We were the office which could exert some influence in order to bring about a coordination, and that was done from our side by way of short notations. These notations in brief words should render an evaluation which was possible for facts and that on the basis of principle which were known to us, and which were in accordance with the facts and merits of the cases. The purpose of these notations was, therefore, at first to develop throughout the Reich a certain theoretical starting point for the evaluation and for the extent of punishment. That was the purpose of those notations which were exclusively designed for the attention of tie general public prosecutor.
Q Was the general public prosecutor bound by these notations?
A The general public prosecutor was not bound in any way. That could be seen from the character of the matters, because, as I have said, the intention was only to create a theoretical starting point for the setting of a standard. Therefore, in his decision ho was quite free and ha had to remain free because the final demand for punishment could only be made on the basis of the findings of the main trial.
Q In Exhibit 126, Chief Reich Public Prosecutor Lautz says that you had used a little too much steering, too much direction, which he limited subsequently. He stated, as a witness, that, and I quote: "In indictments and in dispositions about transfer of cases going far beyond an evaluation of facts there was an evaluation of the individual personality of the offenders, such as the judge would give later in his reasons or in his opinion.
In some cases there was also a political coloring to these statements. As for the indictment, "he continued, "I was worried that anybody who would read that indictment, that is to say the general public prosecutor at the session, might have been influenced from the outset, and for that reason in a discussion which, however, was a very civil one, I asked Rothaug to abide by my wishes and he did so." Would you first refer to these instructions for transfer?
A That description, or these statements, deal with the following: I have already explained what the general conditions were which had necessitated such directives, and it is easy to understand that that was not a private hobby of mine, but that the nature of these directions, the purpose their goal, had been discussed with the chief in detail. It was clear that it wasn't I who put down every individual direction on hundreds of cases of files, but by these directions no real steering could be brought about such as has been explained here because, as I have already explained, by our notations the general public prosecutor could not possibly be bound to follow them; and, in addition to that, in this train of thoughts as results from the very nature of the facts, a general directive had been sent from the Chief Reich prosecutor signed by himself where the general public prosecutors had been told specifically that they wore bound only in one specific respect, and that is in the legal evaluation of a case of undermining of the military morale, but that they were completely free in their decision concerning the question of discontinuance and in particular concerning our possible support cf conclusion, favorable for the defendant, on the basis of the files and the facts presented.
In this occurance the chief Reich Public Prosecutor has made a mistake as far as his recollection is concerned. The problem which he mentioned did nor arise in connection with the direction or steering or too much of it, but had a completely harmless background, that is to say, that some assistants of mine who wrote these notations started to write -- so to speak -entire novels. They went far beyond the brief form provided for these notations, and that created a great deal cf extra work in the various offices, which, in turn, that the result, in consideration of the fact that we were short of personnel, that we had to think it over whether these notations shouldn't be reduced to a much smaller extent or even be eliminated. In the end we decided, to reduce their extent, and then finally to drop that practice altogether. That explains the connection.
Q Another objection which Mr. Lautz, according to his recollection, has made against your work was that you wanted to bring a strong political under-tone into the indictment, which he says he also stopped. When he was here as a witness he made the statements which I have mentioned before, in connection with these transfer orders.
A That also was not an important affair at that time, and in conversations with mo there was no political note introduced, in the sense that in the opinion of the Chief Reich Public Prosecutor I would have had a much too severe opinion from the political point of view, because time and conditions would not permit that at that time. But I remember quite well what the problem was in that connection.
I was of the opinion that the law required, that the defendant before the main trial should have made available to him all material which was designed to prove his guilt. That was founded on the German law. The German law provides that a defendant before he enters the courtroom he given by the prosecution all the information of the results of the investigations. First, the charges against him; second, what evidence was to be used against him; and, third, specifically and definitely the manner in which that evidence will be used against him during the main trial. That is, he has to be told, therefore, you are charged with having committed that and that; you are defending yourself by these and these means; we shall submit the following evidence; and we shall submit this evidence in the following manner during the main trial against you. The defendant has to know that before he enters the courtroom at all because we are of the opinion that in the course of the main trial he should not be subjected to any ambush of any kind. That is the legal situation as it exists in Germany, and the created the problem. I was of the opinion that if one intends to use a defendant's political past or certain political conditions to prove his guilt, or to evaluate his act in the main trail, that this has to be told him before the trial even starts and in the greatest detail in the indictment; and that it is not admissible that such matters are only brought up in the final plea where the defendant has hardly any possibility to defend himself against these charges, or to bring that up only late in the opinion where he hasn't any possibility of defending himself against it. That was the problem at that time, and the conversation about that really did not have a political, undertone, but it was purely a professional conversation during which, however, the chief Reich Public Prosecutor was of the opinion, that one should be as brief as possible, and in that connection he also put to me an indictment submitted by one of my deputies, and I had to admit in fact that as far as the terms in that indictment were concerned, it was somewhat exaggerated; and it was the purpose, of that conference that such matters should be avoided in the future, which I promised to him; and nothing further happened in this case.
Q. The defendant Peterson stated, in Exhibit 176, I quote the sentence which unfortunately neither in the German exhibit or in the German transcript is complete, but one can well understand the way it is in the documents -- I quote; "The sentences of the People's Court can only be understood if one takes into consideration that it was not so much the question of usually adequate penalties for committed offenses, but of the extermination of an opposition which might impair the German aims." The sentence apparently intends to express that the sentences by the People's Court can only be understood if they are seen in the light that it was not the question to impose penalties according to the usual custom, but with the purpose of annihilating opposition. I ask you, therefore, did the People's Court, or any one of the senates, stick to such a line of thought?
A. That is quite impossible. Every sentence, as severe as it may be, was under no circumstances, under no point of view, designed to support the statements made by this witness. On principle, the sentences by all senates of the People's Court were based on the same elementary considerations, and I can say, therefore, that such a basic reason or a final purpose as is indicated by these statements did not really exist. Freisler's senate, in fact, pronounced more death sentences, as far as figures are concerned, but one has to take into consideration that Freisler handed about one half of all the cases that came in, as far as I remember. At any rate, no sentence was pronounced at the People's Court unless the punishment itself was based on the evaluation of the guilt of the offender.
As for the statement made by the defendant Peterson I can only believe that the man is rather an elderly gentleman who apparently under the influence of imprisonment and of certain things which have to do with his age, arrived at an absolutely wrong conclusion. His statements are certainly not based on actual facts.
Q. She objection was raised quite generally that in political cases, in the proceedings concerning political criminal cases, stool pigeons, informers, and denouncers played a great part. What do you mean stool pigeon?
A. A stool pigeon is a person who is used by the police, whose task is to gain the confidence of a person, to try and obtain inrformation in order to put the material thus obtained at the disposal of the police. As for the point of view of decency and character, there is no doubt that these people are highly questionable; they are mostly inferior subjects, against whom the greatest measure of care has to be taken. The police of all nations make use of each methods, but only if the most serious interests of the public welfare are at stake. I never handled any procedure of that kind. Had that been the case, I would have had to know about it.
Q. The witness Ferber, on page 1715 of the English transcript stated that at Amberg a man of that type had been used. Do you happen to know anything about that?
A. That is quite impossible. We never had any ease there which in the least was designed to make use of any stool pigeon.
Q. What do you really mean by a denouncer?
A. A denouncer is a person who for selfish reasons makes denouncements and statements to the police for the sole purpose to cause damage to somebody else, and works with the aid of lies and exaggerations in order to come to his aid.
Whoever makes a denouncement in order to carry out a true duty or seemingly true duty toward the community is an informer, not a denouncer.
Q. Were any measures taken in order to counteract the consequences of such denouncers' activities?
A. It was quite clear, and that principle is applicable to all authorities all over the world, that a stool pigeon and a denouncer, much as one might be able to use their services, have to be handled with great care, because the danger always exists in dealing with these people that they falsify the facts; and that was always the way we handled it.
As soon as any suspicions arose in that direction, we used the utmost care.
Q: Can you give us any practical examples, quite briefly?
Al For instance -- and this is perhaps between the things as in most of these cases -- I remember the case of a Gestapo official who played a certain important role here. That man had a way of questioning witnesses in a manner that one could not put one's finger on any facts, but everything was covered with opinions and exaggerations to to the extreme. We tolerated these methods two or three times, but the result usually was that when a witness came to the main trial and had to make a statement under oath, he retraced his steps so that in fact all that remained was a really harmless, or at least unimportant, matter. Thereupon I got in touch with the Chief of the Gestapo office and explained the matter to him, and the man was immediately transferred.
Here one could see that an official in the service had a tendency toward exaggeration, which we considered extraordinarily disturbing. It was not really dangerous because one could not got very far with such methods when they were thoroughly investigated.
Of course, the personal attitude of the witness was frequently of great importance. I should like to mention the case of von Braun, which has already been mentioned in this trial.
The case of von Praun was a local case, and therefore it attracted my attention to a great extent, so that I can remember very well what happened.
We received the files. They came from the Nurnberg Prosecution, not from the Court itself, and they were not sent to the People's Court but to the Chief Reich Prosecution.
When we received the files there was attached the decision by the Court, which was to the effect that the case should be discontinued in order to afford an opportunity to the Prosecution to obtain our opinion -- that is, the opinion of the Chief Reich Prosecutor -- concerning the question of the undermining of military morale. The way I remember it, at that time the Reich Ministry of Justice, in its decision concerning the prosecution of the case, had mentioned the point, that is, the question as to whether it should be considered undermining of military morale. When the files were submitted to me I examined them immediately and also found the name of that young witness who was mentioned here by the attorney Meyer, who was heard here as a witness. I had certain misgivings concerning the total evaluation of the material, as to whether one could believe that young woman. She was young, and in addition to that she was somewhat embittered; and, therefore, biased; and in general there was certain hostile attitude with the local police at Ansbach against the defendant. Therefore, I immediately went to see the Chief Reich Prosecutor, reported the case to him, and also gave him my opinion. I suggested that I should immediately go to Ansbach in order to gain a personal impression of the people and circumstances connected with the case. The Chief Reich Prosecutor accepted my suggestion immediately and directed me to carry out that mission as quickly as possible. I sent a telegram in order to have the man returned to Ansbach from the disciplinary institution and to call the woman witness. However, before the last letters were sent out, I received a telegram to the effect that Herr von Praun had committed suicide in the prison and thus this action could not be carried out.
Q: Can you tell us about successful cases in that field? But please, very briefly.
A: Another case was in the area of Hassfurt. There a teacher and a priest were arrested on the basis of statements made by an evacuee. The statements made by that evacuee were characteristic because she ended, with a poem of about twenty verses. The poem itself showed, and so did the contents of her statement, that she was a seriously hysterical person. However, far reaching steps had already been taken on the basis of the statements she had made; the teacher had already been transferred to Meseritz in order to be brought to trial before the People's Court, and the Catholic priest had been detained in Wuerzburg.
In this case a friend of mine, who had to do with the case from the Party point of view, wrote to me. He pointed out to me that one should be very careful in that case and that I should go to that area myself to investigate the matter. He considered all these measures as somewhat too hasty in that affair. In this case also I received the assignment to investigate these matters immediately. I did so, and found, after I had heard a large number of witnesses, that it was a definite matter of invention on the part of that woman. The outcome was that we dropped the proceedings. That was in October, and we immediately ordered these people released. However, to my greatest surprise, in April I received a letter from the wife of the teacher in which she wrote that I had promised her in October that who could be very hopeful, but now, in the course of March and April, her husband had not yet returned home.
In fact, in spite of our discontinuance, the Secret State Police, the Gestapo, simply kept the man, and this occurred although we had specified in detail that there could be no question of guilt or any proof of guilt in this case.
I could not do anything about that matter any further because the catastrophe occurred, and I do not know what became of him.
The case of a druggist in Nurnberg was similar, a case in Nurnberg which I investigated. Of greater importance was the case of a Dr. Treuter at Bayreuth who was the chief surgeon of the Winifried Wagner Hospital. In this case there were very complicated and very serious incriminations raised by certain groups of people against the doctor, so that a great deal of suspicion existed against the man. He was charged by servants, as well as by female physicians, by officials and by another group of individuals. The case itself caused a dispute between the party and the Police as to who was supposed to handle the case, and it even reached the Fuehrer. Then there came a so-called Fuehrer order which directed that the matter should immediately be investigated by an official of the Chief Reich Prosecution, and that in the event any proof of the man's guilt could be found, he was to be expelled from the Party immediately, even before a sentence had been pronounced, and than be brought to adequate punishment.
I received that order, and at the same time I received the assignment from the Chief Reich Prosecutor to carry out a speedy investigation of that matter. I went to Bayreuth, to Bamberg, and to Furth, and I even went to the witnesses at their homes. I carried out a thorough investigation on the basis of which I could say with certainty and without bias that the defendant, whose personality I certainly did not like, had been the victim of a denunciation of the greatest extent, which was quite typical.
There was one man who had handled the entire matter. He had influenced servants, doctors, female doctors, anybody who had anything to do with that doctor, in order to push them in one direction and establish a whole network of denunciations against that physician.
On the basis of a very thorough investigation, which kept me there for over a week, I clarified the situation, I returned to Berlin and sent a directive that the case be dropped, because it was shown that there was not only no proof, but that the greater part of those statements was in fact nothing but lies.
THE PRESIDENT: We will recess at this time until 1:30 this afternoon.
(A recess was taken)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 13 August 1947)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: May I continue, please?
THE PRESIDENT: You may proceed.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued BY DR. KOESSL:Q.- Witness, please tell us briefly something about the Dr. Treuter case, and finish it.
A.- This morning I finished by saying that the Treuter case was stopped by us on the basis of a thorough instruction. Chief Reich Prosecutor Lautz completely agreed with me in my suggestion to stop the proceedings, and consequently we made a report to the Reich ministry of Justice. However, the Ministry refused to accept our suggestion to stop the proceedings. We were instructed to file the indictment on the original basis of the charges and carry out the proceedings. I was ordered expressly to act as prosecutor at the proceedings.
Before I went along to the session I drew the attention of the Chief Reich Prosecutor to the difficulties of the situation, because we had been instructed to ask for the death penalty. My chief requested me, under all circumstances, to adapt my application for the sentence to the actual results of the evidence. I complied with that instruction and I asked for an acquittal.
That complication had arisen because there was an order from the Fuehrer. According to my judgment, however, that order was not so far reaching that some result would have had to be achieved under all circumstances; rather, that order was based on the assumption that there was an adequate basis for condemning.
Cases like those which have been described here were not one except ion, but they occurred almost every day, although as a rule such proceedings were immediately stopped.
I only wanted to give an account of such cases to demonstrate the principle which guided us in dealing with these matters. The State must not make itself the instrument of such creatures, quite apart from the fact that they constitute a great danger in the way of truth. Nor did we take a different position concerning witnesses who were interested due to outward circumstances; or whose interest had been aroused. Concerning such witnesses we exercised the same caution, that is to say, caution which a sound mistrust commanded in such cases.
Q.-What attitude did your chief Lautz take concerning such questions?
A.- What occurred there happened with the agreement and with the knowledge of the Chief Reich Prosecutor; whose basic policy; as I would like to describe it; was in agreement with that method.
Q.- During conversations, or at other occasions, did you ever have the experience or make the observation that at the Reich Prosecution, in connection with the prosecution, other aims were kept in mind apart from those within the field of penal prosecution?
THE PRESIDENT: That kind of a question is proper, but it can be answered very briefly. Let your answer be brief.
BY DR. K0ESSL:
Q.- Very briefly, yes.
A.- We never thought of such purposes and we certainly did not discuss them.
Q.- Did you learn of prisoners of the Administration of Justice being handed over to the police?
A.- I never heard of that; I heard of it for the first time at the proceedings here.
Q.- In your affidavit you mentioned that from a certain date onward there was a change in the treatment of malicious acts cases, that is, to the extent that offenses against the Malicious Acts Law were more and more treated as if they had been cases of undermining of military morale.
The passage in Exhibit 473 says: "When everybody could see that the situation of the war was becoming more and more tense, in examination of that question one applied an increasingly more severe attitude in favor of interpreting those cases as being cases of undermining of military morale."
What is the meaning of that?
A.- That can be answered quite briefly. The extraordinary war-time law in Article V, figure 1, contains the facts which constitutes the offense of having committed a case of undermining of military morale. That had been in existence even before the war. During the first few years of the war the facts of undermining of military morale cases were far less frequent than those of offenses against the Malicious Act Law. Practically sneaking the undermining of military morale facts were prosecuted under the Malicious Acts Law provisions, and only in exceptional cases were the facts of the undermining of military morale applied. The turning point in the treatment of such cases occurred approximately at the time of Germany's defeat before Stalingrad , which in itself became the turning point in the war.
The question is, why did that change occur? I can explain that by giving an example: A man who was not incriminated in any way, said, before the change, "They will continue winning victories until they are dead, just as they did in 1918. One can tell. There are shortages everywhere. We cannot win the war. Where is the corporal to get it from? They had better throw away their guns and desert," That is an example of a case which actually occurred.
Before the change, if there was nothing else against a man, -- unless there were special circumstances such as armament industry, and so forth-he was assumed to have offended against the Malicious Acts Law. After the change such a remark could be interpreted as bring a case of undermining military morale. The reason was not that one had changed the caning of the text of the law or that one had forced a new meaning on the text of the law, but because after that critical moment one put a different evaluation on such events from the subjective point of view.
Before the critical moment, that is to say, at the time when the fortunes of war were favorable, one spoke of malicious or inciting criticism against war measures concerning which the offender was conscious that his criticism was designed to shake the confidence of the people in the political leadership.
At that time, without forcing things, one could assume that the offender, in view of the favorable war situation, had never thought that his actions could affect the military morale of the German people. Quite different was the situation when the war, as everybody could see, had entered the critical phase. A person who at that time, in view of that situation which put the utmost strain on the nerves of people, made such an utterance, know that by so doing he would produce effects entirely different from those, his remarks might have had before the critical moment In particular, if he acted on the basis of the experience that hundreds of thousands of others in the Reich were doing the same every day. In that one say, under certain circumstances, an attempt to paralyze or to undermine the will of the German people to assert itself. From that change in the situation in the surrounding of the concrete act there resulted a different legal evaluation of the offense after the fortunes of war had came to a turning point. That change in the legal evaluation, therefore, did not occur from the angle of the actual facts, but from the subjective angle of the offense.
Q.- The Prosecution, as Exhibit 431, has submitted a letter by Thierack of 4 February 1942 in which you were suggested for the position of Reich Prosecutor of the People's Court. The Prosecution has quoted the following passage: "His" - Rothaug's O inclination to the ideology of National Socialism and his clear understanding for the necessity of protecting the existence of the German people, make him suitable for the position of Reich Prosecutor at the People's Court."
For how long had Thierack known you when he signed that judgment, that evaluation?
A.- Thierack saw me on the 20 of January, 1943, and I believe again at the beginning of the day of the 21 of January, 1943. After that I didn't see him again until May 1944.
THE PRESIDENT: The question was simply this: How long had Thierack known you when the letter was written? I think you have already answered it, but you may do so once more, stating the number of months or years during which he had known you before the letter was written. Make your answers more specific.
THE WITNESS: I believe a month.
THE PRESIDENT: That is the answer that he asked for. Next question.
BY DR. KOESSL:
Q. I will now show you a photostat of the judgment passed by the People's Court in the Zinser Case. This is Exhibit 140 (handing document to witness.) On a slip which is appended your name is entered. What is the meaning of that?
A.- This is a judgment passed by the People's Court on the Zinser Case. The date is the 6 Of November 1943. Volksgerichtsrat Laemmle, Oberlandosgerichtsrat Dr. Iliner, SS-Brigadefuehrer Bauszus, SA-Brigadefuehrer Hauer had participated, and Ministerialrat Dr. Horzlieb also are mentioned. That circulation slip which is appended should normally appear as a first page since that judgment was passed probably in con side ration of a principle which is of a more general significance and that judgment is intended for the information of the men whose names appear on the circulation list; and it actually was circulated to them so that they should be informed of the judgment.
That was done and that it was done is indicated by the fact that every person behind his name put his initials.
Q.- Please tell us whether you saw that document when you were in office.
A.- What it says is Reich Prosecutor Rothaug. I didn't write that but the office wrote it. Behind my name it says "I.V." That means "In Vertretung," - deputising for - "V. - 19 of November." That means that in my absence my deputy; whose name was Weisbrot; in my place was informed of the judgment. The names on the circulation slip, therefore, by no means mean that the persons whose names appear there participated in any way in this judgment.
Q.- I am now coming to the problem of Rothaug's relationships with the Administration of Justice and the relations of the judiciary in general to the ministry. Witness, to give some explanation of what has been called your very strong position in the party; your altitude of opposition to the Administration of Justice has been particularly emphasized and in particular the Doebig case has been given a great deal of attention.
Did you take up an attitude of opposition towards the Administration of Justice?
A.- Yes; I did. I was strongly opposed to the Administration of Justice. That is altogether correct. What the witness Ferber testified on this point is also correct. That is to say, it is correct that I said that the Administration of Justice had to see to it that our inkwells were filled and our pencils were sharpened. But I added that I would have nothing against it if a separate department would be established for that purpose with an undersecretary of its own.
What I meant to say by that was quite clear to everybody. The Administration of Justice was to keep its fingers out of the pie of jurisdiction. My view was not founded on either personal or concrete political conditions, but was of a general nature and of a basic nature. I went by the assumption that Article I of the Judicature Act, according to which the judge is only to be subject to the law, was not directed against any man called Huber or Meyer or against a party of any kind, but against the Administration of Justice.
If you view the matter historically, that provision was intended to finish off the chapter "Cabinet Justice." By incorporating the judge into the hierarchy of civil servants, by incorporating him into the system of promotion; and by subordinating him to the official supervision open. Through that back door the fires were directed and that not only
Q Do you mean to say that the fact that the Adminis-tration of Justice supervised the activities of judges, did influence you in any way in your work as a judge?
A The Administration of Justice never influenced me, but I resented that the judiciary was classified second rate within the Administration of Justice. I did not bow to that but I made opposition to it, and not only since 1933.
Q Did the political change in 1933 change that question basically?
AAfter 1933 the Administration of Justice continued to be a political factor as it had been always and everywhere. Its methods remained the same. The totalitarian political principle merely made everything more acute. For the judge, this change was felt not so sharply but all the more effectively. The Party doctrine was declared the doctrice of the state, more or less overnight, which, as is the case with every state doctrine, by necessity became the basis of the laws, which the judge had to apply. That was decisive for the application of laws in all spheres without exception.
As of every other civil servant of the judge there was demanded not only obedience but also loyalty and an inner connection with the doctrine of the State. The changeover of the judiciary to that different intellectual level was attempted via the political factor of the Administration of Justice and that was when things came to grief; and it was then that the notorious 'back door', which I have mentioned, took effect.
Q. Was the reason in the principle or in the method?
A In the principle because the "back door" was a Case III Court III matter of principle with the order of things and above all also in the method.