As to which one of these two states I preferred, that can be seen from the entry.
Q. Did the Roehm Putsch change your point of view, as for as Hitler was concerned, and your attitude?
A. Of course, it became much more sever. On the 6 of August 1934, shortly after Hindenburg's death, I find the following entry in my diary:
"I was not happy about the news that Hitler is supposed to become successor of Hindenburg, because in my opinion, there is a tremendous difference between these two men. In all that Hitler has achieved, as a human being and by his character, he cannot possibly compare with Hindenburg. Hindenburg, to me, is a man of truth and of clarity. Hitler's entire system of government is bases on lies, violence, terror, and a dangerous gamble with the masses."
Q. Witness, what name did you apply to the form of government which existed in Germany from 1933 to 1945?
A. I always called it a dictatorship. May I add a quotation of an entry of the first August 1934? I quote:
"A relatively small number of people supported by a splendid machinery are ruling over the Party, and in doing so, over the State. All the other people have nothing to say, but there are still individuals among us who do not want to understand that we have dictatorship. If nobody is in a position any longer to state his opinions apart from a very small band, what else could that be but dictatorship, and where shall that end?" That opinion about our form of government, I never changed later.
Q. But history often proved connections between dictatorship and war. Didn't you occupy yourself with that problem too, witness?
A. Yes. I worried about that more than once, and that started at least as early as 1934 when we interfered so strongly in Austrian politics. One will recall that at that time Mussolini sent troops to the Brenner Pass, which caused Hitler to be more moderate in his actions. About that, on the first of August, I made the following entry, I quote:
"We indeed have all cause to be grateful to Mussolini that he hit the table with his list and sent troops to the border in order to make it clear to our leaders that with violence alone not everything can be achieved."
Personally, even today I am still inclined to believe that it would have never come to the Second World War had someone then again hit the table. We Germans could no longer do that; at any rate, the individual German citizen couldn't do that.
Q. Did you think about these matters later still?
A. Yes, my worries reached a climaz at the time of the Czech crisis, in the fall of 1938. By the Munich conference of September 1938, it seemed to me that the tension had ceased completely. If at that time I could have only anticipated the possibility that hardly a year later we would be at war, then for many reasons no power in the world could have made me go to Berlin.
In connection with that question of the war, I should like to mention another excerpt, an entry of the 23 of May 1935.
I quote:
"The Baseler Zoitung says that the ghost of war, which appeared in 1935, has been banned. Sad enough that the ghost of war was able to appear at all."
May I say here that the later diaries up to 1942, I no longer have in my possession. They are in the Eastern Zone where I lived later, and at this time I cannot get them.
Q Dr. Barnickel, you have described before the reasons for your joining the Party and the SA. The excerpts from the diary which you quoted after the time when you joined the Party show, however, many disappointments. That is why I want to ask you, didn't you ever consider to leave the Party and the SA?
A. More than once, but there were primarily two reasons opposed to that. The one was that in the 30's there was a great deal of antagonism against officials leaving the party; the second was that would have meant that I would have no longer any possibility of influence, not even in the field of my profession. The latter point of view can be seen quite clearly from an entry which I made as early as the 1st of August 1934, in my diary:
"One would like best to leave the Party and the SA, but that would be the same as if a soldier leaves the ***nches in order to go to the rear."
Q. The last question to conclude the political part. Your attitude toward the regime is made quite clear by your entries in the diary, but maybe you can once more, and with a few words, summarize your basic attitude.
A. I believe I can do so.
I want to do it by a quotation, because, up to now, I have found no way of expressing precisely what I want to say which would be better than this quotation. I want to say first, that after work I used do like studying the philosophers of Ancient China where we find, as is well known, a great degree of political wisdom. One of these philosophers of antiquity said once, I quote: "With whom shall I concern myself if not with the people? If the Government is good, as a civil servant, if the Government is bad, also as a civil servant." That is about the sense of what the Chinese philospher said in his classical brevity and that was the same as I had in my mind at the time. In 1933 I did not know that philosopher's works, but, to this day, I cannot find anything that would characterize the situation of that time better than this.
Q. After this remark about the political situation and your attitude will you please continue describing your career. The indictment only refers to your position as Reich prosecutor with the People's Court.
Only that activity, in my view, is the basis of the charges. Therefore, when you describe the events between 1933 and your transfer to Berlin in 1938, you can be very brief.
When and to what position were you first promoted after the 1st of January 1933?
A. At the time of the seizure of power, as I have already set forth, I was a judge with the District Court 1 in Munich, and, on the 1st of August, 1934, I was promoted to the position of Senior Prosecutor with the District Court Munich 2.
Q. Was that a political promotion, witness?
A. No, it was based on my age and my qualifications. I would have reached that category at the same time even if I had not been a member of the Party.
Q. The court will recall the statements made by the witness Doebig on 9 April 1947 on page 1850 of the German transcript, and also, the statements made by the witness Miethsam, of the 7th of June 1947, on page 4799 of the German transcript and 7874 of the English transcript.
Witness, therefore, from the 1st of August 1934, until your transfer to the Reich Prosecution with the Peoples' Court, you were Senior Prosecutor in Munich. The work as a Senior Prosecutor, as such, was described here by Dr. Lautz in great detail when he was in the witness box. Some simple questions are therefore quite clear. We can refrain from discussing these principles now, and I only want to ask you if, in regard to the fundamental principles for the work of the Prosecution in Germany and the details of that work, you believe that you have to add anything to the statements made by Dr. Lautz?
A. No.
Q. Then I shall refer to your specific activity as Senior Public Prosecutor and want to ask you what kind of penal cases were dealt with by the Prosecution of the District Court Munich 2, in general?
A. That was primarily the prosecution of general criminal cases. Political cases in my district, which was a purely rural district, were of no great importance. Moreover, we transferred the most of such cases to the Prosecution with the District Court Munich 1 because my district did not have a Special Court of its own.
Q. Concerning your work as Senior Public Prosecutor, the following question might still be of interest. In the course of making investigations you frequently got in contact with the police. That is well known, and it is also well known that the police, under Himmler, made attempts to take over the tasks of the Prosecution and to eliminate the activity of the Prosecution in that field. Did you encounter any such difficulties while you worked in Munich at that time, witness?
A. Yes. Unfortunately, off and on, we had such difficulties. I particularly remember a case from the Summer of 1938 which I should like to describe briefly. The commission investigating murder for the police in Munich had made the attempt, in the case of murders which occurred near Munich, to exclude me and my Prosecutors from the investigations. I countered that attempt and to counteract it I eliminated the activity of that department of the police, which also had to deal with cases of arson, by having investigations conducted exclusively by my own Public Prosecutors and the rural police which was at my disposal for such cases. The conflict was terminated only by the fact that I was transferred, on the 1st of September 1938 to Berlin.
Q. I believe, witness, that these short informations, together with excerpts from your diary, are sufficient to describe your activity in Munich. Therefore, I should like to offer one document which refers to your work in Munich. It is from Document Book 1, page 3, Barnickel Document # 2, and I should like it to have the Exhibit #5. It is an affidavit by Max Huber, Munich, of the 15th of July, 1947.
Huber, throughout the period when Dr. Barnickel was there, worked under him. He describes him as a "professional jurist who, where ever possible, tried to avoid any influence being exerted by the Party." I want to quote only one sentence from page 4: "The first principle for Dr. Barnickel was justice." I ask that this document be accepted as Barnickel Exhibit #5.
THE PRESIDENT: The Exhibit is received.
BY DR. TIPP:
Q. Furthermore, from Document Book 2, I shall offer later Barnickel Document 25, which is found on page 32 of the document book Barnickel # 2. It is an affidavit by a former Public Prosecutor Michael Sirkel who was also working under Dr. Barnickel in Munich.
Witness, you just stated that, on the 1st of December, 1938, you were transferred to Berlin. Would you please briefly describe the background of that transfer?
A. About two years after I was appointed Senior Public Prosecutor, I made an official duty trip to Berlin and took the opportunity to see the personnel referent for Bavaria who was the predecessor of Herr Miethsam in the Ministry of Justice. I wanted to make inquiries about my further assignments in the administration of justice. The personnel referent told me at that time that within a short time he could guarantee that I would be appointed president of a District Court of Appeals. Thereupon, I asked him that he should make a notation for the position of the District Court of Appeals Munich 2. That was the court where I had been working as Senior Public Prosecutor and I knew that the president of that court would reach the age limit in 1939. I did not receive any formal guaranty, but I thought that I could expect to be appointed for that position. In 1937, however, there was a vacancy with the District Court of Appeals of Munich for the position of a Senate President for civil cases.
Since I would have liked very much to return to civil cases, I applied for that, but I was not successful.
Q. For the accuracy of that description, may I offer the Barnickel Document # 3 from Document Bock # 1 on page 6? It is an affidavit by the former Senate President Karl Kueffner of the 27th of June, 1947. Herr Kueffner confirms that Dr. Barnickel tried to return to civil cases and that he applied for the position of a Senate President for civil cases at Munich. I offer this as Barnickel Exhibit # 6.
THE PRESIDENT: The exhibit is received.
BY DR. TIPP:
Q. Witness, please describe further events?
A.- About the end of 1937 - beginning of 1936, I was in Berlin again. I told the personnel referent, who was a different official then, about my wishes for the position in Munich, but the case was not that far yet. To my great surprise, on the 30th of November, 1938, I received the communication that, on the 1st of December, 1938, I was to be appointed Reich prosecutor with the People's Court.
Q.- Was that a political appointment?
A.- Just as little as the previous one. Never in my life did I turn to any political office to obtain a promotion, nor did any political office ever intervene on my behalf. At any rate, not with my knowledge.
Q.- With what political offices did you have connections at all, witness?
A.- I had no connections of a political nature. A part from the Minister of Justice for Bavaria, Dr. Frank, to whom I talked once on duty, the highest political leader whose personal acquaintance I over made was my Ortsgruppenleiter in Munich. That is, as far as I remember.
Q.- Was the promotion to the office of Reich prosecutor, witness I believe this question is worth mentioning - in accordance with your normal career?
A.- Well, I have already mentioned in my introductory answers that, as early as 1932, before the seizure of power that is, I had been suggested for a position with the Reich Supreme Court (Reichsgericht.) The position with the Peoples' Court, however, was not in accordance with my ambition, but the former Bavarian Minister of Justice, Dr. Guertner, was the one who assigned me to that position. Guertner has frequently been mentioned here as an excellent jurist. At the time of my appointment, Germany was a respected sovereign nation. Peace seemed to be assured. May I again point out that I assumed that position shortly after the Munich Conference? That is, at a time when the international situation appeared to be well cleared up.
THE PRESIDENT: Dr. Barnickel, may I trouble you to fill out one matter which I don't quite understand? I think you said that you were transferred to Berlin the 1st of September, 1938, and that you were notified that you would take office as the Reich prosecutor at the Peoples' Court on the 1st of December, 1938. What was the situation between those two dates? You may have told us, but I didn't understand it.
THE WITNESS: Maybe I didn't speak quite clearly, Mr. President. My promotion, my assignment to Berlin, was for the 1st of December, 1938.
THE PRESIDENT: You didn't go there in September? No.
THE WITNESS: No, September, I only mentioned for the Munich Conference. The Munich Conference took place in September.
THE PRESIDENT: I think I misunderstood you. I thought you said that you were transferred to Berlin on the 1st of September.
THE WITNESS: December, Your Honor, December.
THE PRESIDENT: Thank you.
BY DR. TIPP:
A.- If I may continue, my position was exactly the same as if I had gone to the Reich Supremo Court (Reichsgericht), but the purely political work was the thing which I did not like from the outset, but one could anticipate developments as little as one could anticipate war. Particularly, developments in the field of political jurisdiction during the war. As far as I was concerned as an individual my position was that I had to see from the fact of that appointment that I could no longer expect the position of senate president in Munich which I had desired. A few months later it became apparent that my competitor received that appointment who, contrary to myself, had political connections. Moreover, one has to consider that, within a short time, it would have been possible for me to get transferred from Berlin had not the war broken out at that time, but, under the circumstances, I saw no reason to object to that appointment.
Q.- When and how did you assume your now position?
A.- As I have already explained, I received the formal appointment on the 30th of November, 1938. The Minister granted me a few days to straighten out my affairs in Munich, and thus, I assumed office on the 6th of December, 1938.
Q.- What position did you hold in the beginning?
A.- On the 3rd of November, 1938, the Chief Reich Prosecutor of the Peoples' Court Harei had had a fatal accident. His permanent deputy, at that time the only Reich Prosecutor, Parisius, was in hospital seriously injured. On the 1st of December, 1938, three new Reich prosecutors had been approved for that office. Of those, two were from the office proper, and I was the third one. Upon instruction by the Minister, I was to be in charge of the office as a deputy because, according to my age, I was the oldest of the three Reich prosecutors there.
Q.- Witness, in this connection, I should like to discuss a document submitted by the Prosecution. It is Exhibit 347, Document NG-548. It is in Document Book V-B on wage 73 in the German ant 66 in the English text. The letter has the heading "Chief Reich Prosecutor with the Peoples' Court" and is of the 23rd of April 1942, and is directed to the Reich Minister of Justice. In this letter, another letter by the Reichsfuehrer SS and Chief of the German Police, of the 13th of December, 1942, is quoted. The latter letter is directed to, and I quote: "The Chief Reich Prosecutor with the peoples' Court, attention: Senior Reich Prosecutor Dr. Barnickel, or Deputy." You are therefore addressed as Chief Reich Prosecutor with the Peoples' Court, witness. Can you please explain how it may have come to that designation?
A.- I cannot answer that question with absolute certainty because I do not happen to know why the office which Sent that letter did it. It is, however, certain that I was never Chief Reich Prosecutor with the Peoples' Court. I was only Reich Prosecutor at all times, although, during the first two months, I deputized for the Chief Reich Prosecutor, but during the first few years of my activity I frequently received similar letters.
The first few times, I actually opened them. Later, I sent them to the office for incoming mail unopened. I assumed at that time that some office of the Gestapo, by mistake, had entered my name as Chief Reich Prosecutor on their records because, in the beginning, I was in charge of the office as a deputy. But the main point seems to be the following. I can see from the letter which is addressed to me, that it is quite clear that I never had anything to do with the answer to that letter. I see that with absolute certainty from the contents of the letter.
Q.- For how long after you assumed the office were you in charge of the affairs of the Chief Reich Prosecutor?
A.- Until the 1st of February, 1939.
Q.- Did it ha open frequently later that you had to deputize for the chief?
A.- Yes, but not very frequently. The Chief Reich Prosecutor and his permanent deputy, appointed by the Minister, Reich Prosecutor Parisius, of course, tried to arrange not to be absent at the same time. Only if that did happen, I, as the oldest Reich Prosecutor, had to take care of affairs. I have to correct myself, that is to say, after Reich Prosecutor Parisius, I was the oldest. Since the end of 1943, I was no longer used to deputize. I was evacuated to Potsdam at that time and Reich Prosecutor Weyersberg was the deputy of the Chief Reich Prosecutor.
Q. Were you free in your decisions on the occasion of your work as deputy?
A. No. That becomes clear from the word deputy.
Q. What activity did you assume on the 1st February, 1942?
A. A new department mas established to deal with high treason, of which I was in charge until the 31st December, 1943. The penal cases came from the areas of the north German district courts of appeal; that regional competency did nut change until the end of 1943 as far as I was concerned. Apart from that I had to deal with so-called sabotage against the national economy, that is to say the transfer of property holdings to foreign countries. During the war that mas frequently connected with treason, and from about the 1st March, 1943 to the 31st December, 1943, undermining of military morale, which I shall discuss in detail later.
Q. Could you tell us quite briefly what your department looked like in the beginning when you assumed office?
A. I had six gentlemen, who were referents. Some of whom judges, and some prosecutors. Their senior mas my permanent deputy. In addition to that there were two offices which worked for my department, which were in charge of and specter, or a senior inspector. During the war the number of referents fluctuated.
Q. In your position as chief of a department, were you the superior of any one cf these officials, that is to say, mere you a leading official?
A. No; in the Reich prosecution, as in all other prosecution offices, there was only one chief; that was the chief of the office.
The various office chiefs were subordinated to the so-called managing chief who had the title Amtsrat; and he was also subordinated to our chief, that is to say, the chief f the office.
Q. Did I understand you correctly then, witness, if I assume that you were neither super or to the referents or the personnel of the office, so that in fact you did not have any subordinates; is that correct.
A. That is correct.
DR. TIPP: Later on I shall submit an export opinion, by the expert Prof. Dr. Hiethammer. For the time being I should like to offer the Barnickel Document 16, from Document Book 1, on wage 56; that is an affidavit by Justice Inspector Werner Tiedemann of Hamburg of the 12th July, 1947. That document shall have the number Barnickel Exhibit No. 7. Further more, concerning the same point, Barnickel Document 10, from Document Book I, on page 34; that is an affidavit by first prosecutor Dr. Karl Baxmann, from Duisburg, of the 14th July, 1947. I offer these two documents, the first as Barnickel Exhibit No. 7, one second Barnickel Exhibit No. 8. Both witnesses refer to the points which we have just discussed, in the sane manner as Dr. Barnickel did.
THE PRESIDENT: I am very sorry, I had complications. Will you tell me again the document number of your proposed Exhibit No. 7; is that 16?
DR. TIPP: It is Barnickel Document No. 16, in Document Book I, on page 56, and the second one is Barnickel Document No, 10, in Document Book I, on page 34, Exhibits 7 and 8. In the further course of my presentation I will be able to offer in this connection Barnickel Document No. 27, Document Book II on page 88 -
THE PRESIDENT: Exhibits No. 7 end No. 8 are received.
BY DR. TIPP:
Q. Now, concerning your job as department chief, what were your tasks?
A. If I am to describe this very briefly, I had to see to the proper distribution of work among the referents; I had to examine their work; the drafts which were submitted to me were then submitted to the chief of the office for his signature and I hod to countersign; I had to discuss questions if any doubts arose and to discuss various motions in advance, motions to be made in the trials. Then I had to sign the correspondence, as far as it didn't go to higher authorities for signature and had to be signed by the chief Reich Prosecutor.
Q. That authority to sign which you just mentioned plays an important part. May I ask you to comment on this in greater detail?
A. In a prosecution office there arc so-called decisive directives; those are the directives by which a case is concluded, that is to say the indictment on the one hand and the suspension. These decisions as long as I was in that office could only be signed by the chief of the office, or his deputy.
THE PRESIDENT: What did you mean by "suspension". What do you mean by suspension?
A. Mr. President, I mean the following: If, on the basis of the files or after investigations, it could not be proved that the defendant was the offender, the culprit, then the proceedings were closed; that was one example. The files were then put away.
Q. May I ask you to continue, witness.
A. Likewise, reports concerning the clemency question could only be signed by the chief of the office. The department chiefs could only sign decisions concerning transfer of cases to the general public prosecutors, an action by which cases of minor importance were transferred to them. There were also various matters in the field of execution of penalty which will still have to be discussed.
Q. Could you give any final orders to your referents?
A. Final directions could only be given by the chief of the office.
DR. TIPP: With reference to these question of organization, I want to submit a number of documents. First, in Barnickel Document Book I, on page 15, it is Barnickel Document 7, an affidavit by the former senior public prosecutor Karl Spaher, from Schwartau, of the 14th July, 1947. The witness speaks about the position of the department chief on page three. I would like to offer this Document as Barnickel Exhibit No. 9.
THE PRESIDENT: The exhibit is received.
DR. TIPP: Further were, I should like to offer from Document Book I, on page 29, Barnickel Document No. 9, an affidavit by the former prosecutor Bodo Meier, from Bremen, of the 16th July, 1947. I offer this Document as Barnickel Exhibit No. 10.
THE PRESIDENT: Received.
DR. TIP: I also want to refer to the Document which has already been received as Barnickel Exhibit 8, which appears in Document Book I, on page 34. The affiant who signed that document makes the same statements as Dr. Barnickel and the rest of the witnesses.
THE PRESIDENT: I didn't get that; what did you say about Document No. 8?
DR. TIPP: Exhibit No. 8, Your Honor.
Q. Now, concerning a different group of questions, witness. Did you also have anything to do with the work of the sub-offices?
A. In principle, no. There was only one exception as far as the managing of the sub-office had to do with the execution of punishment; in that field a few decisions were left to the prosecutor, that is to say, the prosecutor or department head. I shall refer to these matters in connection with other documents will still have to be discussed.
Q. Did the activity with the Reich Prosecution differ in principle from the activity with a prosecution with any other German court?
A. No.
Q. Did your work as department chief differ from the work of a public prosecutor within a district court who had the position of a chief of the department there?
A. No, neither; only, of course, as far as the nature of the cases was concerned; otherwise, a prosecutor in charge of a department at a district court, had more authority than a Reich prosecutor because he could sign indictments and suspensions.
THE PRESIDENT: We will recess until 1:30 this afternoon.
(A recess mas taken until 1330 hours, 26 Aug 47.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 26 August, 1947.)
DR. KOESSL: (For the defendant Rothaug) In accordance with the request made to me by the President, I am now going to quote the law which deals with the examination of witnesses.
It is the law of 1st December, 1936. It is a law which deals with the interrogating of members of the Nazi party and its formations. It was issued on the 1st December, 1936, Reichsgesetzblatt, part I, page 194. An executive order concerning the law was issued on the 2nd of December, 1936, Reichsgesetzblatt, Part I, page 997. Official instructions were also issued to this law by the deputy of the Fuehrer, and that also contains executive orders. It was issued on the 2nd of December, 1936. Those official instructions appear on page 934 of those Reichsgesetzblatt These laws are comparatively extensive, in particular the executive order.
THE PRESIDENT: Thank you very much.
DR. KOESSL: May I ask whether I am to introduce these laws as an exhibit, or whether perhaps you would like me to read the decisive passages into the record. Article I of the law is important. Article I of the law was published on 1st December, 1936, in that article it is laid down that the sub-leaders of the Nazi Party and its formations cannot to examined on matters which affect their duty to observe secrecy. If permission has been issued, the same applies to the members of the SS. In Article II it is laid down that permission to examine such persons may only be refused if testimony of such person on expert opinion rendered by such person would ha to the disadvantage of the Reich. In the executive order, Article III, it is laid down who decides about permission for testimony.
According to that provision members of the Reich leadership, in their case the deputy of the Fuehrer may decide; in all other cases the Gauleiter decides -- unless the deputy of the Fuehrer has issued other directives. I believe that those are the most important provisions. I would ask the Tribunal to rule whether I am to present these provisions in the form of a document.
THE PRESIDENT: The Tribunal would like very much to have the material portions of the law and the executive orders presented in document form, either by the defense or the prosecution, so that we may have the advantage of the actual text. Thank you for presenting the matter to us.
DR. KOESSL: Yes, your Honor.
THE PRESIDENT: You may proceed.
PAUL BARNICKEL - Resumed DIRECT EXAMINATION (Continued) BY DR. TIPP: (Attorney for the defendant Barnickel)
Q Dr. Barnickel, this morning we stopped when we had gotten to the subject of the organization of the Reich Prosecution with the People's Court. The last matter we discussed was your work as a department chief, and now I ask you how did you deal with the in-coming mail; how did that mail, that was intended for the department as a whole, reach your hands?
AAs Herr Lautz already said, there was one office where all mail was received for the whole office. A part of the mail was submitted to the chief. The mail which was meant for the department was not submitted to the department chief, but it went to the office.
The office then distributed the mail according to department chiefs and experts, the matters with which the office had to deal with itself it retained right away.
DR. TIPP: I want to offer a document, Barnickel Document No. 12, in connection with this question; it appears on page 44 of the document book. This document is an affidavit by the former director of the District Court, Dr. Gerd Lenhardt, of 2 June, 1947. I offer this document as Barnickel Exhibit No. 11.
THE PRESIDENT: May I have the page again?
DR. TIPP: It appears on page 44 of the document book, Your Honor.
THE PRESIDENT: Exhibit 11 is received. BY DR. TIPP:
Q May I refer you to another exhibit, Barnickel Exhibit No. 7, Document No. 16, on page 56 of the document book, which has already been received. Inspector Tiedemann also testified on those questions, I now want to address a few more questions to you in connection with your work; to what extent did you play a part in carrying out investigations?
A To draft investigations was, to begin with, a matter for cur experts to deal with. Doubtful cases were discussed. The final copy was submitted to the department chief, and ho had to sign it after he examined it; naturally, the experts were instructed to make as thorough examinations, investigations, as was possible. My exports knew that they were not to rely on the final report from the Gestapo, but that they had to settle doubts by making further investigations.