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.
The State could demand of the judge that ho was to be loyal to the state. That is something which every state demands; but here the question was only how, by what methods he could demand that of the judge, and those methods were dangerous, starting with the purge, until the final attempt of restoring cabinet justice by introducing the method of confirming sentences passed by judges through agencies of the Administration of Justice.
That method included the judges' letters, curtailment of jurisdiction and finally, the Fuehrer's speech in April 1942.
Q Acorrding to your personal knowledge of conditions, did not the Administration of Justice find itself in an emergency?
A I did not ask about the guilt. What was decisive for mo were realities. I could not judge what was the political game up above and to what pressure the very tops were subjected. The information that reached us by speeches in writing and through measures that ware adopted had to give us the conviction that at the top there were people who were at least good National Socialists as those with us.
The information which reached us from above was considered by the Administration of Justice itself as the only possible and as the only truthful methods. The idea that all those things were merely tactical manoeuvres, part of a political campaign, that idea could not occur to us and even less that one could ask of us tactical actions in place of actions by conviction may be on the basis of giving artificial opinions to explain our own sentences.
For that would have been contradictory to the most primitive ideas of the judge's professional ethics. So-called artful opinions on judgments within the meaning of a certain purpose contrary to the purpose of the law were out of the question with us.
Q According to your knowledge what were the contexts?
A One must base one's self on conditions such as they had actually developed within the decades prior to 1933. The changeover of those who had been brought up differently, the judges who had grown up, so to speak in a different world, that change was very slow and very difficult. Again and again judgments were passed which were not in accordance with official requirements. On principle, and above all, one held the Administration of Justice politically responsible for that. In affect, what happened was that the Administration of Justice was intended to be the whipping boy for the judiciary.
The administration of Justice, by novel opportunities of attacking the jurisdiction, tried to relieve itself of responsibility. It created the extraordinary legal remedies and emphasized the unreserved loyalty to the state of the judges. As far as that went no objections could be made. What was more dangerous was the influence by means of judges' letters and the guidance of jurisdiction.
Q What was your attitude concerning that development?
A I was of the opinion that the judge, without any considerations for his inner attitude, on the basis of his official oath, and of his duties laid down in the law, had to observe absolute loyalty to the law and that ha had to boar the responsibility for that and if necessary, also the consequences.
Therefore, and I don't want to be misunderstood in my attitude, in my opinion ho had to find his own way loading to the point which the Administration of Justice wanted him to reach. Furthermore, I was of the opinion that the judge should be guided only by his own convictions.
I would not have found anything wrong if, generally speaking, his attention had been drawn to his duties in a general way. The matter became critical owing to two factories; the use of the authority of the state and by making guidance concrete.
Q. What measures do you have in mind when you say that?
A. There are three factors: first of all, the decree concerning internal service conditions; then; the attempt to exert influence by the socalled judges letters; and, above all, guidance.
Q. Can you tell us something about that decree concerning internal service conditions?
A. It had been said here that, for the judge, it was extremely easy to apply the laws in such a way as nowadays one would like to see them applied. The judge after all, in his position, had been completely independent. I would like to describe a concrete occurrence to you, an occurrence which explains that freedom, that independence. We had - and I think Oeschey played a part in that judgment too - in about 1940, we had to deal in that year with a very serious criminal case. A young man of about eightteen years of age, who had no previous convictions and who came from a good family, stole a rabbit from his neighbor, the value of which was about eighty pfennigs. The motive was that he had promised a friend to get him a rabbit and so as to be able to keep his promised he did this silly thing. It was established that, before the war, the farmer, from whose farm the rabbit had been taken, had a big lantern hanging outside the farm yard which; since the war had had to be extinguished. The youngster had exploited the situation and no knew that perfectly well. He confessed fully. That is to say, he had actually exploited the measure which had been taken on account of air raid danger and had commited a theft; a crime against property. He made a full confession. We refused to apply Article II of the Enemy of the People's law, acting from the legal point of view that it could not possibly be in accordance with the law that such trifles should be punished with the high minimum penalty of one year in a penitemtiary which was laid down to the Public Enemie of Law.
However, the decision was contradictory to the text of the law - but it was only an apparent contradiction for the law was called "La" Against Pu Public Enemies". In the opinion, the fact were described just as I have described them hero and the same legal views were explained. That judgment was submitted to the Ministry of Justice. I fully admit that there may have been people who were of a different opinion , in particular, people who held the opinion that the conditions of the law had been fulfilled but...
Q. (Interrupting) Please repeat that sentence.
A. But on no account could it be that the following decree should have been formulated: "The presiding judge of the social court at Nurnberg is requested to give his opinion as to how it happened that, in such a completely clear case, Article II of the Law Against Public Enemies was not applied."
When that request came, I refused to give an explanation and I didn't hear any more about it, but soon after, there was a big change in jurisdiction and, in the course of that change, principles were developed which made it impossible for this Ministerial point of view to be accepted.
THE PRESIDENT: May I asked you a question? I didn't understand what the judgment of the special court was in the first instance?
THE WITNESS: The young man sent about three weeks in detention, pending his trial, and then we passed judgment for theft and we declared that he had already served his term because of the time he had spent in detention.
THE PRESIDENT: And can you fix the date of that case more accurately?
THE WITNESS: That event occurred at the beginning of the war. I think it must have been between 1939 and 1940.
THE PRESIDENT: And do you remember the name of the defendant? the boy who stole the rabbit?
THE WITNESS: I can't remember it. I have been looking for the files. He was a young man from the surroundings of Nurnberg. He came from the suburb of Feucht or some such place. It is just possible we can find that out.
THE PRESIDENT: And do you recall who, in the ministry of Justice par ticipated in the inquiry?
THE WITNESS: I can't tell you, but I assume that it was Freisler.
BY DR. KOESSL:
Q. Did any other case occur with you of that type?
A. Yes. That was a case which also shows that we judges did not occupy that regal position. At any rate, it shows that our regal position was not acknowledged. Those who did not arrogated such position to themselves, did not actually have it. I am thinking of this case: A Polish woman had given birth to a child, and about eighteen days after his birth, she did away it by - how shall I put it? When she was nursing it, by placing the baby's head so tightly between her own breasts that the baby, as we were told, was smothered to death within a few seconds. In other words, she, the mother, smother the child in between her own breasts and she did that about eighteen days after the birth of the child. That time element played certain part according to German law. An indictment was filed under the murder paragraph. The defendant herself made a full confession. I asked two experts to give their opinion to clarify the legal question as to whether read murder had occurred here or only the killing of a child. I would like to say that, at that time, under German law, murder had occurred when a person killed another person on purpose and if he had deliberately set about killing that person. Killing a child - that was understood to have occurred when special facts applied. Such killing of a child was supposed to have occurred if the other had given birth to an illegitimate child and had killed it immediately after birth. That is to say, when at the time she killed the child, she was still under the influnence of the psycholgical state of mind depression, a depression which does befall a mother who has given birth to an illegitimate child.
Court No. III, Case No. III.
BY DR. KOESSL:
Q. Please don't give so many details.
A. On the basis of the opinions received from the experts, we established that murder had been committed and, consequently, we sentenced the woman to death, because the death sent tence was mandatory here. After judgment had been passed, a request came to sent the judgment immediately to the Obersalzberg. We ourselves were highly surprised about that request, because we couldn't imagine what the reason might be. Shortly afterwards, the sentence was commuted to two or the years in prison. Two or three years in prison, with the instruction that - I believe it was after something like eight months - another report was to be made about the clemency question. In that connection, further directive was received - or perhaps it was a decree - according to which it was altogether undesirable, in the case of foreign nationals, to exercise extreme severity.
THE PRESIDENT: Do you mean it was undesirable to exercise extreme severity as to foreigners who killed their children?
THE WITNESS: Yes.
BY DR. KOESSL:
Q. How did your court react?
A. We repudiated that principle. In particular, the method because we did not feel ourselves bound by the law. We - that is to say, all of us, without one exception, were of the opinion - my deputies, Oeschey and Ferber, and my associate judges, as well, - that we would ignore such decrees because, in our opinion, murder was murder and it was impossible for us to discriminate.
Another occurrence has been discussed at the trial here and that is the Schosser Case. A Polish case is mentioned there and I succeeded in ascertaining the name. I had Court No. III, Case No. III.
forgotten all about that occurrence, actually, which happened in Bamberg a long time ago, but here my memory was refreshed when this matter was discussed. In the Schosser Case I'm supposed to have remarked that one day before we had sentenced a Pole who, afterwards, had attempted to commit suicide, and then I'm supposed to have said; "mow we still nave to deal with him", but I allegedly didn't say what the circumstances concerning that Polish case were. But I did mention all these circumstances at that session and I did point out, in particular, what the charges against the Pole were. He had murdered another Pole in a brutal bestial manner. He had been lying in wait for him and, with a wooden fence, he had shattered his skull. I mentioned that case at the time in order to demonstrate that it was a fact that elements were entering our country without any control, elements who were inclined to commit the must violent crimes. That was a case where particular brutality was shown, and now I see that the list of death sentences does not include this case and from that, one can deduce that clemency was exercised so that the principle to which we adhered, that murder is always murder, was not applied. I am of the view that if the leaders of the state were truly of the opinion that such offenses were not to be punished with severity or, at any rate, not with such severity as was normally customary then, under no circumstances, a court could be put in charge of such a case.
Q. What did you suggest should take the place of the judges' letters?
A. Concerning the judges' letters as such, in my view, there would have been no objections if, the criticism contained in them, had not been made as coming directly from the authority of the Ministry of Justice for, in Germany, it had always been the custom for the judgment, at the moment at which it was passed, to be made subject to public and scientific criticism in the press and in the periodicals.
After 1933, that was not changed but, in my view, it was not really tolerable that, under the protectorate of the Minister himself, as his opinion, criticism should be exercised against individual judgments even though the names of the courts concerned were not mentioned. That was the reason why I was against these judges' letters. Besides, there was another point which caused me to wonder. In reality, it wasn't the opinion of the Minister of Justice, but it was the opinion of a comparatively young man who, on account of his age alone, could hardly nave had the experience which was necessary to classify things correctly. He was distinguished not so much by the depth of his thoughts, but by his dialectics. I am almost inclined to call it rabulistics.
Q. What suggestions did you make in place of the judges letters?
A. The need which we felt for our jurisdiction in the sphere of war time laws.... Perhaps I may begin my sentence all over again.
THE PRESIDENT: May I interrupt you before you do that, Please?
In order that there be no misunderstanding, who is the young man to whom you referred?
THE WITNESS: His name was Schmidtleichner.
THE PRESIDENT: And what was his position?
THE WITNESS: I believe when he started on this job he was a counsel of a district court (Landgerichtsrat) and, later on, I believe he was promoted. What rank he occupied I don't know.
The need which we, who dealt with the administration of penal law, felt, above all, was the procurement of documents of evidence which would show the degree of danger, of criminality of the various types of crime.
That is to say, statistics for the Reich territory, which showed the incidence and the method of certain crimes. Outside influences were the purpose of mobilizing certain elements dangerous to us. Concerning all those questions, we would have liked to have had information. I frequently suggested, through channels, that we open to me, that an exchange of judgments passed by all special courts were to be ordered so that the special court at Graz would know what was happening in the Rhineland, and the special court in the Rhineland would know what the situation and developments in East Prussia were. But all those efforts were of no avail.