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?
A. Well, could you ask me that question in a somewhat more precise form?
Q. To make my question a little more precise would mean that I would more or less put the answer in your mouth, and that is what I want to avoid. You know, I am sure, that legal theory on penal law knows several principles. There was, for example, the territorial principle, which refers to the territory where the offense was committed. But there are also other principles, and that is why I am asking you what principle was applied in the case of high treason?
A. The whole question has been discussed here several times, and also in particular, it has been discussed here. But even when a foreigner committed an act of high treason abroad, prosecution could be instituted. As to whether that actually did happen, that I don't know, but under law it was possible.
Q. That is the effect of the law. But the principle itself on which that application of the law was based, that we haven't heard about yet.
A. I think I have made myself clear.
Q. Witness, we still haven't finished the question.
A. But I have answered the question: because the legal code acknowledges the territorial principle.
Q. Well, I shall now leave that question. Witness, I am now coming to the last question which the President put to you. The President said to you that in your direct examination you had described that some of your work had consisted in dealing with the transfer of property. Perhaps I may ask you that question in a somewhat more precise form.
You will remember that when you described to us the time of assuming your work, you said that department dealt with high treason, and you also said that you had to deal with cases of transfer of property abroad. Can you explain to us briefly what all that was about?
A. Now I understand the question that the President asked me before. I told the Tribunal the other day that I dealt with cases of high treason and with economic sabotage. By that I meant the transfer of holdings abroad--the illegal transfer of money abroad. That was an offense which if it was only committed on a small scale was called a foreign currency offense. The intention was to avoid capital being withdrawn from the German economy and transferred abroad. A person who violated that law was indicted for economic sabotage. I should like to add that we investigated a small number of such cases, but we did not file an indictment in one single case, and there was no conviction in one single case.
Q. And if there were any convictions at all, you were concerned with offenses committed by Germans, weren't you?
A. Yes, offenses committed by Germans:
Q. I am now coming to one of the questions which the President asked you, and I believe one question hasn't been quite clear--I mean the question whether there were proceedings before the People's Court where Frenchmen or Belgians were involved for undermining of military morale, and where such Frenchmen or Belgians were actually convicted. I am not quite clear whether you meant to say that you don't remember anything about it or that you remember such cases were not tried at all.
A. I have the definite impression that no such case was tried by the People's Court.
Q. During the cross examination by the prosecutor, the extraordinary objection was mentioned. That legal remedy has been discussed here many times. Just for the sake of clarity, I would like to ask you to tell us again whether it was the Chief Reich Prosecutor at his own initiative who made the extraordinary objection or who it was that made that objection.
A. The Chief Reich Prosecutor could only make the extraordinary objection if he had been instructed to do so by the Ministry.
Q. Thank you. Witness, I would now like to discuss briefly with you a few points from the prosecution documents. The last document which the prosecution discussed with you ended with your letter of 27 September 1934 to the General Public Prosecutor with the District Court of Appeals in Munich. Unfortunately, I don't have that letter. Perhaps I wasn't paying attention. I really can't remember whether the prosecutor already offered that document for identification or whether she said that she would introduce it later. Perhaps I may ask the prosecutor to let me have that document for a few moments.
(Document is offered Dr. Tipp) Witness, I am first going to refer to the first letter of 24 September 1934.
I have before me an uncertified copy which is written in type, and I can't say of this typewritten copy whether it's correct or not. Therefore, I will now ask you, before we discuss the matter in any more detail, do you remember whether you signed that decision to discontinue proceedings? I think that is the most important preliminary question.
A. I don't remember it.
Q. If I understand you correctly, in other words, you do not recognize the document, such as we have before us, as having originated with you?
A. I cannot say for the moment.
Q. Well, then I think I am understanding you correctly if I assume that the statements which you made here were purely hypothetical?
A. Purely hypothetical, yes.
Q. With reference to the contents of this document, as far as we have it here, again under that hypothetical present condition, you can't make any testimony, can you, on the contents?
A. No, I cannot make any comments on the contents. I have already said that it is so striking that it definitely embarrasses me that I have to tell you that I don't remember it, but I should like to add that there is something else which I do remember. That is, that at the time when I assumed the office with the prosecution at Munich II, a number of important files had vanished. If I remember correctly, four such files were missing. For a long time I tried to discover their whereabouts, and it was impossible for me to get them back.
THE PRESIDENT: We will now have a recess until one-thirty this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened, at 1330 hours, 28 August 1947.)
THE PRESIDENT: We have before us an application by the defendant Rothaug, through his counsel, Josef Koessl, for permission for the defendant to be absent from the courtroom for the purposes of necessary rest for a period of one week. The prosecution has stated that it has no objection to this application. The application of the defendant states that in the opinion of the defense the defendant's presence is not necessary. For those reasons, among others, the Tribunal will grant the request of the defendant Rothaug to absent himself at his own option for a period not to exceed one week, and his counsel is directed that in the event he feels at any time during that time that the presence of the defendant is necessary for his own interest, to notify the tribunal, and the defendant can then be returned to the courtroom for his own benefit. Also if the prosecution has any occasion which it deems necessary to have the presence of the defendant, the prosecution will also notify the Tribunal of that fact. If no circumstances arise which are unforeseen at this time, the request is granted as of this time. We will reserve the right to make further order if it appears to be necessary. You may proceed. Before you do so, what is the desire of defense counsel as to the next person to be examined as a witness upon the completion of the examination of the defendant Barnickel?
DR. TIPP: Your Honor, I have to say that I do not intend to call any witnesses.
DR. ASCHENAUER: Your Honor, I refrain from examining Petersen as a witness on his own behalf.
THE PRESIDENT: Will you have any other witnesses for the defendant Petersen?
DR. ASCHENAUER: At the moment, I do not have any other witness. The witness Reinicke, whom I intended to examine, is in the hospital. The witness Dechant has not yet arrived here. On the 5th of August when the witness Dechant was here in prison, I requested that he be examined as a witness. On the 15th of August, he was transferred to Ludwigsburg and from there to Hohenasperg, without my knowledge. In addition, I had intended to examine as witnesses, a Mr. Ehrfurt and Mr. Ackermann from the Russian zone. Due to the attitude of the Russian occupation power, it is impossible that the two get passes to come here. The witness Walter Ackermann has sent me a telegram which says: "Difficulties regarding passports; cannot comply with summons." The same is the case of the witness Ehrfurt. For that reason, I have only to reserve the right of the examination of the witness Dechan until a later time, and the submission of the document books which are in the Translation Branch for over five weeks.
THE PRESIDENT: And the witness Morgen will not be called?
DR. ASCHENAUER: The witness Morgen will not be called. I have a document which I shall submit. Your Honor, I have one more question. The witness Reinicke, who is in the hospital, has given me an affidavit. If that is sufficient for the Tribunal, I shall submit the same in my document book.
THE PRESIDENT: You may present the affidavit and we will rule on it at that time.
DR. ASCHENAUER: Thank you very much.
THE PRESIDENT: What is the wish of the defendant Nebelung?
DR. DOETZER: Your Honor, I shall not examine the witness Nebelung as a witness on his own behalf.
For the rest, I shall not call any other witnesses, either, but merely submit the documents which are in my document book No. 1.
THE PRESIDENT: Then that being the case, upon the completion of the examination of this witness, the Tribunal will proceed to catch up on the backlog of document books. I think perhaps you are ready, Dr. Grube?
DR. GRUBE: Except for one supplementary volume I have to submit two more document books, and I am ready to submit them as documents.
THE PRESIDENT: We will proceed with that this afternoon then.
MISS ARBUTHNOT: I would like to tell the Court that Mr. King, who handles the Lautz case, is at home ill today. He is the only one who, as far as I know, has examined the Lautz documents.
THE PRESIDENT: The only question which will arise on the document books is whether they are in a form to be admissible in evidence.
MISS ARBUTHNOT: We will then get in touch with Mr. King on that matter and see what can be done.
THE PRESIDENT: I don't see why the document books might not be introduced in evidence subject to objection as to admissibility, if any, when Mr. King recovers.
MISS ARBUTHNOT: Thank you.
BY DR. TIPP:
Q. Dr. Barnickel, today before the noon recess, we stopped with the last document which the prosecution submitted against you. In the meantime, I have obtained that document, and I would like to tell the Tribunal that the documents which were submitted by the prosecution are an excerpt from an exhibit that was submitted already during the IMT trial.
This is Exhibit Document D-926. It was introduced in the IMT exhibit with the exhibit No.G-B. That is Great Britain, 568.
THE PRESIDENT: I didn't quite understand which document that is, that you are speaking of.
DR. TIPP: That is the document D-926. I am referring to the last document, Your Honor, which the prosecution submitted to Garnickel without a translation to the Tribunal.
THE PRESIDENT: Thank you.
BY DR. TIPP:
Q. Dr. Barnickel, may I show this IMT exhibit to you? It is somewhat more complete than the documents which were shown to you this morning by the prosecution. Perhaps you will be in a position, when you see these documents, to remember the case after all, and to give some information about it to the Tribunal.
(Document is offered to witness)
Since I have the document, unfortunately, only in German, I am unable to give a translation of it to the Tribunal. Dr. Barnickel, perhaps it would be pertinent if you read those passages into the transcript that you want to refer to.
A. Counsel, first of all, I would like to say it will take a considerable amount of tine before I can look through this document which is rather extensive.
Q. Witness, unfortunately, I could not give it to you before the recess because at that time I did not have it yet. I would be grateful if the Tribunal would, due to the importance of the case, grant Dr. Barnickel an opportunity to look through this document. However, for the rest of my questions, which I still have, I will not need the rest of the time until the afternoon recess, otherwise I would suggest to postpone the questions until Dr. Barnickel has looked through the document in the afternoon recess.
But in view of the extraordinary case, perhaps the Tribunal would be kind enough to allow Dr. Barnickel a 15 minutes recess so that he can look through the document.
THE PRESIDENT: You may complete your other redirect examination of Dr. Barnickel. We will then operate on some of these document books, and then you may call him back later in the afternoon concerning this document.
DR. TIPP: Yes, Your Honor.
BY DR. TIPP:
Q Dr. Barnickel, may I then ask you to put this document aside for the time being in accordance with the ruling of the Tribunal. May I then ask you to turn to the next document which the prosecution submitted against you this morning. I am referring to the Document No. 3757; that is the diary of the Reich Ministry of Justice. The representative of the prosecution put some cases from this document to you which I believe have been quite thoroughly discussed already, but I would like to ask you perhaps to comment in this connection by telling the Tribunal to what extent the investigations were carried out in the case of such incidents; and then by referring to examples discussed, to explain whether in every individual case or in one of the cases those principles were adhered to.
AAs I have already stated this morning there was a court in Dachau, and the investigating magistrate of that court, if special incidents occurred, was immediately called to the camp in order to make these investigations on the spot and to make any preliminary decisions if necessary. The investigating judge was a man who was somewhat older than I, and he worked with a great deal of dependability. When deaths occurred a medical examination was undertaken, as is apparent from the submitted document. The district court physician from Munich and possibly another physician were consulted. In addition the police office located in the Dachau camp called witnesses and examined them and the respondents and compiled the necessary records. In addition to this the prosecution was informed, and in more important cases the referent went to the camp himself. Occasionally he was also accompanied by myself. That was the usual general course of events.
Q Perhaps an intermediate question, witness. If I understood you correctly, the investigations in case of extraordinary incidents, especially deaths, in the Dachau camp, were carried out in exactly the same manner in which they would have been carried out also if the incidents had occurred any place else; that is to say, by calling the investigating magistrate, the public prosecution, the police, the district court physician and other offices; is that correct?