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.
Thank you.
MISS ARBUTHNOT: I believe the record shows that that exhibit was received, does it not?
THE PRESIDENT: Yes, the exhibit has been received.
MISS ARBUTHNOT: Thank you.
BY MISS ARBUTHNOT:
Q. In 1943, Dr. Barnickel, there was a case in Munich, the Scholl case against students, in which students were sentenced to death for throwing propaganda leaflets. Freisler and a member of the prosecution flew down to Munich for that trial. Were you the prosecutor in that case?
A. No, I was not.
Q. Do you know who was?
A. You mean whether I was the prosecutor who was in the session, the representative of the prosecution in the trial?
Q. Yes; or, was that handled by your division, your department?
A. Division III handled it.
Q. Do you know who went down to Munich on that?
A. In that case if I am not mist ken Reich Public Prosecutor Weyersberg who was in charge of Division III went to Munich; and in addition a first public prosecutor Bischoff.
Q. Thank you. In cases which were originally handled by your department, Dr. Barnickel, and on which extraordinary appeals were taken, your department continued to handle those through extraordinary appeals; did it not?
A. If we handled those originally, then it must have been like that.
Q. Yesterday in your Exhibit 18, your help to the defendant or to the prisoner Umrath was described. Did your division, your department, originally handle that case; was the indictment filed by your department; and was the case tried by your department?
A. From the document which was submitted here I have gathered that the case was handled by my division.
Q. Do you remember the sentence you recommended in that case?
A. I saw that in the document here, too. I think Umrath got five years in the penitentiary; that was in 1938; of course, it is quite impossible to say today whether this matter was discussed with me before the session and what kind of a penalty I suggested.
Q. In connection with your own affidavit which was submitted and which sets out the orders on secrecy, you say that you could know nothing more than what was absolutely necessary in your work, but you did know in connection with your work, both as a department chief and during the times when you acted as deputy for the Chief Reich Prosecutor, that the prosecution office cooperated with the Gestapo; that there were concentration camps; and that treason had been extended to include foreign nationals and such as that; did you not?
THE PRESIDENT: What is the answer?
A. Yes, I knew all of that.
Q. Could you tell me, Dr. Barnickel, what honors or medals you received from the party or party organizations?
A. From the party or from affiliated organizations of the party I never received any awards or decorations.
Q. Did the defendant Lautz ever reproach you concerning your leniency in handling defeatist cases?
A. I already made some statement about this yesterday to the effect that from my Leipzig personnel file I obtained information that the course I followed in regard to defeatist cases was not approved.
Q. Didn't the defendant Lautz ever come to you personally and reproach you on handling of any of the cases within your department; or, the manner in which they were handled; or, the work done, the methods used in your department?
A. We had differences of opinion not infrequently and also clashes but usually this went as follows: The chief of the office disapproved my formal manner of handling business, whereas I myself was really interested in the substantive part of the case.
Q. Could you tell us something about your relations with the defendant Lautz. Were they good or bad?
A. My relationships during the first years were quite good; later, they deteriorated; and during the last period they were bad.
Q. Could you tell us why you were transferred from the People's Court to the Supreme Court Prosecution?
A. I personally prefer to be of the opinion that this was in connection with what I said before --- about the course I followed in regard to defeatist cases which was not approved; and I have answered that question already by saying that.
MISS ARBUTHNOT: I have here the original and the English translation of excerpts from Document 3757-PS. We have not yet been able to have this document processed completely, but I would like to have the defendant read some of the excerpts in the original; and as soon as we have been able to have photostats made, we will submit the document in evidence and supply copies to the defense.
THE PRESIDENT: Suppose you have it marked for identification now so that there will be no question as to the identity of the document.
MISS ARBUTHNOT: It is excerpts from Document 3757-PS, being a diary of the Reich Ministry of Justice, and I would like to have it marked for identification as Prosecution Exhibit 564.
THE PRESIDENT: Let it be marked Exhibit 564 for identification.
Q. You have stated I believe, Dr. Barnickel, that you did know something about concentration camps and conditions in these camps generally. Did you have any specific information on the camp Dachau?
A. I knew of that Dachau camp. But what I did know of the Dachau camp was the outside picture of the camp, not internal events, that is to say not the manner in which the prisoners were treated and the like. I knew where the Dachau camp was because it was within my district. When I was senior public prosecutor in Munich, too-
JUDGE HARDING: Just a question. Whose diary is this supposed to be; who kept it?
MISS ARBUTHNOT: It is the official diary of the Reich Ministry of Justice, kept in Berlin; and entries made from correspondence and re ports received from offices in other districts.
Q. While you were in Munich as prosecutor there, with the district court, did you send periodic reports to Berlin in connection with deaths, investigations, and other events in Dachau; did you not?
A. Yes. I can't believe that they were periodical reports, but it must have been like that.
Q. From time to time then.
A. When it was noticed in Dachau that certain events, incidents, has happened, then reports were made to Berlin.
Q. As a few examples I wonder if you would turn to the reverse side of page 83; and perhaps I should explain to you, Dr. Barnickel, that the page numbers are small numbers directly below the document indentification.
A. I think I can find it here. That is it.
Q. Yes A. 83, yes.
Q. Is there entry No. 4?
A. Yes.
Q. You made such a report to the Ministry of Justice on that case, did you not?
A. Yes; I have to make preliminary remark. I can't see the date. Did this all happen during the same year?
Q. All of these were during the year 1938.
A. 1938; on the 29th of July I was quite without doubt senior public prosecutor in Munich too; that is quite clear. But, of course, I am not in a position from a file not without signature, without any mention of the person who made the report, to see whether the report originated with me.
Q. It no doubt originated in your office, did it noe, Dr. Barnickel?
A. According to what it says -- Chief Public Prosecutor, Munich that, of course, is quite without doubt.
Q. Courl you refer as an example to Page 119, No.1
A. Would you please repeat the page again?
Q. Page 119.
A. I have read it.
Q. This entry states that an employee, a Jew, and prisoner under protective custody, had been indicted for assault because of the fatal results to another prosoner in protective custody, brought on by an assault by the Jew Weil. In that case investigation was made by your office and proceedings brought by your office against him in Dachau; was it not?
A. Yes. Your first statement is correct. The latter one is not quite correct. However, I gather from this not that the chief public Prosecutor, Minich, too, on the 29th of July, 1938 reported that a prisoner who was a Jew and who at the same time was a supervisor in the camp, by a kick unjured another prisoner, who also was a Jew, so seriously that the second prisoner died. Such proceedings, however, did not start in such a way by our initiating the proceeding. I have to make a general remark on that topic. The camps were in 1938 still under the gen eral courts, and this is bow it happened that if a punishable offense had been committed there, all agencies became active which otherwise were concerned with prosecution, but in Dachau matters were as follow:
Dachau had its own police office; moreover, there was a court in Dachau, with investigation judge; and these two offices, that is to day the police and the investigation judge were usually or always those who became active first when a punishable offense had occurred. Then it proceeded, as in every criminal proceedings; records were submitted to the senior public prosecutor, there the senior public Prosecutor then took over the further prosecution and if he thought that the case had been clarified, he could either stop the proceedings discontinue the proceedings; or he filed an indictment. In this case an indictment was filed. I believe that I don't have to say anything more about it; I don't have any personal recollection of this case. According to the notation here, it is quite without doubt that it was done by my agency.
THE PRESIDENT: Dr. Barnickel, you spoke of an investigating judge at Dachau, if I understood you right.
A. An investigating judge, your Honor.
THE PRESIDENT: Yes, Well, he was connected with the Reich Ministry of Justice, was he not?
A. Your Honor-
THE PRESIDENT: He was under the Ministry, I mean.
A. Your Honor as in the case of all courts, at local courts, in Dachau there was a local court and at this local court one of its judge had the task to work as investigating judge.
THE PRESIDENT: Yes.
A. He was under the same official supervision as every other judge
THE PRESIDENT: Yes. I understand. Thank you.
BY MISS ARBUTHNOT:
Q. I wonder if you would turn to page 275, No. 11
A. That is a notation by the chief public prosecutor at Munich of the 2nd April, 1938, I assume. This is apparently the proceedings because of the suicide of the Tailor Wagner from Nurnberg, and in parenthesis signed Barnickel.
Q. You notice, do you not, that this suicide of Wagner was performed by hanging in a lying position. I wonder if it was customary to stop proceedings in a case of a suicide of that kind?
A. I haven't finished reading it; may I just read it quickly. Apparently this was a man who already had twenty years of prison and penitentiary behind him. On the 30th of March, 1938 he was found hanging in a steam pipe system. He hanged himself with a rope on a pipe, ans was found in a lying position. He left a farewell letter. Through the court inspection and the post mortem examination these facts were confirmed According to the expert opinion of, the local district court physician, death occurred through hanging in a lying position. No trace of any force exerted by a third person could be found. I can only make a supplementary remark that from what I have just read, it is apparent that the investigating judge, who I mentioned, came soon and gave an eye witness report to the court. I addition the district court physician had been consulted and he confirmed that death occurred through hanging in a lying position.
A. May I add something?
Q. Yes.
A. Of course, that is only a briefly summarized description of the facts in the case. From the files themselves details would have had appeared. According to what I am reading here there is not doubt in my mind even today that the case was quite proper. Of course, I do not imagine the case like this, namely, that the man from the very beginning was lying on the flooe entirely.
Q. Is there anything further you intend to say there, Dr. Barnickel?
A. No, I only want to say, he was hanging so low on a steel pipe that he was almost lying. For me there is no doubt that the matters were quite in order. But, of course, a physician could perhaps make some more extensive statements about this and at that time I also had the extensive expert opinion by the physician.
Q. You do note, however, in this entry, Dr. Barnickel, that the prisoner Wagner was found hanged on the 30th of March, 1939, and that your report to the ministry was made on the 2nd of April, and that I would assume from that the investigation had been made between the 30th of March and the 2nd of April on which you decided proceedings should be stopped?
A, I beg your pardon, this is not how the matter is to be understood. Just a moment - on the 2nd of April - I have to read it over - my report was made, yes, and on the 30th of March the man was found, Yes, what you did say is correct. I beg your pardon.
Q. Thank you. Would you turn to page 574, item No.5?
A. 547, yes.
Q. Yes, Item No. 5.
A. Yes.
Q. That is the case of a prisoner inpprotective custody who died as a result of falling in a gravel pit although the post mortem did not reveal any definite cause of death, it was only estimated that the death had been caused by outward injuries and neither cause of death, obviously a mild edema caused by heart failure, no indication of mal-treatment?
A. Yes, first I would like to make a preliminary remark regarding that case if I may. According to what you said by way of introduction these are cases from the year 1938, and at the time of his case I was already Reich Public Prosecutor on Berlin.
Q. Could you repeat that please? I didn't get it.
A. According to what you daid by was of introduction these cases are from the year 1938 and on the 29th of December, 1938, I was Reich Public Prosecutor in Berlin.
Q. I beg your pardon, Dr. Barnickel, this case was reported in December of 1937. The diary goes back rather than forward.
A. Oh, oh, of course, I couldn't know that. Yes, that seems to be right, '37 instead of '38, and in that case I will have to look at the case.
Q. Yes.
A. Yes, this report shows that the investigation was carried out in the usual manner. A post mor tem by the Court was undertaken and in this case, too, without doubt the investigating Judge of Dachau was again present. The post mortem did not show any definite cause of death. Apparently, we were not satisfied with this so that we asked the Institute of Forensice Medicine in Munich for a further investigation. The Institute of Forensic Medicine in Munich was so to say our highest medical authority. The Institute arrived at the conclusion that apparently a paralysis of the heart had occurred and above all apparently all of the physicians arrived at the conclusion that there were no inducation of maltreatment. In view of those facts there was not other possibilit than to stop the proceedings. I may add that in every case which had some kind of political coloration we had to report it to the General Public Prosecuto and I made my decision only in the General Public Prosecutor was in agreement with the decision.
That is all I have to say.
BY THE PRESIDENT:
Q. This case involves another point of interest, Dr. Barnickel.
A. Should we infer that this amn had not yet been tried? It appears that he was under suspicion of race pollution. I would infer that meant he was awaiting trail?
A. Your Honor, that, of course, is a question which to my regretI am unable to answer, whether a proceeding was pending against this man and before which court it was pending I cannot gather form this note.
Q. Well, how do you explain his being in a concentration camp when he was under suspicion only of violating the law for the protection of German blood and honor?
A. Well, Your Honor, that is just this protective custody which I fought against so very much and which was the thing which enabled the political police to put people under protective custody, even if there was only a suspocion. And so that no misunderstanding should arise, Your Honor. I may add also that I, of course, had no influence whatsoever on that, for this man, his name was Riesenfeld - can for example have been from Stuttgart or any other place, and it is possible that the Public Prosecution of his home town was instigating proceedings against him, but I cannot gather that from this note/
Q. But you would form this note know of the report concerning the fact that a man under suspicion of race pollution was in Dachau. Wouldn't that suggest to you that the ministry of Justice might under the legality principle have a duty to prosecute someone?
A. Your Honor, it is extraordinarly difficult to give a precise answer to that question. One also has to consider the possibility that the political police harbored the suspicion and that therefore it took him into protective custody and that perhaps the evidence was not of such a nature that the political police could consider a trial would be suc cessful; that, however, on the other hand, it wanted to keep this man in protective custody.