THE PRESIDENT: You may have a further opportunity after the recess to explain the matter.
We will recess for fifteen minutes.
(A short recess was taken)
THE MARSHAL: The Tribunal is again in session.
BY MISS ARBUTHNOT:
Q At the recess we were discussing the case on page 574, in which the prisoner was held in protective custody under suspicion. Have you anything to add to your remarks on that case, Dr. Barnickel?
A Well, I think it would be interesting if I were to tell you in more detail about the extent to which the prosecution at Munich II was competent for Dachau. The prosecution at Munich II was not in charge of the camp; it had no right to supervise the camp.
THE PRESIDENT: You have covered that matter, we understand that. We understand your testimony on that issue.
Go ahead.
A (Continuing) Nor did we have anything to do with the inmates. We were only competent if, at the camp itself, an action took place which possibly might be a punishable offense.
I hope I have now explained the matter.
THE PRESIDENT: Yes.
BY MISS ARBUTHNOT:
Q Then it was of no interest to your office whether the prisoner was in protective custody or had actually been sentenced to a term there?
A You are referring to this particular case, are you?
Q This particular case, or any other case in which a prisoner was there in protective custody.
A No, that is not quite the way to put it. I have now given a detailed explanation of my competency, but I have not said that I was not interested in the matters connected with some concrete case with which I had dealt. However, on the basis of these brief file notes, I can only make statements in connection with the texts which I see in those notes.
May I add concerning my functions as Chief Public Prosecutor, as far as my work in Dachau was concerned, that I did not interpret my work in that connection in a different way from my other functions as a public prosecutor. I remember for example, that on account of a report submitted to us in one case, we did not find that a punishable act had been committed. However, all the same, if I felt some doubts about a particular case, doubts which were outside the law, I did not hesitate to voice my doubts, in such cases, before the camp management.
Q Thank you.
This document 3757-PS will be introduced as soon as it has boon completely processed.
I show you now, Dr. Barnickel, a file of three documents; a report and two letters, in connection with the case Wilhelm Franz and Dr. Katz. Do you remember that case?
A You are referring to the case of Franz and Dr. Katz? You are referring to two cases, are you?
Q Yes, the cases mentioned in that file which I have given you.
A Concerning tho case of Franz and Dr. Katz, I should like to point out that the report of 30 July 1934 was made by my predecessor in office as Prosecutor in Munich.
I did not know anything about that case at the time.
Q Would you read the -
A I would have to look through the whole file.
Q Would you read to the Court, please, beginning with Section 2 of that report, Sections 2 and 3?
A Second paragraph, political police.
THE PRESIDENT: Will you please first identify the document in some manner?
MISS ARBUTHNOT: These are documents concerning the case Franz and the Base Katz.
THE PRESIDENT: Well, is there an NG number?
MISS ARBUTHNOT: No, there is no number on these documents. They are copies of PID documents which we received from London. The original has not been received, and no number has boon given to it.
A (Continuing) I quote from a report by Dr. Frank, the former Minister of Justice of Bavaria, dated 2 December 1933, and I shall read paragraph 2:
"On the morning of the 19th of October the Prosecution at the District Court Munich II was told by the Bavarian police over the telephone that on the 17th of October 1933, in the afternoon, Wilhelm Franz of Munich, born on the 5th of June 1909, in protective custody, and Dr. Katz, of Nurnberg, also in protective custody, had both hanged themselves in their solitary confinement cells at the concentration camp of Dachau. On the same morning the prosecution inspected the matter on the spot and afterwards a post mortem was performed. The bodies had already been removed from the cells.
They had been taken to a shed; they had been put on stretchers and all their clothes had been removed except for their shoes. In Franz's cell, bloodstains were found on the bench. In Katz's cell it was discovered that tho chains which were used to open the window had been partly removed and had been replaced by a rope.
"On the basis of the inspection of the cell and the bodies on 20 October 1933, a post mortem was performed on both corpses. With the agreement of the Magistrate in charge, Dr. Meichsner, the camp physician, attended the post mortem, as well as Dr. Schangraber, the camp adjutant. The post mortem showed, as to both corpses, that there was a suspicion that third persons had exerted violence. According to the preliminary expert opinion by the two court physicians, in both cases death was caused by throttling. The strangulation marks found on the throat were not in accordance with tho findings one usually makes in the case of people who have been hanged. In respect to the corpse of Franz, it is also mentioned in this provisional expert opinion that it is not out of the question that a secondary cause of death might have been a fait de grace. Now marks were found on the head and also many on the rump and on the arms, and there was extensive contusion and smashing of the fat tissue. Furthermore, Katz's corpse, apart from the injuries to the throat, also showed injuries on the head, injuries to the skin, and in one case the skin was broken.
"During the inspection the prosecution ordered that the two belts with which Katz and Franz were supposed to have hanged themselves be produced.
It was not possible for these two belts to be produced immediately. The Local Court of Dachau has ordered that the belts be confiscated. So far, these confiscated objects have not been transferred to the prosecution."
Section 3: "I have informed the Prime Minister, and through him the Reichsstatthalter in Bavaria, as well as the Minister of the Interior, of the reports by the prosecution concerning the cases mentioned under '1' and '2'. In a letter of 29 November 1933, addressed to me, the Minister of the Interior requests for reasons of State policy, the quashing of the investigation proceedings pending with the prosecution at the District Court Munich II, in connection with the death of the prisoners under protective custody, Hugo Handschuh, Wilhelm Franz, and Dr. Delwin Katz. It is pointed out by way of a reason that by carrying out investigation proceedings the reputation of the National Socialist State would suffer greatly because these proceedings were directed against members of the SA and the SS, and thus the SA and the SS, as the main exponents of the National Socialist State, were immediately affected."
Q. I think that will be sufficient on that document, Dr. Garnickel.
A. Yes.
Q. Could you now turn to the letter of the Chief Public Prosecutor Wintersberger to the Attorney General in Munich, which is dated 30 July 1934, and read that letter? I think that we can omit the last paragraph of that letter in the reading.
A. Yes. The letter is dated the 30th July 1934, and it is addressed to the General Public Prosecutor at Munich:
"Concerning this enclosure, I have, in accordance with instructions asked the Political Police of Bavaria on the 12th of July 1934, after having made contact with the management of the concentration camp at Dachau, to clarify matters and to make an attempt to discover who the persons are who are under suspicion as having committed the crime. In my request I also pointed out that until now I have not received the tools of suicide which were confiscated by the Court (belts and suspenders). It appears that the Political Police has handled the files, without written order, to the Political Department of the concentration camp at Dachau.
The latter has returned the files, together with a letter of 25 July 1934, to the Political Police. The first paragraph of that letter says:
"The new motion for evidence made by the Public Prosecution Munich II slows what out-of-the-way means are being used in order to make the concentration camp at Dachau responsible for crimes which are alleged to have been committed there.'
"In the second paragraph of the letter regret is expressed that the two dead men were able, by committing suicide, to escape the punishment which they had to expect.
"The third paragraph refers to the confiscation and says:
"'After the corpses of the two men had been released, when the post mortem had been performed, there was no further reason why the management of the camp should keep the objects with which the two men had hanged themselves. The management of the concentration camp is not composed of people of that disgusting type who keep suck objects for their own souvenirs, such as has happened recently in America in the Dillinger case.'" The letter is signed by SS Obersturmbannfuehrer Lippert, deputizing for the Commandant of the Camp.
Q. And now, will you read the last letter in that file, the letter signed by you, dated 27 September 1934?
A. "I have a copy of the letter from the Prosecution at Munich II of 27 September 1934 to the General Public Prosecutor at the District Court of Appeals at Munich. It is concerned with Wilhelm Franz and Dr. Katz and their deaths at the concentration camp at Dachau.
"I hereby inform you that I have discontinued proceedings, as the investigations did not yield sufficient cause to assume that third persons played any part in the deaths of the two inmates."
The copy is signed by me.
Q. Do you remember that case now, Dr. Barnickel?
A. Well, to be quite frank, much as I regret it, I don't remember that case. Anyway, I can't remember it at the moment.
Q. But the letter last read by you, dismissing the proceedings, was sent by you?
A. Well, according to the copy I signed the letter, and that must have been about four weeks after I had joined the prosecution in Munich. Naturally, the facts of the case, such as they can be seen in the files here, are rather noteworthy, and I really regret that in spite of the fact that these facts are striking, I cannot remember the case.
Q. But at the time the letter was sent by you dismissing or stopping the proceedings, you would have had knowledge of the facts of the case, even though that had happened before your term of office?
A. Naturally, some files must have been submitted to me, but as to what I saw and what happened at the time--maybe I will remember it later, but for the moment I can only say again that just now, with the best will, I cannot recollect the case.
MISS ARBUTHNOT: Thank you. No further questions.
THE PRESIDENT: Dr. Barnnickel, a few questions for general information.
BY THE PRESIDENT:
Q. First, with reference to your diary, did you make the entries at approximately the dates of the events which they record, or when?
A. Well, that rather varies, Your Honor. Generally speaking, I made those entries at the time when those events actually occurred.
Q. And do you have your original diary there, before you?
A. No, I don't have that with me, Your Honor.
Q. In what form was it prepared originally? In handwriting?
A. It was in shorthand.
Q. Written by you, or dictated by you?
A. No, I took that down myself.
Q. Was it in a loose-leaf book or in a book in which the pages were made fast?
A. No, they were small bound books, like copy books.
Q. Did the prosecution make an inspection of the documents from which you quoted?
A. I was not asked to produce it. Your Honor, I presented those extracts in the fist days of January 1946 when I was taken into protective custody. At that time I had my extracts certified by the notary at Augsburg, and extracts which I made later were made only when my defense counsel had some more of my diaries sent to him from Leipzig. However I believe, because I reread those diaries at that time, that I can say for certain now that I did not make any entries about this case, I want to say this again, that my diaries were not intended for entering political and professional matters, but I used them to enter facts connected with my personal life.
Q Could you tell us the approximate last date on which you made any entries in your diary?
A The last date, your Honor? May I ask you, your Honor, you are referring to the time when I was still in my profession?
Q Perhaps you can clarify it this way. Were all of tho entries which you have referred to in your testimony made prior to what has been called the collapse?
A I have not read out any extracts here which related to matters entered after collapse.
Q And the diaries are in your possession now, or under your control?
A Some of my diaries are still in the Russian Zone.
Q The ones from which you have quoted are under your control?
A They are not in my hands here now.
Q Are they under your control?
A Yes, they are under my control.
Q Now a question which probably relates only to terminology. In discussing your work as Prosecutor in the People's Court in examining files you said that when the examination showed insufficient evidence the case was suspended. Were the people in custody when the files came to you for examination -- the defendants?
A That varied, your Honor. Generally persons who had been indicted for treason or high treason were almost without exception in detention.
Q At the time when the files were submitted to your office?
AAt the time when we received the files.
Q When the case was, as you said, "suspended", did that result in the immediate release of the defendant?
AAs far as we were concerned that meant the immediate release of the defendant. But, your Honor, it happened that an accused person had been actually acquitted by a court and that all the same the Gestapo took him into protective custody, but that without our agreement.
Q That is close to my question, but not quite an answer. I am not referring to the case of people who were acquitted but to the cases to which you referred when you said that the investigation in some cases resulted in a finding that there was insufficient evidence and that the cases wore suspended. Now, did the Gestapo also take over some of those people after you had suspended the prosecution?
A When we had discontinued proceedings -- I don't remember such a case, your Honor.
Q But you said that you suspended the cases when you found insufficient evidence on which to prosecute.
A Yes.
Q What did you do with reference to discharging the prisoner?
A We released them. We discharged them. As far as we were concerned, that matter was finished.
Q Did you have knowledge as to whether your order of release resulted in actual release?
A Mr. President, the prison where the defendants were kept in detention pending trial naturally would have had to report to us if such a prisoner had not been released.
Q Would they have reported if the prisoner had been turned over to the Gestapo? What is the trouble?
THE INTERPRETER: The German channel seems to be out of order. Would you please repeat the question?
Q The substance of my question is whether the Prosecution office followed these cases up sufficiently to know whether or not persons were actually released when the proceedings against them had been discontinued for want of evidence.
A The prison sent us a note that the release had been effected.
Q Did that necessarily mean that the prisoner was a free man?
AA free man.
Q That is the answer. Thank you. Now a few questions with reference to the cases in which your department prepared indictments for the People's Court.
And I mean to include indictments either for trial before the Fourth Senate or before any other Senate of the People's Court.
A We were also before other Senates, your Honor.
Q I have simply called your attention to that as the subject matter of my question. Where did the Senates of the People's Court who tried the cases on those indictments sit? I mean, in Berlin, or where?
A The Senates of the People's Court, until the main building burned down, were all in Berlin. That is to say, until the 23rd of November. After the fire three departments, and if I remember, three departments of the Reich Prosecution -- and if I remember correctly, also three Senates of the People's Court were moved to Potsdam.
Q There is some evidence that People's Courts on a few occasions, at least, tried cases in territory which was outside of the Altreich. To what extent did they sit outside of the Altreich?
A Mr. President, I don't have a very great deal of experience in that respect but I may remind you that for example in the Elias case the first Senate of the People's Court had held its session in Prague. I also know that fairly often Senates of the People's Court held sessions in Austria. I don't believe that any further such cases occurred. Anyhow, I didn't hear of them. I myself never attended any such session.
Q I am inquiring only as to where the courts, the People's Courts, sat, regardless of whether you went along or not.
A I believe I have already answered that. Austria, Prague -I do not know of any other cases.
Q Were Poles who had committed or were charged with having committed crimes outside of the Altreich brought to and tried before Senates of the People's Court in Berlin or Potsdam?
AAs far as I know your Honor, I have to answer that question in the negative.
Q And what would you say as to Czechs?
A Czechs -- well, yes, that is how it was in the case of Czechs Czechs who had committed punishable offenses in tho Protectorate were brought before the People's Court in Berlin and tried there. And if I remember correctly that is shown by several judgments which have been presented to this Tribunal.
Q And were any of them tried before the Fourth Senate?
A Mr. President, concerning the competency of the Fourth Senate during the time when I worked together with the Senate I can only say in quite a general way that treason was the main field with which that Senate dealt. But on the basis of a work distribution plan of the People's Court I would be able to say -- if I saw that plan then I would be able to say where and in what territories the treason has been committed.
Q Did you file indictments against Poles for high treason or did your department file them?
A With the Fourth Senate?
Q Or with any Senate.
A With any senate. Your Honor, if I understand you correctly, you are referring to Czechs in a general way, or may I ask you -
Q My last question related to Poles.
A Oh, yes. Oh, yes. I beg your pardon.
Q Did your department file with any Senate of the People's Court indictments charging Poles with high treason?
A May I remind you of the Pateck case which we discussed here yesterday. In that case we have the indictment and the judgment and they show that such cases did occur.
Q And where did the alleged act of treason take place?
A In the Patek case treason had been committed on the Swiss frontier.
Q: You mean in the Altreich?
A: It was in Austria, Your Honor.
Q: In Austria.
A: On the frontier between Austria and Switzerland.
Q: Were there any Poles who were charged with high treason alleged to have been committed in Poland indicated by your department?
A: I believe I can answer that question in the negative, Your Honor.
Q: How, at one time you were dealing with cases of undermining the military morale.
A: Undermining military morale, yes.
Q: Were there cases in which indictments were filed against Czechs by your department for undermining military morale?
A: I remember for certain, Your Honor, that no such cases occurred. I only remember that cases from the Reich as from the first of January, 1939, that is to say, that was from the time before the Protectorate had been incorporated in Germany -- what I mean to say is, we had cases from the Altreich and from Austria.
Q: For undermining?
A: For undermining.
Q: Well, against Poles who were alleged to have committed their crime in Germany but who had been in Poland on 1 September 1939?
A: You are still referring to the undermining of military morale cases, are you, Your Honor?
Q: That's right.
A: I cannot remember that a Pole was ever involved in a proceedings for the undermining of military morale. May I just have a look at the text? Foreigners were only subject to the law on a limited scale, Mr. President.
For example, if Poles or other foreigners had made such statements among each other, then that was not covered by this law. But if a Pole, for example, had tried to cause a German soldier to escape conscription, then that Pole would have come under that law. But I believe I can say with certainty that we never had an indictment against a Pole. I can remember other foreigners.
Q: Do you remember any from the Western countries?
A: From the Western countries?
Q: Yes. France, Belgium -
A: Holland. Your Honor, may I remind you that the case of a young Dutchman has been discussed here?
Q: Well, any from France or Belgium for undermining?
A: I do not believe that we ever had the case of a Frenchman, nor can I remember Belgian cases. It is very difficult to say, Your Honor. It is possible, of course, that it happened. But if it did happen, it would have been an exception. And above all, I cannot remember that such a foreigner was tried and convicted by the People's Court.
Q: I am only asking your best recollection. I realize you can't recall all of the details. Do you remember any high treason cases tried against Frenchmen before the People's Court?
A: I think that it is quite possible that we might have had some cases of Frenchmen who had taken part in an action committed by Germans, but I cannot say so positively. Above all, I do not know whether such cases were tried by the People's Court or whether they were transferred or what else happened to them. May I remind you that I had to deal with a very great number of cases, and of foreigners who were indicted, that percentage was very small.
Q: At one time in your testimony in describing your duties you referred to cases which you had to examine concerning the transfer of property, and frankly, I didn't understand what the nature of those cases was. Would you explain that to me?
A: There was one word just now which I couldn't quite understand. Which were concerned with what? With the transfer of what?
Q: Property.
A: Property?
Q: I understood you to say that you had to investigate certain cases when you first went to Berlin. I may have misunderstood the -
A: I believe, Your Honor, that must be a misunderstanding. You mean the transfer of property? No, I never had anything to do with that.
Q: I think you said in substance that you did not know of any cases in which Party authorities had directly intervened with the judges of the People's Court in political matters.
A: I can't think at the moment to which of my statements you are referring, Your Honor.
Q: You might just tell me if that is true, then.
A: Well, cases where a political person interfered with a proceedings which the Reich Prosecution was dealing with?
Q: I mean interfered in attempting to influence the conduct of judges of the People's Court.
A: From my department I cannot remember any such case, Your Honor.
Q: There is testimony in some one of the exhibits -I don't remember which one -- that about the time that Freisler was appointed, I think it was Thierack who stated to Freisler that he would communicate upon important matters and cases with Freisler and that Freisler should take up these communications with the other judges of the People's Court.
Did you know of any such procedure in which Freisler attempted to influence the conduct of the judges of other Senates in the People's Court?
A: I knew in a general way of such matters, and what I knew was that Freisler kept a very close watch on the judgments passed by his various Senates. If he did not agree with the judgment passed under the presidency of a certain presiding judge he would write a letter to the presiding judge and tell him that he did not approve of the judgment. As far as I know that happened very frequently, but I couldn't mention any definite case because those things happened in court.
Q: Did you file any indictments with the People's Court in which either the law concerning German blood and honor or the law concerning Jews and Poles was involved under the indictment which you filed?
A: May I remind you, Your Honor, that yesterday we spoke of the Pateck case, and as far as I know, the indictment in that case was based on the law concerning Poles.
Q: My questions now are more general. Did you frequently have indictments which your department presented and which were based in part, at least, on the law against Poles and Jews?
A: Well, "frequently," to use the word -- well, those cases were not frequent with us, but they did happen. They weren't frequent, but they did happen.
Q: Did you have any cases on the race pollution law?
A: No. The People's Court didn't deal with those cases.
THE PRESIDENT: Thank you.
MISS ARBUTHNOT: If I may go back for one more question, please?
THE PRESIDENT: Very well, you may.
BY MISS ARBUTHNOT:
Q: Referring again to the Bradeck case, that was a case of high treason committed by a Pole outside of Germany, was it not, inasmuch as the location of the commission of the crime was in Austria?
A: Yes, but just a moment -- naturally, outside Germany if at that time one did not count Austria as being part of Germany. It was inside Germany, according to the German view.
Q: Outside of old Germany?
THE PRESIDENT: I think that is clear.
MISS ARBUTHNOT: Thank you.
THE PRESIDENT: I take it that this witness may be excused? The witness may be excused from the witness stand.
DR. TIPP: I have some questions.
THE PRESIDENT: I misunderstood you.
REDIRECT EXAMINATION BY DR. TIPP:
Q. Dr. Barnickel, the last question which the prosecutor put to you was, did the Bradeck case occur outside the Reich frontiers, That question caused me to put the question to you as to what your view was concerning the constitutional position of Austria?
THE PRESIDENT: I think the witness has made it very clear that he considered Austria a part of greater Germany and subject to German jurisdiction. That is very clear in his testimony now.
BY DR. TIPP:
Q. Well, if the Tribunal has already understood that. Now I am coming to the question of high treason in general, witness. Concerning the question of high treason committed by foreigners, I have some more questions to ask you, witness. I would like to link up with the question put to you yesterday by the prosecutor, when she asked you whether Bradeck had sworn an oath of loyalty. I didn't understand the point of that question. I now would like to ask you, was there in Germany under German law for Germans, such an oath of allegiance which would have constituted a prerequisite for convicting him for treason or high treason?
A. No, there was no such thing.
Q. Now another question. Witness, can you tell us what was the principle which guided the judgments which were passed in cases of treason and high treason? I am asking you that because there are other principles as well. Can you tell us which principle prevailing in the view which one applied in passing judgments on cases of high treason?