V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE (continued 14)

In view of the necessity of turning over proceedings, even in which the offense can be called a serious one without question, I have generally informed the chief public prosecutors concerned in advance of the altered way in which I am going to handle my right to turn matters over to another authority. In addition to this they will in each single case be especially informed about my conception of the case and will be requested within the limits of my right of turning cases over to them, not to consider taking on less serious cases but to strive for the highest possible penalty if the state of the investigations at the moment the case is handed over gives a sufficiently clear picture of the case in this respect. In comparison with the previous report, no essential new experiences were gained regarding the nature of the offenses and the personality of the offenders. Especially could it not be determined that the number of punishable offenses increased, particularly in those territories subject to a special air terror of the enemy. It is rather characteristic that the manifold rumors about alleged riots among the population in the cities damaged by air raids often arose in regions not at all or only slightly affected by the air terror. This leads, on the one hand, to certain conclusions as to the intentions of the propagators of these rumors. On the other hand, however, it can be taken as a pleasing sign for the truly disciplined attitude of the population that suffers most from the enemy’s air terror.

II. Special Proceedings.

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[Typed] signed: Lautz

EXTRACT FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[517]

DIRECT EXAMINATION

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Dr. Kubuschok (counsel for defendant Schlegelberger): According to the document I have before me, Document NG-412, Prosecution Exhibit 77,[518] the Ministry of Justice made a suggestion to increase the severity of penal provisions concerning the preparation of treason. Would you explain this?

Defendant Schlegelberger: The situation with regard to the law was the following: Preparation for treason [Landesverrat] could not be punished by death. Treason, that is to say the betrayal of the native country in my opinion, is the most severe and most serious political crime, and the danger inherent in that crime reveals itself already in its preparation. As can be seen from the document, the question had come before the public and had been discussed in public on the occasion of the Sklarek case, and had become the subject of a heated discussion. It was known to me that Hitler once before in a cabinet meeting had taken the position that preparation for treason should be punished by death. It was quite obvious for me that as a consequence of the Sklarek case and, on that, Hitler’s point of view was also known to other people, a new storm would come up; in fact it was the expressed purpose to force matters upon the administration of justice so that afterward one could make use of these matters, by saying that the administration of justice itself was not strong enough to find the right position, or in order to institute and justify proceedings outside the administration of justice. I considered it appropriate, therefore, to bring this question into the stage of a legal regulation as quickly as possible. In the draft the death penalty was provided for very serious cases, cases of aggravating circumstances, and that provided the guaranty at least for the fact that in ordinary court proceedings it would have to be examined whether that really was a severe case. The danger was quite acute that unless in time such a law would be promulgated, other elements, namely, the police, would have seen to it and would have taken care of it wholesale without examining individual cases. Since the cases in question were cases of the past, retroactive measures had to be permitted. That is well within all legal guaranties.

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT LAUTZ[519]

DIRECT EXAMINATION

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Dr. Grube (counsel for defendant Lautz): Mr. Lautz, is it correct that in 1938 you received an offer to become senate president in the Reich Military Court?

Defendant Lautz: That is correct. I was well known to the Ministerial Director at the High Command of the Wehrmacht, Lehmann, who appeared as a witness before this Tribunal and who offered me in 1918 to become senate president at the Reich Military Court.

Q. Just a moment, I believe you made a mistake, you meant to say 1938?

A. Yes, 1938.

Q. At that time, would you have improved your financial situation if you had accepted?

A. Yes. The position was much better paid.

Q. Why did you not accept that position?

A. I did not accept it only for the one and decisive reason that I did not want to leave the beautiful district of Karlsruhe for the time being.

Q. For how long were you general public prosecutor in Karlsruhe?

A. Unfortunately, only until 1939.

Q. May I now ask you, who was Parey?

A. Parey was Reich Public Prosecutor since 1936, later chief Reich prosecutor [Oberreichsanwalt] at the People’s Court in Berlin.

Q. And for what reason did Parey leave his office as Chief Reich Prosecutor at the People’s Court?

A. At the beginning of November 1938. He had an automobile accident.

Q. When did you find out for the first time that you were being considered as Parey’s successor?

A. At the beginning of December 1938. The then Under Secretary Freisler, on order of Minister Guertner, informed me that Guertner had chosen me as his—that is, Parey’s—successor.

Q. Did you make any efforts to obtain that position?

A. Not at all.

Q. Did you do anything against your appointment as chief Reich prosecutor at the People’s Court?

A. I was very much interested in getting out of being appointed to that position, and because of that I consulted with the personnel division of the Ministry as to how I could prevent my appointment. However, I was told that Minister Guertner attached importance to my taking that position, and therefore, being a civil servant I complied.

Q. May I ask you why you had an aversion to that office?

A. First of all, because of the exclusive occupation with political penal cases and in connection with that the absolute dependence upon the Ministry which was my superior was not an inducement for me; even though, at that time, I could not have the remotest idea that war would shortly break out, that Minister Guertner would die, and that through all these events a course would be followed in politics which, in any case, was not in accordance with the one that I imagined.

That was my main reason. My second reason was that I wanted to remain in Karlsruhe.

Q. When were you appointed Chief Reich Prosecutor?

A. I was appointed on 1 July 1939.

Q. At that time, did you still count upon becoming Chief Reich Prosecutor, since Parey had already left the office some time before?

A. Since it took such a long time I had the hope, quietly, that perhaps another person would be found.

Q. Did you ever find out whether any office of the Party or any other organization of the Party was in favor of your appointment as Chief Reich Prosecutor?

A. I never heard anything about that.

Q. When, in effect, did you assume your office as Chief Reich Prosecutor at the People’s Court?

A. Due to illness, I only assumed office on 20 September 1939, in Berlin.

Q. However, you had already been appointed on 1 July?

A. Yes.

Q. Mr. Lautz, may I ask you this? Before 1933, did you belong to a political party?

A. From 1924 to 1930, I was a member of the German People’s Party. That was the party of Minister Etresemann, who became well known through the policy of understanding which he followed toward the victorious countries of 1918, and whose efforts, in particular to reach an understanding with France in order to bring about peace in Europe, I welcomed very warmly and supported.

Q. When did you become a member of the National Socialist Party?

A. On 1 May 1933.

Q. Will you please tell the Tribunal for what reasons you joined the Party?

A. Before the spring of 1933, I belonged to the Prussian Judges’ Association, in which organization I worked on press matters as a member of the board of directors. The Prussian Judges’ Association decided to urge its members to join the Party. I joined because, according to the situation prevailing at the time, I considered it to be the correct and proper thing to do.

Q. Mr. Lautz, at that time in 1933, did the joining of a party have the significance of 100 percent approval of the Party platform? Was it not rather like this, that since the Weimar era joining a party by no means implied that one approved of its ideology?

A. In the case of many persons who joined the Party at that time, that was so.

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Q. Through my documents in Lautz document book 1, I have already shown that the competence of the People’s Court to sentence defeatist cases was introduced only beginning in February 1943. Witness, for how long did the special penal regulations for wartime exist on which these trials against undermining of military efficiency were based?

A. This special wartime penal order is from 1938[520] which was put into effect only on 26 August 1939.

Q. Originally the Reich military court was competent for those cases of undermining of fighting force or the other military courts, is that correct?

A. Yes. That is correct, not only for members of the Wehrmacht but also for civilians.

Q. In 1940 the competency in regard to civilians was transferred to the general courts?

A. Yes. That is correct.

Q. Who became competent at that time for the cases of the so-called public undermining of military efficiency?

A. Public undermining of military efficiency was prosecuted by the senior public prosecutors at the special courts and/or was to be tried by the Special Courts.

Q. When in 1943 the cases of so-called public undermining of military efficiency were transferred to the People’s Court, had the law, in effect, been applied for 4 years?

A. Yes.

Q. Is it correct, Witness, that the decision as to whether a public undermining of military efficiency was proved depended upon the following two points: first, what does the legislator mean by an attempt to undermine; and second, when was this attempt to undermine committed in public? Is it correct that those were the two nuclei in this question?

A. Yes.

Q. Is it furthermore correct that, when in 1943 the People’s Court became competent, these two basic questions of undermining of fighting efficiency were based on a general jurisdiction originating first from the Reich Military Court, then the Reich Supreme Court, and then of the Special Court—that these decisions existed already?

A. The Reich Military Court had in several very basic decisions decided these questions without any doubt.

Q. In regard to these points from which it is especially evident that the definition of “public attempt of undermining” had already been laid down definitely in 1943, I shall prove by some further documents. Witness, how did the individual cases of undermining come to your office?

A. That differed. In part, the senior public prosecutor at the Special Court who considered the case as leaving room for no doubt submitted the files to me. If, on the other hand—and that occurred in the majority of cases—he harbored doubts whether this was not merely a malicious act, then, as was his duty, he reported it to the Minister of Justice, and the Minister of Justice decided whether a case was to be regarded as undermining of fighting efficiency and should be transferred to the chief Reich public prosecutor.

This is evident from the affidavit by the witness Franke, which the prosecution submitted.

Q. May I refer to the fact that this is Exhibit 515[521] submitted by the prosecution. Furthermore, I am referring to Exhibit 97[522] of the prosecution. Witness, did it continue the way you described it just now, later on too?

A. Later on, two more basic changes occurred. A very severe decree of 13 August 1943 was introduced. Minister Thierack required a more expeditious and more emphatic trying of certain especially serious cases of undermining of fighting strength. For this purpose, it had been ordered that the RSHA submitted those cases which were not very numerous, either through the hands of the Minister of Justice or directly to me. I submitted them to a special division because the division which treated other cases of undermining of military efficiency was no longer in a position, merely due to the large number of cases, to take over this new work also. These cases in the main are those in which the so-called quick trials [schnell termine] took place which have frequently been discussed here already. Due to the importance of the cases, Freisler also did not let anybody deprive him of trying these cases basically in his senate. Moreover, due to a later decree by the Minister of Justice, it was laid down that in the preliminary investigation of the cases which were to be submitted to the chief Reich Public Prosecutor, that the presidents of the district courts of appeal should be included in order to avoid too many of these files being submitted to the office of the Reich Public Prosecutor.

The final decree which concerns these cases, and which I am citing because perhaps it is important in the von Braun case, is the following instruction by the minister. If an indictment is filed before the Special Court in a malicious acts case, and during the trial the Special Court decides however that possibly this might be an undermining of military efficiency in which case the Special Court was not competent to sentence, then the Special Court should not through an uncontested decision refer this to the People’s Court, but the Chief Reich Public Prosecutor should ask for an adjournment so that the chief Reich public prosecutor could examine the case in every individual case. If he considered it not suitable, he was to return it to the Special Court. In this way, it was intended to prevent that through such decisions against which it could do nothing, the People’s Court was burdened with cases which did not concern it.

Q. Witness, how were pending cases treated? How were the cases which came to it treated by the office of the Reich prosecutor, and especially how was the conduct of the members?

A. When the order came into effect—the order of 29 August 1943—at which time the People’s Court became competent, at that time I was on an official trip outside of Berlin. When I returned, I found out that the defendant Barnickel, who at that time was my deputy, had handed over the handling of the cases which came to his division. At that time, he was of the opinion—at least, that is what he told me—that his division was less burdened and therefore was in the best position to be able to handle the new influx of cases. I let matters stand as they were.

First, we introduced the following treatment of the cases and we also maintained this for several weeks and months. At certain intervals of 2 or 3 days, every case that was handled by the expert or the Referent in the presence of the division chief was reported to me, and then we made a decision as to whether we wanted to file an indictment before the People’s Court and for what reasons this was necessary. Varying reasons governed this. In part, the cases were so serious that there was no doubt about this. In part, we considered it necessary in order to bring about certain basic decisions on principle—to bring about the sentencing by the senate of the People’s Court. During that time, the number of prison sentences that were pronounced was without doubt larger than the number of death sentences. The enormous incidence of new cases, however, brought it about, and this is also apparent from the situation report which the prosecution submitted, in the beginning of 1944—

Q. I may interpolate here that the defendant is speaking of Prosecution Exhibit 220.[523]

A. That at the end of the year 1943, quite a considerable number of cases were in arrears. Therefore, I decided that in regard to the cases of undermining of fighting strength to gather them in a special division which would have the task—especially in regard to the backlog cases—to clean it up as quickly as possible. Among these, there were a number of cases of arrest whose expeditious handling was necessary especially because in a large number of these cases the transfer to a subordinate court was necessary. Therefore, I could not act in any other way. No division chief was anxious to be given this new division. Therefore, I decided that the defendant Rothaug should take it over.[524] First of all, he was the youngest division chief, and up to then he had been in charge of a division which was so small and insignificant that it was easiest to replace him by a senior public prosecutor.

From the situation report which I mentioned, it is also evident what the number of cases was which came to us at the time. They amounted to about seven to eight hundred a month. This figure shows me that when I was interrogated preliminary to this trial, I made a wrong estimate. At that time I thought it was twice as high as it actually was.

Q. Witness, you have just said that the number of cases in the undermining of military efficiency increased to about seven to eight hundred cases a month. I would like to put another question to you on that subject. Did that mean that before the People’s Court seven hundred to eight hundred cases of undermining of military efficiency were tried every month?

A. No. That figure refers to the number of cases which were submitted to the Reich prosecution for examination. As I will mention later, only a small percentage of those cases—I estimate about 10 percent—were kept back. All other cases were returned to subordinate courts. In my situation report, if I may repeat that, I only gave the number which I did mention there because only at the trial here I saw that situation report again. I ascertained that the figures which I had given in Exhibit 126,[525] from memory were evidently incorrect.

Q. By that you mean to say that the figures in Exhibit 126, the figures which you gave from memory, are too high?

A. That is what I did mean to say.

Q. How did you, in general, treat these questions of undermining military efficiency?

A. To a large extent the treatment of such cases depended on the clear instructions from the Minister of Justice. It also depended on the basic importance of these cases. To mention one example, I would like to revert once again to the situation report of 9 February 1944, that is Exhibit 220. In that report it says that the undermining of military efficiency when committed by clergymen would have to be tried before the People’s Court. That was due to a decree by the Reich Minister of Justice. Generally speaking, however, in treating these cases I attached the greatest importance to having every single file examined carefully by the head of the department so that those points would not be left unobserved which would justify treating that case in a more lenient manner. For in particular the transfer of these cases as being cases of lesser importance to the district courts of appeal or to the Special Courts, to that I attached the greatest importance, as far as it was at all possible. That is proved not only by the testimony of the witness Gruenwald[526] before this Tribunal but it is also evident from Prosecution Exhibits 178, 474, and 100.[527] For the numbers of cases where criticism was exercised by the ministry on sentences passed by lower courts, and in particular at the Weimar conference [NG-674, Pros. Ex. 100] would remain incomprehensible unless many cases which were more serious had been transferred to the lower courts by the Reich prosecution.

In the last analysis, perhaps the percentage of cases which we kept back, as I mentioned before, and of the cases where an indictment was filed, at the People’s Court, I estimate those cases at 10 percent.

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Q. Witness, do you still remember what information you received in regard to the question whether recruiting offices for the Polish Legion existed in Switzerland?

A. I said that already. From the answer of the head office of the border police in Stuttgart, it was apparent without doubt that according to the information which they had from Switzerland that there was an illegal recruiting and transport service which helped Poles to get to Switzerland and to Africa; to that extent, Switzerland apparently did everything that it was possible to do, and as far as it could; and from the files it is occasionally apparent that the Swiss border officials returned the Poles who had crossed the border from Germany; but in all cases they probably did not succeed.

Q. Had the Ministry of Justice also informed you to what extent recruiting offices for the Polish Legion existed in Switzerland?

A. If I remember correctly, the same information had also reached us from the Foreign Office via the Ministry of Justice.

Q. Thank you. The prosecution seems to assume that the indictments were not the results of attempts to join the Polish Legion, but were a means to prosecute Poles because of their flight from Germany and their places of work. Please comment on this.

A. For us, that certainly was not the motive for the filing of an indictment, because we were convinced that the suspicion was justified. Moreover, against such allegations the fact probably speaks which can be gathered from Exhibit 259[528] of the prosecution. From that it can be gathered that particularly at the time in question here, hundreds perhaps thousands of Poles left their places of work in the Reich; and if only a very small number of these were tried before a court because they wanted to join the legion, this makes it apparent that they were not tried only because they left their place of work. The other participating offices, that is the police and the counterintelligence of the OKW, were probably also of the opinion that here we were faced not only with flight from the place of work, but flight for a special purpose.

The general situation was just as I described it. During the war the German Reich, as any warring power, had closed its borders and this had been done for reasons of the security of the State and was therefore necessary because everybody who crossed the border and reached neutral country or an enemy country took along with him important experiences and knowledge which he had gained in the warring country. Poles knew that too.

Q. Witness, you have already stated before that a Pole, only for the reason that he had left his place of work on his own, could not be tried and sentenced by the People’s Court. Now, according to your determinations in the individual cases in which Poles were indicted because of attempts to reach the Polish Legion, did other reasons for suspicion also play a role which supported the suspicion on the basis of which then in accordance with the law you were obliged to raise an indictment?

A. I just wanted to talk about that.

Q. Will you please state what reasons for suspicion have regularly played a role also?

A. If somebody crosses the border with a certain purpose in mind and he is caught in the act, then, in the most infrequent of cases will he be inclined to say and be ready to say what intentions he had in mind, for in so doing he would damage his own case. Criminal cases which were conducted under this point of view—and this is probably not the case only in Germany—therefore are based to a large extent on the justified conclusions one can draw from the facts available.

Now, it was here known generally what I have already stated, that this way led to the Polish Legion if one started out on it. Secondly, it was known that among the Polish workers in south-western Germany these conditions and knowledge thereof were widespread. Furthermore, it was generally known to those workers too that favorable conditions for work could not be expected in Switzerland; and finally, it was in accordance with the experiences which had been gathered in other trials that a large number of these people who crossed the border after their arrest did not even deny this intention. These general considerations alone would have, in my opinion, justified such a strong suspicion that in accordance with German Code of Criminal Procedure sufficient suspicion for the filing of an indictment existed, and that thus the indictment had to be filed in accordance with the law.

The two indictments which bear my signature are the Bratek and Stefanowitsch cases. The following element, however, is added. Bratek had referred to the fact that he only wanted to cross the border in order to avoid work.

Dr. Grube: In the Bratek case here we are concerned with Prosecution Exhibit 136.[529]

Defendant Lautz: As I said, he claimed it was only for the reason to attempt to seek work that he did want to cross the border. By means of the additional investigations which the division chief instituted, however, it had been found that he did not like to work; he had already left other places of work, so that his statement that he wanted to seek new work in another country in which there were difficult conditions of work did not seem very credible. So for that reason his statement had to be accepted with reservations.

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CROSS-EXAMINATION

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Mr. King: I ask you if it were possible to commit treason against an individual who was not of German citizenship in the period which we are discussing.

Dr. Grube: I object to this question. This is a question which is asking only for the personal opinion of the witness.

Presiding Judge Brand: The objection is overruled.

Defendant Lautz: If I understand you correctly, Mr. Prosecutor, you want to know whether the act of treason was punishable only when it, the act, was directed against the State as such, or also when it was directed against an individual person.

Mr. King: Yes. My following question was going to refer to the differences which you raised. But actually you have stated it very well. I want to know whether at this time the period which we are concerned with at the moment, if during that period treason could be committed against an individual who was not a German citizen, and I take it that your answer on that is no, is that correct?

Defendant Lautz: That had been different ever since the law of 1934.

Q. Yes. I know but I am speaking of the law prior to 1944.

A. No, what I said was 1934. I said the law before 1934. I am referring to the law 1934 with article 91 [of the Reich Criminal (Penal) Code] which then became a law.[530]

That article says that the act of treason can be directed against a German national as an individual, and it was a question of interpretation whether “German” should here be interpreted as being of German blood or being a German citizen, and the famous document in which I made a report to the Reich Ministry of Justice deals with that question.[531] It is that report which concerns itself with that question. The courts in the Reich interpreted article 91 to the effect that it was not the nationality which was decisive but the race, the blood.

Q. Yes. Well, it is that letter to which I want eventually to refer. I wanted, however, to get your understanding of the earlier laws before we get around to discuss the question of that letter. What you have just said was that article 91 which was adopted in 1934 expanded the concept of treason to the extent that there could be treason against an individual who was a Reich national; is that correct?

A. Against a German. And who is a German? That was a question of interpretation. I believe I can best make myself clear if I come back to the example which is mentioned in this report. After the occupation of the eastern territories, that is Poland, that is to say after the occupation of those territories, which formerly had been German, the following case came to our knowledge. An ethnic German, a person who was a German by blood, had had the following experiences. Behind his back a Polish agent had hidden espionage material in his home without the German knowing that that material had been hidden there. The Polish agent then chased the Polish police after him, and his home was searched by the Polish police. The material was found and the German who was completely innocent but who could not prove his innocence was tried in Poland before 1939 and he got a very heavy prison sentence. I don’t think you would approve of that, would you? When we occupied the eastern territories that case came to our knowledge—

Q. Excuse me, Dr. Lautz. Is this the Krippner case to which you refer, or is this the Moses case? There are two of them which you mentioned in this report.

A. No, no. I cannot remember the—

Q. Would you like to see that exhibit?

A. I cannot remember the name unless you would show me the document. The name doesn’t matter. It is the facts of the case that matter here.

Q. I think you will find this report referred to in document book 5-B, beginning on page 73 of the German text.

Presiding Judge Brand: Dr. Lautz, will you finish what you were saying when counsel interrupted you?

Defendant Lautz: Yes. I will. After the occupation of Poland that shameful case, to use a mild expression, came to the knowledge of the German authorities; and we were now concerned with the question as to what could be done; and the application of article 91 of the German Criminal (Penal) Code was interpreted so that in this case treason had been committed against a German. Treason had been committed against a man of German blood, treason which could be prosecuted.

Q. It was treason against one of German blood who was not then a German citizen.

A. He was not a German citizen, but he was of German blood.

Q. The date of that again? When that happened, when it came before this department?

A. Your Honor, may I just have a look at the report? May I have a look at the report to make sure of the date?

Q. Yes.

A. That is the case Goleck, which is mentioned in the report. The false accusation against the person of German blood was made in the year 1938, that is to say, it happened before the war.

Q. And it came up to the Ministry of Justice after the war to decide?

A. That happened during the war when Polish files were confiscated.

Mr. King: Dr. Lautz, you have the letter before you now?

Defendant Lautz: Yes.

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Q. May I ask you to refer to the top of page 75 in the German text, I believe it is? It is the middle of page 68 in the English.

Presiding Judge Brand: What exhibit are you referring to?

Mr. King: I am referring to Document NG-548, Prosecution Exhibit 347, Your Honor.

Now, could we look at that separate opinion of yours at the end of the letter?

Defendant Lautz: Yes.

Q. Go ahead, please.

A. It begins with the words, “With the Reich Leader SS and the President of the People’s Court I agree with this.”

Q. Dr. Lautz, see if you can find this portion in the document which you have. I am sorry you don’t have the document book as it was originally distributed. I had it paginated for that. Can you find this statement? You say, “Therefore”—and I believe this is part of your letter—“Therefore, I find it necessary, on principle, to protect by means of the German Criminal (Penal) Code those racial Germans who have seriously suffered through action such as mentioned in article 91, paragraph 2 of the Penal Code, provided that action deserves punishment in accordance with sound German sentiment but where such punishment, considering the elements of wrongdoing of that particular case, cannot be brought home on the strength of any other directly applicable penal regulation.”

Those are your words, are they not?

A. Yes.

Q. And then you say in the final paragraph of the letter, “In the majority of the cases it will be offenses which have been committed by foreign nationals abroad against racial Germans.” Is that correct?

A. Yes, it is.

Q. That is correct, and those are your words?

Presiding Judge Brand: Will you answer audibly so that reporters may get it?

Defendant Lautz: What the prosecutor stated just now is what I reported.

Mr. King: And then you asked for approval of your interpretation; is that correct? That is the very last sentence in the letter?

Defendant Lautz: Yes. I had to ask for that because the decision lay with the Minister of Justice.

Q. Yes. Now, in subsequent cases that came before the People’s Court in which you were required to file the indictment, you based the charges on the interpretation which was subsequently approved by the Reich Ministry of Justice, the interpretation which you ask here? Is that right?

A. From case to case the Minister of Justice afterward decided as to whether that procedure was to be adopted or not. He did not issue a general instruction or directive.

Q. Do I understand you correctly? Let me restate it. Did you mean to say that even after you asked for this interpretation it was necessary in the future when cases came up involving these facts that the Minister of Justice give his approval before you filed your indictment? Is that correct?

A. The indictment was drafted, and the draft was submitted to the Minister of Justice, and he approved it or did not approve it.

Q. But the draft of the indictment was based on the law which you suggested be interpreted as we have discussed it. Then having drafted the indictment based on this interpretation you got approval or disapproval, as the case might be, from the Minister of Justice. Is that right?

A. Yes.

Presiding Judge Brand: What was the answer?

Mr. King: The answer was yes, Your Honor.

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT BARNICKEL[532]

DIRECT EXAMINATION

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Dr. Tipp (counsel for defendant Barnickel): Witness, please describe further events.

Defendant Barnickel: About the end of 1937—beginning of 1938, I was in Berlin again. I told the personnel Referent, who was a different official then, about my wishes for the position in Munich, but the case was not that far yet. To my great surprise, on 30 November 1938, I received the communication that, on 1 December 1938, I was to be appointed Reich prosecutor with the People’s Court.

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Q. When and how did you assume your new position?

A. As I have already explained, I received the formal appointment on 30 November 1938. The Minister granted me a few days to straighten out my affairs in Munich, and thus, I assumed office on 6 December 1938.

Q. What position did you hold in the beginning?

A. On 3 November 1938, the chief Reich prosecutor of the People’s Court, Parey, had had a fatal accident. His permanent deputy, at that time the only Reich prosecutor, Parisius, was in the hospital seriously injured. On 1 December 1938, three new Reich prosecutors had been approved for that office. Of those, two were from the office proper, and I was the third one. Upon instruction by the minister, I was to be in charge of the office as a deputy because according to my age I was the oldest of the three Reich prosecutors there.

Q. Witness, in this connection, I should like to discuss a document submitted by the prosecution. It is Prosecution Exhibit 347, Document NG-548. The letter has the heading “Chief Reich Prosecutor with the People’s Court” and is of 23 April 1942, and is directed to the Reich Minister of Justice. In this letter, another letter by the Reich Leader SS and Chief of the German Police of 13 December 1941 is quoted. The latter letter is directed to, and I quote, “The Chief Reich Prosecutor with the People’s Court, attention: Senior Reich Prosecutor Dr. Barnickel, or deputy.” You are therefore addressed as Chief Reich Prosecutor with the People’s Court, Witness. Can you please explain how it may have come to that designation?

A. I cannot answer that question with absolute certainty because I do not happen to know why the office which sent that letter did it. It is, however, certain that I was never Chief Reich Prosecutor with the People’s Court. I was only Reich prosecutor at all times, although, during the first 2 months, I deputized for the Chief Reich Prosecutor, but during the first few years of my activity I frequently received similar letters. The first few times, I actually opened them. Later, I sent them to the office for incoming mail unopened. I assumed at that time that some office of the Gestapo, by mistake, had entered my name as Chief Reich Prosecutor on their records because, in the beginning, I was in charge of the office as a deputy. But the main point seems to be the following. I can see from the letter which is addressed to me, that it is quite clear that I never had anything to do with the answer to that letter. I see that with absolute certainty from the contents of the letter.

Q. For how long after you assumed the office were you in charge of the affairs of the Chief Reich Prosecutor?

A. Until 1 February 1939.

Q. Did it happen frequently later that you had to deputize for the chief?

A. Yes, but not very frequently. The Chief Reich Prosecutor and his permanent deputy appointed by the Minister, Reich Prosecutor Parisius, of course, tried to arrange not to be absent at the same time. Only if that did happen, I, as the oldest Reich prosecutor, had to take care of affairs. I have to correct myself, that is to say, after Reich Prosecutor Parisius, I was the oldest. Since the end of 1943, I was no longer used to deputize. I was evacuated to Potsdam at that time and Reich Prosecutor Weyersberg was the deputy of the Chief Reich Prosecutor.

*******

Q. * * * May I ask you now to direct your attention to Prosecution Exhibit 159, which we have already mentioned? That is the Prosecution Document NG-381.[533] It appears in document book 3-G, on page 22 of the German and page 19 of the English text. The subject of these proceedings is the trial of Oscar Beck, for undermining the military efficiency.

Presiding Judge Brand: A correction, for the purposes of the record. Exhibit 159 is in document book 3-D, at page 17 of the English.

Dr. Tipp: Thank you.

The indictment appears on page 2 of the document, and following pages. On page 4 there is the signature, “As deputy, Dr. Barnickel.” That is to say, you signed that indictment. Apparently you did so when you were deputizing for the chief who was away. At any rate, the document does bear your signature. Would you please tell us why that indictment was filed with the People’s Court?

Defendant Barnickel: Because of the fact that I was so overburdened with work at the time, I cannot remember any details of the case. However, I can say for certain that the reason for filing the indictment with the People’s Court was not—I am referring to the fact which has been mentioned here before—that Beck was of mixed descent, first degree. I think I have explained sufficiently my attitude to that question in general, but I shall revert to that subject later. That attitude of mine had remained the same for 10 years, and I did not change it in 1943. The fact that it was a Vienna Ortsgruppenleiter who denounced the man—that fact, too, is of no importance. I believe it is hardly necessary for me to mention this, but for my department, too, which submitted that case to me, it was of no importance either.

As I look at that indictment now, I am inclined to assume that we wanted to arrive at a basic decision. The novel element in the proceedings against Beck was the fact that he had criticized the employment of women. That was a measure which only started in the first weeks of 1943. It was designed to keep up production, and it had been ordered by the Reich and not by the Party. I believe that all the belligerent countries had introduced measures of that kind.

According to the date when the indictment was filed, it is possible that this indictment of Beck was the first one of its kind. Not only the legal questions decide what the basic element of such a case is, but novel facts of a case also can constitute a basic element.

For the rest, ever since I had been acquainted with the Reich prosecutor’s office, occasionally less significant cases, where one was not expecting a very serious sentence and certainly not the death sentence were indicted with the People’s Court if they were of a certain importance for the whole country.

Q. Witness, you say, then, that you believe the indictment was filed with the People’s Court because the case was important for the whole country and because it contained a novel element?

A. Yes, that is possible.

Q. Does the form of the indictment show that it was the intention to ask for the death sentence?

A. No, on no account. When the indictment was phrased, and in particular because of the legal provisions which were cited, in all that there is nothing to indicate that it was intended to ask for the death sentence. On the contrary, and I should like to refer to the enclosure, the letter which was sent with the indictment. It was written on 30 July 1943, to the presiding judge of the People’s Court.

In the second paragraph of that letter, which is also signed by me, it is expressly pointed out that under article 2 of the law of 20 December 1934, prosecution under that law had been ordered. That law was the Insidious Acts Law, which has been mentioned here a great many times. I should think that is a proof for the fact that we considered the application of that law also possible, for otherwise it would have been stupid to make reference to it. The maximum penalty for violation of the Insidious Acts Law would have been a 5-year sentence. I think it is possible that not only the question of the employment of women was the cause for taking this case to the People’s Court, but also the question of the application of the law in general.

Q. Witness, what was the senate with which your department cooperated in the field of undermining military efficiency?

A. It was the fourth senate, and the presiding judge was Dr. Koehler, whose name has been mentioned in a favorable context repeatedly here. May I state that in 1944 Dr. Koehler was transferred from the People’s Court to Stettin, because Freisler did not approve of him. The fourth senate dealt mainly with high treason cases. Later on it also had to deal with the undermining of military efficiency. However, when the distribution of work was changed again, it had to return those cases because there was dissatisfaction with the sentences that that senate had passed.

*******

Presiding Judge Brand: I wonder if you could tell me what was meant by the last phrase in that letter, where you say, “The prosecution under article II of the law of 20 December 1934 has been ordered as a precaution.” The part, “the prosecution has been ordered as a precaution,” what did you mean by that?[534]

Defendant Barnickel: Your Honor, by that I want to say that that passage points out that if sentence was not to be passed on the basis of undermining military efficiency, prosecution under the Insidious Acts Law would be made.

Well, that was a case of a measure which might be taken, Your Honor.

Q. I understand. Was it the practice to appoint defense counsel even in cases where the death penalty was not expected, in your court, in the People’s Court?

A. Your Honor, at my time—I don’t know what happened later—but at my time, every defendant who appeared before the People’s Court had to have a defense counsel without exception. That had nothing to do with the death penalty.

Presiding Judge Brand: Thank you.

Dr. Tipp: Witness, may I repeat my question. I may ask you to tell us what were these general prerequisites for filing an indictment?

Defendant Barnickel: Well, that question has been touched upon repeatedly here. There had to be sufficient suspicion that the defendant had committed the offense, that is to say, a certain probability was sufficient.

Q. In connection with the undermining of military efficiency particularly in this case, I think a further question is important. The question, what did one mean when one said the undermining of military efficiency in public?

A. According to the jurisdiction of the Supreme Reich Court and the Supreme Military Court, military efficiency was undermined in public even if statements had been made in front of only one person, if the offender had to expect that that person would pass on his statements to an indefinite number of other persons.

Q. These two prerequisites, therefore in your opinion in the Beck case, did exist?

A. Yes.

Q. Now, one more question concerning the undermining of military efficiency cases in general. Were all those cases dealt with by your department?

A. To start with, yes; from the summer of 1943, however, certain categories of cases were transferred to Department I, which collaborated with Freisler’s senate. According to the distribution plan of the People’s Court, Freisler could also deal with certain cases from my department, at his senate.

Q. How long was it that your department dealt with those undermining of military efficiency cases?

A. Until 31 December 1943. Then they were transferred to another department.

*******

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG ON THE LOPATA CASE[535]

DIRECT EXAMINATION

*******

Dr. Koessl (counsel for defendant Rothaug): The Lopata case was first tried by another court and not by the Special Court in Nuernberg.[536] Please tell us what was the first court that tried his case and whether that court was a Special Court.

Defendant Rothaug: The case was tried for the first time on 28 April 1942, before the local court at Neumarkt in the Upper Palatinate. The local court was not a Special Court.

Q. What were the facts which were the subject of the proceedings against Lopata during the trial at Neumarkt?

A. The defendant had been charged only with having approached a woman in a way which was sexually offensive, although that woman again and again tried to get rid of him. He was also charged with irregular behavior, which, however, in the course of developments played no important part and that charge was dropped.

Q. Please tell us what was the personal description of the defendant which was given by the local court at Neumarkt?

A. In the judgment, it is pointed out that the defendant looked well groomed, but he was insolent, lazy, and he had been guilty of the offense with which he was charged in a way, and I quote, “Which showed an unheard of extent of shamelessness and insolence of which only a member of the Polish nation would be capable.” However, that is a statement made by the local court at Neumarkt.

Q. Did the local court at Neumarkt have anything to do with the Special Court at Nuernberg?

A. Nothing. No.

Q. Was the judgment by the local court at Nuernberg upheld?

A. The judgment by the local court at Neumarkt was by decision of the Reich Supreme Court of 14 July 1942 annulled by way of a nullity plea, and the trial was transferred to the Special Court at Nuernberg.

Q. What was the criticism of the Supreme Reich Court in the judgment passed by the Neumarkt local court?

A. The Reich Supreme Court criticized the fact that the local court at Neumarkt, concerning certain generally known conditions which were connected with wartime conditions, although that had been obvious in the case in question, had not taken such conditions into consideration, and therefore apparently had ignored the fact that the offense with which the defendant had been charged also violated article IV of the law against public enemies. For that reason, it was necessary to refer the case to another court so that the case be examined from that point of view, and if that should be found right, so that article IV of the law against public enemies could be applied, if that were found applicable. Further reasons for the decision which are given are that the application of article IV of the law against public enemies would mean that a considerably higher penalty could be pronounced, and that for that reason the case would have to be tried again.

*******

Q. In its opening statement the prosecution quoted the following sentence from the judgment: “The inferiority of the defendant lies in his character, and the reason for it evidently is that he belongs to the subhuman race of the Poles.” Is that quotation correct?

A. Well, there is a typing error here which rather distorts matters because actually it says in the judgment—it doesn’t say “the subhuman race,” but it means the subhumanity of [Polnisches Untermenschentum], and that is something essentially different. We have subhumanity in Germany and we have developed our own laws against that and when we speak of Polish subhumanity we do not mean the Polish people as such; that is what we would have meant if we had spoken of the subhuman Polish race, and for that idea and opinion there is a concrete reason.

In many cases we had found that among the Poles who had been brought to Germany there was a considerable number of highly criminal types from Poland. The agencies which dealt with getting labor from Poland did not select properly and thereby created a great danger. We discovered people who had been previously convicted for murder and had been sentenced to penitentiary for life, but who on account of the outbreak of war had been set free, and who had now come to Germany. That point of view played a part in considering all these questions. That is to say, we did not speak of the subhuman Polish race but we spoke of the subhumanity in Poland.

Presiding Judge Brand: May I interrupt, please? The question of translation has arisen. The Tribunal would be glad to have a check made by the prosecution as to the original document and the proper translation of it. That will dispose of this entire matter.

Mr. Wooleyhan: Yes, Your Honor.

Dr. Koessl: The originals of the files here—I don’t know—probably the prosecution has the copy, and perhaps that copy also has the mistake.

Presiding Judge Brand: It is a question of what the document says and it should be able to be ascertained with definiteness. The suggestion that the document may have used the wrong word is not satisfactory to us. We want to know what word was used in the original document.[537] Go ahead to something else and straighten that out afterward.

Dr. Koessl: Witness, at the trial before the Special Court at Nuernberg, were any facts brought to light which were not mentioned by the judgment passed at Neumarkt?

Defendant Rothaug: That is clearly evident from the judgment. In addition to the facts which had originally been established, a further fact had been established according to which the defendant had attacked the old people who were living on a lonely farm with a dung fork and had exerted so much pressure on them that the only way for them to save themselves was to unleash the dog.

When evaluating the character as a whole of the defendant, as the judgment shows, that fact was taken into account. That fact in the last analysis was decisive.

Q. Can you show that that point in particular was very decisive? Can you show us that by quoting a passage from the original file?

A. That is shown by our attitude to the clemency question. In our opinion on the clemency question we, without exception, repeated those facts which had been decisive for us in deciding on the sentence. We did not state other general points of view concerning the clemency plea because we didn’t know them, and secondly, because we were of the view that they didn’t affect us in any way. That brief opinion on the clemency question says—

“The character of the defendant has been clearly described at the trial, in particular also the fact that the defendant, apart from the offense which in its execution was very grave, has also made himself guilty of violent behavior toward his employer.”

In other words, it is made perfectly clear here that the last point of view was decisive for us.

Presiding Judge Brand: May I ask you a question to which the answer, I think, could be brief? My notes show that the defendant was sentenced to death for violation of articles 2, 3, and 4 of the law or decree concerning Poles and Jews. Is there such a provision in your judgment? You needn’t read it. Just tell me if that is in there.

Defendant Rothaug: Yes.

Presiding Judge Brand: Thank you.

Dr. Koessl: The witness Doebig said that the offense in his view was not designed to prove that the offender was a public enemy. Would you, therefore, please briefly summarize the points which led you to assume that a very serious offense had been committed?

Defendant Rothaug: The justification for our sentence can be seen from the opinion given by the court, and that is before this Tribunal. I cannot say any more. All I can add is, that specifically for this case that is to say for the original case that had to be dealt with, that is to say, for molesting the woman in a sexual way, there was a decision from the Reich Supreme Court which stated an opinion specifically in regard to this question and discussed it from its basic angles, and that decision evidently was the cause for considering the death sentence at all.

With us a further point of view was added and it was that decision that was made available to the court.

*******

Presiding Judge Brand: I should like your professional opinion. Was the nullity plea[538] involved in the Lopata case? I don’t remember at the moment.

Mr. Wooleyhan: Yes, Your Honor.

Presiding Judge Brand: What is your best, honest judgment as to whether or not if Lopata had been a racial German there would have been a nullity plea and a direction from the Reich supreme court to retry the case? What is your honest opinion about that?

Defendant Rothaug: Mr. President, these two cases cannot be compared with each other because the Reich Supreme Court in this case stated its opinion on the basis that he was a Pole.

Q. Now, I am asking if Lopata had been a racial German, all other facts being the same as they were in the Lopata case, is it your judgment that the nullity plea would have been invoked and that the Reich Supreme Court would have ordered the case sent back to you for another trial? I should like your opinion on that.

A. Mr. President, this question is very interesting, but I cannot even imagine that possibility, even theoretically, because the very elements which are of the greatest importance could not be applied to a German.

Presiding Judge Brand: That’s all I wanted to know.

*******

F. Handling of Religious Matters

TRANSLATION OF DOCUMENT NG-630

PROSECUTION EXHIBIT 428

LETTER FROM DEFENDANT SCHLEGELBERGER TO CHIEF PUBLIC PROSECUTORS AND SENIOR PUBLIC PROSECUTORS, 20 JULY 1935, CONCERNING THE “STRUGGLE AGAINST POLITICAL CATHOLICISM”

The Reich Minister of Justice

V a 25 399

Berlin W8, 20 July 1935

Wilhelmstrasse 65

[Illegible Stamp]

[Handwritten] 2 copies sent to [illegible]

To: Messrs. Chief Public Prosecutors and Senior Public Prosecutors

Subject: Struggle against political Catholicism

For your confidential information and notice, I enclose a copy of the Prussian Ministerpraesident’s decree of 16 July 1935—St.M.I. 7905—to the Oberpraesidenten and Regierungspraesidenten, etc.

I decree it to be the duty of all prosecuting authorities to cooperate closely with the competent State Police and administrative authorities in taking action—with the deliberation necessary to avoid mistakes but also with the severity necessitated by the dangerous nature against all manifestations of the efforts of political Catholicism to undermine the unity of the State and create discord among the people, wherever they appear without regard for the person or rank of the perpetrator.

[Handwritten remarks on left margin illegible; illegible signature.]

For this purpose, the application of the following laws will be found particularly useful: Articles 130a, 131, 134a, 134b (as of 1 September 1935) Reich Criminal (Penal) Law; further, articles 1 and 2 of the law against insidious attacks on the State and Party and for the protection of Party uniforms of 20 December 1934[539] (Law Gazette I, p. 1269); the decree of the Reichspraesident for the Protection of People and State of 28 February 1933[540] (Law Gazette I, p. 83); the law against the founding of new parties of 14 July 1933 (Law Gazette I, p. 479); and the law against public collections of 5 January 1934 (Law Gazette I, p. 1086).

The cases must be investigated with the utmost rapidity, so that the punishment will follow the crime as quickly as possible. The penalties called for at the trials shall be such as the national sense of justice deems appropriate to the dangerous nature of these intrigues against the State and people and the unscrupulousness of the perpetrators.

A report must be made to me in quintuplicate in all cases where proceedings of this type are initiated. At the close of the investigation a concluding report on the incidents indicating the measures to be taken will be submitted to me. In case of an indictment, the bill of indictment, and later the sentence, will be submitted, each in quintuplicate. If the sentence imposed is made the subject of an appeal, a report must be made to me immediately, indicating the probable result.

This circular decree will be published in the next number of “Deutsche Justiz,” together with an extract from the decree communicated below, issued by the Prussian Ministerpraesident Goering on 16 July 1935.

As deputy:

[Signed] Dr. Schlegelberger

PARTIAL TRANSLATION OF DOCUMENT NG-1808

PROSECUTION EXHIBIT 557

EXTRACTS FROM THE OFFICIAL FILES IN THE CASE AGAINST LUITPOLD SCHOSSER, A CATHOLIC PRIEST, SENTENCED ON 19 DECEMBER 1942, UNDER THE LAW AGAINST INSIDIOUS ATTACKS ON STATE AND PARTY, BY A SPECIAL COURT HEADED BY DEFENDANT ROTHAUG

National Socialist German Workers Party

Kreisleitung Amberg-Sulzbach (Gau Bayrische Ostmark) Bayreuth

Daily newspaper of the

district: Amberg-Sulzbacher

Zeitung

Office and Editor’s Office Amberg

Regierungsstrasse 1

Phone No. 6

Amberg, 12 June 1942

Kreis Office

Amberg, Kaiser Wilhelmring 9

Telephones: 346 and 325

Banking accounts:

County Savings Bank Amberg, Account No. 1501

Municipal Savings Bank Amberg, Account No. 150

The Kreisleiter Dr. K./St.

Journal No. 1156/42

(to be quoted in replies)

To the Public Prosecutor at the Special Court, Nuernberg-Fuerth

[Stamp]

Received: 13 June 1942

Prosecutor’s Office

Nuernberg-Fuerth 1c

Subject: Charge against the priest Luitpold Schosser, born at Burghausen/Lower Bavaria, 28 April 1909, at Vilseck since 27 March 1939

On 17 May 1942 the Polish farm laborer, Martin Strysow, died in hospital at Vilseck. The priest Schosser announced in church after the usual Sunday evening May devotion that the transportation to the cemetery and Last Sacrament of the Pole would take place immediately afterward. Induced by this announcement, about 50 people, mainly women and children, participated in the funeral procession and praying loudly, as usual, rendered last honors to the Pole. A large number of the population took offense at this incident.

By this action the priest Schosser has malevolently criticised the national political demands of the National Socialist State. Furthermore, he has debased the dignity of the German people in an incredible way and has caused a great number of fellow Germans to behave in an undignified manner.

Judging from the usual attitude of the priest Schosser it may be expected that after having been informed of the charges made against him, he will try to influence possible witnesses. Therefore, I request his immediate arrest.

Heil Hitler!

[Signed] Dr. Kolb

Oberbereichsleiter

[Rank in Nazi Party Leadership Corps]

[Stamp]

National Socialist Workers Party

Kreis Amberg-Sulzbach

[Handwritten]

To the President of the Special Court with the request to issue a warrant of arrest for an offense against the law against insidious attacks on State and Party.

Nuernberg, 15 June 1942

[Signed] Schroeder

Chief Public Prosecutor

Secret State Police

State Police Office Regensburg

Regensburg, 18 June 1942

[Stamp]

Received: 19 June 1942

Public Prosecutor’s Office

Nuernberg-Fuerth

B. No. 1854/42 II B 1.

With 1 file returned

To the Chief Public Prosecutor as Chief of the Prosecuting Authority at the Special Court,

Nuernberg

As I request you to gather from the enclosed reports, the case has already been dealt with here. The offense committed by Schosser was handled here in such a way that he was under police arrest from 1–15 June 1942. For that reason I have desisted from carrying out the warrant of arrest against Schosser for the time being. In case the warrant of arrest should nevertheless be executed, I request further information.

By order:

[handwritten]

I. Make note of dispatch.

II. With file.

[Signed] Alt

[Stamp]

Secret State Police

State Police Office

Regensburg

Received: 24 June 1942

No. 1854/42 B 1

[Handwritten] To the Secret State Police, State Police Office Regensburg, repeating my request of 15 June 1942.

Local Court

2 July 1942

Weiden (Oberpfalz)

[Stamp]

Nuernberg, 20 June 1942

Chief Public Prosecutor

[Signed] Schroeder

Arrest!

Very urgent

Copy

1 c Sg 948/42.

Received: 21 August 1942

District Court Nuernberg-Fuerth

Criminal Cases

St.

To the President of the Special Court,

Nuernberg,

With the request to return the files, and to suspend the warrant of arrest, and order the release of the accused.

Nuernberg, 21 August 1942

The Chief Public Prosecutor

as Chief of the Prosecuting Authority

at the Special Court

By order:

[Signed] Hofmann

I. At the request of the Chief Public Prosecutor the warrant of arrest of the President of the Special Court of 15 June 1942 has been revoked, article 126 Criminal Procedure.

II. Order for release!

To the office of the Special Court—give order by telephone to release the prisoner.

III. To the Chief Public Prosecutor—time of release from arrest—13.15 hours.

Nuernberg, 21 August 1942

The President of the Special Court

[Signed] Dr. Ferber

Acting President

To II

Telephone conversation: Court Jail Weiden;

Telephone Charges: 3 Reichsmark

21 August 1942

Wi.

Received: 21 August 1942

Public Prosecutor’s Office

Nuernberg-Fuerth

Certified.

Nuernberg, 27 August 1942

Public Prosecution Nuernberg-Fuerth

[Signed] Huemmer, Chief Clerk

The Registrar

[Stamp]

Chief Public Prosecutor

Nuernberg-Fuerth

Files for cases concerning insidious attacks on State and Party

Sg No. /194

Verdict

In the name of the German People

The Special Court for the district of the Nuernberg Court of Appeal at the Nuernberg-Fuerth District Court rules in the criminal case, against—on account of—in public session as follows:

[Handwritten]

Schosser, Luitpold, born in Burghausen, 28 April 1909, single, Catholic priest at Vilseck, at present in detention pending trial is to be punished by imprisonment of 1 year and 3 months and costs on account of two compound offenses, namely misusing the pulpit, as well as [violation of] article 2, paragraph 1 of the law against insidious attacks on State and Party,[541] committed by attacks against the National Socialist Reich in the religious-political sphere.

The 3 months of police arrest and of detention pending trial will be taken into consideration.

[Signed] Rothaug

Dr. Gros

Groben

TRANSLATION OF DOCUMENT NG-770

PROSECUTION EXHIBIT 291

CIRCULAR OF THE REICH MINISTER OF JUSTICE, SIGNED BY DEFENDANT ENGERT, TO THE ATTORNEYS GENERAL, 12 DECEMBER 1944, REDEFINING LIMITATIONS ON DIVINE SERVICES FOR PRISONERS[542]

The Reich Minister for Justice

Berlin W 8, 12 December 1944

Wilhelmstrasse 65

To the Attorneys General (except Prague)

Subject: Adjustments in the application of the execution of sentences and detention custody (administrative ordinance) of 29 September 1944 “Deutsche Justiz” [German Justice] page 270.

Copies to the independent institutions, the district court prisons and other court prisons for early distribution.

There is reason to believe that the regulation under No. 4 of the Administrative Ordinance of 29 September 1944—“Deutsche Justiz”, page 270—concerning adjustments due to the war in the application of penalties and detention custody, is being misinterpreted. The regulation that divine services for prisoners and persons in custody will no longer be held is to be interpreted from the context. As the title already indicates, the measures of the ordinance are due to the war. The preamble to the ordinance already defines the purpose of the adjustment of the application of the ordinance due to total war. This purpose also restricts the application of the regulation under No. 4. Divine services are only temporarily canceled and only then where they are incompatible with the demands of total war.

Divine services at the present time are incompatible with the demands of total war where and insofar as they necessitate time which is essential to work for the waging of total war. Nor are they compatible when and where the crowding of prisoners or detainees during divine service constitutes a danger in itself or mixing the congregation of the institution’s church or in view of the small number and the age of the supervisory staff, it represents a danger to the institution’s security and thereby continuous production.

Insofar, however, as the time needed for the requirements of total war is not interfered with by the hours of divine services and the maintenance of the institution’s safety can be guaranteed, divine services may also be held in future especially at Christmas and other sacred holidays.

By order:

[Typed] Engert

Certified: [Signed] Lorenz

Clerk

[Stamp] Reich Ministry of Justice

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS FATHER LUITPOLD SCHOSSER[543] CONCERNING HIS ARRESTS AND TRIAL

DIRECT EXAMINATION

Mr. Wooleyhan: Witness, would you please state your full name and your profession?

Witness Schosser: My name is Luitpold Schosser; I am a Catholic priest.

Q. Father, where is your parish?

A. My present parish is at Wolfseck near Regensburg.

Q. Has that been your parish for some time in the past?

A. That has been my parish for 3 years and 3 months.

Q. Where was your parish before that?

A. Before my trial, my parish was at Vilseck.

Q. Father, where were you born and when?

A. I was born on 28 April 1909 at Bernhausen, in the Holledau [Central Bavaria].

Q. What education did you have, and where was it?

A. For 4 years I attended grammar school in my own home village Hadersbach. Then, for 9 years I went to the high school at Straubing. Then, for 5 years I attended the university at Innsbruck, and for 1 year the Theological Seminary at Regensburg. In 1934 I was consecrated priest. Then, I was assistant vicar in several places. At the end, I was at Vilseck. Then my trial started, and after my trial from 1 February 1944 I have been a priest at Wolfseck.

Q. Father, while you were a priest at Vilseck, were you ever arrested and imprisoned?

A. At Vilseck, I was arrested twice, and at Regensburg, I was arrested once, because after my arrest I was not allowed to go back to Vilseck.

Q. Would you please state the dates, so far as you remember, of each time that you were arrested and imprisoned?

A. Yes. For the first time I was arrested on 1 June 1942, and I was kept in prison for 14 days by the police. That warrant was filled in by the Gestapo. After I had been imprisoned for 2 weeks, I was released. In the meantime, a second warrant for my arrest was issued by the Special Court of Nuernberg, and on 1 July I was arrested again. Then, until 21 August—that is for 7 weeks, I was in custody pending trial at Weiden in the district court prison of Weiden. Then, again, I was released and a few days later another warrant for my arrest was issued again by the Special Court of Nuernberg. Then, I had been in prison until 18 December 1943. For the third time I was arrested, that was at Regensburg—and my arrest was made by the Gestapo.

So, altogether, I was arrested three times; twice at Vilseck and once at Regensburg.

Q. Father, at any time during any of these three arrests, did the police ever tell you who had signed the warrant for your arrest?

A. Yes, when I was arrested the second time, the police commissioner of Vilseck told me that the warrant was issued by Rothaug from the Special Court of Nuernberg.

Q. After you had been arrested, Father, and imprisoned those three times that you describe, you also mentioned a trial. Were you ever indicted and tried before a court?

A. My trial took place on 18 December, that is on 19 December 1942, and the trial took place before the Special Court of Nuernberg at Amberg. The trial took place because of a [Heimtuecke] insidious attack, during a sermon which I had made 15 months before at Vilseck.

Q. Father, you state that you were tried on 19 December 1942, by the Special Court of Nuernberg, but that the trial took place in Amberg. Is that correct?

A. Yes, that is correct; it took place at Amberg, at the town hall.

Q. Would you please repeat again, so far as you know, the violation of law for which you were indicted and tried?

A. Well, the first arrest originated from the burial of a dead Pole who died at Vilseck and was sent over to the morgue from the hospital as was customary there with the dead. The dead Pole, as every other Catholic, was transported from the hospital to the morgue, therefore, the church had given him the sacrament in the morning. In the morning of this day he asked for a priest, and he was prepared for death. During the afternoon, then, he died. In the evening before we had our evening vespers—that was on a Sunday—the attendant of the morgue came to see me, and he informed me that I had to order the transport of this dead Pole from the hospital to the morgue and would have to take over the arrangements. I asked him whether it was permissible for me to do that, and he said, “Yes; the Magistrate has ordered that you do it.” Therefore, I had no further doubts, and I went to the morgue, that is, to the hospital, and I ordered the transport which was sponsored by the church.

Before I made my sermon at the evening vespers, as is customary at every transport of the dead, I communicated to my parish people that later on a dead Pole would be transported from the hospital to the morgue, because the people want to know who is the dead, who is in the coffin in order to be able to know whether they have any obligation to attend the funeral or not. Of course, as it was a Sunday, there were quite a number of people in the church, comparatively, and quite a number of them attended the funeral, because thus they had an opportunity to go to the cemetery, which was situated outside of our village.

Now, because of this communicating the fact to the people, I was charged mainly by the Special Court. They considered it an invitation, that is to say, that I intentionally invited the population to attend the transport of the dead Pole. That was the main charge made against me by the Special Court of Nuernberg.

They said that at this occasion, as the president said during the trial, I was said to have expressed religious feelings and used them intentionally in order to sabotage the directives of the State.

Q. Father, may I interrupt, please? You state that at the trial, the main charges, so far as you know, were this conducting of a funeral for the Pole and a sermon that you preached the previous year. Is that correct?

A. Well, the main charge in my trial was the sermon. That was the real reason for the trial, during the trial, the sermon was not so much dealt with but rather this whole matter with the Pole was dragged into the trial. In each detail it was talked about—just about this matter of having had the Pole transported. I was considered an insidious priest, and this was told to the public.

*******

Q. Now, Father, the sermon that you delivered on the occasion in 1941, to which the indictment referred, what text was that sermon?

A. Well, the text was the sermon of the seventh Sunday after Pentecost. It is read every year. It is in Chapter VII of Matthew. “Beware of false prophets who walk around in the cloak of lambs but who in their interior are roaring wolves. You will recognize them from their cloaks.” That was the beginning of my sermon.

Q. Father, was this verse from Matthew the text of the sermon on that day every year?

A. Every year we use the same text.

Q. Now, Father, of the witnesses that were called against you—I believe you said there were four or five, which was it?

A. There were four witnesses from Vilseck and the Gestapo official Alt, but during the trial he didn’t talk at all.

Q. Well, of those four witnesses that did speak at the trial for the prosecution, how many of them heard your sermon of the preceding year, on the seventh Sunday after Whitsuntide?

A. Two witnesses had heard my sermon. It was the wife of the Ortsgruppenleiter and the newspaper distributor Meyer Johann.

Q. What did the newspaper distributor say or testify about your sermon?

A. During the interrogation by the Gestapo official, he declared that my preaching had been aggressive; he said that my sermon was an incitement.

Q. Father, you said that during the Gestapo investigation, he said that your sermon was aggressive and inciting, but that during the trial he denied that. Is that true?

A. Yes, during the trial he denied that he had said that the sermon had been an inciting sermon. This expression “Hetzpredigt,” [inciting sermon] he did not use. That is what he said during the trial.

Q. Describe, Father, the testimony of the other witness that had heard your sermon; namely, the wife of the mayor and Ortsgruppenleiter.

A. Well, the wife of the Ortsgruppenleiter had only referred, during the trial, to what she had told the Gestapo official, and the other witness, Kuffer, brought forward merely personal matters in order to paint me as an insidious priest.

Q. But this last witness that you speak of, Kuffer, had not heard your sermon, had he?

A. No, he had not heard my sermon.

Q. But the mayor’s wife had, is that correct?

A. Yes, the wife of the Ortsgruppenleiter attended the sermon and heard it.

Q. Well, Father, at your trial did the mayor’s wife testify or was the statement she had given the Gestapo only introduced?

A. No, the wife of the mayor only answered questions put to her by the presiding judge. She, herself didn’t say much.

Q. During the trial, Father, so far as you remember having observed it, will you please describe Rothaug’s conduct and words and statements from the bench.

A. Right after my trial, in the cell of my prison, I took some stenographic notes concerning the remarks made by the presiding judge, Dr. Rothaug, and on the strength of those stenographic notes which I have here on my table, I can make the following statement concerning the trial. First of all, the presiding judge referred to my education and there he became very personal right away and charged me with the fact that my whole theological education was rather backward, and that it would have been much better if I had studied something other than theology. He said that I only observed the whole development of national socialism as a bystander looking from the window. During my trial, the Hitler Youth passed the town hall, and at that occasion the presiding judge made the remark, “those down there, the Hitler Youth, that is the real life.” Later on, in the course of the trial, the presiding judge very often made ridiculing remarks concerning the Catholic religion, and made insidious remarks concerning the profession of priest. Some of these remarks, I can tell you literally, and they were the following: “You Catholics allege that only Catholics will reach heaven, all others will be in hell.” That is an assumption which no Catholic will ever make. Then, he said, and this remark was repeated again and again, “Not water gives value to man, but rather the blood.” And, of course, the water he referred to was the Catholic sacrificial water, or the water on the head—sanctifying water. For the National Socialist ideology has to be given to the child already with the milk of his mother; and there it appears my parents had failed to educate me in this direction. Those were merely personal remarks.

Q. Father, may I interrupt a moment. Are you saying that the presiding judge, Rothaug, made the remarks, such as you have just described, to you from the bench, during the trial?

A. Yes, from the bench, during the trial. These remarks, I may say that after all they were not only meant for me, myself, but for the whole profession of priesthood.

Q. Father, you have said that in your indictment, the main charge was one of malicious statements made during that sermon in 1941, but you also said that during your trial Rothaug said much more about the business of your giving a funeral service to the Pole. Can you give any facts to explain why you say that?

A. Yes. Special Court Judge Rothaug dragged two things mainly into this trial. First of all, the removal of crosses from the schools in the district of Vilseck, and then this transporting of the dead Pole from the hospital to the morgue. If I may add something concerning this matter of transferring the dead Pole; there again I can give you some more details.

Q. Yes, Father, I would be very interested in what Rothaug said about your transporting the dead Pole.

A. The whole courtroom was fully occupied. I, as well as the people attending the trial, was quite astonished especially by Rothaug going into the details concerning this Pole matter. He came back again and again on this matter in order to prove to me that I really had made insidious statements; and that I had had insidious and bad intentions, and on this occasion Rothaug showed a terrible hatred against the Polish people.

*******

Q. Father, after your trial was concluded, what sentence did you receive?

A. I was sentenced, on the grounds of insidious attacks, to 15 months of prison, and 3 months of custody pending trial were counted.

Q. Father, after the ceremony and sermon which you preached on the seventh Sunday after Whitsunday 1941, how long was it from then until your trial, approximately?

A. About 15 months.

Q. Then, for 15 months after you preached the sermon for which you were tried as having made insidious utterances, nothing was done to you by the way of trial; is that correct?

A. No, during these 15 months nothing happened.

Q. One moment, Father, please. Fifteen months after your sermon, during which nothing was done, you were tried, and part of the case was the funeral sermon you conducted for a Pole, is that correct?

A. May I ask you to repeat the question, please?

Q. Father, 15 months after your sermon, during your trial, your conduct of a funeral for a Pole was a part of the trial, wasn’t it?

A. Yes, during the trial.

Q. Now, Father, when was this funeral for the Pole that you conducted?

A. That was on the third Sunday in the month of May. I think it must be about 17 May 1942.

Q. In other words, Father, the sermon that you preached, on which the main count of your indictment was based, was 15 months before your trial, and the Polish funeral was 2 or 3 months before your trial? Is that correct?

A. Well, the funeral of the Pole was in May 1942, and the trial took place in December 1942. That would be about 6 months.

Mr. Wooleyhan: There is no further direct examination, Your Honor.

Presiding Judge Marshall: Does any defense counsel desire to cross-examine this witness?

Dr. Koessl (counsel for defendant Rothaug): I ask to examine the witness.

The President: You may proceed.

CROSS-EXAMINATION

Dr. Koessl: Witness, for the first time you were arrested on 1 June 1942, is that correct?

A. Yes.

Q. You said before that you made the church sponsored transfer [to the cemetery] of the Pole, and that you were arrested because of that. Was this church sponsored transfer of Poles prohibited?

A. It was not prohibited for Poles, but I was charged with only the publicizing of this fact.

Q. I could not quite get that, unfortunately. May I ask you to repeat what you were charged with?

A. I was charged with the fact of having publicized this church sponsored transfer which is usual at Vilseck, and that I made it public. That was explained as if I had invited and even asked the population to attend the funeral.

Q. In other words, you were not charged with having transferred this Pole and sponsored it by the church, but rather, it was the fact that you had violated the State directives, is that correct?

A. Yes.

Q. The first point was dealt with only by the Gestapo?

A. Yes.

Q. In other words, Rothaug had nothing to do with that?

A. No, he had nothing to do with that.

Q. However, you were charged with other violations of State directives, were you not? Is that correct?

A. No, that is not correct. The Ortsgruppenleiter Stubenvoll had informed the Kreisleiter, Dr. Kolb, and he raised the point again because this sentence of 2 weeks was not enough for him, and that is the way this matter came to the Special Court in Nuernberg, and then it went on.

Q. Well, did this matter lead to a trial then?

A. No. As far as I know—

Q. Please go on.

A. As far as I know from my lawyer, this matter was diverted by Berlin, and that is why the second time, on 21 August, I was released again.

Q. But then there were other denunciations against you?

A. Yes, later on. After I had been released for the first time and when I was in custody pending trial for the second time, only then was this sermon brought to the knowledge of the [Nuernberg] Special Court.

Q. It seems that you were also denounced by the Ortsgruppenleiter for other activities.

A. Well, no, I was not denounced. I was only charged with them and reprimanded, but they had nothing to do with the court.

Q. Just a little bit slower, please.

A. At Vilseck, I only discharged my general duties as a priest.

Q. But your activities at school were talked about and other activities which were not compatible with State directives at that time?

A. Well, I have to object to that. That was only the opinion of Stubenvoll. Only in his opinion were those activities against the State. I never violated any State directives in that matter. I only stuck to my church directives.

Q. However, your youth organization and your school activity, what did they object to in those matters?

A. Well, for instance, as far as the pupils of the vocational school were concerned, I gathered them for education after the lessons. The Ortsgruppenleiter Stubenvoll didn’t like that, and then he made quite bad and mean difficulties for me. He threatened that I would be charged. Furthermore, I gathered the adult youth every 3 or 4 weeks in order to have discussions and a little lecture. There again, Stubenvoll sent informers, in spite of the fact that he had no right whatsoever to intervene in church matters.

Q. You speak of intervening in church matters. Can you confirm that as a result of the centuries-old tension between church and state in Germany, there were penalties for the misuse of the priest’s profession which were as old and which had been issued centuries ago?

A. I know only the “Pulpit Article,” and that had existed for quite some time.[544] Otherwise, I don’t know anything.

Q. Well do you know for instance, the Protizio of common law? You don’t know that?

A. No.

Q. The Protizio.

A. No, I don’t know that.

Q. But, you know that the “Pulpit Article” was issued during Bismarck’s rule; that is 1871, is that correct?

A. Yes. Even during the trial, Rothaug made a remark about it to me.

*******

Q. Now, on the strength of that sermon at that time, you gave as a basis, chapter 7 of the Matthew’s Evangelical?

A. Yes.

Q. Was it the fact that this text was made the basis for this sermon which was objected to?

A. Well, that could not be objected to because I had no power over that. I had to take that text.

Q. Is it correct if I assume that, of course, the words which you joined to that chapter were objected to?

A. Well, yes. The whole sermon, as I said, was explained by the witness in a way as if I meant by the false prophets the leading personalities of Germany of that day.

Q. Did you mean them at that time?

A. I spoke in quite a general way, and I left to the people what they wanted to understand from my sermon.

Q. Well, did you mean the leading personalities? I would like to know that.

A. I spoke in a quite general way on these matters of ideology, and I left it to everybody. If I meant somebody then, of course, I meant, first of all, Rosenberg who actually was the man who was involved with the National Socialist ideology versus religion, by his book.

Q. In other words, the assumption of the public prosecutor was correct?

A. It was an assumption and they couldn’t prove it.

*******

Q. Now, witness, you have admitted that the newspaper distributor Geyer expressly stated that your sermon was very aggressive.

A. Yes, the witness Geyer in the minutes taken by the Gestapo had testified that, and they had written it down.

Q. Also, the wife of the Ortsgruppenleiter, according to your own testimony, had testified that in church she had objected to what you said?

A. Yes.

Q. Was the wife of the Ortsgruppenleiter a woman who went to church very often?

A. Yes, relatively she went rather often to church. But one gained the impression—and also the other people who went to church confirmed this—that she went to church because she wanted to hear everything that was said in church.

Q. This woman, did she go to church before the time her husband became an Ortsgruppenleiter?

A. Yes, also during that period already, Frau Stubenvoll went to church regularly.

Q. And now you assume that this woman suddenly went to church only as an informer?

A. That was the general opinion in the village; it was not only my opinion.

Q. You have admitted that when Rothaug questioned this woman he generally stuck to what she had testified before the Gestapo, that is, as a line for his questioning.

A. Yes.

Q. Furthermore, you said that he asked leading questions?

A. He submitted it to her in a way that she could only answer yes or no in a very easy way. That was the impression the public gained. My family was there partly.

Q. However, this woman had already told all that. How can you say that Rothaug put leading questions to that woman and told her what she was to say?

A. Because in her testimony she was rather uncertain.

Q. Why did she suddenly get uncertain in her answers if she had already told the Gestapo the very same things?

A. Between the questioning by the Gestapo in August and the questioning during the trial in December there was quite a period of time, and Frau Stubenvoll didn’t have a good memory of what she had stated at that time. This impression my defense counsel gained, also.

Q. In other words, the first statements of this woman were apparently under the impression of your sermons, weren’t they?

A. Well, only what she may have stated to the Gestapo. During the trial, from her own knowledge, she didn’t speak too much. She only answered.

Q. Did you ever see a witness who does anything else than answer questions?

A. Well, the first witness, Stubenvoll—he just spoke and he told and reported everything he knew against me though he didn’t get any questions to that effect at all.

Q. But this man probably, on the strength of the Code of Criminal Procedure was summoned to explain what he knew. Can you remember that?

A. I cannot remember well whether he was summoned to do just that. He started to speak against me.

Q. Now, you mentioned the fact that Rothaug had alleged that in your tender youth your parents had forgotten to give you the education of a National Socialist.

A. At that time I was much older, but indirectly this came as a hint concerning my parents, and my brother confirmed that to me and the young lady who attended the trial, that he even hinted at my parents just when he spoke of education, of education from the tender youth onward.

*******

Q. Witness, the entire question of the burial of the Pole was mentioned only because, apparently, it was contained in the files, and there it was used as further evidence of your attitude of opposition to the State?

A. These files, however, had nothing to do with the actual matter charged in the trial.

Q. However, it was further evidence of your entire attitude toward the State at that time?

A. Yes, that is how the presiding judge interpreted it and also expressed it.

Q. How long did the whole trial take?

A. From about 8 o’clock until 1:30 in the afternoon.

Dr. Koessl: I have no further questions. Thank you.

*******

EXAMINATION BY THE TRIBUNAL

Presiding Judge Marshall: I understand that your testimony now is that the sermon referred to in your testimony was preached on the third Sunday in July of the year 1941. Is that correct?

Witness Schosser: I can now tell you the exact date. It was 20 July 1941.

Q. I understand you to say that from the time of the preaching of that sermon a period of 15 months elapsed during which nothing happened. Is that correct?

A. Fifteen months passed until the trial. About a year later there was the denunciation because of this transfer of the Pole.

Q. About a year elapsed, then, before you were arrested, and then 3 or 4 months after that until the trial took place, is that correct?

A. Yes, that is how it was.

Presiding Judge Marshall: Very well.

Mr. Wooleyhan: May the witness be excused, Your Honor?

Presiding Judge Marshall: The witness may be excused.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG CONCERNING THE CASE OF FATHER LUITPOLD SCHOSSER[545]

DIRECT EXAMINATION

*******

Dr. Koessl (counsel for defendant Rothaug): I want to talk to you about the Schosser case, S-c-h-o-s-s-e-r. The Schosser case is mentioned in the English transcript on page 1743 by the witness Ferber;[546] and in the English transcript on page 3021 through 3066 by the witness Schosser. Witness, in this case the main charge against you is that you displayed special initiative. In addition to that the charge is made repeatedly that Schosser was prosecuted because he buried a Pole. Between what proceedings does one have to distinguish when the name Schosser is mentioned?

Defendant Rothaug: This is a case of two proceedings, in fact. The first case had to do with the funeral of a Pole, but I want to state right now that naturally the funeral itself was not considered a punishable offense. That is the more recent case. Then, another proceeding is of importance here which has to do with the sermon on a Sunday in church. That case, the first case, in connection with the funeral of a Pole did not lead to a main trial or a sentence, but this sermon on the Sunday did. Those are the first things between which one has to distinguish, because in this connection the charge is made that I had started or initiated the second case after I had failed with the first one; and my aim is now to prove to the Court by submitting evidence, submitting documents, that I was not the initiator in this case, and in general, I object against that charge.

Q. Did you also deal with the first case that you find in the file before you? Look at page 6 of the file attached to the main file. It is the case SG-948, from 1942.

A. There are two cases, and it would probably be helpful to mention the file designations to avoid confusion. The first case—the case of the funeral of the Pole, if you want to call it that—has the file designation 1-C SG 948, from the year 1942.

Q. What was the cause for that case?

A. That case was initiated on the basis of a denunciation which the Kreisleiter of Amberg on 12 June 1942 sent to the public prosecutor at the Special Court Nuernberg-Fuerth. In this report it is set forth that, by the behavior of the accused Schosser in church, particularly by making an announcement about the funeral, and by guiding people to the cemetery, the German population to a far-reaching extent was caused to attend the funeral; and that that behavior was considered an offense against the measures which were prevailing at the time concerning the separation between Germans and Polish people.