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.
Q Witness, you say, then, that you believe the indictment was filed with the People's Court because tho case was important for tho whole country and because it contained a novel element?
A Yes, that is possible.
Q Does tho form of tho indictment show that it was the intention to ask for tho death sentence?
A No, on no account. When the indictment was phrased, and in particular because of tho legal provisions which were cited -- in all that, there is nothing to indicate that it was intended to ask for the death sentence. On the contrary; and I should like to refer to tho enclosure, the letter, which was sent with the indictment. It was written on tho 30th of July, 1943, to tho Presiding Judge of the People's Court. It appears on page 5 of the document.
In the second paragraph of that letter, which is also signed by me, it is expressly pointed out that under Article 2 of the law of 20 December 1934, prosecution under that law had been ordered. That law was the Malicious Acts Law, which has been mentioned here a great many times. I should think that is a proof for tho fact that we considered tho application of that law also possible, for otherwise it would have been stupid to make reference to it. The maximum penalty for violation of tho Malicious Acts Law would have been a five-year sentence. I think it is possible that not only the question of tho employment of women was the cause for taking this case to the People's Court, but also tho question of the application of tho law in general.
Q Witness, what was the Senate with which your department cooperated in the field of undermining military morale?
A It was the 4th Senate, and the presiding judge was Dr. Koehler, whose name has been mentioned in a favorable context repeatedly here. May I state that in 1944 Dr. Koehler was transferred from the People's Court to Stettin, because Freisler did not approve of him. The 4th Senate dealt mainly with high treason cases. Later on it also had to deal with the undermining of military morale. However, when the distribution of work was changed again, it had to return those cases because there was dissatisfaction with the sentences that that Senate had passed.
Court No. III, Case No. 3.
Q Concerning the incorporation of Dr. Bach's department with the 4th Senate may I refer you to Barnickel Document *1 which has been accepted as Barnickel Exhibit 12. It is in Document Bock I, on page 40. The witness Bernhard Bach, on page 42 of this document -mentions the following statement -- and I would like to direct the attention of the Tribunal to it.
"In the further course of presenting my defense I shall have another document to present in connection with this document. That will be Barnickel Document 27, on page 88 of the Document Book. That is an affidavit of Scheide, District Court Director."
Witness, in connection with those indictments that were filed it would perhaps be advisable if you repeat it briefly, what were the general prerequisites for filing an indictment?
THE PRESIDENT: May I interrupt you with a question first? The letter to which you refer was the letter of 30 July 1943, wasn't it?
WITNESS: Yes, your Honor.
THE PRESIDENT: I wondered if you could tell me what was meant by the last phrase in that letter, where you say: "The prosecution under Article II of the Law of December 20, 1934 has been ordered as a precaution." -- The part, "the prosecution has ordered as a precaution" - what did you mean by that?
WITNESS: Your Honor, by that I want to say that that passage points out that if sentence was not to be passed on the basis of undermining of military morale, prosecution under the Malicious Acts law would be made.
Well, - that was a case of a measure which might be taken, your Honor.
THE PRESIDENT: I understand. Was it the practice to appoint defense counsel even in cases where the death penalty was not expected, in your court, in the Peoples Court?
WITNESS: Your Honor, at my time -- I don't know what happened later -- but at my time, every defendant who appeared before the Peoples Court No. III, Case No. 3.Court had to have a defense counsel, without exception.
That had nothing to do with the death penalty.
THE PRESIDENT: Thank you.
BY DP. TIPP:
Q Witness, may I repeat my question. I may ask you to tell us what were these general prerequisites for filing an indictment?
A Well, that question has been touched upon repeatedly here. There had to be sufficient suspicion that defendant had committed the offense, that is to say, a certain probability was sufficient.
Q In connection with the undermining of military morale, particularly in this case, I think a further question is important. The question: What did one mean when one said the undermining of military morale in public?
AAccording to the jurisdiction of the Supreme Reich Court and the Supreme Military Court, military morale was undermined in public even if statements had been made in front of only one person, if the offender had to expect that that person would pass on his statements to an indefinite number of other persons.
Q These two prerequisites, therefore, in your opinion, in the Beck case, did exist?
A Yes.
Q Now, one more question concerning the undermining of military morale cases in general. Were all those cases dealt with by your department?
A To start with, yes; from the summer of 1943, however, certain categories of cases were transferred to Department I, which collaborated with Freisler's Senate. According to the distribution plan of the Peoples Court, Freisler could also deal with certain cases from my department, at his Senate.
Q How long was it that your department dealt with those undermining-of-military-morale-cases?
A Until the 31st of December 1943. Then they were transferred Court No. III, Case No. 3.to another department.
Q Another document has been presented by the prosecution in connection with undermining of military morale, and there, too, your name is mentioned. I am referring to Prosecution Exhibit 140, Document NG-377, from Document Book III-C. The document deals with the proceedings against Wilhelm Zinser for undermining military morale. The judgment which was submitted together with the Exhibit is dated 6 November 1943. Can you tell us, witness, whether your department dealt with that case?
A The document shows that it was Department I, which I have just mentioned, which dealt with that case.
Q But the prosecution has connected you with the matter, witness. In presenting this evidence on the 24th of March 1947, page 953 of the German text, and page 932 of the English text, the prosecution stated the following, and I quote:
"We point out that the opinion, parts of which we have just read out, were signed, and were initialed by the following defendants: Lautz, Barnickel and Rothaug, That appears on page 93 of the English Document Book." End of quotation.
Please, comment on this, witness.
A My initials which the prosecution mentions do not appear below the opinion. I think that must be a mistake. My initials appear on a so-called circulation slip. Until the Peoples Court broke down, it was the custom for all judgments and indictments to be circulated according to departments for their own information. There are exceptions, for instance, secret Reich matters. According to statistics which have been presented here in Document NG-160, Exhibit 124, the Peoples Court in 1943 passed a total of 1312 judgments. The number of indictments was even higher. If one had wanted to read all those circulated matters one would have had to read approximately three thousand indictments and judgments. Nobody had the time to do that; and nobody expected us to do that. If ever we did have time perhaps, we just had Court No. III, Case No. 3.a look at one or the other document, if one thought that one might be interested in that particular document, but as a rule in those days we just initialed the circulation slip without having read the documents; but we had to put out initials down because unless we did so, these documents would come back to us again and again.
I repeat, therefore, that I had nothing to do with this Zinser case with which I have been connected, nor do I remember that I read the documents when they were circulated to me.
Q In connection with this matter may I refer to Exhibit 9, Document No. 7. The witness Spahr under figure 9a of this document states here on the question of circulated document.
The prosecution submitted further circulation lists with the following exhibit numbers; Exhibit 133, Document NG-642, from Document Book III-A. Further, prosecution exhibit 134, Document NG-497, also from Document Book III-A. And the last is Prosecution Exhibit 137, Document NG-596, from Document Book III-B.
Witness, may I ask you whether the same applies to those documents and exhibits -- does it apply what you said with reference to Exhibit 140, that is to say, the Zinser case?
A Yes, the same is true of that. For the sake of clarity, may I say again that by initialing the circulation list we did not assume any responsibility for the judgment or the indictment. And no such responsibility was connected with initialing the list.
DR. TIPP: Your Honor, may I interrupt briefly? The defendant Oeschey is not feeling well and he asks for a brief recess. His request has just been handed to me.
THE PRESIDENT: A recess for him personally, or for the entire -
DR. TIPP: It would be sufficient if permission were granted Defendant Oeschey to leave the courtroom.
THE PRESIDENT: He may be granted that permission, in proper company. I presume he is in custody. There should be someone to accompany him. 7701 Court No. III, Case No. 3.If it becomes necessary for him to be excused for the balance of the day proper application would be considered by the Court.
DR. TIPP: He has just told me that he does not think that will be necessary, your Honor.
After this interruption, witness, may I continue: I should like to ask you to redirect your attention to the cases of undermining military morale and to tell us something about the question of transferring cases to the General Public Prosecutors, a question with which we have already dealt. Earlier you said that about 95 percent of the cases of undermining of military morale were sent from your department to the General Public Prosecutors - is that correct?
A Yes, that is correct. The figure was just slightly above 95 percent.
Q What was the significance of the circumstance that a proceeding was handed to the General Public Prosecutor?
A It had been the custom for many years that the Reich Prosecution sent cases of lesser importance to the General Public Prosecutors. The District Court of Appeals were accustomed -
THE PRESIDENT: Would you explain that to me, please? I think I should understand it now but -- do you mean to the General Public Prosecutors in the various districts of the District Courts of Appeals -- is that what you mean?
WITNESS: The General Public Prosecutors with the District Courts of Appeals, Your honors, had these cases sent to them by us.
THE PRESIDENT: Yes. You were referring to all of them, not to any one prosecutor? They were spread out and sent to the various appropriate General Public Prosecutors? In what court would they then appear for trial - ordinarily - if they were sent to the General Public Prosecutor?
WITNESS: Your Honor, this was the way it was handled: If, when passing on the case, we did not also issue instructions, then the General Public Prosecutor could handle the case in whichever way he liked. For example, he himself could file an indictment, or he could pass it on to a subordinate Senior Public Prosecutor. Or, he could quash the proceeding if he thought that the evidence was not sufficient.
THE PRESIDENT: But if he deemed that an indictment was proper, where would the indictment normally by filed in that type of case? Did he have an option as to what courts he should proceed in?
WITNESS: A General Public Prosecutor was the prosecutor with the District Court of Appeals, and when he himself filed the indictment he filed it with the District Court of Appeals.
THE PRESIDENT: Thank you very much.
BY DR. TIPP:
Q I would like to ask you another question on that: Who were the General Public Prosecutors to whom you passed on cases when you did pass them on? Were there any local limitations or did you deal with the matter according to where those cases had occurred, or what district, or what was the way you handled them?
A Well, that was a competency question. For example, if the defendant had committed his offense in Munich, then it was the General Public Prosecutor in Munich who was competent. But I would like to add, and that is essential in judging this problem, I would like to add that the District Courts of Appeals, which also regarded these cases as cases of lesser importance, as a rule passed more lenient sentences.
Q Now, I am coming to the subject of you in your capacity as a department chief. When you passed on cases to the General Public Prosecutors wore you quite free to act as you liked?
A The department chief himself had to sign tho document by whih the case was passed on. As I have pointed out here before, that was really a main field for which he had to give his signature.
THE PRESIDENT: May I ask one more question. I am merely trying to understand as well as possible the procedure. If a case was transferred to a General Public Prosecutor could he also file an indictment in a Special Court if there was a Special Court in his district?
WITNESS: No your Honor. A General Public Prosecutor could only file indictment with his own court, that is to say, the District Court of Appeals, and the case was tried before the Penal Senate of the District Court of Appeals.
THE PRESIDENT: Thank you.
WITNESS: But I should like to add this: For example, if a General Public Prosecutor, before he had filed the indictment with his court, came to the conclusion that this was not a case of undermining military morale but was an offense against the Malicious Acts Law, then he could pass on it on to the senior public prosecutor, and the senior public prosecutor could file the indictment, under tho Malicious Acts Law.
BY DR. TIPP:
Q We stopped at the question as to whether, when passing on cases, you had a free hand.
I don't think you finished answering my question.
A Well, I had said that really that was the main sphere in connection with which the Reich Prosecutor had a right to sign, hut there were certain directives and for example, in connection with cases of undermining military morale, the Chief occasionally asked for a report, a summary, and then gave his orders stating what cases were to he passed on, and what cases were to he indicted with the Peoples Court. But all those directives were very vague, and there was quite a lot of scope for individual judgment. When in the summer of 1943 Freisler began to deal with the undermining of military morale cases, we were particularly anxious to pass on cases which otherwise might have come before his Senate.
Q There is one more question, witness, which I would like to discuss with you in this connection. From exhibit 220 of the prosecution, Document NG-671, from Document Book III-I-it can be seen that when dases were passed on to the general public prosecutors instructions could be issued, - directives. May I ask you, witness, whether you, in your department, made use of that right to issue directives?
A Well, that is a problem on which I have already touched. But, I may point out that that exhibit originates from the year 1944. And at that time a new custom had been introduced. I myself, as I pointed out before, as from 31 December 1943 handed over the undermining of military morale cases to another department. And during the time I dealt with those cases the general public prosecutors did not receive instructions, but had a free hand.
Q Before I leave the subject of undermining of military morale cases, witness, may I ask you at hand of Exhibit 124, Document NG-160, which you have already mentioned, to tell the Tribunal that the figure of about 90 indictments with the Peoples Court according to that statistics is correct; for you will admit that in comparison with the total number of 2,400 cases a number of only 90 indictments sounds almost improbably low.