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.
If that opinion was correct, his death is a piece of good luck."
Then, in that entry I described the police methods taken after the assassination; I called them Bolshevist methods. I ended my remarks with the words that "in this war there will be only one victor, Stalin". I quote: "It is not essential whether his troops will conquer or will be conquered, but his spirit is victorious right now."
Q. That concludes what is to be said concerning the Gestapo. Now I should like to deal with several other questions, witness.
Several weeks before Heydrich's death, Hitler made his speech of 26 April 1342, which has been mentioned here frequently. May I ask you what impression that speech made on you?
A. I can say that I was deeply shocked by that speech. That speech is known here, and I do not need to tell you what it was about. That speech and the resolution by the Reichstag was considered by me not only a devastating blow for the Administration of Justice, but a devastating blow for the entire common weal, because that increased the dictatorship to an intolerable extent.
Q. Did you draw any consequences from your point of view in this respect?
A. Well, yes, I drew very serious consequences. As a civil servant, of course, I could not do anything because I did not hold any position that afforded any opportunity of influence towards the outside. However, that speech made it clear to me that things could not go any further in that direction and that something had to be done. I do not want to go into too much detail, but I arrived at the conclusion that it must be possible to remove at least those individuals from Hitler's surroundings who, time and again, were considered to be his evil spirits. As the exponents of that direction I considered, first of all, Bormann and Himmler, together with Heydrich. I was of the opinion that it must be possible to eliminate these men, and that it would then have to be possible to bring Hitler under a sort of tutelage, and by so doing to liquidate, by and by, the regime and the war.
That, at first, was merely an idea which would have had to be developed further, but I was of the opinion that first of all an attempt had to be made to propagate an idea of that kind.
In Germany at that time, of course, there was only one single power which would have been in a position to carry out these ideas, and that was the armed forces. Therefore, I made an attempt to have this idea supported by a person who belonged to the armed forces at that time, and who had been put in a favorable position of liaison just at that time, and to have it presented to the armed forces. Unfortunately, that attempt on my part was not successful. In the course of a lengthy conversation which took place in the beginning of May 1942, arguments were put to me which were based on the military situation at that time and against which I could say nothing.
I cite this occurrence, first of all, in order to show how extraordinarily I had been impressed by Hitler's speech at that time and how deeply I was imbued with the conviction that one had to take some action.
DR. TIPP: May it please the Tribunal, I shall offer later in the course of the trial Barnickel Document No. 20 from Document Book II at page 133. That is an affidavit by Freiherr von Besserer of 31 July 1947.
Q. One more question in connection with this, witness. Did you know at that time that a military conspiracy had been instigated?
A. I did not have the slightest idea of that, nor did I know that among the men who later prepared the events of 30 July there were also honorary judges of the People's Court.
Q. When you described your work in the field of cases concerning the undermining of military morale, you mentioned the person of Freisler. Will you please explain to the Tribunal what you attitude was toward Freisler?
A. I have already mentioned the fact that the indictments prepared in my department did not go to Freisler's Senate. Therefore, at that time I had practically no contact with him, but that was not the essen tial thing.
In order to answer your question, counsel, I should like to refer to an entry in my diary of 3 October 1942, which says, and I quote:
"When I went to Spahr afterwards -- that is one of my assistants -- I met Duval there, who was greatly disturbed by the new directive by Freisler. He was trying to get a terrific speed into the work. If a session lasted only half a day, he wants the sentence to be read the same evening, and so on. In addition to that, he continously writes letters to his subordinates, to district court director Duval, and then there is some trifle, which otherwise is dealt with either directly or doesn't have to be stated at all. I consider this pathological, and believe that one day that it will break out in the form of an apparent disease. But there are more neurotics than that one."
In this connection, I should like to say the following Into the practices and decisions of Freisler, I had little insight at the beginning. When in 1943 I had to deal with cases of undermining of military moral, there was such an amount of work that one had no chance to bother about anything unless one was immediately concerned with them. That changed somewhat when after the fall of Mussolini, another department was charged to deal with cases of defeatism, and Freisler received the indictments from that other department for decision. I already mentioned that. Of course, by the decisions of Freisler, certain dangers arose for my own activity. For one, he was in a position, on the basis of a change of the routine of the People's Court, to receive individual indictments from my department also. Besides that, it is clear that his work in the course of time had to influence the entire field of cases dealing with the undermining of military morale. Since I had come to know several judgments by Freisler, which did not seem tenable to me, in the summer of 1943, I came to see the verdict which appeared to me to be grossly exaggerated.
It was directed against the simple foreman, and put quite unusual requirements to the political insight of that man.
I thought it over for a while, trying to find out what could be done. Finally, I did what in view of my position was the only thing to do. Again I have to recall that I was just a subordinate official. Therefore, when the opportunity arose, I voiced my serious objections against that sentence to the Chief Reich Prosecutor. I have to mention again here that as far as my department was concerned, I had nothing to do with that case.
In the course of the conference with the Chief Reich Prosecutor, I termed Freisler as a psychopathic case -- an expression which one could have heard from others occasionally. The end of the conversation, as far as I remember it, was that the Chief Reich Prosecutor told me that also in the Ministry there were objections and misgivings against that sentence. That closed the matter for the moment because one had to wait for a decision of the Ministry.
Q Do you still remember, witness, what that decision was -- that decision by the Ministry?
A First a certain amount of time passed. The Chief Reich Prosecutor, as I believe, was away on vacation. I was also absent far a short time. It may have been in the beginning of November when again we discussed that matter, and I found out that the individual who had been sentenced had committed suicide by hanging in the meantime, and that, of course, made unnecessary any steps with the Ministry against that sentence.
Q Did you see any further sentences by Freisler later against which you could have done anything with any chance of success?
A No. A short time after, the main building of the People's Court burnt down. My department and two others were evacuated to Potsdam. From that time on, I no longer saw any sentence by Freisler. Moreover, as I have already mentioned, by the end of the year my sphere of work, particularly dealing with cases of undermining of military morale, was turned over by mo to another department.
Q Witness, the questions dealt with up to now did not refer to your work as department chief. May I ask you now to describe to the tribunal what the consequences of your personal attitude wore within your department?
A Throughout the years, I tried to work toward moderation, where that seemed necessary and possible. Of course, I was public prosecutor. I could not ignore the laws and was bound by directives. In many cases, even the chief of an official agency was powerless. In other cases, he may have had some right of decision. Then I could try, by speaking to him, to bring about a decision which was according to my thinking. That, of course, I did frequently. As to what attitude I had personally, I have explained that generally already, and I shall refer to individual examples later.
Q May it please the Tribunal, in this connection, I want to offer to support the statements by the witness, a number of documents. The first I want to offer in this connection is the Barnickel Document 80, Page 26, of the Document Book. It is an affidavit by First Prosecutor Erich Koalick of 2 June 1947. I offer this document as Barnickel Exhibit 14.
TBE PRESIDENT: The exhibit is received.
DR. TIPP: The next document I offer is from Page 47 of tho Document Book, the Barnickel Document No. 13, and is Barnickel Exhibit No. 15. It is an affidavit by Landgerichtsrat Heinrich von Zeschau of 15 July 1947. I offer it as Exhibit 15.
THE PRESIDENT: The exhibit is received.
BY DR. TIPP:
Q Furthermore, I offer on Page 53 of the Document Book, the Barnickel Document 15, an affidavit by Landgerichtsrat Haumann of the 30th of June 1947. I offer this as Exhibit No. 16. Then I want to refer to Barnickel Exhibit No. 9, Document No. 7, from Document Book No. 1; and finally, Barnickel Exhibit No. 8, tho Barnickel Document No. 10, as well as tho Barnickel Document No. 11, which is Exhibit 12. All of those statements refer to tho questions which Dr. Barnickel has elucidated.
Witness, you have just mentioned that you had frequent conferences with tho chief as is customary. May I ask you whether at any time tho chief made any statements about tho increasing severity of tho decisions of tho People's Court in general?
A Yes. I gather that from an entry in my diary of 15 June 1942, which states as follows; I quote:
"Later I had a conference with Lautz where I pointed out the fact that there wore so many death sentences, and how disagreeable it was."
That must have boon the time when the increasing severity of the decisions of the People's Court, and in particular, of individual senates became increasingly apparent. Apparently, I did not refer to any individual case, but I always had a rather reserved attitude as far as the death sentences were concerned. That had always been my point of view, end by making that statement, I quite in general terms wanted to express my animosity against the increasing application of that severity.
Q You have briefly explained what your position to the death sentence was, can you give us some explanations in general as to what your position was concerning the extent of penalty?
A Well, before I discuss that in detail, I should like to add to my brief statement that the Chief Reich Prosecutor at that time shared my misgivings, in my opinion, about the extent of penalty in general.
I want to refer to an entry in my diary of 6 September 1942. First I want to say that a short time before that I had bean in Munich, where I met an acquaintance of mine with whom I had worked before. I quote:
"I should like to point out here that Georgi recently told mo that at the time when I was Senior Public Prosecutor (at the old Bavarian Court) I had said that there was no sense in exaggerating punishment, because then it loses its effect.
He added that he had thought about that frequently and apparently he approved that point of view."
Later I find in the same entry, I qoute:
"If one imposes a punishment upon a person, which from various points of view one may consider a just one, and which also the defendant considers as just, it will have the desired effect. However, if one goes beyond that scope, the punishment will at least lose it moral effect, which of course it detrerrent on the individual punished, but it will not return him as a better but as a worse member of the people's community."
Q Witness, you just characterized your point of view concerning exaggerated extent of penalty and also the line of the People's Court -- at least of some senates. As a department chief, were you in a position to do anything in order to prevent that aggravation of the decisions of the People's Court?
A.- For a department chief, it was very difficult to do anything against the development of the practices and decisions, but that whereever I could do something I did so can be seen from an entry in my diary of the 29 June 1942. I quote:
"Bruchhaus -- that is one of my assistants -- today returned from Frankfurt very shocked because Engert, on principle, applies the death sentence against anyone who during the war still acted as a Communist. I told my assistants that we want to file indictments only with the Second Senate thereafter, in cases where we ourselves consider the death sentence mandatory."
That entry shows that I did not restrict myself to worrying about it, but that I also tried to do something about it. The entry also shows that the sentence had come quite unexpected for mo and for my assistant, but. time and again things happened which could not be anticipated. By coincidence, the sentence which I mention here is to be found among tho documents submitted by the prosecution. It is exhibit 492, and it also contains the name of Prosecutor Bruchhaus, whom I have mentioned.
What thoughts I had at that time about the sentence in particular, today, after more than five years have elapsed, I could no longer tell. At any rate, the large number of death sentences, was not to my liking, The measure against the Second Senate, which I mentioned in the entry in my diary, was also carried out by us.
In October or November of 1942, Engert surprisingly left the People's Court and was transferred to the Ministry.
Q.- Witness, you just said that that measure against the Second Senate, was actually carried out by you. It seems to me that an explanation is necessary on that. Could you choose the Senate with which you wated to file an indictment?
A.- No. We were bound by the plan for distribution of work. If I told my assistant at that time that only in special cases we wanted to file an indictment with the Second Senate, then that means that in all other cases we transferred the cases to the General Prosecutors.