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 The intention was to avoid capital being withdrawn from the German economy and transferred abroad.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?
A There was no difference.
Q Now, may I ask you, witness, in these investigations, due to the nature of the camp and secrecy which prevailed in the camp, were there any special difficulties which had an effect upon the investigations?
AAs such, I cannot recall that in the cases about which we were informed difficulties were put in our way.
Q All right, witness, Perhaps we can then go over to the practical part, if I may say so, and by referring to the copy which you have before you, demonstrate these principles as they took effect in practice. I beg your pardon if difficulties should arise, but unfortunately we only have an English translation, but not a German one. I believe, Dr. Barnickel that you understand enough English in order to be able to comment on these individual incidents. Perhaps you will look at the last page of the document submitted to you. The passage I am referring to concerns pages 574 to 575, No. 5. That is the case of the prisoner in detention, in protective custody, Riesenfeld. According to this entry the investigations concerning the death of the prisoner in protective custody, Riesenfeld, were suspended. It says here that Riesenfeld was in protective custody for suspicion of race pollution since 6th November, 1937. During the course of the cross examination you were asked whether cases of that kind where there was a suspicion of race pollution were not subject to trial by a court, and that this might create the impression that there were prisoners pending trial in the Dachau camp; that, therefore, the administration of justice had a duty of supervision over the Dachau camp. I believe that this point was not made quite clear by your testimony this morning, witness. Therefore, I would like to ask you again on that point were prisoners in detention, pending trial, against whom a proper judicial investigation was being carried out, were they ever in a concentration camp?
A I believe one can say the following. If against a man who was in protective custody in a camp, in Dachau, a judicial proceeding was started, this man was not left in the camp, but on the basis of the warrant of arrest which in such cases was then issued, he was taken out of the camp and was detained in the manner which was provided for prisoners pending trial.
Q Just a moment, witness. This doesn't answer my question. It says here Riesenfeld was in Dachau for suspicion of race pollution; the case which you mentioned is probably somewhat different; I think somewhat different. According to what you say that if a prisoner in protective custom who was for another reason in protective custody, and then if after his arrest an investigation is begun against him, then he is removed from the protective custody, that is a police custody into the custody of the administration of justice pending trial; but here, according to the wording of the document, at least that is how I understand it, this Riesenfeld was put into the concentration camp because of suspicion of race pollution. Therefore, I am asking you could this have been a judicial proceeding in the course of which Riesenfeld was put in the concentration camp; and that was the meaning of my question.
A Yes, and according to what I said before, for the case in question, it is apparent, quite obviously, that there was no judicial proceeding against Riesenfeld.
Q Therefore, you think, witness, Riesenfeld -- in order to express it crudely, was not because of a judicial proceeding but because of race pollution put into a concentration camp.
AAs far as my opinion is concerned, Riesenfeld was in Dachau camp as a prisoner in protective custody.
Q And who put people into concentration camps under protective custody.
A That was -- as everybody knows here -- the Gestapo.
Q So then I may understand your answer to mean that the Gestapo put Riesenfeld into Dachau camp as a prisoner and in protective custody because of suspicion of race pollution; is that correct?
AAs far as I can judge this brief excerpt, I would like to answer your question affirmatively.
Q But now, witness, and this was already pointed out in the cross examination here, race pollution was a criminal offense, and had to be tried by a court. Can you now explain, witness, how it happened that the Gestapo, that is the police office, put somebody into a concentration camp because of a criminal offense -- in this case race pollution -- even though merely, at least according to the wording, court proceedings should have been initiated against the person. Perhaps you can explain that due to your knowledge of the behavior of the Gestapo.
A First I would like to say that this part of the entire case was not the case which concerned the public prosecution Munich, II. On the basis of my experiences, however, I can only state that the reasons which the Gestapo considered to be sufficient in order to put people into protective custody never became known to me in detail.
Q That is correct, witness, but was it not true that the Gestapo, the executive organ of the police, was not bound by the rules of evidence which had to be submitted to the court so that the police could order protective custody in a case in which according to the evidence, the facts were not sufficient for a trial before a court, or the filing of an indictment by the prosecution. I don't mean here this specific case, but I mean quite generally whether from your practice as senior public prosecutor and later as Reich public prosecutor, or from other sources, something did not become known to you.
A Well, in that field neither as public prosecutor nor as Reich public prosecutor did I gather any experiences in answer to the question as to for what reasons the Gestapo put people under protective custody. I could gather some experiences occasionally; that was really only in any special case where I found out about such facts.
Q And from these individual cases, witness, you could not form a picture about it? All right.
A I believe that it was impossible for anybody, and I would like to add that it was extraordinarily difficult to peek behind this veil. May I mention an example. In the house in which I was living in Munich, the director of a steamship company was also living. This man, who was a friend of mine, I may say, was one day put under protective custody. I made some efforts on his behalf. It took months until this man was returned to his home and family. After he had come back, I wanted to use that opportunity to find out why he had been put under protective custody, and into a concentration camp, and besides, I wanted to know how he was treated in Dachau; but in spite of tho fact that we knew each other very well, I was unable to find out either of those two circumstances. He told me he was not allowed to comment about it -- to make any statement about it. That is only an example.
Q All right, witness, After this preliminary question, may I ask you, witness, by referring to this note, to describe to what extent the judicial investigating procedures which you have described were applied also in this Riesenfeld case, so that the suspension of the proceedings was in accordance with the legal regulations which were binding for you as a prosecutor.
A First of all I can repeat what I have already stated this morning that from the note, it can -- to be sure -- be gathered by what agency the case was handled, but I cannot gather from it to what extent I personally participated in it, but as I look at this note I can only say that the man to be sure in a somewhat unusual manner met his death, but otherwise, quite obviously, there was no evidence of force by a third person, and, as I stated already this morning, ever our highest forensic medical authorities, namely the institute for forensic medicine, which was excellently directed, could not produce any reason that a third person was involved here. I have already stated that especially the examination by the institute for forensic medicine shows that clearly. We were skeptical to start with and we did everything that was necessary, but the limit was the expert medical opinion and if the physicians after all finally did reach the conclusion that no outside influences existed we had no possibility to take any steps against this expert opinion.
Q Thus, witness, in this case you say the examination by the physicians gave no reason to believe that a third person was responsible for the death, so that the proceeding had to be suspended, as German lawyers say, due to the fact of insufficient evidence.
A That is correct.
Q Now, witness, may I ask you to go over to the third entry-
BY THE PRESIDENT:
Q May I interrupt you before you pass on from that question. Dr. Barnickel, I should like your opinion, as a lawyer and former prosecutor. Did you, or do you now consider; do you now consider that it was in accordance with German law for the Gestapo to put a man who is accused of a crime in a concentration camp, rather than to proceed under the regular procedure of the Ministry of Justice?
A I believe, Your Honor, that I have hardly to emphasize that I was never of that opinion.
Q You think that it was illegal then?
A I considered it illegal.
Q Even then you considered that some one in the Gestapo on in the concentration camp had themselves committed a crime in putting him there; do you not -- if it was illegal to put him there?
A Your Honor, here we are concerned with the so-called protective custody.
Q That is right.
A That was the custody which was imposed for political reasons by the Gestapo, and, for example, in this case, it is absolutely possible that the Gestapo did not consider the suspicion to be sufficient to institute judicial proceedings; that nevertheless it considered it sufficient in order to detain the man in protective custody. That was just the very thing which I always considered to be the horrible thing about this institution of protective custody.
Q Well, it was not only horrible, it was a violation of law by the persons who put him in protective custody; was it not? I think you have already said that it was illegal.
A Your Honor, there was a legal basis for protective custody, but I regret that I cannot serve you with a more detailed information, with a more precise statement. In my opinion that was always an absolutely impossible measure.
Q You adhere to your statement that you considered it illegal, do you not? You have just said that.
A I always considered this protective custody an illegal method, but, of course, there was a basis in the law for it; to that extent it was not illegal. My defense counsel, I believe, is in a position to submit some legal regulations to that effect. In any case, it was a field in which the administration of justice had no influence of any kind.
THE PRESIDENT: You may proceed.
BY DR. TIPP:
Q Dr. Barnickel, following that question I would like to put a question to you. You mentioned the legal basis for protective custody. I haven't introduced, as yet, any documents concerning that, but if it should be necessary I will be able to do so. But one thing you did make clear. There was a legal basis for protective custody, was there not?
A Without doubt.
Q Can you -- I don't know whether you can -- state who made out the warrant for protective custody?
A Counsel, I am not in the position to make any precise statements about the method of protective custody, and, therefore, I would prefer to refrain from answering your question. But, of course, it was some organ of the Gestapo that did.
BY THE PRESIDENT:
Q One more question. If the Ministry of Justice and you gentlemen as prosecutors considered that it was legal to confine a man in a concentration camp, who was only accused of a crime, then is it not true that the Ministry of Justice and the prosecutors must assume some responsibility for the carrying out of that legal procedure of putting people into concentration camps?
A Your Honor, the first prerequisites for this, however, would be that the prosecution or the courts would be informed about it at all; that somebody was put into protective custody.
BY DR. TIPP:
Q Dr. Barnickel, but there is one complex, one group of questions concerning protective custody I think we would have to discuss: Against putting a person into protective custody was there a means of complaint to a court, be it administrative or a court of the administration of justice?
Court No. III, Case No. III.
A. As far as I know that did not exist. In particular the general courts had nothing to do with questions of that kind.
Q. So that I may understand you to say that any complaint by a person in protective custody because of unjustified arrest did not reach the agency of the administration of justice but that these agencies, at least in that way, did not and could not find out anything about an unjustified arrest.
A. That is certain.
BY THE PRESIDENT:
Q. Did not the facts appearing on pages 574 to 575 in this document reach the ministry of justice? Did they not thereby become aware of the facts set forth?
A. Yes, Your Honor, I have to say again first of all I do not know whether I participated in this at all, or had any part in it, but If I assume for the purpose of this question that I did have something to do with it, that is only an assumption, then, of course, it is possible that by some means, and that is perhaps through the police record later had found out that the man who had already died because of suspicion of race pollution was in protective detention pendind trial. If an agency of the administration of justice should have had a part in this proceedings, we certainly would have informed this other agency about this incident, but we only found out about it after the man was dead already.
Q. I am not suggestion you could have saved his life, but you might have prosecuted the person who had illegally put him there, that is, unless the Prosecutor considered putting him there was perfectly legal?
A. Your Honor, I have already said that a so called warrant for protective custody, as I believe it was called, always existed of course, and against that warrant for protective custody we had no power, whereas the Gestapo, of course, could refer to a legal procedure.
Unfortunately, from this brief excerpt it is impossible to tell, it may have been the Gestapo of Berlin or any place else. All of that is not known and that is why I regret exceedingly that I can answer your question only so incompletely.
BY DR. TIPP:
Q. For clarification, I may perhaps say the following, Your Honor, without having to become a witness myself. There are matters which are probably known to the Tribunal. The warrants for protective custody on principle were only issued by the RSHA in Berlin, and only on those warrants was anybody put into a concentration camp. These warrants could not be reviewed either by the Courts or by the administrative Agencies. I believe that is enough on that point.
We now go on to page 275, **at is on the same page of the document, where the investigating procedure, because of the suicide of the tailor, Wagner, from Nurnberg, is described, and here it says that the Public Prosecutor of the district Court Munich No. 2 stopped the proceedings concerning the suicide of the tailor Wagner from Nurnberg in Dachau. The report is signed by Barnickel and runs as follows: It describes why Wagner was in protective custody. He was a so-called professional criminal who had spent 23 years in prison and the penitentiaries. Wagner was found hanging in a lying position. To that extent the document was already discussed this morning, and you stated that as far as you remember Wagner, of course, was not lying flat on the floor, but if I understand you correctly, in a half hanging position, hanged himself from the steam pipe, but one point has not been clarified on this document and this is the following:
There is a sentence mentioning that he left a farewell letter. It continues: "These facts were confirmed by the official Court Inspection of the local", that is probably by the investigating Judge, "and the postmortem, according to the opinion of the District Court Physician death occurred through hanging in a lying position. No trace of any force exerted by third persons could be found. It is a case of suicide." Witness, as to the prerequisites which are necessary for court investigations and also for suspending proceedings, do they exist also in this Wagner proceeding?
A. Without doubt they apply. No doubt as to the suicide could arise due to the fact there was a farewell letter. Moreover, the investigating Magistrate who obviously was present as well as the physician confirmed there was a suicide. Of course the word "lying" is not to be understood quite literally, that is quite obvious, I believe, that all of us understand what is meant and that I do not have to explain that any further. In considering these excerpts, one must not overlook that they are quite brief excerpts and that in the files the cases are described much more extensively, so that we could form quite a different picture of course. If we had only this as a basis we couldn't have worked with these at all. Thus as far as I can judge this excerpt today there can be no doubt that the proceeding was suspended rightly because there was a case of suicide.
Q. I believe that clarifies everything. Witness, I also find your name on the next side of the document. I am now quoting from the next page forward, on page 234, that is the next to the last paragraph from the bottom, and it says here that the Chief Public Prosecutor, Munich, signed Barnickel, 28 April, has stopped the proceedings regarding the death of the prisoner Heldmann, held in protective custody in Dachau.