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.
Naturally, as is the case with all prosecution offices, it happened that the face of the proceedings was changed considerably by investigations.
Q Concerning your work in connection with investigations, the prosecution has submitted a document which I would like to discuss with you. I am referring to Exhibit 136, Document NG-595. This is contained in Document Volume III-B; on page 27 of the German and page 29 of the English text. All the documents which have been submitted deal with penal procedure against the Pole, Stanislaus Bradek, for High Treason and other offenses. The indictment does not bear your signature, and together with the indictment and the verdict, there are in that document a number of papers from the investigating files which do bear your name, although only in a few cases your original signature appears. Would you comment on that document, please?
AAs concerns the available incomplete document, the investigations were carried out properly. I do not believe that I need say a great deal about this matter, for investigations were very simple. May I point out that it was noted that an attempt was made to interrogate several Poles who the defendant wanted to have called as witnesses. In the case of two of those Poles, the result is not evident, because the files are not complete, The third Pole was interrogated, was heard was examined, but ho did not corroborate the statements made by the defendant.
Q May I interrupt you briefly. The examination of the third Pole, whoso name was Petnasch, appears on page 20 of Exhibit 136, Will you continue now, witness.
A Further more, and that has been described repeatedly during this trial here, we had tho defendant once more interrogated by the investigating judge, and among other statements, he said that he voluntarily had gone to Germany November, 1939 with a transport of workers. That is really all I can say in connection with this document, for the rest is evident from the document themselves.
Q The testimony by the defendant Bradek, which has just been mentioned by tho defendant, is on page 15 of the document in question. Would you please comment on the verdict in the Bradek case. That is also contained in the documents which have been presented on page 1.
AAs I have seen from the documents, the verdict was pronounced 23 May, 1943, but I cannot comment on that because at that time I no longer had anything to do with matters of that kind.
On the 1st of April 1943 , and that has already been mentioned here, a new Reichsanwalt, Reich Prosecutor, was appointed, who assumed office four weeks after that date. At that time the Reich Prosecution was widely reorganized, and as I, since the 1st of May, had been considerably overburdened by dealing with cases concerning the undermining of military morale, everything was handed over to another department, that is to say, all those cases which were not connected with the undermining of military morale or Marxist high treason.
Q. You say then, witness, that in your department you did not deal with the judgment in the Bradek case because at that time your department was no longer dealing with that proceeding. In this case, however, the law concerning Poles, which has been mentioned here a great many times, clays some part, and I would ask you, witness, to tell us what your own position was concerning the law against Poles and the provision against Poles in general.
A. My position was quite clear. I was never able to be in sympathy either with the order issued afterwards making this law retroactive. I always repudiated such retro-active laws on principle, and I shall refer to that later. For the rest, I did not feel hostile towards any nation with which we were at war.
PR. TIPP: May it please the Court, because of the importance of this question to the Trial here, may I refer to Barnickel Document No. 7, which has already been accepted as Barnickel Exhibit 9. That is the affidavit by Spahr of 14 July 1947. Here Spahr comments on the questions which Dr. Barnickel has discussed here, on page 24 of the document book. May I quote these brief passages, because of their importance?
"Question 12: What was Dr. Barnickel's attitude towards foreigners in general?
"Answer: The nationality of the defendant never influenced Dr. Barnickel's impartial opinion, whether foreigners from the West or from the East were concerned.
Any form of national hatred or of a biased feeling was entirely alien to his whole nature. I have not known many people who, even during times of strong pressure from outside, remained as well balanced as he did.
"Question13: What was Dr. Barnickel's attitude concerning the law against Poles?
"Answer: In accordance with his attitude towards foreigners of all nationalities , which I have just described , he personally considered that law much too severe and repudiated it."
May I further refer to Barnickel document 10, Barnickel Exhibit 8, document book I, page 37, an affidavit by Dr. Baxmann, dated 14 July 1947. In this connection I further offer Barnickel document No. 11, from document book I, page 40. This is an affidavit by Dr. Bernard Bach, a Doctor of Law, of 15 July 1947. I offer this affidavit as Barnickel Exhibit No. 12.
May I quote one sentence?
JUDGE HARDING: What is the number of that last document?
DR. TIPP: It is Barnickel document No. 11, on page 40 of the document book, Exhibit 12.
THE PRESIDENT: The exhibit is received.
DR. TIPP: Mr. Bach says:
"Dr. Barnickel , as far as he had any scope, was never more severe towards such foreigners than he was towards Germans. I can quote an example for that. " I do not wish to quote the rest of that account, which is fairly long, but I would like to refer to the following passages:
"In the case of a Dutchman, the District Court of Appeal in Stuttgart had pronounced a sentence because he had aided and abetted a colleague at work. These proceedings had been submitted to Dr. Barnickel as preparation for high treason,, but he had passed it on to the General Public Prosecutor at Stuttgart, and the District Court of Appeals dealt with the case.
When that court had passed the judgment - the lenient judgment to which I have already referred -the Reich Ministry of Justice, in 1944, asked the Oberreichsanwalt at the People's Court to examine the judgment and to see whether an extraordinary objection could not be made. The Deputy of Dr. Barnickel, who was away at the time, was in favor of making such an extraordinary objection. However, Dr. Barnickel, when he returned was against it, and thanks to his efforts, the extraordinary objection was not made."
These are statements by the witness.
BY DR. TIPP:
Q. Dr. Barnickel, may I ask you whether you remember who it was that passed that judgment at the District Court of Appeal in Stuttgart , that verdict which has been described as too mild? What I want to know from you is, who was the presiding judge at the Senate at the time?
A. Well, as far as I remember, it was the Defendant Cuhorst.
Q. Witness, I think your work in connection with investigations has now been sufficiently explained. I am now going over to another subject.
To begin with, I ask you: What were the results at which you could arrive by the investigations that were instituted?
A. Either proceedings could be quashed, or proceedings could be transferred, or an indictment could be filed.
Q. Lautz has given detailed explanations of the quashing of proceedings, and I do not believe there is much that needs to be said about that subject. The transfer of proceedings will be discussed at a different time. Therefore, for the moment, we only need to discuss the filing of indictments.
Witness, a preliminary question. Please tell the Tribunal briefly according to what general principle under which German law, the prosecutor was under an obligation to take steps.
A. As has been pointed out here repeatedly, it was the legality principle. That is to say, apart from a few exceptions of lesser importance, the Public Prosecutor had to take steps when he thought that a punishable offense had been committed.
Q. If the prosecutor infringed his duty, would he have made himself punishable?
A. I believe that has been mentioned too. Under Article 346 of the Penal Code, a penitentiary sentence of up to five years could have been pronounced in such a case, and during war-time a prosecutor who had made himself guilty of such an offense would certainly have been sent to a concentration camp.
Q. Witness, in connection with the question of filing an indictment, the prosecution here has submitted a document, Prosecution Exhibit 159. That deals with an indictment in connection with the undermining of military morale. Before I commence discussing that document, I ask you to answer a few general questions on that subject.
Since when had the People's Court been competent to deal with cases of undermining military morale?
A. Since the competency order had been extended, and it was extended on the 29th of January 1943.
Q. And what was the basic legal provision which dealt with the undermining of military morale, that is to say, with defeatism?
A. Article 5 of the Extraordinary War-time Order, dated 17 August 1938.
Q. Until the competency was transferred to the People's Court, who, until then, was competent to deal with such cases?
A. Formerly the courts of the armed forces, and, since 1940, the general penal courts.
Q. I suppose one may assume, then, that during the years since the outbreak of the war, until January 1943, a definite practice had been developed in that field, is that correct?
A. Yes, particularly the concept of hearing a case in public. By the practice of the Reich Supreme Military Court and of the Reich Supreme Court that had been settled in such a definite way that it could not be changed.
Q. I will now ask you a technical question, witness. Bow was it that your department had become competent to deal with the cases of undermining military morale?
A. At the end of 1943 I had to deputize for the Chief for a few days. At that time the first cases of that kind came up. They had to be distributed immediately, because large numbers of cases came in every day. I, as the deputy of the Chief, had to see the distribution plan, and I found out that my department was one of the departments that did not have so much work coming in. I discussed the matter with the other department chiefs, and I then handed over the new cases to my department. That distribution plan, to begin with, was purely provisional, but when the Chief returned he left it at that.
Q. Can you give us any statistics about the cases that came in in 1943?
A Yes, I did keep a record of statistics. Unfortunately, I am no longer in possession of that chart now, but I still remember the final figure very well. I know that in 1943 my department dealt with approximately 3,000 cases. Of that, about 2,500 were cases of undermining military morale. The other cases were cases of high treason. I remember, that my department, during that year, dealt with more cases than any other department.
Q In how many cases was an indictment files with the People's Court in 1943, as far as your remember?
A I can make a pretty accurate statement, because I compiled the statistics. My two assistants too, Welt and Spahr, compiled statistics. One did it for his own section; the other did it for the department as a whole. Therefore, I am in a position to state that the percentage of the indictments which we filed with the People's Court lay between 4 and 5. In continued compiling statistics until the People's Court was burnt down on the 23rd of November, 1943. On account of that fire, and the fact that subsequently the People's Court was transferred to Potsdam, a groat deal of discord came about in my department. In December of 1943 the number of indictments filed with the People's Court probably was below the percentage which I have mentioned.
Q What do you think was the total number of indictments in cases of undermining military morale, indictments which your Department filed with the People's Court in 1943?
A If I bear in mind that of the total number of about 2,500 proceedings, until the end of the year, because of the fire, we were only able to deal with 2,000 as a maximum, then, in accordance with the percentage which I mentioned before, in 1943, we did not file more than 90 indictments with the People's Court.
All other proceedings were either transferred or squashed.
Q We will refer to that figure later when we deal with the transfer of cases, witness. May I ask you now to direct your attention to Exhibit 159, which we have already mentioned? That is the Prosecution document NG-381. It appears in document book III-G, on page 22 of the German and page 19 of the English text. The subject of that proceedings is the trial of Oscar Bock, for undermining the military morale.
THE PRESIDENT: A correction, for the purposes of the record: Exhibit 159 is in Document Book III-D, at page 17 of the English.
DR. TIPP: Thank you.
BY DR. TIPP:
Q The indictment appears on page 2 of the document, and following pages. On page 4 there is the signature, "Deputizing, Dr. Barnickel." That is to say, you signed that indictment. Apparently you did so when you were deputizing for the Chief who was away. At any rate, the document does bear your signature. Would you please tell us why that indictment was filed with the People's Court?
A Because of the fact that I was so overburdened with work at the time, I cannot remember any details of the case. However, I can say for certain that the reason for filing the indictment with the People's Court was not -- I am referring to the fact which has been mentioned here before -- that Beck was of mixed descent, first degree.
I think I have explained sufficiently my attitude to that question in general, but I shall revert to that subject later. That attitude of mine had remained the same for ton years, and I did not change it in 1943. The fact that it was a Vienna Ortsgruppenleiter who denounced the man -- that fact too is of no importance. I believe it is hardly necessary for me to mention this, but for my department too, which submitted that case to me, it was of no importance either.
As I look at that indictment now, I am inclined to assume that we wanted to arrive at a basic decision. The novel clement in the proceedings against Bock was the fact that ho had criticized the employment of women. That was a measure which only started in the first weeks of 1943. It was designed to keep up production, and it had been ordered by the Reich and not by the Party. I believe that all the belligerent countries had introduced measures of that kind.
According to the date when the indictment was filed, it is possible that this indictment Beck was the first one of its kind. Not only the legal questions decide what the basic element of such a case is, but novel facts of a case also can constitute a basic clement.
For the rest, ever since I had known the Reich Prosecution, occasionally less significant cases, where one was not expecting a very serious sentence and certainly not the death sentence, were indicted with the People's Court if they were of a certain importance for the whole country.