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.
THE PRESIDENT: That was the testimony of the witness, as we have recollected. Go ahead and ask the next question.
BY MR. KING:
Q And you further testified in that connection, that is, on Friday you testified in that connection that a Pole could not be sentenced for only the crime of leaving his work in Germany, is that right?
A No, I did not say that. I said I could not file an indictment against him before the People's Court for that reason but today I have to say unfortunately that the Court had the possibility to pass a sentence on the law concerning Poles if it was of the opinion that the indictment covering a Pole, the report was not sufficiently proved.
Q: Now, is it true that you did not file an indictment on that count because you believed there was no law which would permit you to file an indictment on such a count?
A: If I understood your question correctly, what you want to know is whether I omitted to file an indictment for breaking a labor contract because I believed that the law did not entitle me to do so. That is how I understood your question.
Q: Yes, that was correct.
A: I have stated that was not the reason for which I omitted to file the indictment. I could not do it because the People's Court was not competent for it.
THE PRESIDENT: Let me ask you about that. Was there a law which gave to some other court the jurisdiction to punish Poles who broke their labor contracts, so-called?
THE WITNESS: Such courts existed not only for the Poles, they existed for every German citizen. That was the law which punished the breaking of a labor contract, and everybody who was employed in the Reich was subject to that law. The civil servant who broke his labor contract was subject to the same law.
THE PRESIDENT: But the People's Court had no jurisdiction under that particular law?
THE WITNESS: I had no right to file an indictment on that basis, but if I had filed an indictment from a different point of view, then the People's Court could have passed a sentence in pursuance of that law.
BY MR. KING:
Q: You discussed somewhat the Stefanowicz case both on Friday and again this morning. In the Stefanowicz case you charged the defendant with attempting to join the Polish Legion.
The court found, however, that there was no evidence whatsoever that they were going to join the Polish Legion, found further that they were unfit for military service, and said that on the basis of the facts as proved they had gone to Switzerland merely to find work and for a better way of life. You also said on last Friday that you have no -- your exact words were: "And today I have no cause to correct that conviction."
Now my question, Dr. Lautz, is merely this: You charged these boys with going to Switzerland to join the Polish Legion. The court found that they weren't going to join the Polish Legion, that they had merely gone there to secure work, Now, when that case was called to your attention, I take it that you neither suggested clemency nor ordered or suggested to the Ministry that an extraordinary objection be taken; is that right?
A: I expressed myself very clearly on that subject this morning, but as you have evidently forgotten it, I have to repeat it. I said the following: I disapproved of that jurisdiction in itself, and I still disapprove of it today. As to the attitude I took in the Stefanowicz case, I could only tell you about that if the Prosecution were to submit the files to me. As the Prosecution is in possession of most parts of that file, perhaps it also has the remaining bits. However, as it was not put to me, I made the following statement:
Insofar as I am supposed to have dealt with the case at the time -- I can't even tell you that, four years later -- if I did so, and if I neither suggested the clemency plea nor extraordinary objection, I probably did not do so for the reason that Stefanowicz, who had been convicted, had already made one attempt to escape to Denmark, and in this case here he had persuaded another second person to leave his place of work.
I cannot say more unless you put my report to me.
THE PRESIDENT: May I ask you, under what law in that case was the death sentence authorized, in view of the fact that the Pole did not intend to join the Legion?
THE WITNESS: According to the opinion, or finding, the Senat based the death sentence on the law concerning Poles, and stated that a serious case under paragraph 1 had occurred, because Stafanowicz had once before tried to escape to Denmark and because he had persuaded the other man to escape.
BY JUDGE HARDING:
Q: Could a Pole be given a death sentence under the Malicious Acts Law? Was that possible?
A: No, no, that was not possible, unless paragraph 1 of the law concerning Poles had been applied, where it was provided that contemptuous remarks made by a Pole against the reputation of the Reich be punished by death. The Malicious Acts Law in itself could not constitute the basis for such a death sentence.
Q: But the same facts that would constitute a malicious act as against a German where the punishment was not death, if applied to a Pole, could result in a death sentence by reason of the law against Poles; is that not correct?
A: If I understood Your Honor correctly, you wish me to answer the question as to whether a German who had committed a punishable act, which was punishable under the Malicious Acts law, whether he, similar to a Pole, in virtue of a different law, could have been sentenced to death.
I don't know whether I understood your question correctly.
Q: That is a little the reverse of it. What I was trying to find out is if it was not the fact that by applying the law against Poles, what amounted to a malicious act could be punished by death.
A: That the law concerning Poles, in the event of similar facts in a case --that is, the case of a Pole, versus a German -- that could have more serious consequences if it had been committed by a Pole is evident from the law concerning Poles in itself. Hostile remarks by a Pole were to be sentenced more severely under the law concerning Poles.
BY MR. KING:
Q: In your affidavit, which is Exhibit 126, you say the following:
"We had to cite the penal decree against Poles and Jews in the Occupied Eastern Territories of 4 December 1941, because it provided for other penalties."
Then you go on to say:
"I intentionally did not cite this decree in my first indictments since I did not consider this necessary in view of the cases which we were then handling. Later I was instructed to cite it."
Would you comment briefly on the question of who instructed you to cite it and how it involved the other penalties to which you refer here? And then may I -- I'm sorry, go ahead.
A: On that too I have already testified. Under Paragraph 5 of the law concerning Poles it is stated that the competence of the People's Court remains unaffected.
From that I assumed, to begin with, that for the People's Court it would be out of the question from the point of view of the substantive law. In view of the first indictment which I filed, the head of the Penal Division at the Ministry -- that was Ministerial Councillor Crohne in those days -- rang me up and drew my attention to the fact that the law concerning Poles would have to be cited, and I did so.
Q: Does the Stafanowicz case, in your opinion, provide a good illustration of the other penalties that are to be provided for by citing the laws against Poles and Jews?
DR. GRUBE: I object to this question; it is not a question which can be evaluated in a definite direction.
MR. KING: Dr. Lautz signed the indictment in the Stafanowicz case.
THE PRESIDENT: That objection is overruled.
THE WITNESS: May I ask you to repeat your question?
BY MR. KING:
Q: I am not sure I can repeat it word for word, but I will repeat the sense of it. Does the Stafanowicz case provide, in your opinion, a good illustration of the other penalties of which you spoke in your affidavit?
A: Of what other punishments?
Q: Those were your words, Dr. Lautz. I will read the first sentence again. You said in your affidavit: "We had to cite the penal decree against Poles and Jews in the Occupied Eastern Territories of 4 December 1941, because it provided for other penalties."
Now Stafanowicz, according to your theory, was going to escape to Switzerland to join the Polish Legion, but the court found that that was not the case, and Stafanowicz was executed under the law against Poles and Jews which you cited in the indictment.
Now my question is, does the citation of the law against Poles and Jews in the Stafanowicz case illustrate what you meant in your affidavit by the sentence I have just read?
A No. I spoke about that earlier and you misunderstood it completely. What I said was this, the penal laws concerning treason and high treason with which the People's Court dealt in themselves had such a wide scope of punishment that the law concerning Poles was of no importance to it, but it had to be cited because -
THE PRESIDENT: The recording has run out. We will have to take our recess now.
(A recess was taken.)
Court No. III, Case No. 3.
THE MARSHAL: The Tribunal is again in session.
THE WITNESS: Your Honor, may I answer the last question? For that purpose I unfortunately have to go into more detail. In the German penal code there is a regulation which provides that if an offense has violated several penal laws, then the indictment is to be based on all the laws that have been violated.
If, for example, by using a gun or pistol I injure somebody bodily, then under German law I become guilty simultaneously of inflictint a bodily injury and violating the weapons law. That is called a so-called IDEAL CONCURRENZ - concurrence of crimes or unity of action -TATEINHEIT.
The same situation existed in the case of the crimes with which the People's Court was occupied under the law against Poles. If an indictment was filed because of lending aid and comfort to the enemy, this at the same time also involved an endangering of the welfare of the Reich, as is provided in Article I of the law against Poles, and for that reason I was obliged by law to cite both of those provisions in the indictment, even though in German legal practice, once in a while, in such a condition of concurrence of crimes we occasionally also limit ourselves to citing only one law without complying with this formality. Because I was of the opinion that scope of the penalty in the penal regulations governing treason was sufficient, therefore, I did not at the same time quote the law against Poles also, for the time being.
Q I don't believe you suggested in your answer, Dr. Lautz, who it was who instructed you to cite it.
A Well, I told you that the chief of the penal division of the Ministry of Justice asked me not to cite the law against Poles.
Q Asked you not to cite it?
A Pardon?
Q Asked you not to cite it?
A No. He objected to my first not having cited it; that I filed the indictment only on the basis of Article 91, that is, only for giving aid and comfort to the enemy. He wanted the indictment to be worded, as Court No. III, Case No. 3.it was later on; that this escaping Pole lent aid and comfort to the enemy and at the same time, by the same action, impaired the welfare of the Reich.
Q Do you recall at about what time it was that you were instructed to begin including that in your indictments?
A That happened quite early, immediately after the order became effective.
Q You mean by that, sometime early in 1942?
A Yes.
THE PRESIDENT: Who was the chief of this section?
THE WITNESS: Ministerial Director Crohne.
BY MR. KING:
Q Dr. Lautz, you testified, as I recall, that it was not your practice to indict people before the People's Court because of a political attitude. Do I remember that correctly?
A Yes.
Q Can you tell me this: Did you consider the distribution of leaflets urging a person to join a certain political party, a political attitude?
A If, in peacetime, a party makes propaganda and distributes leaflets in which it recruits members for the party, that is, per se, a permissible action; but I assume that in the leaflets which you are putting to me just now in a general way, much more was contained than that; for example, incitement for strikes or sabotage or other such nice things. I don't know because I don't know the leaflets that you are talking about.
Q I am talking at the moment about an abstract question without going into the contents of the leaflets. I merely asked you if you considered, during your term of office, that the distribution of leaflets urging one to join a political party, was what you then considered a political attitude. I am trying to find out, in other words, what you mean by political attitude. If you can give me the answer in some other way I will be happy to have it.
A Yes. By political attitude I understand -- and that is how Court No. III, Case No. 3.I answered your question at that time -- that I did not persecute anybody only because of his political attitude.