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.
It only says he was a half Jew and the Judge who knew the files he could realize that immediately.
Q You have no doubt, do you, Dr. Lautz, that a statement of this kind in an indictment filed before the People's Court in Germany any time after 1939 would definitely prejudice the defendant quite apart from the objective facts as you call them?
A: I am not convinced that a prejudice was created by that.
BY THE PRESIDENT:
Q: Do you think any effect came from that statement in the indictment, any effect, whether prejudicial or not?
A: I don't believe so.
Q: You don't know why the requirement was made, then?
A: That was based on the general regulations of the law for the protection of German blood. In every case it had to be pointed out in the indictment whether the person concerned, if he was a Jew or whether he was only of mixed race.
Q: Was that the regular practice before the People's Court, to state the fact that the defendant was a Jew when that was true?
A: Before all German criminal courts, not only before the People's Court.
BY JUDGE HARDING:
Q: Who required it? Under what Minister of Justice, or what division chief, or who was the person who required that to be done?
A: That was a decree from the time before 1939, I believe. Your Honor, without my knowing who signed that decree.
BY MR. KING:
Q: Several questions have already been asked you concerning the Bonnes case, but I am in doubt as to one or two facts in that ease. The first trial before the People's Court in that case resulted in the death sentence. Then you testified that you prevailed to nave an extraordinary objection filed. That extraordinary objection was filed, and the second case, when it dame up, also resulted in the death sentence on your recommendation.
Now I have just one question to ask you on that, Dr. Lautz -
A: Yes?
Q: --to straighten the matter out in my own mind.
What was the difference, in the Bonnes case, between the death sentence as a result of the first trial, which you asked for, and the death sentence in the second case which you asked for?
A: You do not remember my statements. I said the following: After the first sentence was pronounced, which was a death penalty, and where I assume that you did not submit any evidence that I approved of that application, the sentence was pronounced in a form which I considered impossible.
Q: You mean because of the language of the opinion?
A: Yes, yes. And because that wording seemed so impossible, I believed that in that way Minister Thierack would perhaps be able to be moved to file and extraordinary objection. However, before this point was reached, the reopening of the case was decided upon and this, without doubt, had been asked for by the defense counsel, and also without doubt, I spoke in favor of it, because otherwise it would hardly have come about.
As to the application for the second trial, in which again the death sentence was pronounced, this application -- and I know this for certain -- was made after a report was made to my deputy. Whether I would have approved it myself, I don't know. After this second sentence, I was immediately informed by the Ministry that clemency would be granted. Therefore, I filed an extraordinary objection by way of a clemency plea to the Minister.
I don't see any contradiction involved.
Q: No; I think you have straightened it out now, Dr. Lautz. I wanted to get one or two facts straight, and I think you have contributed to that.
A: I can suggest clemency after I myself, previously, had asked for a death sentence. That happened too.
Q: I am quite satisfied with your answer, Dr. Lautz If you have any more to say on that you arc entirely welcome to say it.
A: No, I am satisfied too.
MR. KING: Dr. Grube has indicated that a good many of the documents which he will introduce are still in the state of processing, and they of course will be introduced at a later time. There have been indications throughout the direct examination of Dr. Lautz that certain statements he has made will be referred to or will be fortified by documents to be introduced. I would like to reserve the right to recall Dr. Lautz when those documents have been introduced. At the moment, we have no further questions to put to Dr. Lautz at this time.
BY THE PRESIDENT:
Q: I have a few questions I should like to ask you, Dr. Lautz. As a preliminary statement, I was a little confused with reference to the meaning which was given to the word "abroad". I want to clear that up in my own mind. Did you not refer to the Altreich as being that part of Germany which existed, according to its boundaries, before the war?
A: Yes, Your Honor.
Q: Yes. Then I will use that term.
Were there cases tried in the People's Court in which the crimes had been committed outside of the Altreich?
A: Your Honor, you mean before the war?
Q: No, after the war.
A: After the war, trials were conducted before the People's Court where the crimes had been committed outside of the borders of the Altreich.
Q: And was it necessary that the prosecution office should have the authority of the Reich Ministry of Justice before it prosecuted such cases?
A: The Reich Minister of Justice, Your Honor had to decide if it really was an offense committed in a foreign country, that is, if a foreigner had committed a punishable act abroad, in a foreign country. But during the war, the Protectorate, for example, and the Incorporated Eastern Territories were, according to the German conception, within the country, so that in such cases no order had to be issued.
Q: That is what I am trying to find out.
A: Yes; yes.
Q: Then, as to crimes committed in the occupied territories or in the Protectorate after the war, it was not necessary to secure the authority of the Minister of Justice to prosecute;
A: No, but in effect this authorization was, in each case, given by having- each Indictment submitted to the Minister of Justice, and if he did not object, it was considered to be approved by him. However, it was not necessary to have an authorization.
Q: In practice, the matter was submitted to him and he had the right to prohibit such a prosecution?
A: Yes, in each individual case.
Q: During what period was that true?
A: That was true during the entire course of the war.
Q: You referred to the work of the investigating judges, who, I understood, operated under the Ministry of Justice and in the occupied territories?
A: The investigating judges, Your Honor, were appointed by the Minister of Justice. However, they were in effect detailed to work for the President of the People's Court.
Q: And they worked in the occupied territories?
A: Yes, they worked in the occupied territories too, if you, Your Honor, call Alsatia and the Eastern Territories occupied territories -- if you call them that -- then they worked in the occupied territories. However, they did not work in occupied France, in occupied Belgium, and also, they did not work in occupied Russia.
Q: You found those investigations very valuable, did you not?
A: The investigating judges were extraordinarily valuable, especially in the occupied territories, Your Honor. Because of the use of interpreters -- and we also have the experience here -- very frequently misunderstandings appeared in the police records, which the defendant then clarified in front of the investigating judge, and explained.
Q: Is it not true that the use of these investigating judges was abandoned at a later period of the war?
A: No.
Q: In some territory, was it not?
A: No, no, it was not. It only had to be restricted because the Administration of Justice had less and less personnel available everywhere.
For example, in the Protectorate of Bohemia and Moravia, first about 30 investigating judges were working, and toward the end of the war only seven of them. All the others had become soldiers.
Q I seem to remember a decree which limited or reduced the duties of the investigating judges. Am I wrong about that?
A Yes, a correspondence about which I reported during my examination which assured that the duties and the work of the investigating judge, whose number had decreased, now would be concentrated on important cases.
Q Then that applied in the Protectorate and in the occupied territory?
A Yes, that applied to the Protectorate, too.
Q Can you refresh my memory as to when the Malicious Acts Law was passed?
A The Malicious Acts Law dates from 21 March 1933, that is that was the predecessor. It was a decree for the protection of the state and the party and this was transformed into the so-called Malicious Acts Law of 30 September 1934.
Q Thank you. Concerning the NN cases the People's Court became competent for the trial on 14 October, 1942?
A Yes, Your honor.
Q I think you stated in your testimony that the Reich Ministryof Justice had been involved in those cases for some months prior to 14 October 1942?
A Yes, certainly.
Q In what way were they involved in those cases before that decree?
A Before that decree, Your Honor, all cases, even the most serious cases, were tried by the Special Courts of Cologne, Essen, and. Kiel. They were indicted and sentenced before these three Special Courts, In other words, also cases for which my competence would as such have applied already at that time. And Thierack's decree of October 1942 removed this condition by now having those cases for which my competence existed referred to me, while the majority of the cases remained with the Special Courts.
Q The NN prisoners before trial were transferred to various prisons in Germany, were they not?
A The course was, to stab it exactly, the following Your Honor. The Security Police, Sicherheits Polizei, in France transferred the NN prisoners from France to the west of Germany to two reception camps. I believe they were called Natzweiler and Hitzert, in the vicinity of Trier. From there they were taken over by the prisons of the Administration of Justice.
Q And weren't they distributed, because of the congestion, to various places?
A No, not because of congestion, Your Honor, They were then transferred to the prisons which were near the courts where the indictment was filed. For example, to Cologne or to Essen, and only when the air war made this more difficult they were also transferred to smaller prisons inside the country, but I believe that the defendant von Ammon knows more about this than I do, because I had very little to do with these technical matters.
Q Then the trials of the NN prisoners were held at the courts, Special Courts, near the prisons were they were confined?
A That is quite correct.
Q And that would be done under the supervision of the Ministry of Justice?
A Yes, Your Honor.
Q And that occurred before October, 1942?
A Yes.
THE PRESIDENT: Thank you. Thank is all. Is there any redirect examination?
REDIRECT EXAMINATION BY DR. GRUBE:
Q The gentleman of the Prosecution a the beginning of his crossexamination referred to the oath of allegiance which every party member had to swear. Witness, in regard to this I wanted to ask you, wax this oath which every party member had to take, in accordance in the main, with the oath that civil servants took which, for instance, the witness Behl also took?
A I really do not remember how this oath was worded. Dr. Grube. I personally did not take such an oath, either, but only gave an assurance by shaking the hand of my local group leader. That was not an oath. But what the exact wording of that assurance was I don't remember any more today.
Q But you did take an oath?
AAn oath like the oath of a civil servant, no. But under certain circumstances such an oath was taken.
Q The representative of the Prosecution put to you why you did not, by doing without your activity as Chief Reich Public Prosecutor, choose the profession of a practicing lawyer. May I ask you whether in accordance with the legal situation of the time in regard to the licensing of lawyers that would have been impossible at all at that time?
A That would, to a very large extent, have depended on the form and the conditions under which I would have resigned from state office. If I would have only suffered small damage I could have become a lawyer, but I would not have succeeded in becoming a lawyer if I would have had a disagreement with the state on political matters.
Q In other words you say an approval had to be granted?
A Yes a lawyer had to be licensed, had to be admitted to practice.
Q I now come again to Exhibit 437 that was submitted by the Prosecution. This is the Kurras case. In this document or in explanation of this document, as is known, the Prosecution first occupied the position as if the Jews who were also participating in this matter were hanged by the Security Police on the initiative of the Administration of Justice. May I ask you, witness, how at that time in the year 1944 the competence was divided in regard to Jews who had rendered themselves punishable? At that time were the general courts still competent at all?