Q.- May I also ask you, witness, to describe those possibilities which arose for you personally within the work of your department?
A.- One of the main possibilities left to the department chief was, of course, to admonish his assistants to moderation. The department chief, apart from that, did not have any independent- latitude except, as I said, in the case of transferring to the General Prosecution also in the case of certain clemency matters. In the field of administration of penalty and in special cases, reopenings of trials could be requested in favor of the defendants.
Q.- In this connection, may I refer to the Barnickel Exhibit No. 9, on page 15 of the Document Book; Exhibit 10, page 29 in the Document Book; and Exhibit 12 on Page 40 of the Document Book.
Q.- Witness, what influences could you exert in particular on your "referenten"?
A.- To quote examples, it was possible, concerning the investigations the motions, demands for penalties to be made in the session, censorship of letters, and similar matters -- to numerous to discuss them. I stressed objectivity and tact and good manners of the prosecution in the sessions. The so-called severe language of the prosecutor was prohibited by me as far as my department was concerned. I termed it frequently as being unnecessary, insulting and dangerous for a just ovaluation of a case. Of course, one could also do something in the field of purely personal influence in conversations with the assistants.
Q.- Could you give us any examples, as far as that is concerned?
A.- I was never afraid to speak quite openly about the tactics of the Party with my younger assistants. As an example, I want to quote the Stuermer actions, the Jewish questions, especially the events of the night of the 8 November 1939, which even later on were frequently discussed; the Polish question, the Hitler question of 1942, the struggle against the churches, and similar matters.
I believed that in doing so I could contribute a great deal to influence the point of view of my assistants in such matters.
Q.- In addition to other documents which refer to these cases, may I offer from Document Book I on page 55, the Barnickel Document. No. 14. That is an Affidavit by Landsgerichtsrat Dr. Lorenz of the 14 July 1947. That statement deals, apart from other matters, particularly with Dr. Barnickel's attitude concerning the fight against the churches. I offer this document as Barnickel Exhibit 17.
THE PRESIDENT: The exhibit is received.
BY DR. TIPP:
Q. If I understood your statement correctly then that part of your activity where you had the greatest latitude was transferring cases 11 the District Court of Appeals. May I ask you to refer to that once more?
A. That is right. I can only say that we could transfer those cases only where it was provided for by the law.
Q. Yesterday you mentioned that in cases of undermining of military morale, one could also assume in its place an offense against the Malicious Acts Law. Did that occur frequently?
A. It occurred quite frequently.
Q. Was it possible that a general public prosecutor filed an indictment for malicious act offense with the District Court of Appeals.
A. No, that was not possible, but if the general public prosecutor filed an indictment with the district Court of Appeals for the undermining of military morale, and if the Senate decided that it was a case of malicious act, the Senate could only sentence on the basis of its being a malicious act. The maximum penalty was 5 years in prison in that case, as I have explained yesterday. A sentence for the undermining of military morale and malicious act at the same time was impossible under the law.
Q. But if the general public prosecutor who had received a case of undermining military morale from you without ant further directives came to the conclusion that on the basis of further investigations, for instance, only the lesser offense of malicious act was apparent, what did he have to do?
A. I believe I touched upon that yesterday in answering a question put to me by the Presiding Judge. In a case like that we transferred the matter to the senior public prosecutor with the Special Court because it was a Malicious Act case.
Q. Maybe you can tell us briefly again why the district Court of Appeals as a rule were more lenient in deciding the cases that were transferred to them than the People's Court?
A. Whatever is transferred down from a higher court to a lower court as a rule is of less importance; and according to an old habit; matters which the Chief Reich Prosecutor transferred without further directives were considered cases of lesser importance. That, of course, affected the extent of penalty.
Q. Witness, yesterday you described the extraordinarly high number of transfers which you effected. Maybe it will be useful, however, if, to illustrate your practice, you give us some individual examples. Can you do that?
A. As I said yesterday, in 1943 we transferred almost 2,000 cases of undermining of military morale. Among these cases there probably were hundreds which would serve to clarify your question if we had the files. Unfortunately, I have only very little material at my disposal, and I can only mention two ca.ses in which &r. specific reasons I have the material. The first is the one of a priest by the name of Wepler from Eschwege. My department in the summer of 1943 received a case against that priest for undermining of military morale and listening to foreign broadcasts. To a member of his community he had made extremely pessimistic statements about the eventual outcome of the war. The case was no doubt a serious one because Wepler was a clergyman who had to expect rather severe standards to be applied to his case. His sentence would have occurred a short time after the downfall of Mussolini, and at that time legal practice became more and more severe. For all these reasons, I had serious doubts if in the case he would be sentenced by the People's Court he would only get a prison term, and I considered the transfer of this case urgently necessary. The Referent, as I remember, was of a different opinion, but I transferred the case to the Armed Forces Court in Kassel because Wepler at the same time was an Army chaplain; and when that court returned the file to us, I transferred the case to the general public prosecutor with the District Court of Appeals in Kassel.
Q. Before you continue, could you tell us what finally the sentence was against the priest Wepler?
A. Wepler received a prison term before the District Court of Appeals in Kassel to the extent of which I could not tell you at the moment.
Q. Will you then please continue your description, witness?
A. That concludes the description of that case; however, I should like to refer to an entry in my diary of 25 June '43, which shows that one of my assistants had confiscated a letter addressed to Wepler. I lifted that confiscation, and on that occasion told the assistant in Question that he was too severe.
Q. Witness, was it your task as the department chief to read letters which were addressed, to prisoners in detention pending trial?
A. No, that was a matter for the Dezernenten; but if one of these officials did not want to let a letter pass, it went through me. I very often cancelled such confiscations, and as the entry in my diary shows, I also reproached him for it in this case.
DR. TIPP: With reference to the Wepler Case, I shall offer from Document Book 2, page 122, the Barnickel Document Number 36. That is an affidavit by Karchenrat Fritz Klingler at Nurnberg of the 26th July '47. BY DR. TIPP:
Q. Witness, will you please describe the second case briefly?
A, That was a penal case against the man by the name of Funder and a Professor Meier-Thur from Hamburg. Both, after the air raid catastrophe at Hamburg at the end of July 1943 had walked around in the street there. At that time they male statements to the effect that the end of the Nazi rule had come and that one had to make an end to the war. Some women who thought that these men were British agents denounced them and the case came before us.
The case was serious as such, and in addition to that the defendants had been termed "politically suspicious"; and the Gauleiter of Hamburg, Kauffmann, who otherwise was considered quite tolerant, had considered the case a serious one. Before Freisler such a case would certainly have lead to a death sentence. I myself, however, was of the opinion that talk of that kind occurring just once after a, tremendous catastrophe such as had occurred in Hamburg was no reason for the most serious penalty. Professor Meier-Thur died in detention, and Funder got a moderate prison term.
DR. TIPP: In connection with that, I will offer from Document Book 2 page 125, the Barnickel document number 37. That is an affidavit by Frau Gerda. Rosenbruck of Hamburg of 27 July 1947. May I interrupt because my colleague Dr. Doetzer would like to make a statement.
DR. DOETZER. (Counsel for the defendant Nebelung): Mr. President, the witness Suchomel, who has been mentioned here so frequently and was called as a witness for cross examination has just arrived as I was told by my colleague Dr. Haensel. He asks, if possible, to be heard immediately because at two o'clock he has to return to Vienna by plane. He has urgent court sessions to attend in Vienna. The defense respectfully asks for a decision by the court.
THE PRESIDENT: Is there any objection on the part of the prosecution?
The defendant Barnickel may step down, and the witness may be examined immediately after the recess. The recess will be taken at this time.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. HAENSEL: (For the defendant Dr. Joel) I ask to call the section chief Suchomel to the witness stand.
THE PRESIDENT: Dr. Haensel, the witness Suchomel has appeared before and has been sworn in this case; has he not?
Dr.HAENSEL: He has already been a witness in this trial.
THE PRESIDENT: And that was not when we were sitting as commissioners, but was before the Tribunal; was it not? Mr. Wooleyhan, this witness was sworn as a witness before the full Tribunal, was be not?
MR. WOOLEYHAN: It is my impression that he was cross examined before the full Tribunal; and was sworn.
THE PRESIDENT: Yes, You need not be sworn again.
SUCHOMEL, a witness, having been previously sworn, took the stand and testified as follows:
CROSS EXAMINATION BY DR. HAENSEL:
Q Witness, I assume that you have already been taken under oath; perhaps you can confirm it.
A Yes, I took the oath.
Q, If I am not mistaken, it was in June.
A Yes, it was.
Q Before that you were already once in Nurnberg and the Prosecution interrogated you. That interrogation resulted in several affidavits which were submitted; do you know this?
A Yes.
Q Now, we are concerned with those affidavits, and that is the first Exhibit 551 -
THE PRESIDENT: Just a moment. We find a note which seems to indicate that the witness was sworn at the time when we were sitting as commissioners. I think he should be sworn again, as a witness before the full Tribunal. Will you stand and be sworn, please.
BY JUDGE HARDING:
Hold up your right hand and repeat after me the following oath: I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated.
BY DR. HAENSEL: (Attorney for the Defendant Joel)
Q Witness, in your affidavit which was introduced as Exhibit 551, and which you signed here in February, the assertion is expressed, the allegation is expressed that Guenther Joel was appointed general public prosecutor in Hamm because until that time the jurisdiction had been too lenient there; and now a man who followed the severe lino in accordance with the requirements was supposed to be appointed there. Was this a personal assumption, a conclusion on your own part, or, did you have any factual basis for that assumption?
A That was only a provisional conclusion that I drew; and I did that because a very short time before that I had had tho district of Hamm referred to me because the Ministerial Dirigent was not there and it was expressly called to my attention that in the district of Hamm more lenient sentences were passed than was in accordance with the average of the Reich.
Q Was it known to you at that time that Joel was the successor of a man who was an old party member, and a bearer of the Golden Party Badge, and who was than promoted from the post of senior public prosecutor in Hamm to that of the president of the district court of appeal?
A That was not known to me at the time; I had nothing to do with personnel matters.
Q These changes in personnel, that is to say the fact that a definite party man was replaced by Joel, in that combination, did you take that into consideration?
A No, I could not do that because I didn't know who was his predecessor.
Q In the subsequent time when Joel came to Hamm, did you then follow the sentences that were pronounced, that is, whether they were more lenient or more severe?
A I can't say anything about that. I had the district of Hamm no longer in my sub-division.
Q, Witness, the lights show that if -- if you will be so kind after my question to make a small pause because of the translation.
Is it known to you that the minister of Justice of Westphalia in the meantime had said that regarding the activities of the courts and the public prosecutions in the district of Hamm, before the collapse, nothing was to bo objected to.
A That is not known to me. About further events after the collapse I don't know anything at all.
Q With that I conclude my questions regarding Exhibit 551, and go over to Exhibit 534; the next exhibit which we want to discuss, witness, and in which you also among other statements mentioned Dr. Joel's activities. In discussing his activities are you speaking of his activity in individual penal cases, or, what were you thinking about?
A I am speaking of his activity in the individual criminal cases.
Q Was it Dr. Joel's task, and particularly in the field of crimes against the war economy, which were supposed to bo handled uniformly, regarding those now laws that prevailed throughout the entire Reich territory, was ho to see to it that all the public prosecutors applied them uniformly?
A Yes, that was the purpose of that special department, "Sonderreferate."
Q Thus, one could say that dealing with individual criminal cases constituted a ministerial guidance of the local public prosecutions.
A Yes.
Q You now described Dr. Joel in your affidavit as me of the most severe referents. In making this statement you were probably thinking of his activities in the field that we mentioned, the public prosecution.
A Yes.
Q Or were you thinking of anything special?
A No.
Q In your affidavit you furthermore say that Dr, Joel received at least one hundred files per day. Is this statement based upon your knowledge of the total number of files from Joel's office, or, how did you arrive at that number. Perhaps you can state that briefly.
A I arrived at that figure exclusively by reports from the assistants of Joel who always complained to me that they were extraordinary overworked because enormously large numbers of cases were submitted to them every day.
Q. From general experiences that one has in life and in the civil service, can one say that the assistants usually like to exaggerate the number of files they receive?
A I cannot answer that in such a general way. It depends upon the person of the assistant, whether he would like to describe himself as heavily overworked. I would accuse the assistants of Dr. Joel in making such a statement of a behavior which perhaps is not pertinent.
Q But if you do hear and you are told that the cases that were received in Joel's department amounted to about fifteen hundred per year, would you have misgivings about this, or, could it be correct?
A The files word after all submitted repeatedly; and, as far as I remember, they did not receive new file numbers again and again; thus, it is easily possible that the number of files that were being worked on and the actual file numbers of cases did not correspond.
Q, Now, a few cases regarding tho activity of the referent. What did a referent have to do if he did not consider an intended application by the senior public prosecutor which was referred to him and which reported about tho extent of a penalty, it justified nor appropriate.
A The reports by the senior public prosecutor wont via the senior general public prosecutor and ho also reported his opinion to the general public prosecutor. The referents were authorized to make decisions themselves if the senior public prosecutor and the general public prosecutor wore of the same opinion; of there was a difference of opinion, there was a regulation that the sub-division chief had to have the files submitted to him. That is at least the way the matters wore handled in my department. How it was in the special sections I cannot know with certainty, because special departments under a referent were not subordinated to me.
Q Now, if a referent who received a case, in the way you just described, and if he was of the opinion that contrary to the opinion of the senior public prosecutor and general public prosecutor a death sentence should be pronounced, could he in that case, on his own, give this instruction to the lower office, or, what stops did ho have to take?
A In accordance with regulations, he would then have had to report the case to the sub-division chief, or, if the division was immediately subordinate to the Ministerial Director, he had to submit it to the Ministerial Director directly.
Q. In your affidavit you mentioned that a file which was supposed to have been examined -- in this file there is mention of thirty pigs and four cows, black slaughtering - there was a motion for the death penalty. I want to come back to this and ask you the law regarding the war economy, particularly asconcerns serious cases of of lenses against the provisions; especially serious cases violating the war economy, provided the death penalty. Now, if the question arises as to whether such an especially serious case exists, did not the number of black slaughterings or of the food that was taken -have to be taken into consideration?
A. The amount naturally had to be also taken into consideration, but in my opinion it was not the only reason which was decisive as to whether a case was especially serious or not. In my opinion the personal conditions, and other individual circumstances surrounding the offense had to be taken into consideration and in addition to the amount of the rationed goods that were removed.
Q. In examining these questions, was a referent bound by certain directives which generally developed from the jurisdiction of the courts and also from the instructions issued by the ministry. Did certain principles develop there; also regarding the amounts of the goods violated?
A. Regarding the war economy cases, I hardly ever had anything to do with them, but I have to assume that without doubt certain practices developed. As to what extent it was due to instructions of the Minister or of the under secretary, I cannot tell you, for these instructions must have gone directly to the special referat for war economy cases. I did not receive such instructions.
Q. If the referent now found out that a motion for a penalty which a senior public prosecutor wanted to make and which he reported about did not take into consideration that in this case it was an especially serious violation regarding the food stores protected by law, did the referent then not have to in accordance with his duty report this case to his division chief and to tell him all the facts?
A. Certainly he had to.
Q. In that case would it have been serving the purpose if the referent or his assistant would have made a few notes for such a report in which he would have put down in particular those characteristics of the offense which had been overlooked previously?
A. That is certainly correct, but in my opinion the amount of the goods were not the only decisive factors. Therefore, the circumstances of the individual case would also have to be put down in those notes.
Q. But in this note that you produced in your affidavit, is that not only an assumption that you give as an example, that for example, those thirty pigs and four cows mentioned here by you, from your memory arc not connected with any specific case. Could these figures have been different; could they have been higher?
A. That was supposed to beenly an example. It does not refer to an individual case. Certainly it impossible that the figures were higher; perhaps it is also conceivable that they were lower. I did not after all have anything to do with those cases, but occasionally afterwards as far as they were Austrian cases, I was informed about them. It is absolutely possible that I estimated the figure too low or too high; it was only supposed to be an example, how the notes looked.
Q. Put nevertheless, did you ever calculate what such a figure seems to be, so small, what it actually means, namely, thirty pigs and four cows are the monthly ration of meat and fat for about two thousand people. Do you suppose that such black slaughtering would endanger the monthly ration of two thousand people; if you assume that that does, does, that not appear as very important and could be termed as a very serious case?
THE PRESIDENT: Just a moment. May I suggest you are asking for inferences which any intelligent person could make. It is not necessary to encumber the record with such matters.
Q. In your affidavit you say that Dr. Joel added the following word to his note, and I quote: "Einlegen." (to be filed) This word we don't know; it is not familiar to us, and I have to confess as far as I am concerned that I don't understand it in that connection. What is the meaning of the word "einlegen." Is that an Austrian expression?
A. Yes, that is an Austrian expression. In the Reich one used to white "ad acta" means to be filed. The word "Einlegen" means that no decision will be issued. If the reports wore submitted for information) if then, one was in agreement, there was no cause to issue a final report, but if the report was to the effect that a definite decision was only suggested, an instruction was always issued by the Ministry of Justice. The word "Einlegen" thus refers to the first cases where information was given for example, the senior public prosecutor wanted the death sentence; the general public prosecutor agreed; if the referent then had no objection, he did not have to issue a special decision.
Q. Is your knowledge of the work of Dr. Joel in these individual cases, based upon your personal experiences as temporary superior?
A. I was never Dr. Joel's superior; I only occasionally saw those files, especially at the beginning of the war, that concerned Austria; I received them for information, but I was never Dr. Joel's superior; and, therefore, I never had to approve cases on which he worked either.
Q. Did Dr. Joel also have to deal with the clemency question in the cases which you discussed?
A. The clemency question was handled differently; it depended upon whether it was a death sentence or a prison sentence, or, a money fine. As far as the death sentences were concerned, special referents, the so called death sentence referents, dealt with the clemency question.
Q. Did Joel belong to these special referents during the time in question?
A. No, Joel never was a death sentence referent.
Q. You, yourself, as sub-divison chief, or deputy to the chief of the penal division, did you have to deal with such death sentence clemency questions?
A. With death sentences I had to deal only when they either concerned Austria or, during the last period, if they concerned juvenile offenders. In addition, I dealt with the death sentences only when the Ministerial Director, as well as the Ministerial Diregent, who was a deputy of the Ministerial Director, if both of them were simultaneously out of town for a short period; this lasted only a few days; then, these death sentence cases were submitted to me.
Q. In your activity in Berlin, did you make observations to the effect that in those clemency questions differentiations were made between the pure facts and the circumstances existing outside of the facts of the case, as, for example, the fact mentioned here that the criminal was an only son; did that prima facie rather belong to the clemency question than to the jurisdiction of the court which decided it in the first instance?
A: No, these questions should have been decided only in the clemency procedure. But now, under Thierack, the position was taken by the Minister that during a war individual reasons for granting clemency could not be taken into consideration. The deterrents, not only of the sentence, but also of its execution, were in the foreground. Therefore, as far as I had to deal with Austria, with criminal offenses which had to be sentenced by death, I always made efforts to consider such accompanying circumstances in the decision regarding the motion for penalty, in as far as the circumstances, of course, touched upon the guilt of the offender in any way. I could not have done so if, as you mention the fact that a defendant was an only son had no influence on the offense itself.
Q: As a section chief, you were opposed to the death sentence. Now, when you had to decide in cases where the death sentence was involved, did you always decide against the death sentence? Or, in spite of your basic opposition to the death sentence, did you, in your decisions, keep within the scope of the directives which your superior had given to you?
A: I am a basic opponent of the death sentence, but I have to admit without further ado that under special circumstances it is not possible at all to eliminate the death sentence. I was merely of the opinion that a too frequent application of the death sentence would dull the sword of justice. It was not possible for me -- even when I acted as deputy of the Ministerial director, when I was present in such capacity when reports were made about the death sentence, to be always against the execution. That was impossible. I only weighed the individual cases and made efforts, at least in those cases where important mitigating circumstances existed, to -
THE PRESIDENT (Interposing): I believe you have sufficiently answered that question. We care not greatly concerned with the position or attitude of this witness, in any event, not directly concerned.
BY DR. HAENSEL:
Q: As to the points of view which were considered by the authority deciding clemency matters, in the clemency decision did you also have to consider whether the sentence was in accordance with prevailing law?
A: Yes.
Q: In that connection, daring your activity in Berlin was the question discussed as to whether the valid law that was applied was in accordance with international law? For example, were those who worked at the clemency agency permitted to, or did they have to, examine the question as to whether German or Austrian law was in accordance with international law?
A: No, that was not reviewed because, as far as legislation was concerned, we received instructions for Austria either directly from Undersecretary Freisler or from Minister Guertner, or, later on, from Minister Thierack.
Q: And you always regarded these instructions as binding in your position as deputy division chief?
A: Of course, we had the right to make objections from a technical point of view, and we could make use of that privilege. However, regarding the question of international law, we did not review that.
Q: One final question. In that connection the word "votum" was repeatedly mentioned, and "votieren", the verb. The attitude of a Referent who makes a report in clemency questions was described as "votum". "Votum" means the vote.
Does "votum", in the meaning of the reporting Referent, mean that he had to cast a vote or a ballot, or does the word "votum" have quite a different meaning in that connection?
A: The word "votum" is used in Austria too; it does not mean a vote in the sense that a plebiscite or an election had to be undertaken, it only means a statement or a suggestion, because the event took place in the following way: The Minister, or the former Undersecretary, Dr. Freisler, heard reports. The Referent, the Subdivision Chief, the Ministerial Director, every one made some statement as to what way he considered the correct one in dealing with a case. The decision was made -
THE PRESIDENT (Interposing): Your answer is sufficient and clear. We didn't think there was a plebiscite.
DR. HAENSEL: Thank you. I have concluded my questions.
DR. DOETZER (for Dr. Schilf, Counsel for the defendants Klemm and Mettgenberg): May it please the Tribunal, may I continue the cross-examination?
BY DR. DOETZER:
Q: Mr. Section Chief, you deposed an affidavit which the prosecution has submitted as Exhibit 43, and which the Tribunal accepted. I would like to put some questions to you on behalf of the defendant Mettgenberg.
Do you know the defendant Mettgenberg?
A: Yes.
Q: For how long did you work together with him in the Ministry?
A: From March 1939, when I came to the Reich Ministry in Berlin by way of a transfer.
Q: That is to say, four years?