A. To interfere with secret matters, avoided mist carefully. I have already emphasized once that in every office, in mine too, there were posters to the effect that secret matters should be told only to those officials who had to deal with those matters, and it also pointed out expressly that violations would be tried under the regulations regarding treason and would be punished accordingly, Therefore, it was understandable that I avoided interfering in any matters that did not concern me.
Q. Yes, but isn't this right, if you didn't know about the Nacht and Nebel decree then how would you know that it was a secret matter that you shouldn't ask about?
A. I did not at all. I heard the designation "Nacht and Nebel Decree" and from the designation alone I concluded that something was being hidden here because the designation it itself doesn't say anything at all, and therefore I immediately supposed that there is something secret behind it.
Q. And are you prepared to say to the Court positively that a man in as important a position as the defendant Atlstqetter--a man who is a close personal friend of Himmler's and a man who was highly regarded by Thierack would not have known of the existence of the Nacht and Nebel Decree and its meaning, even though you never heard it brought up at meetings of the staff of the Ministry of Justice?
A. Well, I have to say that about a special friendship of Altstqetter with Minister Thierack, I did not know anything. That Altstqetter was also supposed to have been a friend of Himmler, I hear that for the first time today. I beg you to forgive me that about such matters I have no knowledge. I can only repeat again and again that because I was not a Party member, with all matters that did not concern me I did not interfere in any way and carefully avoided in to make any inquiries about them.
Q. I understand. But I just want to ask you once more, because of the fact that you were not a Party member, in itself, you don't care to say positively in the Court that the defendant Altstqetter could not have known of the Nacht and Nebel decree and of its significance?
A. If he had obtained information about it, this could have been only by violating Hitler's decree, and whether anybody violated this decree--I as an outsider cannot judge. It's impossible for me to judge.
BY THE PRESIDENT:
Q. Do you know that authorities in the Ministry of Justice were expected to know of the decree? Surely it wasn't a violation for some of them to know about it?
A. No, certainly not. The Referent who dealt with Night and Fog cases had to know about it, also his sub-division chief and the Ministerial Director. The Ministerial Director was Volmer. And prior to his time I really don't know whether the Nacht and Bebel decree was supposed to have been before Thierack's time--then it would have been Ministerial Director Crohne-but I really don't know whether it was before Thierack's time or not.
BY MR. LA FOLLETTE:
A. But if matters having to do with the non-recording or secret recording of deaths and of matters concerning estates of guardianships of death records were handled by the defendant Altstaetter's Division VI, then you wouldn't be prepared to say to the Court that knowledge of this decree did not reach the defendant Altstaetter?
A. If they dealt with the estates or with matters of wills, then he must have had knowledge about it, bit I don't know whether they were dealt with in Division VI.
Q. That is all. Thank you very much.
DR. ORTH: I should like to ask some questions in redirect examination regarding the last question asked by the prosecutor.
THE PRESIDENT: You have three minutes.
REDIRECT EXAMINATION BY DR. ORTH:
Q. Witness, if, for example, because of the wills made by NN prisoners, Division VI is requested to make a regulation as to the form of will, was it then necessary and admissible to inform Division VI about the contents and the nature of the NN decree?
A. I could answer that question only with an assumption, and I must say it is difficult for me when I am testifying here under oath to utter mere assumptions for which I have not real basis; for I, myself, as I have stated before, heard about it, read the Nacht and Bebel Decree once superficially, and read about NN prisoners being transferred somewhere else from the Rhime or from somewhere. I read this NN decree only briefly. I don't recall it full contents any more, and therefore I must say I can also not answers whether the contents of this decree and the knowledge of the contents of the decree was necessary in order to make any regulations about matters of wills. I don't know that.
Q. Thank you. I have no further questions.
THE PRESIDENT: The witness may be excused. The Tribunal will recess until one thirty this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 27 August 1947) THE MARSHALL:
The Tribunal is again in session.
PAUL BARNICKEL - Resumed DIRECT EXAMINATION - Continued BY DR. TIPP:
Q. This morning we were interrupted when we discussed the practice in transferring matters. You already described two cases, and in this connection may I ask you whether you can mention some other typical cases where in your opinion you may have saved the defendant's life or at least spared him a more severe sentence?
A. By coincidence among the documents submitted by the Prosecution I discovered two more cases which should be mentioned in this case. One case is in Document NG 591, Exhibit 542. As I can see from the document, as inkepper of Hamburg was sentenced to one year in prison by the District Court of Appeals in Hamburg for undermining of military morale.
Q. May I interrupt you, Witness? Can you tell the name of the inkeeper from the document?
A. Yes, his name was Alt.
Q. May I ask you to continue.
A. He had served his term when the General Public Prosecutor and the President of the District Court of Appeals Hamburg were asked by the Ministry of Justice to give an opinion. Subsequently the Chief Reich Prosecutor received the assignment to examine the question of an extraordinary objection. The background and the further course of these proceedings cannot be seen from the document by for my own knowledge I can sy the following: I have already mentioned that cases from the District of Hamburg were dealt with in my department. That was the case here also, and I had transferred the case to Hamburg. When in 1944 the Minister gave the assignment to examine the question of the extraordinary objection, my department was concerned with it. As such dur ing that year I no longer had anything to do with cases of undermining of military moral, but such assignments were dealt with by the department which originally had handled the case.
The statements made by the defendant were, as far as the People's court were concerned, to be considered rather serious and if indicted before the People's Court he would have had to expect at least a considerable penitentiary term uner Freisler, even the death sentence. According to the circumstances of the defendant and the circumstances under which the statements had been made, I, however, considered the transfer of the case justified. Since a principal decision could not be made when dealing with the assignment to reexamine the case. I assumed the game moderate attitude, lenient attitude, as before, and suggested that one should refrain from making the extraordinary objection. I can no longer tell with absolute certainty what the outcome was, but I believe that one did refrain from making an extraordinary objection.
THE PRESIDENT: May I ask, you said the case would have resulted in a death sentence if transferred to Freisler's court. Is that where you would have transferred it if you had not disposed of it otherwise?
THE WITNESS: Mr. President, as I have explained, according to the distribution of work Freisler could take certain cases into his senate. We, that is our department, as I have already mentioned in dealing with the statistical list, always filed our indictments with the Fourth Senate, but Freisler had the possibility to pick out individual cases.
THE PRESIDENT: Then the choice, so far as you were concerned, was between sending it to the Fourth Senate or to dispose of it as you did. You would not have sent it to Freisler in the first instance?
THE WITNESS: No. We never did send---if I may say, "address it to Freisler.
BY DR. TIPP:
Q. Witness, you mentioned another case which can be seen from the documents of the Prosecution. Would you care to comment on that?
A. In the same Exhibit 542, Document 593, another case of that nature in mentioned, which was also transferred from my department to Hamburg. As the Ministry stated in this case, one considered a prison term, a penitentiary term, appropriate. The District Court of Appeals, however, had pronounced a prison sentence. Since the Ministry, however, in this case had refrained from making an extraordinary objection, I no longer had to handle that case. Therefore I am not in a position to comment any further on it.
Q. I believe, witness, that selection well suffice.
DR. TIPP: In this connection may I also point out that concerning the practice of transferring cases, the practice of Dr. Barnickel's particularly as far as cases from Hamburg are concerned, I expect to submit an affidavit from Document Book 2. It is the affidavit by Dr. Stegemann of 21 July 1947. It is found in Document Book No. 2 on Page 104. Dr. Stegemann describes in detail the practice of Dr. Barnickel with regard to transfers and also the practice of the penal senate of the District Court of Appeals of Hamburg.
Q. For further clarification I should like to ask you, Witness, was Dr. Stegemann in any relation of subordination to you?
A. No. He was the Senior Referent with the General Public Prosecutor in Hamburg for political penal cases. His superior was the Public Prosecutor at Hamburg.
Q. Witness, now I should like to refer to another chapter. You mentioned already that you had something to do with the execution of sentences in addition to the cases you already mentioned. May I ask you now to comment briefly on that, that is to say, how in a different way you became active in connection with the execution of sentences.
A. Apart from some individual dispositions which I have mentioned yesterday, in connection with the execution of sentences there were cer tain decisions similar to clemency decisions which could be made by the chief of the department.
But such decisions the sentence was not changed anything in that. However, they could offer certain advantages to the convicted person.
Q. Perhaps you can give us a few further explanations in that connection.
A. If I am permitted to give a few examples, it was essentially a question of the temporary interruption of the execution of sentence, for instance for reasons of sickness, of afraid consequences, casualties in the same way, and other things of that kind. The department chief could do a lot in that direction and I made use of that possibility to a great extent.
DR. TIPP: May it please the Court, concerning these activities of Dr. Barnickel's I would like to offer from Book 1 Page 59 Burnickek document 17. That is an affidavit by Dr. Freiherr von Kress, chief surgeon of the Lazarus Hospital of Berlin of 20 February 1947. Since that affidavit for various reasons is of essential importance, may I be permitted to quote briefly from it?
"In the year 1942 in my ward in the hospital there was a patient, Herr Umrath, from Berlin-Dahlem, who was a half Jew and who for reassons of his activity against the National Socialist regime had to serve a penitentiary term. Since during his stay in the penitentiary the beginnings of a serious disease became apparent, his fater achieved that by the decision of the Reich Prosecutor Dr. Barnickel the term was interrupted and the patient, in order to investigate his disease, could be received in my ward at the hospital. When the time for which approval for the interruption of his term came to an end, but the patient was still in a very bad condition, I approached Dr. Barnickel and asked him, explaining the circumstances, to decide to dispose that a further extension be granted and that beyond that he permit the patient to stay in the Bavarian mountains, a fact which would be beneficiary for his recuperation.
With great human interest for the case and the particulars of the case, Dr. Barnickel immediately granted my request. This action on the part of Dr. Barnickel certainly guaranteed an extension of the life of the patient."
May I ask that his document, which seems highly relevant to me, first for the attitude of Dr. Barnickel in the racial question, and secondly for his handling of matters concerning execution of sentences, be accepted as Exhibit 18.
THE PRESIDENT: The exhibit is received.
BY DR. TIPP:
Q. Witness, maybe you can briefly explain the case Umrath.
A. The sentence against Umrath happens to be among the documents submitted. It has the exhibit number 145. First, the father had repeatedly come to see me, and then the doctor also came, and for that reason I could make investigations about the case. Cases of that nature frequently occurred with me, particularly by foreigners. I have nothing to add, counsel.
Q. Witness, did you have absolute freedom of decision in that field, or was the chief of your office or the ministry entitled to say something about it?
A. If one wanted to report on the case, of course, one was free to do so. I used to handle this always within the limits of my freedom of decision, and of course in doing so I assumed the full responsibility. If, for instance, during such an interruption of term as in this case the defendant had disappeared I would have incurred the most severe consequences. I assumed the risk for that, and I do have to state that I was never disappointed by any one of the individuals convicted. They all came back.
Q. In Exhibit 159, the case Beck, witness, a case which we have discussed already, the Prosecution expressed the suspicion that the fact that Beck was of mixed descent played a part. May I ask you to comment briefly on this?
A. I have said already yesterday that was out of the question, and I believe that is shown by the case Umrath. In that class of people to which I belonged I often met people of mixed descent without considering them as anything foreign. I could quote convincing examples from my private life, but I should like to restrict myself to the purely official cases. Although the case Umrath seems to suffice to explain my position I should like to mention the case of a Dr. Lapp, a case which occurred in 1942 which should be convincing enough.
Dr. Lapp also was a half Jew.
Q. Witness, would you please first tell the Tribunal in what connection you got in touch with Dr. Lapp?
A. In addition to my work as Reich Prosecutor I also held the office of a president of the senate of the German Medical Court in Munich. The physicians, such as the lawyers, the attorneys, for instance, had their own professional jurisdiction which dealt with ethical questions of their profession. There were lower courts and there was a higher court that was the German Physicians' Court at Munich. These courts were not, to be sure, Party courts. The Presidents of the Senate of that highest court had been appointed by the Minister of Justice and they were not even all of them Party members. In the case of an appeal concerning Dr. Lapp, who was from Ebenrode in East Prussia I was concerned with him. I would have completely forgotten about the case, had it not been for an entry in my diary which reminded me of it.
Q. Witness, I give you a file now and ask you to tell the Tribunal what file this is.
A. These are the original files of the German Physicians' Court concerning the proceedings for the professional court against Dr. Lapp.
Q. Will you please quite briefly on behalf of the files explain the circumstances to the Court as far as they seem to be important concerning the question we are now discussing?
A. It will suffice if I state that by the first sentence by the lower court that was presided over by a president of the District Court of Appeals Dr. Lapp was sentenced to be barred from his profession.
That is to say, he could no longer act as a physician. One can say that this is equal to an abrogation of civil rights. That was the hardest sentence that a Physicians' Court could impose. According to the opinion, that sentence had been pronounced because Dr. Lapp had failed to revels in making official statements that he was a half Jew. His father had been Jewish. My senate had to decide on the appeal. In this senate I acted as the presiding judge. From Page 34 we can see that on 29 April 1942 we annulled the sentence which I have mentioned and sentenced the defendant only to a reprimand and a fine of 10,000 marks. Therefore he could continue to work as a physician. I want to state also that the fine was high, to be sure, but according the circumstances of physicians at that time it was quite bearable.
Q. May I also ask you to please tell the Tribunal who was informed about a verdict of that kind.
A. These judgments went to various places. According to a certificate on Page 41-A it was also sent to the Reich Ministry of the Interior.
Q. What was your personal attitude in that case, witness?
A. That, I think, will best be manifested by the diary entry which enabled me to find that case, to recall that case again. It is of 3 May 1942. I quote:
".On the following day we had the case against the half Jew Dr. Lapp before us, who had made misleading statements about his descent. He had participated in the first World War and had lost his right leg in combat. We deliberated for about two hours and could not arrive at a decision. Krueger and Georgi were in favor of maintaining the deprivation of the right to practice and they thought that the fact that he was a veteran should only be taken into consideration in the clemency question.
Finally we decided for a fine of 10,000 marks. The whole case is not very pleasant and seen from the political point of view the sentence was certainly two lenient. But I do not care, in spite of the speech of last Sunday.
Q. Concerning that entry, two brief questions. First, what was the speech you were referring to?
A. May I repeat that sentence was passed on the 29 April 1942. On the 26th April, Hitler had made his infamous speech, and everyone was still under the impression of that speech. That resulted in certain difficulties which arose in the deliberation, and that is what my remark refers to in the entry--that the whole matter had not been very pleasant.
Q. Witness, you have not stated yet how many members there were of that senate, and that seems important.
A. The senate was composed of five judges including the presiding judge.
Q. But in your entry, you state that only two judges were in favor of upholding the sentence. Why did it take two hours then? The other three judges, that is, yourself and the other two associates, could have been in favor of annulment of the first sentence.
A. That is not correct. The facts were very simple, and no deliberation was necessary as far as that was concerned. It was only a question of the extent of punishment. Now from the outset, two members were in favor of the first sentence; two were undecided; and if I had taken a vote too soon, the danger would have existed that the first sentence would have been maintained. But it took almost two hours.
THE PRESIDENT: I think the time it took to arrive at an agreement is not important.
BY DR. TIPP:
Q. One more question concerning the case Lapp. Witness, as a judge there, did you have to expect any disagreeable consequences of a decision of that kind?
A. One could never know in advance who would find out about a sentence of that kind. I was particularly exposed because my main occupation was that of a prosecutor for the People's Court.
Q. Witness, from that activity of yours as a judge, could you quote another example which would show your principal attitude?
A. Yes. There was a case against a Dr. Hartmann, which I would like to refer to because it shows my attitude to the Nurnberg laws.
Q. Witness, I submit to you the original file of the Physician's Court in the case of Dr. Peter Hartmann from Eger, and I am asking you to describe here also the facts, only to the extent as they are of importance to elucidate on that fundamental question.
(Witness is offered the document)
A. By the first sentence--the sentence of the lower court--Dr. Hartmann had also been found unworthy to continue to carry out his medical profession. The facts were that Dr. Hartmann, who had lived in the Sudetengau, several years ago before the incorporation of the Sudetengau into the German Reich, in a number of cases had carried out abortions. Therefore, he was found unworthy of carrying out his profession. The case came before my Senate. On the 20 January 1943, we annulled the sentence by the Physician's Local Court in the Sudeten Land--the District Court of Sudeten Land--and suspended proceedings.
Q. Witness, from the statements you have made up to now, it has not become quite clear to what extent that case shows what your attitude was to retroactive laws. Will you please explain that to us briefly?
A. These acts had been committed before the incorporation of the Sudetengau into the German Reich. In Czechoslovakia, abortions had been punishable; however, that article of the law was hardly ever applied. There were several reasons, which are not interesting here, but which prevailed in the case of Hartmann for the assumption that there was no violation of legal provisions. After the incorporation of the Sudeten Gau, German legal provisions were introduced with retroactive force. I, however, considered that one could not justify that a man be punished for acts, which in his former country had not been considered punishable at the time when these acts were committed.
That was the reason why I was in favor of an annulment of the first sentence. One has to add to that the excellent impression that Dr. Hartmann made as a man and a physician, and the excellent reputation he enjoyed.
Q. Concerning this case Dr. Hartmann, I will submit from Barnickel Document Book II, page 44, the Barnickel Document No. 33. That is an affidavit by Dr. Erich Tederra of the 30 July 1947. I may also point out that Dr. Tederra voluntarily approached me, after he had read in the newspaper about the case against Dr. Barnickel.
Witness, did you more frequently have an opportunity to act in this field in a similar way?
A. Yes, quite frequently. Shortly after the case Hartmann, we made the same decision on a very similar case; but about the rest of my practice in that sphere, I could not make any statements from memory.
BY THE PRESIDENT:
Q. A question, please. Could you give us the citation to the law which extended German law to the Sudeten land with retroactive force?
A. I may be able to find it in the judgment. Mr. President, I cannot find it in the first sentence, I am sorry to say, and as for our verdict, that did not have a detailed opinion.
Q. We should like to have the citation if counsel for either side can furnish it.
DR. TIPP: I shall find it out, Mr. President, and I will bring the citation.
BY DR. TIPP:
Q. Witness, may I continue? As for your activity as a judge at that time, would you like to comment on that any further?
A. Mr. President, I think that there was a mistake on my part. I can find it in the file now. The Reich Physician's Law was in force since the first of April 1939, also in the Sudeten area. That was based on a decree of 27 March 1939, and it can be found in the Reichsgesetzblatt-
the Reich legal Gazette--on page 582.
THE PRESIDENT: For 1939?
THE WITNESS: For 1939, your Honor. Something has to he added though; that is Article 17, Section 1 of the second carrying out decree of the 8 May 1937, Reich Legal Gazette, page 585 of 1937. I suppose that these are all the legal provisions referring to the question mentioned by the presiding judge.
THE PRESIDENT: Thank you.
BY DR. TIPP:
Q. Witness.
A. Yes, counsel.
Q. Would you like to make any further comment concerning that activity of yours as a judge, or can we consider that chapter concluded?
A. Maybe I can say quite briefly that in this field, I also stated my opinion in favor of maintaining the independence of the judge. The then Reich Physicians Leader and Under-Secretary of the Reich Ministry for the Interior, Dr. Conti, in 1942 issued a circular letter to the Physicians' Courts directing that in the future in every case of abortion, they should sentence the doctor of the privation of all of his professional rights regardless of the circumstances of the case. I did not know Under-Secretary Dr. Conti at that time, but I went to him and told him that such directives were incompatable with the principle of the independence of the judge and that I saw myself compelled to put my job as the President of the Senate at his disposal if that directive should be maintained. Dr. Conti understood that, and cancelled his instructions. That is all I have to say in that connection.
Q. Now, after this discussion, we may return to your activity with the Reich Prosecution, and I would like you to comment on a legal remedy which so far has not been discussed by you. I mean, the re-opening of a case, and here, of course, we are primarily concerned with the re-opening of a case in favor of the defendant. Did your department frequently have an opportunity to apply that remedy, and who was it who had to decide about it's institution and to sign the application for the re-opening of a case?
A. Such cases occurred frequently, some times with success, other times without. About the initiation, the department chief could decide on his own, he also could sign the application.
Q. Can you give us an example for that, too, witness?
A. Yes. A student by the name of Seiler was sentenced to death by the People's Court for high treason and treason. It was alleged that he had betrayed a military secret of state. In cases of that kind, the Reich Prosecution had to obtain an expert opinion from the High Command of the Armed Forces because the question of whether a so-called substantial secret of the state was concerned could only be decided by a military authority. In the case of Seiler the OKW confirmed that this was the case, and the Senate therefore had to make the decision of the death sentence according to the demand by the prosecution. The prosecutor at the session, Dr. Buchholzer, had misgivings afterwards and told me about then. I shared his views and achieved after a conference with the representatives of the OKW that the expert opinion was re-examined with a favorable result for the defendant. Then, I ordered that the defendant be examined once more by a well-know Berlin psychiatrist, although the expert opinion by a psychiatrist had been obtained before the first trial. The result was that then on the basis of the motion for the application for re-opening the trial, a second trial took place with the result that the proceedings were suspended.
Q. And that application for re-opening was signed by you independently?
A. Yes, I signed it.
DR. TIPP: Concerning this case, I can also submit a document from Barnickel Document Book 2. It is Barnickel Document 34 to be found on page 117.
THE PRESIDENT: May I ask a question. I would like to understand just what you meant by saying that after the second trial, the case was suspended.
Do you mean that the defendant was acquitted?
A. Yes, Mr. President. I did not use the term "acquitted." I did not apply the term "acquitted" because the case on the basis of the expert opinion of the psychiatrist was suspended. In the practical consequences, it worked the same way as an acquittal. He was released.
BY DR. TIPP:
Q. Witness, you worked with the Reich Prosecution, and outside of what we have discussed now in its outlines, before we cone to the last group of questions, nay I put one question to you. That is, whether you liked it with the Reich Prosecution?
A. This again I should like to answer by quoting what I have expressed before, that is to say, on 8 February 1944. I made the following entry in my diary. "It is a misfortune that it was I who had entered into that career. If one wants to assume the position that everything is destiny, then I certainly fail to understand how I have deserved this." I was never happy with the Reich Prosecution and. in accordance with the truth. I can state that wasn't even so on the very first day. From the outset, I did not like that atmosphere which was quite strange to me. The work itself at the beginning was passable because those were times of peace. My main work was in the field of high treason, and it has been stated here once before that in 1938, the year when I came to the Reich Prosecution, there was only one sentence pronounced for high treason; but just owing to the fact that in the beginning of my work I had to deputize for the Chief Reich Prosecutor, I gained an insight into the entire field of work rather quickly; and I knew that I would never be satisfied by doing that work. Those expectations cane true in later years so that during the war cane increasing tensions, par ticularly from August 1942 on.
When Thierack had become Minister, the pressure from above increased.
Q. I believe, witness, that this is sufficient. I only want to ask you the following. You said that you did not really like the work and that the increasing tensions, particularly, the pressure from above was felt by you and you suffered therefrom. As you know, you were transferred to the Reich Supreme Court in 1944, but didn't you have in main before that time to leave that office by either a transfer or retirement?
A. I can answer that question in the affirmative, but to get away from that office even in times of peace wouldn't have been quite so simile, at any rate, not during the first two or three years after taking office. During the war one can say it was quite impossible. We have heard that frequently here. That I was not holding onto the job, I think is explained by my attitude concerning the conflict with Heydrich.
Q. Witness, when was it then, according to your recollection, that you took the first stems to bring about a change?
A. Before I answer that question, I should like to say something else. I believe that I can say that I never identified myself with the regime, but I always tried to find my own way. Later on I was merely intending to hold out on a lost position. Therefore, these superficial characteristics as to when I undertook such stops are not decisive as far as my personal memory is concerned, but I can tell from my memory that my first considerations in that direction occurred. as early as 1941. The first recognizable step was taken by me in the summer of 1942. A t that time a vacancy had. occurred owing to the death of the General Public Prosecutor in Munich. The professional tension and the work which I had come to dislike more and more de pressed me so much that I used that opportunity in order to attempt get way from the Reich Prosecution.