A. When the American troops marched in. Later I was for five months under the Russian occupation. Then I returned to my home in Bavaria.
DR. TIPP: Mr. President, for the time being I have no further questions to Dr. Barnickel.
THE PRESIDENT: The Tribunal will recess for fifteen minutes.
(A recess was taken.)
Court No. III, Case No. III.
THE MARSHALL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal will be in recess for just a moment, please.
(Very short recess taken)
THE PRESIDENT: Does any other defense counsel desire to examine the witness as his own?
DR. DOETZER: For my colleague Dr. Koessl and the defendant Rothaug, may I address a few brief questions to the witness?
BY DR. DOETZER:
Q. Witness, you commented on the practice of transfers of the Reich Prosecution, and, as far as I remember, you stated that you transferred cases to all General Public Prosecutors. Therefore, merely for the purpose of clarification, I am asking you whether this instruction-
A. (Interposing) Counsel, I do not believe that they were transferred to all General Public Prosecutors, because this is how it was. Not all District Courts of Appeal in the Reich were concerned with political penal cases, but only about one-half of the District Courts of Appeal. Therefore, we only turned cases over to those General Public Prosecutors at those District Courts of Appeal. If I should once have used the expression "to all General Public Prosecutors", from my point of view, of course, only those were meant who had things to do with political Senats.
Q. Was there such a political Senat at the District Court of Appeal at Nurnberg?
A. No. In Bavaria there was only one District Court of Apical that had a political Senate, and that was the District Court of Appeals at Munich.
Q. Thus, this was transferred to the General Public Prosecutor in Munich?
A. Yes, counsel, that is correct.
Q. If this General Public Prosecutor in Munich handed the matter on further to the Public Prosecutor in Nurnberg, was he the letter's superior?
A. Well, he was, without doubt, not his official superior, because the Senior Public Prosecutor in Nurnberg belinged to a different sphere.
DR. DOETZER: Thank you, witness.
DR. BRIEGER (Counsel for the defendant Cuhorst): Your Honor, may I address a few questions to the witness which refer to my client Cuhorst?
BY DR. BRIEGER:
Q. Witness, curing your examination yesterday afternoon you mentioned a case in Stuttgart, and you said that my client Cuhorst had decided the case very leniently, because he assumed it was misdemeanor instead of high treason. You have also mentioned that the defendant was a Dutchman.
A. That is correct.
Q. Thank you. May I now ask you this? What was the scope of penalty, on the one hand, in the case of a misdemeanor, and, on the other hand, in the case of high treason?
A. In the case of serious misdemeanor the highest penalty was six weeks of imprisonment, and in the case of high treason the highest penitentiary sentence was 50 years, and, dependent upon the circumstances -- which in this instance, I guess, was not the case - the death sentence.
Q. Do you recall that Cuhorst merely pronounced a prison term of six weeks?
A. I recall that in the case of which I spoke yesterday, the president of the District Court of Appeal of Stuttgart pronounced a prison sentence of six weeks in that case.
Q. Do you mean to say, if I understood you correctly, witness, the Senate in Stuttgart under the Presidency of Cuhorst?
A. The Stuttgart Senate, under the Presidency of Cuhorst, as I said yesterday.
Q. Witness, do you remember other cases in which German courts, in the case of foreigners, on the basis of the indictment, because of high treason, only decided upon a sentence for serious misdemeanor?
A. I can remember no such case, and I doubt that any such other case occurred, to my knowledge.
Q. If I understand you correctly, witness, the Cuhorst sentence was unusual, and in favor of a foreigner. Is that correct?
A. The Cuhorst sentence was noticeable. I can still recall that at the time when I saw the sentence, I looked up, in my personnel calendar of the administration of Justice, who this Cuhorst really was. I was especially interested in how old he was, and I still recall that with certainty. That is evidence to the effect that I noticed that case especially, and of course to the good side, within the meaning that I put to it.
Q. You mean to say in favor of the person concerned, if I understood you correctly?
A. Yes, in favor of the defendant.
DR. BRIEGER: Thank you witness, that is sufficient.
THE PRESIDENT: It appears that there arc no further direct examinations. The prosecution may cross-examine.
CROSS EXAMINATION BY MISS ARBUTHNOT:
Q Dr. Barnickel, I believe that in your testimony you stated that before joining the Party, and, in fact, before 1933, you had listened to speeches by Hitler. Is that correct?
A That is correct.
Q Then at that time you knew something of the Nazi Party aims, did you not?
AAt that time, in any case, I knew that Hitler had said in his speeches.
Q In those speeches, did he speak of the Party aims and what was to be done by the Party when it came into power?
A I must say quite honestly that the contents of these speeches I do not recall in the least any more toady. I beg yon to consider that after 1933 there was such a superabundance of speeches which we had to submit to that it is really no longer possible to remember speeches which Hitler made before the political change. Of course, because that is a matter of course, I can answer your question affirmatively in general, but details arc impossible for mo to state.
Q Thank you. Yesterday you stated, I believe, reading from your diary concerning an entry shortly, after Hindenburg's death, that Hitler's entire system of government was based on lies, violence, terror, and a dangerous gamble with the masses. You further called the government a dictatorship. Your diary went on to state, on the 1st of August, 1934, that: "A relatively small number of people, supported by a splended machine, arc ruling over the Party, and, in so doing, over the State. All the other people have nothing to say, but there arc still individuals among us who do not want to understand that we have a dictatorship. Nobody is in a position any longer to state his opinions, apart from a very small band.
What else could that be but a dictatorship, and where will that end?"
How do you reconcile these statements, that it is a dictatorship and that only a very few people within the Party have any influence, and that statement that others can do nothing, with your statements that you stayed in the Party feeling that only by staying in the Party could you hope to influence it?
A First I would like to say that if, in that entry in my diary, I spoke of a few people in the Party who had influence, I thereby did not mean all of the Party members. However, by saying these few people, I meant the very small circle of old Party members and of old fanatics. But by that, again, I do not want to say that everybody who had entered the Party before 1930 was a fanatic. I don't believe I have to explain that in detail.
Before I made that particular entry in my diary, I had already written that I considered it necessary -- that is, I am not repeating the words of what I wrote at the time, but the meaning -- that in this new movement, so to speak, a wing of sense is being formed, and it is also connected with this idea. At another place I wrote that at that time I was of the opinion that it would be best for the judges to enter the Party as a closed group so that by this action they would give weight to the Administration of Justice.
I have also mentioned that, due to the course that matters took at that time, I saw outside of the Party, really, only a vacuum; and if I look back today, I can honestly not see what some people outside the Party could accomplish during these years at all. Of course, by saying this I do not want to say that nobody outside of the Party accomplished anything, but at the moment I cannot recall having seen something that exerted a decisive influence on the development. That is my line of thought in general.
Q Could you see what influence was exerted within the Party for good?
A Yes, I certainly saw that, and if it is not immodest I may perhaps refer you, after all, to what I was able to achieve under very difficult circumstances. In doing so, of course, it is quite clear to me that in the final analysis it was very little, but perhaps it was, after all, more than nothing.
Q How do you explain, and for what reasons would you explain, your membership in the SA? Was that for the good or the influence that you would have also?
A I certainly did that too, even though I played a role in the SA only because I was an important personality and not because I had a leading position in the SA. If, however, during the course of the later years, I would have declared that I was leaving the Party or the SA, I would have withdrawn from that very small possibility of influencing which I had at all.
Perhaps I may remind you of what I have written, that somewhere sometime, I would like to leave the Party and the SA, However, that would be as if a soldier would go from the trenches to the rear echelon.
I don't believe I need to elucidate that comparison any further because it is understandable.
Q You also stated from your diary that if, in 1938, you Could have anticipated war, no power could have made you go to Berlin. That is correct, is it not? That is a correct quotation?
A Yes, but I beg your pardon. I believe, however, that that was not an entry from my diary because I don't have the diaries covering all those years. However, it was something that I said yesterday during the examination.
Q It is true, is it not, Dr. Barnickel, that you could have left Berlin, perhaps not by transfer, but at least by resignation? Is that not true?
A Through being pensioned? That is what you mean? I have stated that, so to speak, I did want to leave Berlin in 1942, at any cost, and the course which I took in order to leave the political Administration of Justice I considered considerably more successful than if I had made an application at that time to be pensioned.
Q. You are speaking of retirement, I believe, Dr. Barnickel. was speaking of resignation, as such. Was that not always up to you?
A. You mean, if I understand you correctly, I could have simply resigned from my office, without consideration to the consequenceS, to the question of retirement pay, and salary, and all these things?
Q. Yes.
A. Well, about that, I may say that as far as I know that would not have been possible either, for if I am informed correctly in the course of 1939 to 1940 a decree was issued which forbade all civil servants to leave their office in that way. However, to my great regret, I am not able to tell you where you can find this decree; but regardless of that, for the moment, I must say, of course, that for me as the provider of a family, the provider of three sons, it would have been a very difficult question if I had simply given up my office, if I may express myself that way,"put it on the table". But I have to add something. For me there was a much more important point of view yet, and in that regard I may refer to an entry in my diary; however, I could cite this entry in an incomplete form, however, and that is in August 1942, I expressed Quite clearly that it is very easy to say if one does not want to go along anymore, one simply quits; and I furthermore said that an a man who has conscienceness of duty, first one has to examine what becomes of the office if I quit, and I then stated if I find out that the office -- end I now express myself differently -- would only become a subject of further radicalization if I leave it, then in the interest of everything, not of the Party only, I have the duty to remain in that office. I described that, I believe, this afternoon as fighting for a lost cause, and my defense counsel also submitted a document in support of this.
THE PRESIDENT: I think you have made your position clear on that position. Let us have another Question, please.
BY MISS ARBUTHNOT:
Q. Yesterday in discussing the Enabling Law of the 24th of March 1933 you said that "what was decisive for me as a jurist was that from m on the Reich Chancellor could sign laws and that the new laws could deviate from the constitution.
As for the legality of the Enabling Act in itself, and as for the legality of the laws which were issued on the basis of the Enabling Act, one could have no doubts about that." Just what did you mean by that statement? What were the doubts?
A. I meant the following. The so-called Enabling Act was, in the opinion which I had at that time, still legally an order issued by the Reichstag; therefore, the laws and those measures which were later based on this Enabling Act were in order.
Q. You stated that your appointment as prosecutor at the People's Court was not a political appointment; however, I wonder if you could tell me whether the usual procedure was not followed in making that appointment in that it was necessary to have recommendations concerning your political reliability and reports on your willingness to cooperate with the Party?
A. A so-called political rating was obtained regarding every civil servant at that time, every civil servant who wanted or who was to he promoted, or who was merely transferred to another office regarding his political opinion. I, however, did not do the slightest thing, and I never saw it either. I only assume that as a matter of course that such a political opinion was obtained.
Q. You stated that in your position at the People's Court, you were merely a figure-head and had no authority. I wonder if you couldn't alter that statement to a certain extent, at least insofar as the first two months you were there when there was no Chief Reich Prosecutor and the first deputy was in the hospital; and you acted as deputy in charge for the first two months you were in the People's Court, did you not?
A. Yes, of course, at that time I had more authority because I was deputy for the Chief of the office; but I did not carry more weight because of that as a civil servant, for I was not the Senior Reich Public Prosecutor, but I was Reich Public Prosecutor and only had to deputise for the Chief Reich Public Prosecutor.
Q. But you directed work within the Reich Prosecution office during that time, did you not?
A. During that time I was in charge of that office in 1938.
Q. And at other times when you were acting deputy in charge, you carried that same authority?
A. I had to act as deputy for the chief of the office, that is uncontested. By the way that was frequently, one or two days, or even only half A day.
Q. Within your own department, you say that you were not a. superior to the persons working in that department, I believe you have made that statement?
A. I was not a superior.
Q. You were in charge of the department, however, and in charge -- being in charge, your duties involved distribution of work among those working in your department, the examination of their work, and countersigning of drafts, discussions of questions with them, making recommendations or giving them your opinion on sentences to be requested, and such as that?
A. That is correct.
Q. And among those working in your department in 1944, at least, I believe, you had First Prosecutor Drultmann, First Prosecutor Wittmann, First Prosecutor Jaeger, Landgerichtsdirector Brenner, Landgerichtsdirector Ranz, Landgerichtsrat Ladewig, Landgerichtsrat Bach, Amtsgerichtasrat Doelz, and Amtsgerichtsrat Treppens, all of those positions were positions of importance, were they not? They were leading positions?
A. Well, regardless of the fact that I did not understand one or the other of the names, and that I certainly was not in charge of a,ll those gentlemen who were mentioned simultaneously, but that is not important at all.
Regardless of that, if I understand you correctly, you are asking me whether these gentlemen were not men in leading positions?
Q. Yes.
A. Over whom I was then in charge, didn't you ask me that?
Q. Yes.
A. I can describe that best, perhaps, by saying that all of the gentlemen who worked in my division with me were not at all in a position to sign anything, to affix their signature. All of these gentlemen, none of them could ever sign a letter that was sent to an outside office or anything like that, except if in a very urgent case he once made use of an authorization which actually was not his due. That is, from my opinion, to state it briefly, they wore not people in any positions of importance as you just said. At least, I never regarded them that way, and I believe they themselves didn't either.
Q. They were active in prosecution of cases before the People's Court, were they not?
A. These gentlemen or me?
Q. These gentlemen.
A. These men?
Q. Yes.
A. Yes.
Q. And you distributed work to them, discussed the sentences to be requested, and such as that with these gentlemen in your capacity a.s head of the department?
A. Yes, that is the work as such. However the field of work, the division they did not receive from me, but that was assigned to us by the Chief of the agency. Then, of course, within the division I had to see to it that every Referent had received a field that was about equal to the others, and this was done a.s follows: The gentlemen wore divided according to Court districts, that was about the manner in which we proceeded.
Q I think that answers my question, thank you. In discussing the Bradeck case which was our document NG-595, Exhibit 136, in Book III-B, page 28, you stated that Bradeck, a Polo, came to Germany voluntarily. Did you also give consideration in filing this indictment for treason as to whether or not ho had sworn allegance to Germany?
A May I look at the indictment whether it says anything about it. Well, the indictment doesn't seem to say anything about whether Bradneck was at that time in that -- how was that called -- was accepted in tho list of Germans or whatever he was. Unfortunately, I am not able to tell you from the indictment.
Q Then, you did know that Bradeck was a Pole, but you didn't know whether or not ha had sworn allegiance or had changed his allegiance to Germany?
A Well, at that time that was without a doubt to be found in tho files, but as I have already mentioned yesterday tho files that we have here are quite incomplete.
Q Whether he had sworn allegiance to Germany or not would have made no difference in the charge of treason, would it?
AAs was discussed hero once before, citizenship or similar concept was not a prerequisite for somebody's being able to commit treason.
Q Could you toll mo what sentence you recommended in your discussion with tho prosecution in the connection with the Bradeck case, do you remember?
A I can even answer that question very exactly, and I know it for certain because at that time when.
the motion for penalty was discussed that was always done a few days before the trial or one day before, that differed, I did not have anything to do with cases of that nature anymore, for duo to a reorganization of the Reich Prosecution which I told you about yesterday my division in April 1943 was also changed.
Q In discussing the Bock case, the case of an Austrian Half Jew, you stated that the fact that he was Jewish and the fact that the complaint had been filed against him by -- I believe it was an Ortsgruppenleiter or a Party official -- at any rate, had nothing to do with the indictment, nothing to do with your consideration of the question whether or not an indictment should be filed?
AAs regards my person, I can say that with absolute certainty.
Q In the indictment itself, being a part of NG-381, which was prosecution's exhibit 159, we find the language describing the defendant here . . . "He is of mixed race, first degree. His mother was a Jewess. From 1919 until March 1922, he was a member of the Social Democratic Party. He is now a malicious adversary of the National-Socialist State." Do those statements contained in the indictment show that no consideration was given to either his race or his Party affiliations?
A May I remind you, that already Lautz stated during his testimony that in a directive issued by the Minister to include in the indictment such circumstances, especially also tho racial affinity, if I can call it such of a person of mixed race.
At any rate, it was a directive of the Minister and it had to be included in the indictment. It is correct, as you just road, that it says also in tho indictment that formerly ho was a member of the SocialistDemocratic Party. At the moment, from memory I cannot say whether that also was a directive, membership or former membership in political parties, to include that in the indictment. I consider it possible; in any case, I can say that it was the usual practice at the People's court, but I can also say that a former member of the Socialist-Democratic Party, even in the Third Reich, because of his former membership to that Party was under no circumstances regarded as a basic enemy. In other words, I repeat for me these matters were not important, especially not at all that an Ortsgruppenleiter made this denounciation.
Q However, the crime -- the indictment charged crime under Article 5, paragraph 1, number 1, of the Extraordinary War Penal Ordinance. This ordinance, if I am not mistaken, carried a mandatory death sentence if it wore a serious case, did it not?
A In article 1, tho death sentence is threatened as a normal penalty, that is correct.
Q What were your recommendations on this case as the sentence?
A I stated already yesterday that I have no more positive recollection of this case. I don't know either whether tho prosecutor who represented the prosecution in tho trial reported that case to me.
In any case, I can say one thing, however, I could not instruct him to ask for the death sentence in his motion, for was discussed here repeatedly by Lautz, if one considered anything like that at all the case had to be reported to the Chief Reich Prosecutor.
Q In connection with -- in the Prosecution's Exhibit 267, which is NG-614 and appeared in Prosecution Book 4-A, page 56, and that is the document concerning the Kubiak case which was discussed at some length here yesterday.
A Yes.
Q The letter of 4 May 1942 which was signed by you and directed to the Director of the Central Penal Institution in Schieradz, talks of the decree of 6 December 1944. This decree was an executive decree issued under the authority of the law against Poles and Jews, was it not?
A That is correct. That must have been the law itself.
Q No.
A Oh. The law was of the 4th December 1941. There maybe an error in the date. (Handed book). Thank you very much.
Q I have shown you Section 17 of this Decree against Poles and Jews of 4 December '41. That is the section which authorizes the issuance of the executive decree mentioned in your letter, is it not?
A Yes. Well, it is difficult for me to say that with certainty. Maybe. But as I have said, I can't toll you for sure -- I now only read this letter carefully. May I say the following about it. It does not speak of an ordinance of the 5th December 1941, but it says that my decree of the 5th of December 1941 was issued before the law against Poles was promulgated.
First I would like to say something that was discussed already here, once too. If it says here, "My decree," that must have been, not me who wrote a letter but that was the style that was used - the German office style. But it is certain that this was not a decree but a former letter by the Reich Public Prosecution, which is being referred to here. May I say this for elucidation.
Q At the top of this letter of 4 May 1942, I see the letters: "KZD". Could you toll me what those letters stand for?
A Is that a photostat which you have in your hand?
Q No. I have the mimeographed copy of the English. I do not have a photostat.
A May I see this?
(Witness is offered copy.)
A That doesn't mean "KZ", but is says also here on the copy: KD, Roman II. I have to state frankly -- no, no, this isn't a "K" at all, but in my opinion it is a "B" and a "D". If this is correct, it would simply mean: Volume I. I would assume that, you see; but with concentration camps that certainly has nothing to do. I can't really toll you whether that note has been made by the Reich Public Prosecution or whether it is even a notation which is from the time when these files wore found and arranged in an orderly manner. But certainly it is not "KZ".
Q Could you tell me where the central camp, Schieradz was located?
A Well, I believe I saw it once here on a map, but I don't know with certainly any more whether it was in the occupied eastern territories or former Poland. I can't say it with certainty. But, may I make a brief remark regarding the previous question: this "KZ". Your question would indicate that the place where these Poles were in detention was a concentration camp -- Konzentrationslager -- that was not the case at all. I can say that with absolute certainly because these Poles were in the detention of the Administration of Justice, and the Administration of Justice had nothing to do with concentration camps. However, there were some individual so-called camps; for instance the Pepenburg camp. That was a large penal institution.
That was called "camp" already before the war, but that didn't have anything to do with a concentration camp either.
Q Schiedz was located in Poland, I believe you stated?
A I believe I saw it on the map that was here in the Court. In former times, I probably didn't know it at all.
Q Were Germans over sent to prison camps in Poland?
A Well, in Schieradz there were without doubt quite a number of Germans, as far as I am informed. I never saw this camp or this institution. I don't know how it was officially called, but I have to remember either that we had only a very superficial contact with all institutions because the Reich Public Prosecution, so to say, only kept the record regarding the prisoners. But with the administration of penalty, we had nothing to do in the least.
Q I believe that you stated yesterday that it was your impression that the reason for the transfer of Poles who had been sentenced to more than throe years in prison to more severe penal camps was merely a question of allocation of manpower. Is that correct?
A Well, first of all, this is how it was. If a Pole was sentenced to a prison term, according to the law against Poles, this was changed in to penal camp, and if he was sentenced to a penitentiary, it was changed in to a so-called more severe penal camp. Thus primarily thee sentence which was pronounced according to the judgment, and If I spoke about the allocation of labor yesterday, that probably referred to the fact that the Reich minister of Justice handed those prisoners over to the Gestapo.
Q Your Barnickel Exhibit 12, which was your Document 11, an affidavit by Dr. Bernard Bach, mentions the head of the Fourth Senate, Dr. Koehler, and calla him a "particularly conscientious judge. He was completely objective and also open to humane considerations." I believe that you so described him yourself yesterday. I wonder if you could tell me whether this is the same Koehler who was one of the judges in the Bonnes case?
A No, that is impossible, for at that time the way the course that the Bonnes case took, as far as I remember it, Koehler had already been transferred away from Berlin where he had come into disfavor. Apart from that a Senate President -- and Koehler was a Senate President--never sat as a judge in another senate, but always sat as a presiding judge only. If I understand you correctly, this Koehler, whom you are talking about, is not named in the first place in the Bonnes case, but only in a subsequent place.
Q Were there two Koehler's who were judges in the People's Court in Berlin?
A Yes, there were two.
Q I wonder if you could tell me whether the Dr. Lenhardt who gave you an affidavit, which is your Exhibit 11, is the same Dr. Lenhardt who directed the executions at Ploetzensee prison on the 7th and 8th of September 1943?
A I am as such not informed about that, but since we have only one Lenhardt at the Reich Public Prosecution and since a public prosecutor had to be present at every execution, I assume that he is identical with that Lenhardt.
Q And is the Dr. Baxmann, who gave you an affidavit -- your Exhibit 8--the same Dr. Baxmann who assisted at those executions?
A I am not informed about who was present at those executions. I assume that you have a record there, but if Dr. Baxmann is mentioned in such a record of such minutes, he probably was present too. There can be no doubt about his identity because there was only one Baxmann.
Q I believe that you told us that the exhibits, which you have been introduced by the prosecution, which only carry your name on the circulation slip, were -- we might call them -- samples of the type of material that was distributed to you as head of the department during your time in office -- material which had to be initialled by you?
A I beg your pardon? I did not understand the introduction to your question.