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.
He would have had to have done something. I did not say, "Because you are a social democrat, you are put into a prison."
Q Although admittedly it was impossible to have any other party aspirations but one during the war in Germany; is that right? I mean, there was only one legal party in Germany during the war.
A (Nods.)
Q You are saying that you did not consider it an indictable offense if one merely talked of joining the social democrats? Is that correct?
A If he had that inner conviction, but did not testify as to that opinion toward the outside world by actions which could be prosecuted under law by belonging to a party which was prohibited in Germany since 1933, and after recruiting people for that party was put under a penalty in Germany. Thus, if he only was of that conviction he could not be prosecuted. He had to commit an overt act. That is quite clear.
Q You made a distinction, however, in other types of parties, especially those in the occupied countries where mere party membership alone was enough to induce you to indict the man?
A There, too, membership alone was not sufficient if the person did not commit any act.
THE PRESIDENT: Was joining a prohibited party an overt act?
THE WITNESS: The joining of a prohibited party meant the continuation of an illegal organization.
BY MR. KING:
Q I come now to a slightly different set of questions, Dr. Lautz. In connection with the short period of time that elapsed between the serving of an indictment in a People's Court case and the commencement of the trial, you testified that in certain cases those files could be examined before the indictment was filed, and you said that your standard for determining whether or not a certain lawyer or defense counsel could examine the files in a particular case before the indictment was filed Court No. III, Case No. 3.was whether or not that particular lawyer or defense counsel was a fair person.
Now, to bring that down to concrete cases, which we here know about personally, would you say, Dr. Lautz, or first let me ask you, did you know Dr. Behling and Dr. Rudolf Dix, who often took cases before the People's Court during the war years? Did you know them?
A I knew Justizrat Dix very well already from the time before 1933, and without doubt he is an extraordinarily serious and good lawyer.
Q A fair person by your standard?
A Dr. Dix? Without doubt.
A Dr. Behling, I did not know closely, but it may be that he looked me up, I really don't remember; many lawyers came to see me.
Q It follows then I take it, that if a man, such as Dr. Dix, whom you did know, approached you to see the files before an indictment wag served, that unless the case involved a high state secret, he would be permitted to examine them; is that correct?
A I said the following. In such cases, I personally and possibly many of my prosecutors too, would have given the lawyer so much information from the files that he could organize his defense accordingly. The submission of the files to the lawyer to permit him to look into them was according to law not permissible, but I believe, without committing myself, I can say with certainty that it did happen.
Q But, I understood you to say in your direct testimony that they did examine the files, if I misunderstood you and you said that you gave them information; that amounted to the same thing, of course?
A Yes, I expressed myself in the same way in the direct examination as I did just now. I said that because looking at the files before the indictment was signed was not to happen, it did happen that information was given, just as I am saying it now.
Q Do you have a ......I withdraw that. Do you recall approximately how many of the approximately one hundred defense counsel who were on the approved list of the People's Court ever made application to you for information prior to the time an indictment was served on the person whom they were representing at the beginning?
A I have to explain that. There were very few applications of that nature which came to me personally. They went to the prosecutors and department chiefs, who were working on the files. In very rare cases when for example, a top secret was concerned, the defense counsel did come to me or he came to me if he wanted to complain.
Q You authorized your prosecutors to reveal information in these cases the same as you yourself testified that you occasionally did?
A Yes, the prosecutors and the section chiefs definitely had the right to do that if there was no top secret matter involved.
For instance in espionage cases they could not do it but in any case of undermining military morale they could do it and I believe it happened too.
Q You have told us in your direct examination that when relatives or friends of the accused came forward with certain information, which had not previously been known to you, that you then proceeded to check that information and apply the results to the case then pending. Can you tell me whether that practice with you was the exception or the rule?
A That was not the exception, but in every case when I was approached in such a matter and considerable evidence was submitted to me - that is to me personally, because it was an exception when they turned to me personally - I always interferred and initiated the necessary steps. I never - as they say in German - threw anybody out, but I listened to everybody.
Q I would like to show you a case file that is not yet in evidence and ask you if the matter involved there you considered unimportant enough to reject. This case involves the prosecution of one Halbhuber, which you possibly may recall.
(The document is handed to the witness)
In that case, the defendant's son called to your attention the fact that a famous general could testify that the defendant had personally saved the lives of many Germans in the last war and therefore presumably that was some proof that his attitude was not antiGerman at the time of the trial. There is a letter in the file, which shows quite clearly, that you rejected the offer of information.
A How does this result from the document you have shown?
Q There is a letter in the document, which I presume you have found by this time?
A Yes.
Q In which you say you are not interested in having an investigation made of the affair by the defendant's son regarding the testimony of the General, which he mentions.
THE PRESIDENT: Mr. King, was this information, with reference to the good deeds of the defendant during the first World War, offered after the sentence had been pronounced?
MR. KING: After the sentence had been pronounced and while the sentenced man was awaiting execution.
THE WITNESS: Well, I can just at the moment only find out the following from the file. The letter from the Reich Protectorate of Bohemia and Moravia of 14 May, which dates after the death sentence and in which are the statements which refer to the comdemned person Halbhuber, according to which he in 1918 freed a number of German Prisoners of War from the hands of the Bolsheviks was addressed to the Reich Minister of Justice. I cannot determine from the file that it reached my hands.
Q There is a letter signed by you in the file, Dr. Lautz, in which you say.......
A Yes.
Q You found it?
A Yes, the further letter which you are referring to Mr. Prosecutor, this is a report of 4 June 1943 and in this report I state that as far as the clemency plea made by the son in regard to the Halbhuber sentence refers to the opinion of the former General Sirovi, I have refrained from further investigations, since I did not consider the investigation called for, but if it was considered in this Clemency plea, I do not know. That is not apparent from the file and therefore I am not at all in a position to say why I expressed that opinion.
Q I submitted the file to you, Dr. Lautz, to try to establish under what conditions information had to be brought to your attention before you would consider it possible to do something to have the investigation made, what you are saying is so far as you can see from the file it was not one of the cases awarded your personal attention; is that right?
A That is an absolutely erroneous question, My. Prosecutor, of course we were most interested in the clemency plea because it referred to General Sirovi, but since I do not have the clemency plea and do not know either what further correspondence was carried on, it is absolutely impossible for me to say today why I wrote to the Minister of Justice and I refrained from further investigations according to the statements made in this plea.
It may be connected with the fact, which I gather from the file, that the sentence against Halbhuber was apparently not executed for other reasons, but I don't know.
Court No. III, Case No. 3.
Q I ask that it be marked for identification, a case filed which bears the identifying letters BBT 1683-A-F, a document consisting as shown by the numbers on the back, beginning with 426 through 466, a document of forty pages; that will become if and when introduced Exhibit 538.
THE PRESIDENT: It may be marked.
MR. KING: May I say to Dr. Grube that if, while this document is being processed, he wishes to examine it, he will be welcome to do so and I shall be glad to furnish it whenever he wishes.
THE PRESIDENT: You said the document has not been processed?
MR. KING: It was not been processed.
THE PRESIDENT: I would suggest that the Prosecution seriously consider whether it is of sufficient importance to process forty pages of a document before it is offered.
MR. KING: I think we may be able to reach some agreement with Dr. Grube as to one or two letters in it that may be of some importance here.
DR. GRUBE: But in that case I would like to request that I be shown the entire photostat, not only the two letters before I state my opinion in the matter.
BY MR. KING:
Q Dr. Lautz, in your position as Reich Prosecutor and prior to the time you became Reich Prosecutor you were undoubtedly well known and had many friends and associates. Now is it not true that in many of the cases which were filed before the People's Court that your former and present friends and associates prevailed upon you to investigate certain information which was not presented in the trial? In other words, my question to you is were the cases you were called upon to investigate special matters as you have testified here, were they relatively infrequent in your experience?
A I did not speak about friends, but I spoke about friends and relatives of the condemned or prosecuted persons.
Q I realize that.
Court No. III, Case No. 3.
A Not about my friends.
Q No, but I am saying naturally because of the way things worked out that you would be prevailed upon from time to time, but even so you said that the occasions when you were called upon to conduct a special investigation were relatively infrequent, is that correct?
A Do you mean whether at the People's Court I had maintained personal relations with my former subordinates who had worked as Prosecutors under me, that is what you mean, is it?
Q No, that is not what I mean.
A My personal friends were almost all not jurists but they had other than the legal profession, but I did have many Prosecutors of forme times who liked to look up their old Chief in Berlin in order to see him again, but I could not call that friendship.
Q That was not my question, Dr. Lautz; my only question to you was, and I think that you can answer it "yes" or "no", was whether you were frequently called upon to conduct a special type of investigation to which you have testified and you answered "very infrequently", is that correct?
A That was not frequent.
Q That's all. I asked you a few moments ago if it was generally known among the Judges and Prosecutors of the People's Court that you called out ninety-per cent of the undermining of defensive strength cases and sent them back to the Special and District Courts. Now I ask you also whether it was generally known among the same Judges and personnel of the People's Courts if when the death sentence was requested by yourself or your Prosecutors in the People's Court trials, if you personally had approved of those death sentences?
A I doubt it.
Q You doubt that it was generally known?
A Yes, it probably was known that reports were made about these cases to me but that it would have become known about every individual case what decision I had made for the Prosecutor in the trial, I do not believe -- and what of it -- I could have appeared myself in the session and then it would have been clear too.
Q In your affidavit 126 to which we have referred several times before this afternoon you said in connection with the Nacht and Nebel Decree that you had looked into the matter and you found that it was in order. Now that is, of course, taking a sentence out of its context and asking you what you think about it, but I am doing that for this reason. I want to ask you whether when you determined that the Nacht and Nebel decree was in order, if you did so, after considering the Hague Convention of 1907 and the Geneva Convention of 1929, is that you meant when you determined it was in order?
A No. I did not say at all either that the Nacht and Nebel decree was in order. I did say that the order that the People's Court should have jurisdiction in those cases was in accordance with the German Code of Legal procedure. As to the contents of the Nacht and Nebel Decree I said nothing and it doesn't say so in my affidavit either.
Q Your statement in your affidavit then was directed against the procedure before the People's Court and not the basis of its legality according to international law?
A It refers only to the fact that according to German legal procedure these cases had come to the People's Court in accordance with the law and had a basis in law.
Q Do I understand then that you did not consider it an obligation of yours to determine whether or not the decree itself was in accordance with international law?
A Well, I did not have to examine that at all. I only had to examine whether the Frenchman or Belgian who was handed over to me for Prosecution had committed espionage against the war effort in the occupied territories and whether he was to be indicted for that reason after the Wehrmacht Judiciary had decided to transfer these cases to that extent to the general administration of Justice and that had happened.
Q Then your position is that when you filed an indictment against a Nacht and Nebel Prisoner- it was no concern and of no moment whether the prisoner had been brought into Germany in accordance with international Court No. III, Case No. 3.law or not, is that correct?
AAfter he had been brought into Germary that question Was not to be examined by me any longer.
Q I think I am about to quote you correctly when I say that you stated that you had never been interested in the race or nationality of the defendant but only in the objective facts of his case?
A Yes.
Q Can you tell me Dr. Lautz what the importance is so far as determining the criminality or, if you please, the objective facts of a case, to include in an indictment a statement of this kind, and I quote literally: "He, the defendant, is of mixed race, first degree. His mother was a Jewess." How does that help to determine the objective facts of the case?
A I believe that you are deferring to the Beck indictment, are you not?
Q Your memory is one hundred per cent correct.
A Yes, but I didn't sign that indictment, but in spite of that I shall answer your question. That was in accordance with a ministerial regulation that it had to be stated whether the defendant was of the Jewish or of mixed race. That had to be mentioned in the indictment.
Q No, you didn't sign that indictment but your deputy Bamickel did and it is true, I am sure you will agree, that that practice was followed in indictment after indictment which was filed before the People's Court. I only have one more question on that point. You, of course, knew the general feeling in the Reich concerning Jews during the time that these indictments were filed and you also knew that a statement of that kind and in fact the statement was calculated to prejudice the reviewing authorities and Judges who read the indictment, isn't that true?
A This statement did not mean anything for the fact that the defendant was a half Jew could be seen from the files after all. I did not incorporate it in the indictment or let it be incorporated; and I did not expressly point out it was a full Jew who had to be sentenced Court No. III, Case No. 3.more severely.