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.
Q To put it another way then. You stated that you received copies of judgments and indictments prepared in other divisions or departments of the prosecution and that you merely initialled these on the circulation slip and sent them on their way?
A That is correct, but perhaps I may add one thing. It is, of course, possible that once somewhere my name is written on, because frequently one had to affix so many signatures, that one -- I would like to say -- by mistake, sort of wrote the whole name on it. If that is supposed to be the central point of the question, that will not change anything in the significance of my signature.
THE PRESIDENT: The Tribunal will recess until tomorrow morning at nine-thirty.
(The Tribunal adjourned until 28 August 1947, at 0930 hours.)
Official transcript of American Military Tribunal III in the matter of the United States of America against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany, on 28 August 1947, 0930-1630. The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Rothenberger, who is absent due to illness.
THE PRESIDENT: The proper notation will he made.
PAUL BARNICKEL - Resumed CROSS EXAMINATION - Continued BY MISS ARBUTHNOT:
Q. Yesterday, Dr. Barnickel, we were discussing the Kubiak case, and I believe that in that case there was a slight misunderstanding in connection with the order for the execution and punishment of Poles. There was an executive order issued in that connection, was there not?
(Witness is offered the file)
A. Yes. I am reading from the small commentary by Schwarz on the Penal Code, 1943. Edition, on Page 1017-B, Executive Order on the Law against Poles. Is that what you mean?
Q. Yes.
A. What do you want me to read from it?
Q. The preceding section. Section 17, I believe it is.
A. Seventeen, yes. I correct that. It is not the Executive Order I just mentioned, but a preceding order, with the title: "Order about the Administration of Criminal Law against Poles." I don't have to read the whole thing. I read here under Roman No. XVII:
"The Reich Minister of Justice is empowered in agreement with the Reich Minister of the Interior to issue the legal and administrative regulations which are necessary for the execution of this order and to decide doubtful questions by administrative means."
Q. An executive order was issued under that section, was it not, for the execution of punishment against Poles?
A. Well, if I understand you correctly, you are asking me whether on the basis of what I have just read -- on the basis of this paragraph -- later on any further orders were issued?
Q. Yes.
A. I consider it possible, but at the moment, without any documentary basis, I cannot say what was in question here.
Q. The order for the transfer of Poles to more severe prison camps was issued as an executive order under that section, was it not?
A. Yes. At the moment, I can't tell you. I can't tell you whether it wasn't provided in the Law against Poles proper--whether that didn't have a provision about it.... Yes, it says so in Article 3, Roman No. III of the Law Against Poles.
Q. Yesterday in discussing the camp Schieradz, you mentioned that you had seen that name or seen that camp for the first time-or the location of it for the first time--on the map here in the courtroom. You do know, do you not, that the map which we had here in the courtroom was a map showing concentration camps?
THE PRESIDENT: Well, we know it whether he does or not. He, undoubtedly, knows that too. I still am interested in the question which we have not yet discovered the answer to; that is, whether there was an executive order which was not a part of the Law against Poles and Jews, but was made pursuant to the authority granted to the Reich Minister of Justice and the Minister of the Interior. Do you know the answer to that question?
THE WITNESS: I said that I consider it possible, but from my memory and without documentary basis, I cannot remember.
THE PRESIDENT: All right. Do you have such an executive order for the prosecution?
DR. TIPP: Your Honor, I am in a position, in regard to the Law against Poles, which is in question here, to show it to the witness. I think then he would be in a position to answer that question. Perhaps I may show the witness this law against Poles.
(Witness is offered a book).
THE PRESIDENT: Now we have the Law against Poles. What we are interested in is the Executive Orders made pursuant to that Law.
THE WITNESS: I have here in the Administrative Regulations regarding Criminal Law of 1943 an Executive Order regarding Poles. It is a general ordinance by the Reich Minister of Justice of the 7th of January 1942. It's on page 761.
THE PRESIDENT: 761?
THE WITNESS: 761. It concerns the execution of prison terms against condemmed persons who are subject to the Law Against Poles.
THE PRESIDENT: Will you read it, please?
THE WITNESS: "First: the execution is carried out in main camps and the branch camps thereof, absolutely separated from the administration of prison terms to Germans, and of condemned persons in general who are not subject to the Law against Poles and Jews.
"Secondly: Responsible for the execution, is the Senior Public Prosecutor, who is competent for the Court that pronounced the first sentence. The local judge who pronounces the sentence has to take the temporary measures. Responsible for the execution, is the chief of the main camp in the sphere of which the penalty is administered. The responsibility for the administration of the penalty in the branch camp, on the other hand, is borne by the chief of the branch camp.
"Third: I determine about the main camps, the branch camps are determined by the General Public Prosecutor. The branch camps too must safeguard a secured detention. The transfer of prisoners to branch camps and back is a matter that is up to the chief of the administration of the penalties. He, personally, must currently inform himself at the place about the administration in his branch camps. The prisoners may be kept in common detention if reasons of security, order, and discipline and of health do not forbit this.
"Fourth: Except for a prison term, the administration of the penalty is carried out by absolute discipline and by common work. The work is supposed to promote the German work of reconstruction in the East. The work has to use the ability to work of the penal prisoner completely. As a rule, the work lasts one hour longer than in the penitentiary. Health and ability to work of the prisoner must be preserved. There is no reward for work.
"Fifth: Disciplinary measures which the chief of the administration of penalties can use are: hard beds up to four weeks; limitation of food to water and bread for each second day up to two weeks; severe arrest, from one to two weeks; increased severity of the penal camp from one to six months. In strict arrest, the room where the prisoner is arrested, with the exception of the times when he is eating or cleaning, is kept dark. The arrest is not counted in the time of the prison term. Against a prisoner who cannot be disciplined by a disciplinary measure by the camp, punishment according to the Law against Poles will be requested.
Whoever receives a very serious disciplinary punishment shall have this called to his attention and also to the fact that then according to the law the death sentence may be pronounced also.
"Sixth: In more severe penal camps, especially hard work is supposed to be done. The time of work may also be prolonged by one hour. One Sunday per month is carried out as a strict day. On that day, the inmates of the camp receive only water and bread and hard beds. The General Public Prosecutor may commute the severe penal camp penalty of a prisoner who behaves himself excellently to simple penal camp.
"Seventh: Poles and Jews who are sentenced to penitentiary or prison teems, but now would be subject to the Law against Poles, are transferred to the penal administration in the penal camps. The penalty is executed in the form of simple penal camp, and in cases where the chief of the administration of penalties regards it as more serious, in the form of a more severe penal camp. Cases in which penitentiary sentences of three or more years have been pronounced, or security detention, as a rule, are regarded as serious cases."
With that, I have concluded the reading of the test.
THE PRESIDENT: And who signed the executive order?
THE WITNESS: I cannot tell that Your Honor. There is no signature on that.
THE PRESIDENT: It appears to be an order of the Reich Minister of Justice, does it not?
THE WITNESS: That is without doubt. The order is moreover printed also in the Journal of Judicial Justice, on Page 35, but I assume that there too it does not bear a signature.
BY MISS ARBUTHNOT:
Q. That was the executive order under which Kubiak and other Poles were transferred to severer penal camps, was it not?
A. That was the executive order which quite generally regulated the execution of the penal camp and the more severe penal camp penalties.
Q. Thank you. I show you, Dr. Barnickel, NG-926, which is a file concerning a People's Court case against a German, Birck, for defeatist remarks. The death sentence is pronounced and executed. There is a letter in this file signed by you.
A. I have this letter.
Q. This letter demands the confiscation of the defendant's Honor Cross. That case was handled in your department was it not?
A. Yes, it was dealt with in my department.
Q. Do you remember what your recommendations were in connection with the sentence in that case?
A. It's impossible for me. I don't even recall the name. May I ask you to wait for just one moment? (Witness reads document) I regret, but I cannot recall the case.
Q. But you do know that case was handled by your department and that the letter contained in that file is a letter signed by you?
A. There is no doubt about that.
Q. I offer Document NG-926 as Prosecution's Exhibit 562.
THE PRESIDENT: The exhibit is received.
BY MISS ARBUTHNOT:
Q. Dr. Barnickel, in yesterday's discussion of the Prosecution's Exhibit 493 concerning the Daibow case, at which you officiated in the execution, you stated that was the last time that you had officiated during an execution. I wonder if you could tell me how many times you officiated at other executions?
A. I only said that I believe it was the last time; in any case, I do know that during the last years that I was with the Reich Prosecution, I no longer took part in executions or attended executions. In regard to your question as to how often I participated in an execution, it is of course, also very difficult to answer. But I do not believe that, for example, it was more than six times.
Q. That is a total during your office at the People's Court-in your office of Prosecutor at the People's Court?
A. Yes, because I repeat, that during the last years I did not take part in any executions any more at all, but the figure is not definite. It's only a vague memory, I have a vague memory of it because on those days we always had to get up at something like four o'clock in the morning, so that one does remember that particularly.
Q. Dr. Barnickel, I show you NG-875, which is a file concerning the indictment of Erich Drees for seditious remarks and distribution of hand, bills. Contained in this file is a letter signed by you. This case was also handled by your department, was it not?
A. Yes. The letter was written by me. It's without doubt my signature of the 6 of January 1943, isn't it?
Q. Yes. Do you remember your recommendation on senates in this case?
A. I cannot remember the case positively, but I can only say that a serious penalty was considered appropriate according to what I am reading here; but as I said, positive recollection I can hardly have of any of these cases.
MISS ARBUTHNOT: Thank you. I offer Document 875 as Prosecution Exhibit 563.
THE PRESIDENT: The exhibit is received. Dr. Barnickel, would you explain to me the meaning of the portion that I shall read; it is on page 4 of the English. It is a motion that the defendant be tried before the People's Court and that the continuation of detention pending trial be terminated; and that a counsel for the defendant be appointed. I am merely trying to understand what was meant by the termination of the continuation of the detention pending trial. That doesn't mean that he was free to go and come as he pleased, does it?
A. I will tell you in a minute, but I ask on what page of the document it is.
THE PRESIDENT: It is page five.
MISS ARBUTHNOT: I believe I can straighten that out.
THE PRESIDENT: I have no doubt it can be straightened out, but I am anxious for the record to show what is meant by that statement.
A. I can't find it right now at the moment, Your Honor, but that is not important.
MISS ARBUTHNOT: The word should be "determined" rather than "Terminated". There is a typographical error in that translation.
THE PRESIDENT: Oh, I see.
A. In any trial proceedings, Your Honor, in which a defendant was in detention pending trial, then the indictment was filed; it was requested that the court that is to try the case would order that the detention pending trial should continue.
THE PRESIDENT: Yes, I understand -- it is a typographical error.