a fairly accurate summary of what you know of it?
A I can't do that. I have never seen such statistics and the value of such statistics would depend upon the number of cases you have. Such statistics I consider too high, much too high, but I cannot prove it and there is a difference as to whether 70 per-cent refers to 100 or fifty. That statement too is missing.
Q At the moment I have no idea on what basis the defendant Nebelung based the facts but in any event that was his statement. Now there is another statement by the defendant Nebelung which appears in Exhibit 177, NG 333, to which I would like to call your attention, and ask for your comments. He says that if the Ober Reichsanwalt Dr. Lautz was not satisfied with a verdict he could lodge an extraordinary appeal, but then he goes on to say, in my opinion he did this mostly upon instructions by Reich Minister Thierack. What do you have to say about that?
AAll I can say is that things were as I have described them here, the fact that I could not lodge an extra ordinary objection, that at the utmost I had the right to make suggestions, but I only rarely used my right to make a suggestion when the sentence had been passed by the People's Court. I can, therefore, only explain the testimony of the defendant Nebelung by the fact he had no insight into my work, and he had no insight into it. I do not think that I contested a sentence he had passed or that I made such a suggestion.
Q I would like to turn now briefly to the cases which came to your attention for undermining the defensive strength. You testified that only, I think this is correct, that only ten per-cent of this category of cases were tried in the People's Court. That the others were transferred to Special Courts and to the District Courts of Appeal for trial. That percentage is correct, is it, I mean in accordance with your testimony?
A I said that of the cases which were submitted to me as Chief Reich Prosecutor as to whether undermining of defensive strength had occurred or not, that of those cases about ten per cent remained with the People's Court, where all others were transferred to other Courts, and perhaps even that figure of ten per-cent may be too high.
Q Yes, under what classification were that ninety per-cent of the cases which were transferred to the Special Courts and to the District Courts of Appeal?
AAfter they were transferred to the District Courts of Appeal, the majority of them were transferred to the District Courts of Appeal, then they were treated there as cases for undermining the defensive strength and as a rule they were considered to be cases of a lesser gravity, and a smaller percentage was transferred immediately to the Chief Prosecutors with the Special Courts so that they were to be treated there as offenses against the Malicious Acts Law.
Q In determining what cases, of what category of undermining the defensive strength would remain and be tried by the People's Court, can you tell us a little bit more about how a decision was reached? Did you call your subordinates in to discuss the cases or did you have certain conference periods in which the cases were discussed or in what manner was the decision reached?
A I have already stated that here. In some cases there was a decree from the Reich Minister of Justice who had sent the file to the Chief Reich Prosecutor with the instructions that the case was to be prosecuted as a case of undermining the defensive. In the other cases which reached me immediately, reports were made to me from time to time, particular, later on when these things were now with us.
Q It was generally known, wasn't it, in the People's Court, that you passed on cases that would remain with your division and separated out those that you considered of lesser significance?
A You mean the Judges of the People's Court knew or who do you mean who knew it?
Q I mean Judges, I mean Prosecutors, I mean everyone in connection with the People's Court who were in a position to know what the undermining of the defensive strength meant?
A The fact that the Chief Reich Prosecutor had that right was men tioned in the law, a Referander knew that.
Q So that when a case came up before the People's Court which involved the undermining of the defensive strength, it was a known fact that you had passed on the question prior to the time when the indictment was filed and it was only there because you considered it of great significance, is that right?
AAs for the motives which the Chief Reich Prosecutor had, nothing could be seen about those motives from the mere fact of the filing of an indictment with the People's Court, in particular the judges could not from that draw the conclusion that I had only filed the indictment so that a particularly heavy sentence was to be passed in this case.
Q I am sorry - go ahead.
A If that had been so I could not have brought the von Brinken case before the People's Court, without being afraid that the Court would pass the heaviest sentence. That was not how things were.
Q I would like to refer to a statement which you made in Exhibit 126, one of the interrogation summaries which you signed. You said that there - that if I submit a case of seditious undermining of German defensive strength, to one of the Senates of the People's Court being particularly serious there was always a possibility that the death sentence would be pronounced, You have no reason to change your testimony in regard to that statement have you?
A No, I have not and it is quite obvious that if I bring a really serious case before the People's Court the danger and the possibility that a death sentence could be pronounced is greater than if it should appear before the District Court of Appeals.
Q And that is what you meant by that statement?
A That is what I meant by it.
Q And you recognized the Von Brinken case as exception? You didn't think the von Brinken case was serious when you presented it, did you?
A I do not want to bore the Tribunal with that case again. In the von Brinken case I filed the indictment before the People's Court because I was annoyed that this SS Fuehrer demanded that in this case that a special case should be made out of that matter, but I realized that in view of the situation as a whole the sentence would not be so dangerous.
Q In fact you only asked for eight months, didn't you?
A What?
Q In fact you only asked for eight months, didn't you?
THE PRESIDENT: He has testified to that, if I remember rightly, you needn't repeat.
A I said so, it says so in the working file of the attorney, it must be right and I have no reason to dispute it.
BY MR. KING:
Q You recall in the von Brinken case whether SS Obergruppenfuehrer Hildenbrandt got in touch with you before the indictment was filed or afterwards?
A I think it was before.
Q Referring for a moment to the Solf case, you were quite aware, I presume, as to why the second trial of this Solf case was not held. It had nothing to do, you will agree, with the fact that Hitler did not want names of present and past High Government Officials involved in trials?
A I said that that reference had obviously been put in the Fuehrer information so that Hitler if he wished to do so should be able to interfere. He did not do so, however, and consequently, the trial after a few months was continued but it was not finished.
Q Yes, the testimony I did not think was quite clear on that, when counsel asked you on direct examination. I want to discuss with you now the question of the Polish Legion and particularly the Polish Legion in Switzerland. Is it correct to say that your position with regard to the Polish Legion in Switzerland is that while there may not have been and probably was not a unit of the Legion in Switzerland, Switzerland did from the first leg of the escape route to places where the Legion was functioning. If the question was not quite clear I will try to abbreviate.