Q. The statement by the witness Hecker, which was just mentioned, is to be found in the transcript of the 7th of July 1947, on page 7474 of the German transcript and page 4850 of the English Transcript.
THE PRESIDENT: May I ask you a question about that?
As I understood your explanation, you justified the order or suggestion signed by yourself, in which you said that the Poles were to serve their sentence in an aggravated prison camp, by referring to the law which required you to do just that in view of the fact that they were Poles. Wasn't that your testimony?
THE WITNESS: Yes, Mr. President. The provision was that, as far as the administration of penalties was concerned, they should be separated. That was a discrimination between the Poles and Germans but as Hecker said, in practice, it was not carried out that way.
THE PRESIDENT: Well, it was carried out in this instance, wasn't it? They were sent to the special prison camp for Poles pursuant to your direction, weren't they?
THE WITNESS: No, Mr. President. As I understood the statements made by the witness Hecker, that institution.......
THE PRESIDENT (Interrupting): Well, I'm asking you. You directed that they should go to the Polish prison camp, didn't you?
THE WITNESS: According to the law, that change had to be made, but the practical execution is something different and, as far as that was concerned, I have to assume, Mr. President, that, in practice, it was not carried out, but that the Poles stayed where they were.
THE PRESIDENT: You think that your order was not carried out in this particular case?
THE WITNESS: Not only in this particular case, but, in general. That was a fact of purely theoretical importance. It was just on paper. There was a provision and one had to follow it, but whether it was carried out, in the final analysis, or whether it was not carried out, it was done on paper.
THE PRESIDENT: Do you personally know whether your order was carried out or was not carried out in this particular case?
THE WITNESS: No, Mr. President, I'm not in a position today, of course, to state what might have happened in the Case Kubiak. I can only state it in general.
THE PRESIDENT: All right.
It appears from another exhibit that Kubiak died in a concentration camp at Auschwitz.
BY MR. TIPP:
Q. Excuse me, Mr. President, I'm coming right now to discussing that and maybe I may continue. It is not a different exhibit, but it is found on the following pages of the same exhibit, Exhibit 267. I'll refer to it immediately.
The next letter in the same exhibit is a letter with the letterhead "office of the Penal Institution Schiratz" of the 15th of January 1943. That letter is directed to the Chief Prosecutor with the People's Court. In that letter it is stated that, upon directive by the Reich Minister of Justice, the administration of penalty on Kubiak had been interrupted and that he was turned over to the Gestapo at Litzmannstadt for the purpose of having his transferred to the concentration camp Auschwitz.
Witness, you have a photostatic copy of that letter before you. May I ask you to tell the Tribunal whether, on the basis of that photostatic copy, you could say whether it was ever submitted to you?
A. Yes, well, after.....
Q. (Interrupting) Excuse me, witness. Do you mean to say "yes"? Or was that just a turn of phrase?
A. Well, that "yes" was just an introduction to a sentence. In this case it would be important if I said just "yes".
According to the photostatic cony which I have here, it is quite clear that I have never seen that letter. I have said before that not the entire mail received in the department was submitted to me, but that from the office I received only that with which I had to deal.
That letter, however, did not have anything to do with my sphere of work. If it had ever been routed to me, the handwritten notation which is below the text, under figure 1, would have to read: "To be submitted to the department chief", but that was not done; but the office chief had made a notation for his list of reports but never routed it to me. One can also conclude that from the fact that the letter neither beats my signature nor my initials.
As for the text of the letter itself, I should like to point out that, according to the wording of the letter, the transfer of the prisoner was not directed by the Chief Reich Prosecutor, but by the Reich Minister of Justice. My office chief, therefore, merely was informed about a disposition which had already been taken.
Q.- Here for the first time the concentration camp Auschwitz is mentioned, witness. May I ask you whether at that time you had any knowledge about that concentration camp?
A.- According to my recollection, which I believe to be absolutely correct, I heard the name Auschwitz for the first time when we went through all the newspapers after the catastrophe. May I also mention in this connection that the transfer of Poles to the Gestapo, the turning over of Poles to the Gestapo, by the Reich Ministry of Justice became known to the Reich Prosecution, for the first time in 1943, and, as I have said before, a short time thereafter on account of the reorganization of the office of the Reich Prosecution, I had no longer anything to do with any questions of that kind.
Q.- Now, witness I am coming to that part of the document which was already touched upon by the question of the Presiding Judge. It is a letter from the Secret State Police, the Gestapo of Litzmannstadt, of the 25th March 1943, addressed to the Chief Reich Prosecutor in Berlin. In this letter the Socket State Police states that Kubiak on the 13th February, 1943, had died in the concentration camp of Auschwitz. That letter is before you in the form of a photostatic copy. Could you please establish on the basis of that photostatic copy whether that letter was submitted to you?
A.- The same applies here that I have already stated before. I did not see that letter either. The handwritten notation reveals that my office chief, who was a different one at that time, on the 2nd of April, 1943; took note of that letter. To the left of that date we see the letter "B"; but that "B" is not my initial -- is not an initial by me by any means, but it is the abbreviation for Berlin. My initial looks quite different, as can be seen by looking at a number of documents.
Q.- May I refer to the statements made by the witness Hooker on the 7th July, 1947, on pages 4776 of the German and 4851 of the English tran scripts.
Furthermore, may I refer to the Barnickel Document No. 16, submitted and received as Barnickel Exhibit No. 7. It is the affidavit by Justiz Secreataer Werner Tiedemann, of the 12th July, 1947. Tiedemann worked as department office chief, under Mr. Barnickel. I submitted that document in the photostatic copy to him; he commented on it, and perhaps I may be permitted to quote that short passage; the passage is on page 2 of the original document, on page 57 of the document book. I quote: "Concerning the document which has been submitted to me, in the form of a photostatic copy, NG-614, Exhibit 267, I have to say the following: The letter, dated 15 January, 1943 (page 13 of the photo copy) was not submitted to the head of the department by the chief of the administrative office Struck. If it had been submitted, the 'handwritten order of 27 January, 1943, which has been initialed by Struck, would have to bear a note to this effect. The same applies to the letter of 25 March, 1943, phototastic copy page No. 14; the handwritten note on this document is initialled by the chief of the administrative office Schroeder. His initials are next to the date of 2 April, 1943. The letter "B" on the left hand side of the date is the abbreviation for Berlin."
THE PRESIDENT: May I ask you a question? What class of prisoners were confined in the central camp Schiratz?
A.- Well, Mr. President, I have to state frankly that this is asking a little too much. I don't know whether there were only penitentiary prisoners or other prisoners. I want to say in this connection that in the question which we are about to deal now, that subject is touched upon, and I will have to explain that the chief Reich Prosecutor and the Reich Prosecution, as such, had nothing to do with the actual administration of penalties. The administration of penalties was a matter for the general: public prosecutors. Therefore, I apologize -
THE PRESIDENT: Yes, but you made an order which was an order, as you say on paper, directing that these men should serve their sentence in a particular kind of a prison camp.
Did you then know whether there was such a prison camp or where it was when you made the paper order? Was it, per chance, at Schiratz?
A.- I don't know if I understood correctly, Mr. President. May I point out that in a document which was discussed before, Exhibit 267, on page 3, the address is to the Chief of the central institution Schiratz the manager of the central institution Schiratz. In that place the convicted individuals were at a time when that change had not yet taken place even on paper. I hope that I have expressed myself clearly. If I may ask you, Mr. President, now to look at the letter of the 15th January, 1943, of which I have a photostatic copy, which we have discussed you will find, Mr. President, that the defendants at that time that is to say about a year or three-quarters of a year later, were still in the same institution. In the meantime, therefore, nothing occurred; no change occurred.
THE PRESIDENT: That was the reason I asked you whether you know if there was at Schiratz central camp an aggravated prison camp. I understand that your letter of 4th May, on paper, directed that they be put in such a camp, and on 15th January -- or on 14th January, they were in the Schiratz camp and were removed to Auschwitz. Why should we not infer that the order was carried out at Schiratz?
A.- Mr. President, if I remember correctly, if you will excuse me if I refer to Hecker again; the witness Hecker it was who said that no change was made in Schiratz, and it seems to me that the letterhead of the two letters would indicate that, but again I ask to be excused if today after more than four years I can not describe these things in all details, because, as I have explained before, I handled these matters only for a few weeks altogether, but Hecker has explained and I can only say that in my -
THE PRESIDENT: You needn't quote Hecker; we are familiar with his testimony.
You don't know, do you, whether the more severe prison camp was maintained at Schiratz or not, for Poles?
A.- Mr. President, in my opinion there was no aggravated penal camp there.
THE PRESIDENT: Go ahead.
BY DR. TIPP:
Q.- Witness, the questions as put by the Presiding Judge lead us to the next question, which is the one to whom the witness Hecker, who has become quite famous here, referred to. He pointed out the difference which existed in German law between the administration and execution of sentences. Will you tell us once more, witness, did you have anything to do with questions of the execution of the sentence?
A.- No, the Reich Prosecution had nothing to do with that, because carrying out the execution of the sentence, as I said already, was not a matter for the chief Reich Prosecutor, but for the general public prosecutors. That is the reason why in all of those six years during which I belonged to the Reich Prosecution I never visited a prison, a penitentiary, or a camp, a penal camp; that is, with the exception of one case which we shall soon discuss.
Q.- Therefore, you had no supervision, no right of supervision over these institutions?
A.-Well, I personally wouldn't have been the right official for that; only the chief of the entire office of the Reich Prosecution and he had no right of supervision over these institutions either -
THE PRESIDENT: Assuming for the moment that you had no supervision over the manner in which prisoners were treated in prison or prison camp, still you did have some responsibility for seeing that they were put into a prison after the sentence had been pronounced: did you not? You had to get them there and someone else had to supervise the conduct of the prison after they got there?
A.- That is quite correct, Mr. President. The Chief of the Reich Prosecution with the People's Court had the obligation of administration of penalties, that is by an order on his part, he had to initiate these matters, but then he had nothing further to do with it.
THE PRESIDENT: That is all.
BY DR. TIPP:
Q.- The question of execution of sentences in the case of prison terms is clarified I believe now. What happened in the case of death sentences?
A.- That I believe has been described here so often that I can be very brief about it; only for the sake of clarity, may I say that in the case of the death sentence, first the clemency question had to be examined; then when the decision from the Minister was received, to the effect that tho execution had to be carried out, the chief Reich Prosecutors set the date for the execution and at the same time designated the official of the prosecution who according to paragraph 454 of the code of procedure, penal code of procedure, was obliged to attend the execution which took place in a prison. That, as far as we were concerned, was nothing sensational; it was a duty which one could not shirk; the designated official who had to attend, was chosen according to the law and a roster was drawn up for this purpose. It did not make any difference whether one had had anything to do with the matter, with the particular case or whether one hadn't.
Q.- When the Prosecution submitted documents in this connection one document was submitted against you. It is Exhibit 493 of the prosecution; Document NG-925; from Document Book 111-B Supplement; In this exhibit there is contained a report from you concerning the execution, of Erich Deibel: by sentence of the People's Court of the 6th June, 1942, Deibel had been sentenced to death for preparation of high treason, Witness, will you please comment briefly on the contents of the report which you made concerning the execution of the sentence?
A.- In connection with that I can only say that in this case on the basis of the roster which I have just mentioned, I was designated to represent the Reich Prosecution by attending the execution. Anything else which is said in this report about the execution was according to the most detailed directives which existed for that occasion on quite a general basis. May I also say that if I remember correctly, that execution was the last one which I attended; that was due to the fact that originally only the department chiefs and their deputies had the obligation to attend the executions. In the course of the year 1942, however, all the section, heads were included on that roster so that it was no longer necessary to have the Reich Prosecutors on it.
Q.- One problem we still have to go into is the so-called extra ordinary objections. About that you have given us a statement which was submitted by the Prosecution as Exhibit 174, Document NG-321, in Document Book III-E. Herr Klemm when he testified expressed doubts as to whether at the time when you made that statement you based yourself on the right prerequisites. Therefore, I should like to ask you to comment on the statements you have made.
A.- First, if I may correct you, according to the document which I have before me, the document is NG-312.
Q.- Possibly; any rate, the exhibit number is 174.
A.- Yes, I did think over this statement that I have made, but I see no reason to make any corrections.
I mainly described the purely theoretical procedure on the basis of which an extraordinary objection could be made. A concrete statement which referred to the practice of the Ministry, I only made in two points, namely, first that during the years 1943 and 1944 the majority of extraordinary objections were in the field of underlining of military morale, because that field increasingly had the interest of the Ministry, Mr. Klemm stated that the Ministry was only particularly interested in that field because there was a great difference of opinion among the various district courts of appeals; but I am inclined to assume that we have expressed the same thing by using different terms. Secondly, I said that I do not recall one single case where the Ministry had had ordered the extraordinary objection in order to achieve a milder sentence. Also in this regard I don't have to change anything, to correct anything. I was only referring to my department; as to what happened otherwise, I couldn't judge. Therefore, I am not in a position to say what other experiences Mr. Klemm may have had more can I remember that in any such case I ever saw Mr. Klemm's signature.
Q.- Witness, after we have discussed these documents, I would like to refer to your background again; during the time when you were in Munich. You in describing that time, also described conflicts which you had with the police. According to documents which had been submitted in the course of this trial, there is no doubt that Himmler and his police organization threw the administration of justice into the alley. Therefore, I should like to ask you while you worked in Berlin, did you continue your resistance against the police and the Gestapo which you have described in the course of your activity in Munich.
A.- I can only say that I did so wherever it was possible. First, as can be seen from the various documents which have been submitted, I was not a Gestapo man, that is to say I did not stick to the opinion of the Gestapo concerning any particular case, as far as I personally we have been free to exert any influence on the course of any case.
Q.- For the sake of brevity, may I refer to Barnickel Exhibit 9, Document No. 7, The witness Spa hr also comments on that point, Witness, may I ask you to continue and to mention individual cases.
A.- While I was a member of the Reich Prosecution in Berlin, I tried twice to organize resistance against the intrusion of the Gestapo into the field of the administration of justice. Frequently, I had no opportunity to do so, and one must not overlook in this connection that in Munich I had been the chief of an office, of an official agency, though not a very large one, In Berlin, however, I was a subordinated official so that on principle any conflict with other official agencies would not have brought me directly into contact with them.
Q.- Will you please describe the two cases you have mentioned to the Tribunal.
A.- The first was briefly touched upon here; it was the so-called attempt on Hitler's life in the Buergerbrarukeller, in Munich, on the 6th or 9th November, 1939. Officially I had nothing to do with the matter. The Chief Reich Prosecutor by order of the Reich Ministry of Justice had gone to Munich, where there were already difficulties with the Gestapo. Shortly after his return, he told us on the occasion of a meeting of the department chiefs, that Heydrich by order of Himmler had told him over the telephone if once mere anybody from the Reich Prosecution would be seen in the Gestapo office of Munich, he would be thrown out.
That appeared to me to be of such importance that in the course of that meeting of department chiefs I stated immediately that in my opinion that conflict would have to be fought out to the end. I told the Chief Reich Prosecutor that I was certainly backing him up, and in case of a defeat on his part, I was ready to draw the consequences with him; that is to say, I would have been prepared to be removed from office in the event that no satisfactory solution could be found in that conflict.
Q. Did your suggestion have any effect upon the other department chiefs?
A. No. Unfortunately, none of the other department chiefs joined me and consequently, in the course of that meeting, nothing happened. I do not know what may have been discussed by the Chief Reich Prosecutor and the people from the Reich ministry of Justice.
Q. What about the second occurrence, witness, which you have already mentioned?
A. The second case occurred precisely two years later. It had to do with a case which has been mentioned here in detail, a case against the former Prime Minister Elias of Czechoslovakia. It is well known that by the machinations between Heydrich and the then President of the People's Court, Dr. Thierack, the Reich Prosecution was excluded from the session in Prague and that a representative of the Gestapo submitted the indictment and represented the prosecution. The Chief Reich Prosecutor, who had been absent at first, told us about these occurrences as far as they were known to him, shortly after his return, during a meeting of department chiefs. The indignation was general.
Here again, officially, I had nothing to do with the matter because I never had any competency over any region belonging to the Protectorate, nor was I the mouthpiece of the Reich Prosecutors, because I was not the most Senior of them. The event, which, had occurred in Prague, appeared to me to be so important for the future development of the Administration of Justice that I made a short speech to the other department chiefs.
I made an appeal to them not to submit to that, but to attempt resistance against those forces which one saw working there. In time I was successful. All the department chiefs agreed and asked me to explain what steps I had in mind. In order to discuss these steps, I suggested a meeting of all the department chiefs.
Q. Did that rather unusual conference ever come about, witness?
A. Yes; all of the department chiefs met shortly thereafter, again, and I told my colleagues that I considered it necessary to submit a certain number of questions to the Minister in order to clarify the events and the part which the individual participants had played in it. First of all, what we had in mind was to elucidate the part that Thierack had played. My suggestion was approved, and I asked Reich Prosecutor Parisius to undertake the formulation of these questions. That was done, and during a further conference the questions, such as they had been drafted, were approved by all department chiefs. I can no longer give you the actual text of these questions. As far as I know, the questions were submitted to the Ministry of Justice by the Chief Reich Prosecutor I believe they were turned over to Under-secretary Schlegelberger.
Q. Do you know what reception that action had?
A. Yes. Several days later the Chief Reich Prosecutor called us and told us that Freisler had termed that joint step by the department chiefs as mutiny, and that we were all go go together to the Ministry immediately. We went there, and the Chief Reich Prosecutor went with us. There Freisler, in his well known manner, made a speech to us, to the effect that he could not understand this step being taken, that it was contrary to all Prussian tradition, and that he, Freisler, disapproved of it most seriously. And he made some remarks, in a somewhat hidden form against me particularly.
Q. On that occasion, did Freisler answer the questions put to him by the department chiefs?
A. Yes, but in such a clever form that we could not see any more concerning the individual part taken by those who had participated in it. However, no measures were taken against us. We had expected, since he termed our action as mutiny, that that would be done. Neither were any measures taken against Thierack, as I had hoped.
DR. TIPP: May it please the Court, both occurrences are described in the same way in Barnickel Exhibit 9 and Barnickel Exhibit 7, from Document book I.
Q. Witness, may I also ask you whether there was any danger connected in undertaking such steps at that time?
A. That goes without saying. Thierack at that time was already a candidate for the position of Reich Minister of Justice, and Freisler, by his position of power, was ready to do anything, and nobody could anticipate what he would do. However, the most dangerous of all enemies was the Gestapo, against whose interference our protect was directed first of all. The Gestapo did not like it at all when anybody queered its pitch.
May I refer to the fact that several months after I had assumed office in Berlin, the Chief Reich Prosecutor received a report about me from the Gestapo, which was in connection with the attempts I had made to help a couple that had been taken into protective custody.
DR. TIPP: Concerning the latter event, I will be able to submit Barnickel document 38, from document book II, at page 127. It is an affidavit by attorney Dr. Stiegler, of the 5th of August 1947.
Q. One more question, witness. Could the Gestapo come to hear about such internal things?
A. That was always possible, but I don't believe that I have to explain that any further.
Q. Does that conclude your explanation of that group of questions, or do you wish to say anything further?
A. In such cases, one never knew how they would finally come out. If that case had come to the attention of Hitler, then most probably he would have considered it mutiny as well; and one can see from Exhibit No. 22 what he thought about such things.
The fact that that case did not have any consequences for us, I attribute to the impossibility of disciplining all the department chiefs of the Reich Prosecution at the same time.
Q. Did you have any other possibility to raise principal objections against the Gestapo?
A. I cannot remember any other case.
DR. TIPP: Mr. President, I now come to the beginning of a new chapter. I think time is running out.
THE PRESIDENT: You have conducted your examination with expedition. We will recess until tomorrow morning at 9:30.
(At 1630 hours, 26 August 1947, a recess was taken until 0930. hours, 27 August 1947) copy?
It deals with the Schopa case, which we discussed yesterday.
A. I don't have the photostatic copy of the document here, but the copy which I have shows the following for the signature , "Signed, Dr. Barnickel."
Q. I find similar entries in Exhibit 136, NG-595. It is stated there three times, "Signed, Dr. Barnickel." The same is found once in Exhibit 267, which is NG-614. You have the photo static copies before you. Can you please tell me whether my statements are correct to that effect?
A. Yes, that is right. In Exhibit 136 I find my name three times in a typed signature; and in Exhibit 267 it is typed once. There is only one signature in that exhibit which really counts.
Q. Yesterday, in answering these questions, you pointed out that in some cases it is not your original signature on these documents, and you also said that according to the office routine it happened not infrequently that the copy did not bear the same signature as the original did. You just touched upon that very briefly, and when you gave your further explanation, as far as I remember, you said about the following:
"I base myself on the assumption that I have signed the document," and then you added your explanation.
Am I mistaken, witness, or is that correct?
A. Yes, I believe that was what I said.
Q. But I have to ask you again, witness, did you mean your statements to indicate that in all cases which we discussed you assumed that your original signature was there, even though the document shows your signature only in typed form? Or did you base yourself on the hypothetical assumption, that it was so?
A. The latter is correct. I believe that I have explained that sufficiently. It really isn't possible for me today to remember in every case whether I personally signed the letter or whether I didn't.
Q. If I understand you correctly, witness, then you only recognize your signature as your own where, on the phototstatic copy, your original signature appears. Is that correct?
A. I can only state with absolute certainty, whether I have signed a document if I actually see my signature on the photostatic copy , and not merely a signature which is typed in.
Q. After that explanation, witness, it will be necessary, however, for you to explain in more detail how it occurred that the signature on copies was not the same, at time, as the signature on the original.
A. That is just what I tried to avoid yesterday, because it is a little complicated. However , I shall try to explain it as simply as possible.
That has to do with a custom with which I only became acquainted at the Reich Prosecution. If, for instance, an official drafted a request for investigations, or if a chief of an administrative office drafted a letter which I had to sign, the draft was not submitted to me, but the official in question, or the administrative office chief, put his initial on the draft and gave it to the general office where all the typing was done. The typists there, of course, kn w quite well from what department that draft had come. Therefore, they put on the copy the name of the chief of that department. When the finished draft was returned to the office -- and that sometimes took several days --- the original was put into a signature folder and was submitted to the chief of the department; the copy was filed in the office. If, at the time when the signature folder was submitted, the department chief was riot present, his deputy signed the documents. An absence of that kind, of a department chief, occurred frequently, of course, such as when he was on leave, hay I cite as an example that for instance a department chief might have to go to see the doctor; he would then call his deputy and ask him to sign whatever was to be signed in his absence. In the case of a short absence, the office frequently didn't even hear about it.
In that way it frequently occurred that the original and the copy had different signatures.
As far as internal office routine was concerned, that was frequently without significance. At any rate, I do not recall any case where it could have been of significance.
Q. I understood you correctly then, witness, and you have also explained it before, that in the case of the documents which are only signed in type you Cannot state with certainty whether you actually signed the original, and you can only recognize those documents as having been signed by you where you actually see your signature in handwriting on the face of the document, is that correct?
A. Well, this is not a question of what I want to recognize, but what I can possibly recognize, I can only repeat that I can only recognize from the original whether it was I who actually signed it, and consequently whether that matter came to my attention at all.
Q. I believe that is sufficient to clarify this point, which did not seem quite clear to me in the beginning.
May I continue now with my questions, witness? Yesterday we stopped when we were discussing your attitude toward the Gestapo, and you offered two examples of cases where you tried to organize resistance against the Gestapo. The last matter which was discussed was the Elias case, and that is where I want to start from.
The leading personality in that case, according to everything that has been said here and which can be seen from the document, was the then chief of the Gestapo, Heydrich, who definitely could be considered the epitome of the most severe line of action on the part of the Gestapo. Can you tell me what your personal attitude toward Heydrich was, witness?
A. Here again I would like to answer by quoting an entry from my diary. May I remind you that, as I said yesterday, from 1942 on I am in possession of the diaries again, whereas the diaries covering the years before that are missing.
At the beginning of June of 1942 the assassination of Heydrich occurred, as is well known. That caused me to make the following entry on the 4th of June, and I quote:
"We heard this evening that Heydrich died in consequence of the attempt on his life. Here again it became manifest that violence leads only to violence. Heydrich was frequently considered the evil spirit of the Gestapo.