A. By that circular decree the existing provisions concerning secrecy

were not made more severe in any way. The stringent provisions

concerning the seclusion of the NN prisoners from the outside world

had applied since the NN decree as such had been issued. As far as we

were concerned it was a shock from the very beginning that in the case

of the death of an NN prisoner, the relatives could not be informed.

That was true in the case of a natural death, as well as in the case

of a death sentence being carried out. We, naturally, were aware of

the severity of such a provision, but we did not see any possibility

of avoiding it, but as far as that was possible within the scope of

the severe provisions we wished to take into account the principles

of humanity. We did want to make sure that persons who had been

sentenced to death would have spiritual care. We did wish to afford

them a possibility not only to leave a holographic will but also to

make a real testament before a notary or judge. We also wished that

NN prisoners who had died should have a proper funeral. That was the

purpose of the provisions in the circular decree of 6 March 1943.

Q. Please comment on the more important details of that circular decree?

A. The provisions under paragraphs 1, 3, and 5 of the circular decree,

I believe speak for themselves. Concerning the other provisions I

would like to say this. Paragraph 4 said that farewell letters by

NN prisoners were not to be sent out. That was not a new provision

but that was the unavoidable consequence of the NN decree, since the

general administration of justice had to deal with NN cases. As early

as the first day when the NN provisions had come into force, the

Department V, the administration of punishment, had issued a provision

to the effect that NN prisoners were not allowed any correspondence.

The farewell letters of prisoners who had been sentenced to death

also came under that provision. Paragraph 4 of the circular decree

furthermore reads that the farewell letters from NN prisoners were to

be kept in custody for the time being by the prosecution. It was to be

made sure that the farewell letters, when the NN provisions would be

rescinded, that is to say, at the latest at the end of the war, would

be passed on to the relatives. Paragraph 6 of the circular decree laid

down that the relatives were not allowed to receive information about

the death of NN prisoners. That was a repetition of the old provision

which had existed since the NN decree as such had been issued. It was

an unavoidable consequence of the NN decree as such. Paragraph 7 of

the circular decree laid down that the dead bodies of NN prisoners

who had been executed or who had died from other causes were to be

turned over to the Gestapo for their funeral. That provision is not

new and is not peculiar to the cases of NN prisoners. That is obvious

from Document NG-257, Prosecution Exhibit 322. That document contains

the reply from Thierack to the complaint by the chief of the Security

Police, that this opinion had not been obtained before paragraph 7 of

the circular decree was issued. Thierack’s reply points out that that

provision did not provide new tasks for the Gestapo. That the Gestapo

was to carry out the funeral, that in itself was not of a dishonorable

nature, but funerals in cases where the relatives could not take care

of them, that in Germany is one of the duties of the police. Whereas,

under the general regulations in such cases the corpse is offered to an

anatomical institute for research purposes, an exception was made in

the case of NN prisoners, and the corpse was buried. As the provision

shows, we, of course, ordered that every NN prisoner receive a grave of

his own which was not identified by his name, but figures or something

of that nature.

Finally, paragraph 8 of the circular decree laid down that the

possessions which NN prisoners had left behind were not to be handed

over to the relatives. That also was the necessary result of the

provisions which dealt with the seclusion of the NN prisoners from

the outside world. On the other hand, we ordered that the possessions

which the NN prisoners had left behind were to be taken in custody by

the NN prisons and once toward the end of the war, a general public

prosecutor--concerning the watches and other articles left behind by NN

prisoners, wanted to make his own regulations. Naturally, I repudiated

that view.

Q. In its opening statement the prosecution said this: If the armed

forces in the occupied territories arrested the people by mistake, who

quite evidently had not been guilty of any form of resistance against

national socialism, then those victims, for the sake of keeping the

program secret, had to be treated in the same manner in which other

persons were treated who succeeded in getting away with a prison

sentence. Is that correct?

A. That assertion by the prosecution is not correct. First of all,

I consider it out of the question that the general authorities of

the administration of justice ever had persons handed over to them

who quite evidently had not made themselves guilty of any resistance

to the occupying powers. Persons who had been arrested were not

moved into Germany immediately after their arrest, but to begin with

investigations were carried out inside the occupied territories and

in particular the defendant was interrogated. In the course of those

investigations obvious errors were soon discovered, and in that case

the person concerned was not moved to Germany but was set at liberty

in the occupied territories. May I refer to the testimony by the

witness Lehmann?[482] He testified that the agency of the armed forces

in the occupied territories had issued provisions which were to make

sure that as far as possible only such matters were handed over to the

general administration of justice which were clear cases on account of

the evidence that had been obtained. If it did happen after all that

a person who was obviously innocent was taken into Germany--I cannot

remember that such a case ever occurred--there was the possibility to

transfer him to the occupied territories. In this respect, I refer

to Documents NG-226, Prosecution Exhibit 313 and NG-205, Prosecution

Exhibit 328.

Q. According to the indictment one of the purposes of the NN

proceedings is supposed to make it impossible for the NN prisoners to

have access to a defense counsel. What do you have to say about this?

A. First of all, the same is true here that was true of the limitation

of evidence obtained abroad. Certain limitations of the defense

which had been ordered for NN proceedings were not the purpose of NN

proceedings, but a consequence which resulted of necessity from the

particular manner of these proceedings and from the wartime conditions.

We must distinguish between two different limitations of defense. First

of all, a limitation of choosing a counsel; and, secondly, limitation

of having counsel appointed by the court.

Q. Please comment first about the limitation of the free choice of

defense counsel.

A. In respect to the seclusion of the NN prisoners from the outside

world, which had been ordered, the executive office of the Ministry of

Justice, in carrying out the NN decree from the beginning believed that

a limitation of the free choice of defense counsel was necessary, but

they believed that the provisions in paragraph 3 of the circular decree

of 6 February 1942 would be sufficient.

Q. That circular decree of the 6 February 1942 is contained in Exhibit

308.[483] I quote the provision concerned: “The choice of a defense

counsel requires the consent of the presiding judge who can only give

such consent with the agreement of the public prosecutor. The consent

may be withdrawn.” Please continue.

A. In the subsequent time, however, we found those provisions not to

be sufficient, in order to guarantee the secrecy of the proceedings

which after all had been ordered. As the decisive document on the

subject is available to the Tribunal I can be brief. I am referring

to Exhibit 314.[484] The document contains a report by the senior

public prosecutor at Cologne, dated 15 October 1942. In that report

he states at length that, so as not to endanger the secrecy of the

NN proceedings, he had doubts about consenting to allowing a defense

counsel to be chosen freely.

Similar reports, as far as I recollect, were received from other senior

public prosecutors as well. The document also shows that at the Reich

Ministry of Justice we only, after careful examination, decided on

further limiting the free selection of defense counsel. From marginal

notes which, however, can only be seen on the photostat of the document

and which have not been entered in the document books, the following

is to be seen. The question of the free choice of a defense counsel, I

first on 22 September 1942 reported on to my subdepartment chief. In

accordance with the result of that report of 1 December 1942, I then

discussed the matter with the expert of the OKW over the telephone. He

first of all reserved his opinion, but on 12 December 1942, he told

me that the OKW took the view that the admission of defense counsel

selected by the defendant in NN matters was not desirable.

We then contacted Department III of the Ministry of Justice, the

department of penal legislation, and when that department took the same

view as the OKW, Departments III and IV of the Ministry of Justice

issued the joint regulation of 21 December 1942, which is contained in

Document NG-255, Prosecution Exhibit 314.

* * * * * * *

Q. What about the limitations concerning the necessity of defense?

A. Originally concerning the necessary defense, a provision in

paragraph 7 of the executive order of 26 February 1942 applied,

according to which the appointment of a defense counsel required the

consent of the public prosecutor. May I point out that the following

wording of the executive order of 6 February 1942 has not been

submitted here as a document. Exhibit 306[485] merely reproduced the

draft of that executive order. The provision concerning the necessary

defense was issued immediately before the executive decree was issued,

and it is therefore not contained in the draft which we have before us

here. In the subsequent period opinions were voiced according to which

further limitation of defense was considered necessary. The prosecution

has submitted Exhibit 317.[486] Although that document unfortunately

is very incomplete, it does show that at the Special Court at Essen

there had been difficulties in appointing defense counsel as frequently

several defendants were dealt with in one proceeding and, on account of

the collision of interests, a defense counsel had to be appointed for

each defendant.

It is obvious that, in view of having to maintain the work of the court

in general, the simultaneous employment of a large number of defense

counsel was not desirable. Insofar, the desire of limiting the defense

by appointed defense counsel was understandable.

If the report from the presiding judge of the Special Court at Essen

points out that the interests of the defendants did not justify so

much strain placed on manpower and material, I would point out in this

connection that not one of the persons who dealt with the subject at

the Reich Ministry of Justice shared that view.

The matter itself was then dealt with at Department III and not in

our Department IV, because it concerned a proposed change of a legal

regulation. The Referent of Department III then informed me of these

events and made a suggestion of his own which unfortunately is not

contained in this document.

I then reported the matter to Mr. Mettgenberg and together with him

to Mr. Vollmer. The result of that report can be seen from the note

made on 1 February 1943 which is initialed by Vollmer and which also

bears Mettgenberg’s and my initials.[487] That note provides for

certain limitations of defense counsel appointed by the courts, but the

document does not show the wording of the decree as it was actually

issued later on.

What I remember is that after that decree had been issued, the

limitation of defense counsel, appointed by the courts, applied

neither to proceedings before the People’s Court nor did it apply

to those proceedings where the death sentence could be expected.

How insignificant the practical effect of this limitation of the

appointment of defense counsels by the courts was is revealed by the

position which defense counsel hold under German code of procedure,

a position which has been discussed here repeatedly. For the rest,

according to my observations, the Special Courts in practice almost

always appointed defense counsel.

* * * * * * *

Q. Please state some details about the practice followed by the courts.

A. In the final result, and that is still my conviction today,

the jurisdiction of the general courts in NN cases was absolutely

adequate. This applies to the matter seen as a whole. It applies to the

jurisdiction of the People’s Court and especially to the jurisdiction

of the Special Courts. In the case of the Special Courts you will see

that few death sentences were pronounced whereas the People’s Court

in a large percentage of cases pronounced death sentences. However,

the percentage of death sentences is not as high as I assumed in my

affidavit of 17 December 1946. That is Exhibit 337.[488] In this

affidavit I stated--purely off hand, I would like to say--that the

majority, that is, more than fifty percent of those indicted before

the People’s Court were sentenced to death. I made that statement at

the time to the best of my knowledge. However, I did not have any

documents of any kind at my disposal, and I had to rely on my memory

alone. Today, after I take into consideration the statistical material

which the prosecution has submitted, I would assume that about fifty

percent of the NN cases sentenced by the People’s Court were sentenced

to death. The death sentences which the People’s Court passed were, I

think, justified; and I can even say from an international point of

view, the death sentence was appropriate. They were cases of espionage,

guerilla activities, serious cases of aiding and abetting the enemy,

as well as the support of enemy parachutists, etc. About the offenses

which were the basis for sentences for the People’s Court, the witness

Walter Roemer[489] also testified here in this Court. I refer to the

testimony of 24 April by this witness. I can also refer to what the

defendant Lautz[490] said here on the witness stand. After examining

the statistical material, I have to correct another sentence from my

affidavit of 17 December 1946. In that case I stated that aiding and

abetting the enemy always practically resulted in a death sentence

before the People’s Court. After careful consideration, however, I have

no reason for expressing the opinion that the number of death sentences

was larger in the case of aiding and abetting the enemy than in the

case of espionage and guerilla activity. Here, too, I assume that the

death sentence amounted to fifty percent.

Characteristic sentences in these courts were those pronounced for

illegal possession of arms. I have already mentioned that in the decree

issued by the military commander in normal cases the death sentence

was provided and only in lighter cases a prison sentence. In fact,

only very few death sentences were pronounced because of the illegal

possession of arms. These cases were special cases, as for instance

possession of an entire ammunition depot. In an overwhelming majority

of cases--and I want to state that illegal possession of arms as far

as the number of cases played an important role--only prison sentences

were pronounced for the illegal possession of arms. The action by

the president of the district court of appeals of Katowice who in

the discussion at Oppeln instigated a more severe punishment because

of possession of arms was at that time generally rejected. In the

few cases in which because of illegal possession of arms, the death

sentence was pronounced, almost without exception the execution of the

death sentence was avoided by clemency pleas.

* * * * * * *

DR. KUBUSCHOK: I now come to the clemency proceedings of the

Reich Ministry of Justice in death sentences pronounced for NN cases.

Please comment on this.

DEFENDANT VON AMMON: The clemency procedure in NN cases was in

principle the same as in the case of other death sentences. However,

there were some peculiarities. One of these was that the Gauleiter did

not participate in the clemency proceedings, because the crime had

been committed in occupied territory and not within the sphere of a

Gauleiter.

A further peculiarity consisted in the fact that Hitler, as I already

mentioned before, reserved to himself the right to make the clemency

decision in death sentences pronounced against women from the Occupied

Western Territories.

Finally, I should like to point out that in NN cases, because of

the lack of the possibility of a deterrent, there was no so-called

“lightning” [Blitz] executions. The practice in regard to clemency

questions followed by Thierack was, as has been discussed here

frequently, severe. It was not easy for a Referent to succeed in

getting clemency granted by him. Nevertheless, I succeeded in doing so

in a number of cases.

However, when I made the attempt to bring about the granting of a

clemency plea in several cases, I became subject to the scorn of

Thierack who made derogatory remarks about the obstinacy which I

applied.

Q. The NN regulations in the execution of which you had to

cooperate--did you have any misgivings about them?

A. In the application of the NN regulations I was, of course,

conscious of their severity. I considered especially severe the strict

regulations about the seclusion of NN prisoners from the outside world

which made any correspondence of the NN prisoners with their relatives

impossible. Furthermore, I considered very severe the regulations

which provided that on principle also those NN prisoners, to whom

no offense or at least no serious offense could be proved, should

remain in custody. That I considered very severe. But I kept to the

statements that were made when these regulations were issued, that

these regulations were necessary in order to suppress the increasing

resistance movement in the occupied territories.

The regulations issued seemed to me to be still better than--and this

would have been possible in the case of offenses against the occupying

forces in the occupied territories--indiscriminate death sentences.

As the witness Lehmann testified here, the seclusion of NN prisoners

from the outside world was, so to say, the price to be paid for the

possibility of greater leniency in sentencing. Under this point of

view it seemed to me to be acceptable. That very strong resistance

movements existed in the occupied territories, which in a certain sense

could be considered as a second illegal army and influence the military

situation considerably, is an historical fact.

Q. Did you have an opportunity to give up your NN section and to take

over another section?

A. As I already stated in the affidavit of 17 December 1946 which I

quoted repeatedly, I did not like dealing with NN cases. Whether a

person likes his special professional field is, on the whole, dependent

on his inner attitude. In any case, I can say about myself that the

activity in a section in which of necessity, severity, and above all,

death sentences appeared, was not to my liking, especially since people

were concerned who as such were not criminals and who could not be

denied a human understanding.

For that reason, in the summer of 1944, I made the attempt to swap my

section with another section in the personnel division of the Ministry

of Justice. At that time it was intended to promote Ministerial

Counselor Wittland who was a member of the personnel division. In that

case he would have left the Ministry of Justice. The section comprised

organization of the courts and civil service law.

At that time I requested to receive this section when Wittland would

leave. From August 1944 until January 1945, I used part of my time

in order to get acquainted with the personnel department. However,

the Party Chancellery then objected to Wittland’s promotion, and,

therefore, it did not take place; and I had to remain in my former

section.

Q. Did you regard the NN regulations as being within the framework of

international law?

A. In answering that question, I have to make a clear distinction.

The NN decree was signed by Keitel on order of Hitler. The executive

regulations for the NN decree were issued, first of all, by the OKW

and for the sphere of the Ministry of Justice, by the Ministry of

Justice. The basic executive regulations of the Ministry of Justice

in regard to the NN decree were not worked out by me as Referent nor

in my department at all. Apart from the leadership of the Ministry,

the penal legislation department, Department III, was competent for

this. Department IV and I as Referent were in a certain sense merely

executive organs in the application of the existing legal regulations.

The examination as to whether the NN decree and the basic executive

regulations were in accordance with international law was therefore up

to the people who were competent for the issuance of the decree and

working on the drafting of the regulations. But the executive organ

neither has the duty nor the right for review as has been discussed

here frequently.

Of course, as a jurist, I thought about these questions and can say

that crimes of that nature as were prosecuted as NN cases can be

punished with the most severe penalty according to international law,

and that penalties of that kind are also usually applied by all states

as is obvious, I believe; that courts martial which otherwise would

have tried such cases in the occupied territory, were replaced by civil

courts in the home country, is also not contrary to international law.

And now, as to the limiting regulations of the NN procedure, the

essential factor was that a just decision by the court was not

prevented by them. In the statements I have made so far, I have pointed

out that the limiting regulations of the NN procedure did not exert a

negative influence for the defendant in the proceeding.

Keeping the prisoners incommunicado had been ordered by the Fuehrer

order and by the military authorities. The question of military

necessity was not subject to review by us. International law puts these

military interests above the personal interests of the inhabitants of

the occupied territories.

From all these considerations I did not see that the NN regulations

were contrary to international law.

Q. Since the prosecution has submitted documents about the conditions

in concentration camps against all defendants who continued working in

the Ministry of Justice after 1942, I have to ask you too what you knew

about occurrences in concentration camps.

A. My various official positions could not afford me any knowledge

about such events. Even at the time when members of the SS did not yet

have their independent jurisdiction, when reports about these excesses

in concentration camps could thus still reach the Ministry of Justice,

my section was not affected by this, and this was entirely regardless

of the fact that these reports only provided knowledge of a very small

section of actual conditions.

In conversations, too, within the Ministry I heard very little about

these matters, probably because they were treated as secret, and I was

not in a special confidential relationship with the Referenten who

were working on these matters. For those reasons, for example, the

occurrences in the Kemna and Hohenstein camps being known to me only

here during this trial. I myself never visited a concentration camp.

As far as private knowledge is concerned, I considered being kept in

the concentration camp, of course, as something unpleasant, especially

since the camps were cut off from the outside world, the uncertainty

of the period of detention, the lack of orderly legal recourse.

That abuses might have occurred for those reasons I assumed without

knowing anything definite about it. I did not have acquaintances who

had been in a concentration camp and from whom I might have found out

some definite details. Although I had quite good relationships with

Protestant church circles, for example, I did not even know, did not

gain any definite knowledge about Niemoeller’s[491] being kept in a

concentration camp. About systematic killings and mass exterminations I

heard only after the surrender.

* * * * * * *

_CROSS-EXAMINATION_

MR. WOOLEYHAN: Mr. von Ammon, last Friday you stated with

regard to your relationship with the Nazi Party that you were a victim

of Nazi propaganda and that you were not an enthusiastic Party member

for ideological reasons. Weren’t you omitting some very important

events in your political career?

DEFENDANT VON AMMON: First of all, I believe that I did not

express myself in that cross manner, that I described myself as a

victim of Nazi propaganda. I only stated that under the influence of

Nazi propaganda I saw many a thing in a more favorable light than it

actually was, and that I was not an enthusiastic National Socialist,

because from my ideological point of view, much kept me apart from the

Party. I am not aware of the fact that I left out anything important

when making such a statement.

Q. Then you don’t consider it important, noteworthy enough to remember,

that on 9 November 1923 you actively participated with Hitler and

others in the famous Munich Putsch; why don’t you remember that, Dr.

von Ammon?

A. Of course, I remember that, but it is not correct that I left these

events out, rather I stated that as a high school student as well as

a college student I belonged to patriotic youth organizations and to

Nationalists’ associations. Among these Nationalists’ associations

also belonged the Bund Oberland, which actually, as you indicated,

participated in the so-called Hitler Putsch of 9 November 1923.

Q. As a result of that Putsch in which you participated, wasn’t Hitler

tried and imprisoned for high treason, for trying to overthrow the

German Republic by force?

A. Yes.

Q. Were you tried, Dr. von Ammon?

A. No.

Q. Why not?

A. Because my participation in the Hitler Putsch was so insignificant.

By the way, my participation wasn’t at that time even found out by

the authorities, as was the case with the great majority of those who

participated.

Q. If your participation and membership in the Nazi activity at that

time had become known, you would have lost your job in the government,

wouldn’t you, or did you have a job at that time?

A. No, certainly not. First, I was still a college student at that

time, as I stated before, and also I do not believe I would have lost

my job. Many participants that is, many civil servants who participated

at least, if they took part in a subordinate role such as I were not in

any way affected in their positions. Moreover, I would like to state at

that time it was not a Nazi activity within the meaning of that phrase,

the Bund Oberland was not a National Socialist organization. It was a

patriotic, self-protective organization, which in the years after the

First World War in the fight against the attempted Communist uprising

and in the fight against the Polish uprising in Upper Silesia in 1921,

without a doubt had gained its merits. To be sure, I participated in

the Hitler Putsch at that time, but at that time the fronts were not

so well delineated as yet that the actual Putsch could be described as

unequivocal Nazi action.

Q. If that is so, Dr. von Ammon, apparently officials in the Ministry

of Justice were not aware of it really, because as I read your official

personnel files here which came from the Ministry, and which I am sure

you have seen many times with respect to your membership in the early

political associations, you are credited with having participated, and

I am quoting, “in the Nazi uprising in Munich on 9 November 1923.”

Now, in later years, Dr. von Ammon, did the Nazi Party ever give you

any tangible momento of that famous event of 1923?

A. First of all, in order to correct you, I would like to say that

I never saw my personnel files, as you assume, Mr. Prosecutor. I do

not know at all what is written in these personnel files. As far

as the question is concerned whether I have a tangible momento of

my participation in the Hitler Putsch, I have to answer that this

momento was limited to a pass which permitted me to participate in the

festivities which took place yearly on 8 and 9 November in Munich--

Q. Ah--

A. And I may also add that I only seldom made use of this pass.

Q. What number was that card or pass?

A. Unfortunately I don’t recall.

* * * * * * *

Q. Now, Dr. von Ammon, there is just one thing further in this

custody-of-the-Gestapo business that confuses me. After the arrangement

had been made late in 1944 to transfer these Nacht und Nebel prisoners

to the Gestapo for protective custody, there has been a lot of talk

here about the fact that the court authorities finally handed these

people over to the Gestapo, at least in some measure.

What actually was involved in this handing over of Nacht und Nebel

prisoners to the Gestapo as far as the courts and the justice

administration were concerned? By handing over, what actually did

happen, so far as the courts and the Ministry are concerned? Did you

sign a release? Did you actually put them in trucks and take them to

the other side of town, or what happened?

A. Unfortunately I cannot give you that information. You have to turn

to the Referent of the department for penal administration, to the

witness Hecker,[492] who carried out those transfers.

Q. Dr. von Ammon, with respect to the winding up of the Nacht und Nebel

affairs in the Ministry in the handing over of these people to the

Gestapo, the witness Hecker in Exhibit 416[493] says that you attended

a number of the conferences during which this method was ironed out.

It’s surprising that you don’t know how it happened. How did these

people get off your hands? Was it a paper transfer, or what was it?

A. No, two ordinances of Departments IV and V were issued at that time,

and they were issued to the chief general prosecutors concerned, to

the effect that they were to transfer the prisoners to the competent

authority, the Gestapo.

* * * * * * *

Q. You mentioned that the courts in enforcing the Nacht und Nebel

program by trying Nacht und Nebel defendants, particularly the Special

Courts, had been moderate in their sentences. Now, in view of that,

I’m wondering if that is true for the reason that after the Nacht und

Nebel program was terminated by these arrangements in 1944, you wrote

a letter to the Attorney General in Munich and you told the Attorney

General in Munich that in view of the new arrangement concerning the

treatment of Nacht und Nebel prisoners in the future, namely their

transfer to the Gestapo, “There no longer will be executions of Nacht

und Nebel prisoners in any large numbers.”[494] Now, tell me, Dr. von

Ammon, if these courts were so lenient and gentle with these Nacht und

Nebel defendants, why did you see fit to mention that death sentences

weren’t going to be in any large numbers in the future? That’s the same

as saying they were large in the past, isn’t it?

A. I stressed above all that the sentences passed by the Special Courts

were moderate. It is true that the Special Courts only passed a few

death sentences. I did say, however, on the contrary that the People’s

Court did pass a large number of death sentences and even mentioned

that 50 percent of the persons indicted by the People’s Court were

sentenced to death. Those sentences which were intended to be executed

in Munich were sentences which had been passed by the People’s Court.

Q. In any event, whether it was the People’s Court or the Special

Court, after that Nacht und Nebel program was dissolved, you were of

the opinion then that large numbers of death sentences would not be

passed in the future?

A. No, actually I was of the opinion that no further death sentences

would be passed. The only thing that could still happen was that death

sentences would be executed that had been passed prior to September

1944.

Q. And from your letter, it appears that up until that time, they had

been large in number, does it not?

A. Well, that is a relative concept--that word “large.”

Q. Oh, of course.

A. I believe that in view of the long period of time--from 1942 until

the end of 1944--the number of death sentences which were actually

passed is relatively small.

Q. May it please the court, the prosecution offers as Document NG-1886,

Prosecution Exhibit 546, the letter written by defendant von Ammon

which we have just been discussing.

PRESIDING JUDGE BRAND: The exhibit is received.

* * * * * * *

_EXAMINATION BY THE TRIBUNAL_

PRESIDING JUDGE BRAND: I understood you to say that you did

not know of any innocent person who was brought to Germany under Nacht

und Nebel procedure.

DEFENDANT VON AMMON: I was referring to the assertion of the

prosecution. The prosecution had maintained that evidently innocent

persons had been treated in exactly the same manner as guilty NN

prisoners, and it was in reply to that, that I stated that evidently

innocent persons were never brought to Germany at all; that is to say,

as far as my knowledge goes. If, however, it did happen that a person

was evidently innocent and had been brought to Germany, then there was

a possibility of releasing him back to the occupied territories.

Q. I still understand you to say that you knew of no innocent person

brought under Nacht und Nebel procedure.

A. It may have happened, naturally, but--

Q. I am referring to what you said. Did I correctly understand you to

make the statement that you knew of no innocent person who was brought

to Germany under Nacht und Nebel procedure?

A. I would like to restrict that to evidently innocent persons, as

opposed to a person whose innocence only later was made clear. That

naturally happened, too, and such cases did occur and such cases were

brought to Germany.

Q. That is a very material modification of your former statement,

because you also said that considerable numbers were acquitted. I

assume that you do not consider that persons who were acquitted were

necessarily guilty; you presume them innocent if they were acquitted,

don’t you?

A. Or that the evidence was not sufficient to prove them guilty.

* * * * * * *

_REDIRECT EXAMINATION_

DR. KUBUSCHOK: In reply to a question by the prosecutor,

you spoke of your membership with the Bund Oberland, and you stated

that the Bund Oberland on 8 November [9 November] 1923 took part

in the so-called Hitler Putsch. You stated that the Bund Oberland

was an association--a so-called Nationalistic association of which

many members were college students. Did that organization Oberland

at a later time ever become incorporated in the NSDAP? Did that

nationalistic organization ever become a National Socialist unit by way

of incorporation?

DEFENDANT VON AMMON: No. After the Bund Oberland had

participated in the Hitler Putsch on 9 November, it was dissolved.

I believe that at some time later on it came back to life, but I

personally no longer took any part in it. As far as I know, it never in

any way was incorporated in the National Socialist movement.

Q. How far did you participate in the events of the night of 9 November

1923?

A. The company of the Bund Oberland to which I had been assigned was

alerted, on the evening of 8 November 1923. I was not alerted because

my name was not on the alert list. I had joined the Bund Oberland only

a little before that time. Therefore, I was only told about it on the

morning of the 9th. I then joined my company which was stationed in an

inn by the Isar, at Bogenhausen, in Munich. There I spent a few hours

with the company; then we marched off to the East. There we disbanded

and returned to Munich one by one. That was my participation in the

event of 9 November.

PRESIDING JUDGE BRAND: May I ask you--were you armed? Were you

armed at that time?

DEFENDANT VON AMMON: Yes, I had a gun.

* * * * * * *

E. High Treason and Treason, Malicious Acts, Undermining

the Military Efficiency, Public Enemies

PARTIAL TRANSLATION OF DOCUMENT NG-685

PROSECUTION EXHIBIT 259

EXTRACTS FROM A LETTER BY CHIEF PUBLIC PROSECUTOR AT HAMM TO THE

MINISTER OF JUSTICE, FOR DEFENDANT SCHLEGELBERGER, 29 JANUARY 1941,

CONCERNING TREASON, BREACH OF REGULATIONS BY FOREIGN WORKERS, CRIMINAL

PROCEEDINGS AGAINST POLISH CIVILIANS, AND APPLICABILITY OF DECREES

AGAINST PUBLIC ENEMIES AND VIOLENT CRIMINALS

The Chief Public Prosecutor

3130 a GSTA. 1.06/216

Hamm (Westphalia) 29 January 1941

Telephone: 1780-87

REGISTERED

To the Reich Minister of Justice

Attention: Under Secretary Dr. Schlegelberger

Berlin W 8

Wilhelmstrasse 65

Subject: Situation report

Enclosures: 2 copies of the report

2 printed forms

1 bulletin of the Criminal Police Office, Dortmund

_I. High Treason_

The department in charge of high treason cases is highly taxed because

of the numerous, and in part also very extensive emigrant problems.

Upon my request, the president of the court of appeal has seen to it

that the criminal senate will hold 4–5 meetings a week from now on. I

hope that in this way the majority of all cases can finally be settled

in the course of the spring.

_II. Administration of Criminal Jurisdiction for Juveniles_

* * * * * * *

_V. Breach of Work Contracts and Unauthorized Change of

Residence of Foreigners_

1. In my last situation report I already pointed out the difficulties

which are created by the criminal prosecution of foreigners, especially

Polish civilian workers, who leave their place of work and their

assigned place of residence without authorization.

The directors of the labor offices and the Reich Trustee for Labor

of the economic territory of Westphalia-Lower Rhine as a rule do not

prefer the necessary charges for criminal prosecution, in accordance

with the decree concerning the restrictions for changing the place of

work, dated 1 September 1939--Reich Law Gazette I, page 1685--and in

accordance with the decree concerning the fixing of wages, dated 25

June 1938--Reich Law Gazette I, page 691.

Upon inquiry, the Reich Trustee for Labor for the economic territory

of Westphalia-Lower Rhine has informed me that “in accordance with an

agreement between the Reich Minister for Labor and the Reich Leader SS

and Chief of the German Police, breach of work contracts by Poles are

to be punished by the Secret State Police with protective custody or

concentration camps. The meaning of this step”--so writes this Reich

trustee--“is that in the case of Poles the strictest measures are to be

taken at once in order to create a deterrent effect. For this reason

we made it a point in my office to transfer the cases involving breach

of work contract by Polish civilian workers to the Gestapo (Secret

State Police) for further action. Only in those cases where the Polish

workers involved were already under arrest on charges of vagrancy,

vagabonding, etc., and investigated, have I in those cases known to

me, preferred charges for breach of work contract, so that all the

punishable offenses of the Pole could be adjudicated in _one_

court trial.”

In one individual case, concerning a member of Protectorate, the Reich

Labor Trustee for the economic districts of Westphalia and Lower-Rhine

refrained from demanding legal action stating, as a reason, that “all

foreigners including the Czechs” were exempt from criminal action where

this question is concerned.

Contrary to the opinion of the above-named authority, the Reich

Trustee for Public Service, who had been informed of the attitude

fundamentally taken by the Reich Labor Trustee for the economic

districts of Westphalia and Lower-Rhine, has strictly upheld the

charges he had preferred against members of the Protectorate who

had broken their contracts. In the case in question, the demand for

punitive action was based upon the recommendation of the Reich Minister

for Transportation to the Reich Trustee for Public Service, dated 24

June 1940 and 13 August 1940 respectively--51.533 Pldaa. According

to a statement by the Reich Trustee of Public Service, entered into

the criminal record files, the Reich Minister of Labor stated at that

time in reply to the report of the Reich Trustee for Public Service

referring to a regulation dated 17 July 1940--III b 15062/40, that he

had no objections, if he--the Reich Trustee--should prefer charges in

accordance with the wishes of the Reich Minister of Transportation. On

the other hand the competent office of the Reich Protector thinks it

more advisable, not to punish workers from the Protectorate employed

within the Reich proper for breach of work contract or to punish them

only very mildly as otherwise great difficulties would be encountered

in the further recruitment of Czech workers from the Protectorate

for jobs in the Reich proper. At any rate, I have dealt with the

criminal procedure against workers from the Protectorate for breach

of work contract in a special report to the Protectorate also taking

up the question concerning the competence of the German courts in

the Protectorate for passing sentence in case of breach of contract,

committed in the Reich proper.

According to this there seems to be a difference of opinion within the

Reich Ministry of Labor as to the question in which cases the competent

authorities should prefer charges against foreigners who have broken

their contracts. In order to get uniform action on matters concerning

punitive regulations it seems desirable to have the Reich Minister of

Labor effect a settlement that negotiations between the Ministries

concerned and the Reich Protector will result in an agreement to

follow one standard rule in preferring charges against members of the

Protectorate.

Polish civilian workers leaving their working place _and_ their

place of residence without permission have at times--when no charges

had been preferred against them--been prosecuted and punished according

to the viewpoint of article 2 of the ordinance [VO], concerning the

treatment of foreigners of 5 September 1939--Reich Law Gazette I,

page 1667. This procedure is not without objection, because the Poles

concerned were not in the Reich proper on 6 September 1939 when this

decree took effect, and it is not known whether they had been informed

of this regulation according to article 1 of the ordinance.

_VI. Criminal Proceedings against “Zivilpolen” [Polish Civilians]_[495]

With regard to criminal proceedings against the so-called

Zivilpolen--as has been pointed out by me before--an uncertainty

has developed which can no longer be tolerated. One cause for the

uncertainty regarding criminal proceedings is found in the fact that

some matters are handled by the State police independently, and the

other is that sentences passed by the regular courts are not based

on uniform standards. It may happen that the regular court may

sentence a criminal to 2 to 3 years of imprisonment--concurrently or

separately--while the State police may pronounce the death sentence

for the same crime. In order to overcome these intolerable conditions

I have issued directives to the senior public prosecutors and to the

public prosecutors of the district and have therein called attention to

the following aspects:

Civilian Poles are under the jurisdiction of the regular courts because

no special provisions are made for them. However, it is not sufficient,

firmly to advocate this principle, but the real effect of jurisdiction

can only be secured by consequent and energetic _action_ according

to this principle, and by administering justice with the speed and

severity called for by the situation. In this way it was made possible

in the criminal case Bugajny (IIIg 23 5023/40) for the regular

jurisdiction to become effective and to do justice to the case. The

State police had decided not to hand the case over to the office of

the public prosecutor and, with the objective of having the State

police deal with the case, reported it to the Security Main Office. I

learned about this case from a newspaper report, and I asked the senior

public prosecutor to procure a legal warrant of arrest, to put the

accused into a court prison, and then through investigations of his

own to ascertain the facts of the case, and to prefer charges as soon

as possible. The Pole was thereupon condemned to death for criminal

violence and forthwith executed without intervention of the State

police.

The result obtained in this case must, however, not mislead us, and

make us forget that as a rule successful action depends on two other

conditions.

For one thing, it is necessary that the office of the public prosecutor

be notified immediately. One cannot depend on the chance that a

newspaper will report a case. It must be made sure, therefore, that the

local police will immediately report crimes committed by civilian Poles

to the office of the public prosecutor.

The other thing is the question of the measure of punishment. According

to article 1 of the GewVVO[496] the death sentence was called for in

the criminal case Bugajny. But what punishment should be given, e.g.,

for indecent assault--cases in which the State police generally also

pass the death sentence. The question is whether Zivilpolen should

on principle be judged according to article 4, VVO[497] when in the

individual case special circumstances according to article 4, VVO do

not exist.

In my opinion this question may be answered with yes, if (1) political

crimes or, (2) crimes against the body, life, or possession of a German

are involved. The term “body, life, or possession” is taken from

article 2 of the VVO and it is, therefore, to receive an accordingly

free interpretation. It would not apply, e.g., to refusal to work, and

also not to any crimes of the Zivilpolen among themselves.

The following points should lend support to--

(1) That Poles are citizens of an enemy state, whose representatives in

foreign countries are continuing to fight against Germany.

(2) That they are citizens of a nation which contrary to all

international laws has massacred 60,000 German civilians and mistreated

and plundered others.

Therefore, this is not a question simply of malicious crimes, work

sabotage, or indecent assault, etc., but crimes which due to the fact

that they were committed by Poles against the German Reich or against

a German fellow countryman considering the type of Polish warfare (see

(1) and (2) above) appear in a different light.

Of _this type_ of crime it can, in my opinion, be said that it

was committed by taking advantage of war conditions and is therefore

especially contemptible. For the Zivilpolen have only come to Germany

proper because of the war conditions (insufficient work in Poland,

lack of workers in Germany). Here they are due to the war situation

(drafting of fathers, shortage of other personnel) without sufficient

supervision, in the midst of German nationals especially women and

children, and in German factories as well as in other establishments of

great importance to the German armed forces.

The Zivilpole too is without doubt aware of all these circumstances.

These circumstances have not necessarily been the actual reasons for

this action. But often this will be the case with the stirred up Polish

national hatred.

Of course it is not quite certain whether the courts, especially those

courts which until now have punished the crimes committed by Zivilpolen

very moderately or even mildly, will agree with this legal conception

and, if the occasion arises, will pronounce the death sentence in

case of an especially serious crime. However, this question does not

seem hopeless to me, if the Ministry will exert its influence through

circulars, articles in the “Deutsche Justiz”, or in oral discussions.

I think that a special directive stressing the importance of such an

administration of justice in the interest of safeguarding a normal

course of jurisdiction, would also bring results. According to our

experience so far, it should generally be possible to avoid the

application of Article 4, VVO in cases of _Polish females_.

Acting:

[Signed] DR. HAFFNER,

Senior Public Prosecutor

[Stamp]

Certified: [Signature illegible]

Court Clerk

TRANSLATION OF DOCUMENT NG-548

PROSECUTION EXHIBIT 347

LETTER FROM DEFENDANT LAUTZ, CHIEF REICH PROSECUTOR AT THE PEOPLE’S

COURT, TO THE REICH MINISTER OF JUSTICE, 23 FEBRUARY 1942, CONCERNING

THE QUESTION OF PROSECUTING FOREIGNERS FOR TREASON AGAINST GERMANY FOR

INJURIES TO ETHNIC GERMANS ABROAD

The Chief Reich Prosecutor at the People’s Court

File No.: 3 J 85/40 secret

Berlin W 9, 23 February 1942

Bellevuestrasse 15

Telephone: 21 83 41

[Stamp] Reich Ministry of Justice

2 March 1942

To the Reich Minister of Justice in Berlin W 8

Wilhelmstrasse 65

[Handwritten] Is this matter to be taken with the attached file?

St. g 10a. No! In my opinion it belongs to Gp. 4 March [Signed]

A [von Ammon]

Subject: Application of article 91, paragraph 2, Penal Code, in

conjunction with article 2, Penal Code for the protection

of Germans with foreign citizenship

Enclosures: 3 copies of report

The Reich Leader SS and Chief of the German Police [Himmler] recently

asked me to recheck several expert opinions given in several

preliminary proceedings here, among them _criminal case 3 J 85/40,

secret, against Haupt and others_; the above-mentioned legal

question, which was not definitely decided in the judgments passed

by the 2d senate on 19 May 1938 in the _criminal case 14 J 785/37,

secret, against Krippner_; and that passed by the 3d Senate on

14 June 1938 in the _criminal case 7 J 105/37, secret, against

Zueckert_.

The expert opinion in the case against Haupt and others, contains the

following statements, in the part concerning this:

The Reich Leader SS and Chief of the German Police in the Reich

Ministry of the Interior

Berlin, 13 December 1941

S II A 4 No. 12/41 = 558 = secret

_SECRET_

To the Chief Reich Prosecutor of the People’s Court

To Chief Reich Prosecutor Dr. Barnickel--or deputy in the office

in Berlin.

Subject: Preliminary proceedings against the employee Edith,

Margarete Haupt, born in Poznan on 7 May 1918, on a

charge of treason

[Illegible Marginal Notes]

The systematic shadowing of ethnic Germans also served to obtain

reasons for persecution measures and chicaneries in the course of the

battle for suppression and extermination. The Poles carried out these

measures against the ethnic Germans in a manner which the Germans

considered to be absolutely arbitrary, contrary to international law,

and brutal (cf. for instance, Freisler, “Development of the nationality

law of ethnic German groups,” in _German Justice_, 1941, pp. 881

ff.).

As far as _Reich Germans_, who in exceptional cases were not

prohibited from participating in the above-mentioned ethnic German

organizations, are concerned by this, article 91, paragraph 2 of German

Penal Code, is to be taken into consideration.

As far as _ethnic Germans_ are concerned, paragraph 91, section

2 of German Penal Code, is not directly applicable, as ethnic Germans

according to formal national law were not German, but Polish citizens.

I can only express my opinion in the _form of a suggestion_,

that in the case of the betrayal of ethnic Germans to the foreign

police, article 91, paragraph 2 of German Penal Code is to be applied

accordingly on the basis of article 2 of German Penal Code (vide

People’s Court 2d Senate of 19 May 1938, _vs._ Wenzel Krippner,

document number 14 J 785/37-2 H 22/38; different opinion: People’s

Court 3d Senate of 14 June 1938, _vs._ Walter Zueckert, document

number 7 J 105/378-3 L 78/37; decision of 24 October 1940 to quash

criminal proceedings in the criminal case, _vs._ Anton Reiprich,

document number 4 J 86/40g).

An offender who has caused, or who wanted to cause ethnic Germans to

be punished or otherwise prosecuted by Polish (Czech, or Lithuanian)

authorities was hitherto almost never punished, because in such

cases the intention, according to articles 88, 89, and 90c of the

German Penal Code, i.e., the knowledge that he had acted against the

interests of the _Reich_ could not be proved satisfactorily

owing to a lack of comprehensive political training and of judgment,

article 91, paragraph 2 of the German Penal Code, was considered to

be nonapplicable.[498] Such an offender deserves a much heavier

punishment, for his dishonorable behavior--behavior which up to now

has generally been considered as contemptible in judicial decision

and conclusions made by public prosecutors--than, for instance, a

person who only apparently was connected with a foreign intelligence

service for purposes of treason, but who must be punished according to

Article 90c of German Penal Code. The offender nearly always knew that

“Germans” were concerned.

Even considering the possibility that a decision, according to article

91, paragraph 2 of German Penal Code, falls into the hands of a foreign

government, it would not cause additional attacks against the Reich

in foreign affairs, if this decision contains a complete explanation.

Such a legal standpoint neither demands the ethnic Germans living

on the former borders of the Reich to behave disloyally toward the

foreign nation, nor does it take away from the foreign nation the right

to exercise a normal police control over the ethnic Germans. This

corresponding application according to the above always provides that

foreign police control served purposes and measures contradictory to

international law and law of minorities. This is especially applicable

to the border districts which were taken from the Reich, according to

the Treaty of Versailles. Nor does this opinion, for instance, object

if single members or groups of ethnic German organizations now and then

should have overstepped the bounds of loyalty, for this was not the

cause, but the _consequence_ of foreign compulsory measures.

I would consider as improper only the laying down generally and legally

of a treatment applicable to treason committed by ethnic Germans, by

adding a supplementary regulation to the second paragraph of article

91 of the Penal Code. It is true that consideration regarding foreign

policy would oppose this. But on the other hand, in my opinion, the

lack of an express regulation of penal law for the protection of ethnic

Germans does not prove that article 91, paragraph 2, of the criminal

code should be applied in every case. On the contrary, I consider

this to be a task for the courts to fill a gap in the law, which has

been left open for state political reasons, by creating a law in the

appropriate cases.

The basic idea of article 91, paragraph 2 has been expressed as follows

in the verdict of the People’s Court 4th Senate of 8 April 1940,

against Horst Moses (4 L 2/40):

“The National Socialist State is especially well aware of its

responsibility toward its citizens, and of its duty to protect

all its members, especially if they are abroad and do not enjoy

the full protection of law. Hence, it feels its integrity

endangered, even in the case of a conspiracy by a foreign

government against a single Reich citizen, and wants to lend

the threatened person its legal protection, as far as this is

possible, from the home country.”

The Reich made no secret of the fact that with regard to the protection

of Germans it does not only claim the right to protect Reich Germans,

but also ethnic Germans living on its borders. The Reichstag speech

made by the Fuehrer on 20 February 1938, strikes me as fundamental,

even if it was directed especially against the then Czechoslovakian

Republic. In this speech, he pointed out, among other things:--

“* * * two of the states situated on our frontiers alone have

more than ten million Germans * * *.

“The fact that [these persons] were separated from the Reich

by constitutional law, cannot deprive [them] of their ethnic

political rights (volkspolitische Rechtlosmachung); i.e.,

the general rights of an ethnic self-determination which,

incidentally, were solemnly granted to us as prerequisites of

the armistice in Wilson’s Fourteen Points. These rights cannot

be disregarded simply because Germans are concerned! In the

long run it is impossible for a world power with self-respect

to know that they have ethnic comrades [Volksgenossen] at their

side who, owing to their sympathy or their ties with the whole

population [Gesamtvolk], its fate, and its ideology, are being

continually, and gravely harmed. The fact that it is possible,

if there is good will, to find ways to reach compromise

[Ausgleich] or to ease this suffering, has been proved. But he

who tries to prevent such easing in Europe by force will one day

invite force among the nations.

“For it cannot be denied, that as long as Germany was powerless

and defenseless, she had simply to tolerate the fact that there

was a continual persecution of German people on our frontiers.

But in the same way as England represents her interests over the

whole world, the Germany of today will know how to represent

and to protect her interests, even if they are more limited.

And these interests of the German people comprise also the

protection of those Germans who, of their own accord, are not

in a position to ensure for themselves along our frontiers the

right of commonly human, political, and ideological independence

* * *.” [End of quote from Hitler’s speech.]

I request, therefore, the re-examination of this question on account of

its fundamental importance in regard to legislation and to clarify its

principle--in the first place, for the jurisdiction of the Chief Reich

Prosecutor at the People’s Court--so that this question may through

indictments in the respective cases, also be decided in court. It is,

of course, not intended by these statements to anticipate the weighing

of evidence in the present case.

“* * * I induced the Foreign Office to participate in the

afore-mentioned expert opinion. The Foreign Office did not make

any particular comment on the statements concerning purely legal

matters, but has pointed out that questions in the sphere of

_foreign politics_ could not be raised, if the court in

cases such as the present, acted in accordance with article

91, paragraph 2 of the Penal Code for the above-mentioned

reasons. This comment applies firstly to such cases in which

the ethnic groups of former Poland, Lithuania, as well as the

former Czechoslovakia, and Soviet Russia are concerned. In cases

in which other countries are involved, the question would, if

necessary, have to be examined individually.” [End of Himmler’s

letter.]

The president of the People’s Court, to whom I applied for a comment

on this judicial problem, in view of the above-mentioned two different

verdicts, has stated:

“A discussion with the presidents and the deputy presidents of

the senates of the People’s Court on the legal question, whether

article 91, paragraph 2 of the Penal Code may be applied in

connection with article 2 of the Penal Code[499] in connection

with the protection of ethnic Germans of foreign nationality,

resulted in the following unanimous interpretation:

“The application is confirmed--

(1) if the wrong [Unrechtsgehalt] of the act--apart from the

requirements that all other necessary constitutive elements

[of the crime] must be present--is so serious as absolutely to

demand punishment,

(2) if the granting of equal rights to an ethnic German and to

a German national does not present for the state to which the

ethnic German belongs, a grave detrimental proposition from a

political point of view, which is prejudicial to its sovereignty

and to its friendly relations with the Reich,

(3) if the act is not subject to punishment from any other legal

point of view according to German penal law nor subject to

punishment according to the laws of the foreign state (article 4

of the Penal Code).”

I agree firstly with the Reich Leader SS and the President of the

People’s Court that a direct application of article 91, paragraph 2 of

the Penal Code, which obviously, expressly, and knowingly--see also

the draft of the new penal code--protects only German nationals will

not be made in favor of ethnic Germans. Furthermore, I concur with the

conception that the general political development which has meanwhile

come about, particularly during the last years, enabling the Reich

largely to protect its ethnic members of foreign nationality to a

greater extent than has been possible hitherto must be borne in mind in

this particular instance. Therefore, I find it necessary on principle

to protect by means of the German Penal Code those ethnic Germans who

have seriously suffered through action such as mentioned in article 91,

paragraph 2 of the Penal Code, provided that the action, in accordance

with sound public sentiment, deserves punishment analogous to this

provision, but where such punishment considering the wrong of the

particular case cannot be pronounced on account of any other directly

applicable penal regulation. In this connection, my standpoint--and

this agrees with Laemmle, “German Justice,” 1940, page 775, and with

the practice of the People’s Court mentioned therein--is that the act

which is punishable according to article 91, paragraph 2 of the Penal

Code must be considered as an act of high treason against the Reich

to which article 4, paragraph 3, number 2, of the Penal Code, not

article 4, paragraph 2, is applicable. Whether in other respects the

prerequisites for an appropriate application of article 91, paragraph

2, in conjunction with article 2 of the German Penal Code exist, will,

in my opinion, depend upon the examination of each individual case, in

which also questions of foreign politics will have to be taken into

consideration, although these already have been eliminated to a large

extent by the comment of the Foreign Office contained in the expert

opinion of the Reich Leader SS.

In this connection, I wish to quote, by way of example, two cases of

preliminary proceedings which have recently come to my hands, and which

concern particularly serious aspects.

In the proceedings of 3 J 304/41 _vs._ Hellig, the defendant, an

ethnic German, formerly resident in Northern Bukovina, and formerly of

Rumanian nationality, who since became a German national, repeatedly

guided, for high reward, ethnic Germans of Rumanian nationality, who

had been surprised by the Russian occupation of Northern Bukovina by

the Soviet Russians in 1940, allegedly in order to enable them to

illegally pass the frontier into Rumania, but then played them into the

hands of the Russian frontier guards.

In the proceeding 11 J 8/42 g _vs._ Golek, the defendant, a former

Polish national, of the Polish ethnic group, in the years of 1938 and

1939 in Poland handed over to the Polish authorities his friend, the

ethnic German Leo Hardt, of Polish nationality, by accusing him wrongly

of treason in favor of the Reich and by concealing in the latter’s

house a Polish army regulation book for the purpose of incriminating

him. As a result of this action of Golek, Hardt was condemned to 6

years of imprisonment for espionage in favor of Germany.

In the majority of the cases, as in the two cases cited, it will

be offenses, which have been committed by foreign nationals abroad

against ethnic Germans. To that effect I shall have to report in each

individual case especially for the purpose of reaching the decision on

initiating prosecution according to article 153a, paragraph 2, Code of

Criminal Procedure, so that the doubtful problems mentioned above will

have to be decided upon there in each case. There are cases possible,

however, in which the offender acted also or only within Germany proper

so that a report is practically unnecessary. In view of this and on

account of the fundamental importance of this problem, I believed, I

should submit it in general already at this time with the request for a

_decision_, as to whether my _interpretation is approved_.

[Signed] LAUTZ

PARTIAL TRANSLATION OF DOCUMENT NG-337

PROSECUTION EXHIBIT 186

THE LOPATA CASE, APRIL-DECEMBER 1942. EXTRACTS FROM THE OFFICIAL

FILES INCLUDING: VERDICT OF LOCAL COURT SENTENCING LOPATA, A POLE, TO

2 YEARS’ IMPRISONMENT; DECISION OF THE REICH SUPREME COURT GRANTING

NULLITY PLEA FILED BY CHIEF REICH PROSECUTOR; VERDICT OF THE NUERNBERG

SPECIAL COURT (DEFENDANT ROTHAUG PRESIDING) SENTENCING LOPATA TO DEATH;

THIERACK’S REFUSAL TO PARDON; LOPATA’S LAST PETITION FOR CLEMENCY; AND

THE RECORD OF EXECUTION OF THE DEATH SENTENCE

Ds.14/1942

In the Name of the German People

VERDICT

Local Court Neumarkt (Oberpfalz) in the criminal case against--

Lopata, Jan, Polish farmhand in Bodenhof at present under

arrest pending trial for assault, in its public session on 28

April 1942 in which took part:

1. Local Court Judge Egger

2. Public Prosecutor Durchholz, as counsel for the prosecution

3. Inspector Fuchs, as Registrar

V.R.A. 163/164/42

On the basis of the trial--Lopata, Jan, born 24 June 1916 in Kajscowka,

District Myslenice; parents: Michale and Anna Lopata, née Mosul,

single, Polish farmhand, at present in arrest pending trial, is

sentenced to an imprisonment of 2 years in a prison camp for the crime

of assault according to article 185 of the Penal Code together with a

violation according to section 1a, 7 of the Police Regulation of the

Governor in Regensburg, 28 May 1940, No. 1032 f 47; and of 23 December

1941, No. 1032 f 48, section 44a of the Police Penal Code, both in

connection with articles III and XIV of the penal decree for Poles of 4

December 1941,[500] Penal Code I, page 759, and to a fine of 35 RM--and

in default of payment an additional week in prison camp, and to the

costs for the trial and for the execution of the sentence.

FINDINGS

The accused who is a Pole and who on 1 September 1939 was resident at

Kajscowka in the district of Myslenice in Poland was employed as an

agricultural laborer by the farmer Therese Schwenzl at Bodenhof in the

parish of Muehlen. In the beginning of February 1942, Mrs. Schwenzl

together with the accused and a Polish maid were cutting chaff. The

accused stood to the right of the chaff-cutting machine. Without saying

anything he suddenly touched Mrs. Schwenzl’s genitals through her

dress. When thereupon she said: “You swine, you think nothing terrifies

me. You think you can do that to me because my husband is sick.” The

accused just laughed and repeated his action. At this Mrs. Schwenzl

slapped his face. In spite of this he did it again. Finally, he had a

quarrel with the Polish maid and did no longer molest the farmer’s wife.

On 8 February 1942, the accused left his place of employment without

permission and was arrested on 9 February 1942 when calling at the

employment exchange at Neumarkt/Oberpfalz.

The circumstances are proved by the absolutely trustworthy statement

given by the witness Mrs. Schwenzl under oath. The stubborn denial of

the accused is disproved by statements made by the witness.

In the witness Schwenzl’s description there is nothing to prove that

the accused went as far as to use force against the witness. Therefore,

this is no case of sexual crime according to article 176, paragraph

(1), Penal Code, but only a case of personal assault according to

article 185, Penal Code.

No sentence has been proposed pursuant to article 2 of the decree

concerning wages of 25 June 1938. The fact is that the accused left

his place of employment and cannot be punished under articles 2 and 8

of the ordinance, dated 5 September 1939, Reichsgesetzblatt I, page

1667, dealing with the treatment of foreigners, since it has not been

established that the accused had left the place where he stayed at

the time of a public summons in accordance with section 1 of the same

ordinance. However, articles 1a and 9 of the police decree of the

Regierungspraesident [president of local government] of Regensburg

dealing with the treatment of Polish labor should be applied.

According to this, the accused has been proved to have assaulted

another person and to have violated the police orders regarding the

treatment of Polish labor by another action. He therefore is to be

punished for personal assault according to article 185, Penal Code,

together with a violation of articles 1 and 9 of the police decree of

the Regierungspraesident of Regensburg, dated 28 May 1940 No. 1032 f.

47, supplemented by the ordinance dated 23 December 1941 No. 1032 f.

48 and dated 3 June 1941 No. 1032 f. 27 in conjunction with articles

III and XIV of the Criminal Code for Poles dated 4 December 1941,

Reichsgesetzblatt I, page 759.

* * * * * * *

Although the accused was treated well in Schwenzl’s house, he was as

lazy as he was insolent and presumptuous. The manner in which the

accused committed this act of insult to the honor of his employer [Mrs.

Schwenzl] shows an enormous degree of insolence and shamelessness

which can be found only among persons belonging to the Polish people.

The fact that the husband Schwenzl was ill in bed at the time the

crime was committed has an aggravating effect. It demonstrates the

mean and treacherous character of the accused that he did not find

it convenient to confess but denied it all stubbornly. He stubbornly

continued his denial even in the face of the sworn statements of the

witness Schwenzl. It therefore seems appropriate to sentence the

accused to 2 years’ imprisonment at a detention camp in application of

articles III and XIV of the Penal Code for Poles dated 4 December 1941,

Reichsgesetzblatt I, page 759. For the unauthorized leaving of his

place of residence the usual fine of 35 RM or 1 week of detention camp

was considered to be an appropriate punishment.

Costs--Article 465, Code of Criminal Procedure.--There is no cause to

take into account the time spent in arrest pending trial in view of the

mean conduct shown by the defendant, article 60, Penal Code.

[Signed] EGGER

No charge because of insolvency.

Neumarkt (Oberpfalz), 6 May 1942

The Registrar of the Local Court Neumarkt (Oberpfalz)

[Signed] SCHROTH

Clerk

[Decision of the Reich Supreme Court upon the nullity plea]

1 C 566/42

(I StS 26/42)

DECISION

In the criminal case against the Polish agricultural laborer, Jan

Lopata, last residence Bodenhof, in the parish of Muehlen, now at the

main camp at Maltheuren, for assault among other offenses:

The Reich Supreme Court, Penal Senate, in secret session of 14 July

1942 has decided with regard to the nullity plea of the Chief Reich

Prosecutor.[501]

The sentence of the local court at _Neumarkt_ (_Oberpfalz_)

dated 28 April 1942, Ds 14/42, is annulled with its relevant findings

in as far as the accused was sentenced for assault. In this connection

the case will be returned to the lower court, _namely to the Special

Court at Nuernberg_, for a new trial and sentence.

FINDINGS

By the afore-mentioned verdict the accused has been sentenced to 2

years at a detention camp for personal assault according to article

185, Penal Code, in conjunction with articles III and XIV of the

Criminal Code for Poles dated 4 December 1941, Reichsgesetzblatt I,

page 759. The sentence has been declared valid.

The Chief Reich Prosecutor has filed a nullity plea and has moved to

annul the sentence by decision and to return the case to the lower

instance, namely the Special Court at Nuernberg for a new trial and

sentence. The motion has been granted.

The sentence passed by the local court is defective in law insofar

as it does not discuss at all as to whether article 4 of the decree

against public enemies of 5 September 1939[502] (Reichsgesetzblatt

I, p. 1679) is applicable. That this is applicable may very well be

assumed considering the facts established. According to these facts

the possibility exists that the defendant knowingly took advantage of

the wartime conditions when committing the crime, inasmuch as he was

aided by the lack of other labor and a thereby conditioned insufficient

supervision and watching, or inasmuch as he presumed that because of

the labor shortage no charges would be preferred against him lest not

to lose a hand. In the summary of the local court as to the sentence

imposed it has been emphasized that the action of the defendant proved

an unheard of amount of impudence. This impudence, considering the

facts, could possibly be explained only by the fact that the defendant

considered himself indispensable, and therefore presumed he did not

have to reckon with the preferring of charges.

With this judicial error the judgment has become unjust since, if also

article 4 of the decree against public enemies is applicable which may

very well be assumed, a much more severe sentence is deemed necessary.

[Typed] signed: SCHULTZE

[Typed] signed: RAESTRUP

[Verdict of the Nuernberg Special Court]

COPY

Reg. f.H.V.Sg No. 433/42

_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 pronounces the following sentence

in the case against Lopata, Jan, Polish agricultural worker, last place

of residence Bodenhof, on account of defamation and other offenses. The

sentence was pronounced in open session on 26 October 1942. Persons

present were--

The Presiding Judge: President of the District Court Chamber

Dr. Rothaug.

The Associate Judges: District Court Judge Dr. Ferber and

Local Court Judge Dr. Pfaff.

The Prosecutor at the Special Court: Senior Public Prosecutor

Paulus.

Chief clerk Kastner as registrar of the office.

Lopata, Jan, born on 24 June 1916 in Kajscowka, single, Polish

agricultural worker, last place of residence Bodenhof, in arrest

pending trial for this case is, by application of articles II, III,

and XIV of the decree concerning Poles and Jews, sentenced to death

for a crime under section 4 of the decree against public enemies in

connection with assault, and will have to bear the costs.

_FINDINGS_

1. The accused is a Pole; he belongs to the Polish ethnic group. He

grew up in Kajscowka as son of a farmer and cattle dealer, he attended

school for 6 years according to local custom. He can read, calculate,

and write. According to his testimony, the parents of the accused died

over 20 years ago. A brother and a sister of the accused live in the

Government General. After he left school--in 1931--the accused worked

on a farm for his aunt because his parents had died. At the age of

20--in 1937--the defendant took up work as a farm hand.

2. After reporting voluntarily, in spring of 1940, the defendant was

assigned by the labor office Neumarkt/Oberpfalz to work for the farmer

Josef Schwenzl in Bodenhof, district Neumarkt/Oberpfalz. Early February

1942--on a day which can no longer be clearly specified--the wife of

the farmer Schwenzl, together with the accused and a Polish girl were

cutting chaff in the barn. The accused was standing on the right hand

side of the machine to carry out the work. Suddenly while working, the

accused without saying anything, touched with his hand the genitals

of farmer Schwenzl’s wife through her dress. When she said after this

unexpected action of the defendant, “You swine, you think nothing

terrifies me, you think you can do that because my husband is sick,”

the accused laughed and, in spite of this admonition, again touched the

genitals of the farmer’s wife through her dress. The wife of farmer

Schwenzl slapped his face after that. In spite of this, the accused

continued with his aggressive conduct, for a third time he touched the

genitals of the farmer’s wife through her dress.

On account of that the farmer’s wife started a heated quarrel with the

accused. The accused started to quarrel with the Polish maid too, and

no longer molested the farmer’s wife.

II

The accused did not make a complete confession. He states that he only

once, for fun, touched the genitals of the farmer’s wife through her

dress.

The court is convinced, on account of the testimony given by the

witness Therese Schwenzl, who makes a trustworthy impression, that the

incident occurred exactly as described by the witness. Therefore, the

court based its findings on the testimony given by this witness.

The prohibition to have sexual intercourse with a German woman was

known to the accused, he also knew about the severe punishments laid

down for Poles who do not comply with this regulation. When the accused

was assigned a place of work by the labor office Neumarkt/Oberpfalz in

spring 1940, this regulation was pointed out to him according to the

testimony of the witness Reiser; he was also given a printed guide of

conduct for enlightenment. The statement of the accused that, in spite

of all, he had no knowledge of this regulation because when given the

instruction no interpreter was present, and because he did not peruse

the guide of conduct, proves to be a scant excuse; because when asked

why he denied having been aggressive towards the farmer’s wife in his

interrogation by the local court at Neumarkt, a fact which can be

proved on hand of the record made there on 28 April 1942, the accused

says that he did not want to confess, not even partially, fearing that

the death sentence would be pronounced.

Thus, the defendant gives the impression of a definitely degenerate

personality who is distinguished by irritability and a positive

propensity to lying; all his inferiority is based on his character

and the reason can obviously be found in his belonging to the Polish

subhuman race.

III

The established facts show first of all that the defendant grossly

assaulted the honor of farmer Schwenzl’s wife by his frequently

touching her genitals. The defendant fully realized the despicable

nature of his mean and base aggressive conduct. He thereby committed

the offense of personal assault--article 185, Penal Code, 13 March

1942. The insulted person preferred charges in writing on account of

the personal assault.

This, however, does not cover the full extent of the defendant’s crime.

The drafting of men into the armed forces effected a serious labor

shortage in all spheres of life at home, last but not least in

agriculture. To balance this, Polish laborers, among others, had to

be used to a large extent in the Reich, mainly as farm hands. These

men cannot be supervised by the authorities to such an extent as their

insubordinate and criminal disposition would necessitate. Since there

is a lack of the necessary supervision, these Poles are becoming

impudent and insubordinate. At the same time, they know that they can

indulge in all manner of activities, because we have to depend on them,

and because it is difficult to find replacements.

The defendant has lived in the greater German domestic sphere for a

sufficient length of time to know about these circumstances caused by

the war as he saw them daily with his own eyes.

From the very beginning of his employment with Schwenzl the defendant

was a lazy and stubborn fellow. Frequently he refused to work; when

once in the morning in the presence of the Pole, farmer Schwenzl’s

wife made a casual remark to her husband to the effect that someone

would have to beat her to death if she had to eat as much as the

“Polak” did, the defendant at noontime refused to take his midday meal.

He also induced the Polish servant maid to offer the same passive

resistance. Farmer Schwenzl did not permit the defendant to act like

that, he called the Pole to account in the stable. The defendant put up

resistance toward his admonitions by arming himself with a pitchfork.

In the hallway of the farm, farmer Schwenzl continued his admonitions.

The impudence and disobedience of the defendant is shown in all its

impressiveness by the fact mentioned by the witness Schwenzl, that the

Pole at the threshold of the farm hallway turned against the farmer

again and only let him go when the sheep dog which they kept on the

farm attacked the defendant from the back.

As proved by the defendant’s behavior as a whole, he took advantage of

the circumstances caused by the war also in the crime under discussion.

Being a Pole who had been given the opportunity to earn a fair wage

in the Reich, he acted in the basest conceivable way. His crime as

well as all the rest of his impudent behavior classify him as a public

enemy. The German population which today is especially sensitive toward

such attacks and needs--according to the sound public sentiment--an

increased protection against such foreign elements by sentences beyond

the customary penal code.

Accordingly, the defendant was to be sentenced in connection with

personal assault also a crime under section 4 of the decree against

public enemies of 5 September 1939.

IV

The defendant is a Polish national in the meaning of the Ordinance on

Legal Procedure against Poles and Jews in the Incorporated Eastern

Territories of 4 December 1941. On 1 September 1939 he was living on

former Polish territory; therefore punishment has to be pronounced

according to article III of the ordinance mentioned above, of articles

II and XIV in other instances.

The action of the defendant means a considerable violation of the peace

to the persons immediately concerned by his base actions. The rural

population is right in expecting most severe measures against such

terrorization by foreign elements. But beyond disregarding the honor of

farmer Schwenzl’s wife, the attack of the defendant is directed against

the purity of the German blood. Looked at from this point of view, the

defendant showed such a great deal of insubordination living in the

German domestic sphere that his action has to be considered especially

grave. Anyone who is acting like the defendant commits an outrage

against the defensive power of the German people in the emergency of

war. Wartime demands an essentially increased protection of the home

country against the dangers of war.

Accordingly, as outlined in article III, paragraph 2, second sentence

of the ordinance concerning Poles and Jews, the crime of the defendant

which, compared with his other conduct, shows a climax of unspeakable

impudence, has to be considered as especially serious. Thus, the death

sentence had to be passed as the only just punishment which is also

necessary in the interest of the Reich security to deter Poles with a

similar attitude.

Decision as to the costs--article 465 Criminal Code of Procedure.

[Typed] signed DR. FERBER

[Typed] signed ROTHAUG

[Amtsgerichtsrat] AGR. Dr. Pfaff was not in town on account of official

business.

[Typed] signed ROTHAUG

Certified.

Nuernberg, 29 October 1942

The registrar of the Office of the Special Court for the District of

the Nuernberg Court of Appeal at the Nuernberg-Fuerth District Court.

[Signature illegible]

Clerk

[Stamp]

District Court

Nuernberg-Fuerth

[Refusal of pardon by the Reich Minister of Justice]

Certified true copy

In the criminal case against Jan Lopata, sentenced to death by the

Special Court with the Nuernberg-Fuerth District Court on 26 October

1942 as a public enemy according to the ordinance concerning penal

law applying to Poles, I decided after having been authorized by the

Fuehrer not to make use of the right of pardon, but to let justice take

its free course.

Berlin, 19 November 1942

The Reich Minister of Justice

(Seal) [Typed] signed: DR. THIERACK

[Stamp]

Reich Ministry of Justice

Ministerial Chancellery

This is to testify that the text corresponds with the original.

Berlin, 22 November 1942

[Signed] PETERSEN

Senior Secretary of the Ministerial Chancellery

IV g-11-2417.42

[Petition for Clemency]

[Handwritten marginal note] Special Court Nuernberg. Sentence:

26 November 1942.

[Handwritten] Translation from the Polish language of a petition

for clemency.

Stanislaus Bieniasz

Jan Lopata, born on 24 June 1916 in Kajscowka, district of Myslenice.

Petition for Clemency

In 1940, I stayed in Germany as an agricultural worker with the farmer

Josef Schwenzl at Bodenhof, where I had my residence together with

Angelike Murzyn until 1942. Later on, on Sunday 7 February, I went to

another farmer whose name was Josef, I do not know his surname, but

I know where he lives. He urged me continuously to come to him, and

I went to see him on Sunday 7 February. On Monday 8 February, I went

to the regional labor office together with the farmer’s wife and from

there the policeman took me along to prison, for what reasons, I do

not know. Maybe on the grounds that for 2 years I worked hard and well

at the farmer’s; the Lord can see that from heaven how they treated

me and such things. The Polish woman is my very best witness, because

she has been working together with me and she knows everything, how

the farmer beat me in the beginning, and how he did not want to pay

me. The testimony given by the farmer’s wife during the proceedings

is not absolutely true. She has not told what they had hidden in the

corn on the second floor of the barn. Neither did she tell that they

slaughtered a pig for New Year’s day. At that time they chased us out

of the house, and we were supposed to go to Peihof? [sic] and have a

glass of beer together with the Polish woman. I immediately refused

to do that, and that is the reason why they urged us and said that

they would also go and have a glass of beer and that we should not

return home too early at least not before 8 o’clock. They themselves

would not return so early either, at any rate not before late in the

evening. When we then came back later--the sun had already set--they

were already at home. I was just about to enter the room in order to

cut a few slices of bread for myself, as I always did. When I came

home Sunday night, and at that time cut bread for New Year’s Eve, the

farmer was already at home and was doing something in the other room.

He called to his wife to bring him some salt. She went upstairs to get

the salt. When she came down with the salt she tried to hide it in a

way that the Polish woman should not see it. The pig had been delivered

only shortly before the New Year. On New Year’s day, in the morning,

the pig was still there and on the other day, Friday morning, that pig

was not there any longer. At the time mentioned in the evening, we were

urged to go to bed and later on, they turned on the light and arranged

something in the other room at night. The windows were screened. I do

not know why. Because I was angry I left them. The farmer’s wife said

that I did not want to get up in the morning, and that I did not want

to work. All that was seen by the Polish woman. Now I would be deeply

obliged if the death penalty could be commuted into a prison term. I

beg you very much to do that, I forward my petition to the lawyer so

that he may try to bring it about. If I had enough money, I would pay

him, but what can I do, if I have not got any? Perhaps I might beg the

defense counsel to do so without pay, and I beg him most humbly to have

this petition carried through as soon as possible.

Munich, 22 November 1942

Signed: JAN LOPATA

For the correctness of the translation:

Munich, 26 November 1942

[Signed] STANISLAUS BIENIASZ

[Report of execution of Lopata]

Sg 433/42 V.R. Sg. II 371/42

Nuernberg, 3 December 1942

The Chief Public Prosecutor

I. Report: To the Attorney General--personally or to his

official representative in Nuernberg

Subject: Execution of the death sentence against the Polish farm

worker Jan Lopata, single, last residence: Bodenhof

In addition to the ordinance of the Reich Minister of Justice, IV

g-11-2417 b/42 issued 19 November 1942

Enclosure: Original of the decree IV g-11-2417.42 of the Reich

Minister of Justice, dated 19 November 1942

The death sentence was carried out on 30 November 1942

The execution took 1 minute 10 seconds altogether. From the defendant’s

being handed over to the executioner until the falling of the axe, 7

seconds elapsed.

The execution took place without any incidents.

Please find in the enclosure the original of the decree of the Reich

Minister of Justice, dated 19 November 1942.

II. To Public Prosecutor Dr. Dorfmueller for due information and

further orders (carrying out of the sentence).

III. Information to the Chief Public Prosecutor, Munich,

according to Reich Ordinance of 21 May 1942, 4417--VIII

a-10-1003 Article 2b (2).

[Signed] HOLLMANN

Senior Public Prosecutor

[Handwritten marginal notes] I. duly noted.

II. To Attorney at law, Dorfmueller.

3 December 1942

TRANSLATION OF DOCUMENT NG-412

PROSECUTION EXHIBIT 77

REQUEST BY UNDER SECRETARY FREISLER FOR A “DRAFT ON THE RETROACTIVE

EFFECT OF THE MORE SEVERE NATIONAL SOCIALIST REGULATIONS” FOR TREASON,

18 MAY 1942; AN INTEROFFICE MEMORANDUM THEREON, AND A CIRCULAR LETTER

FROM DEFENDANT SCHLEGELBERGER TO VARIOUS REICH AUTHORITIES ATTACHING A

DRAFT OF A PROPOSED LAW AND REQUESTING APPROVAL

[Handwritten] Reich Chief Prosecutor Lautz will return from

official trip on 22 May.

To Ministerialdirektor Schaefer

I ask you to submit as soon as possible a draft on the retroactive

effect of the more severe National Socialist regulations for cases of

treason upon the earlier period. You can perhaps discuss the cause with

the Chief Reich Prosecutor on the telephone.

18 May 1942

[Initial] FR (Freisler)

[Handwritten Notes]

Urgent

Herr Rietzsch:

Please discuss this with me.

[Initial] SCH [Schaefer]

19 May

Settled.

[Initial] R [Rietzsch] 20 May

_Note_--Reich Chief Prosecutor Lautz, who could be reached only

after his return from a journey, states that _one_ case has been

discovered where a German subject from the Memel district had betrayed

to Lithuania prior to 1933 important State secrets on the organization

of the supporting operation set up by the Reich for the Memel district.

In view of the extent and importance of the State secrets which were

revealed, and betrayal was deserving of death. The disclosure of

further severe cases of treason from the time prior to the seizure of

power is to be expected.

[Signed] RIETZSCH 26 May

BY ORDER OF UNDER SECRETARY DR. FREISLER:

Berlin, 27 May 1942

The Reich Minister of Justice

III a 454.42 g

Official in charge: Ministerialrat Rietzsch

_Secret_

[Handwritten Notes] III a 891/42 g.

Immediately!

To:

1. The Chief of the High Command of the Armed Forces, III a

683/42 g.

2. The Reich Air Minister and Commander in Chief of the Air

Force.

3. Reich Marshal Goering, Plenipotentiary of the Four Year Plan,

III a 608/42 g.

4. The Reich Minister of the Interior.

5. The Reich Minister and Chief of the Reich Chancellery, III a

454/42 g.

6. The Chief of the Party Chancellery, III a 609/42 g.

7. The Foreign Office, III a 537/42 g.

[Stamp]

To the office 30

May 1942, finished

and dispatched

June

Draft of a Law to Supplement the Regulations against Treason

Dispatched: 2 June 1942

1 Enclosure

[Handwritten] to be mimeographed

I. The trial of the emigrated Jew Leo Israel Sklarek before the

People’s Court has proved anew that, in severe cases of preparation

for treason (art. 92 Reich Penal Code), there is need of instituting

the death penalty which so far is not provided for in article 92 of

the Reich Penal Code. When deliberating on the draft of the Penal

Code, the Fuehrer, during a cabinet session, had personally emphasized

the necessity of threatening even with the death penalty in cases of

preparation of treason. I, therefore, propose to supplement article 92

of the Reich Penal Code accordingly.

II. Inquiries that could be opened on the grounds of discoveries in

the occupied eastern towns have disclosed a case of treason in the

time prior to the seizure of power, when a German subject betrayed

important military secrets. The act of treason of that German subject

deserves death but cannot be punished with the death penalty according

to the hitherto valid regulations since a retroactive effect of the

law altering regulations of the Penal Code, dated 24 April 1934,[503]

Reichsgesetzblatt I, page 341, which reformed at the time, the

regulations against treason, is not provided for as yet. The disclosure

of further severe cases of treason may be expected. It is, therefore,

recommended that in the individual case, the section chiefs concerned

be authorized to order the retroactive effect of the regulations

against treason in order to arrive at the imperative severe punishment

in particularly serious cases of more remote date.

Enclosed please find the draft of a law containing the two regulations

discussed above with the request for approval.

The Acting Minister,

[Initial] SCH (Schlegelberger) 27 May

[Initial] FR (Freisler) 26 May

2. Copy to Ministerialrat Rietzsch.

3. To Ministerialdirector Schaefer after his return with the request to

note.

4. 1 month.

Dispatched: 2 June 1942

[Handwritten] Enclosure to III a 454.42 g.

Law for supplementing the regulations against treason of 1942.

The Reich Cabinet has enacted the following law which is herewith

promulgated:

Article I

Paragraph 1

Article 92 of the Reich Penal Code is supplemented by the following

concluding paragraph:

In particularly serious cases the death penalty has to be passed.

Paragraph 2

The regulation of paragraph 1 is also valid in cases of criminal acts

which were committed prior to the date this law came into effect.

Article II

The Chief of the High Command of the Armed Forces, the Reich Air

Minister and Supreme Commander of the Air Force, as well as the Reich

Minister of Justice may each order within their jurisdiction that

the penal regulations against treason (articles 88 to 93a of the

Reich Penal Code in the version of the third part of the law dated 16

September 1939, Reichsgesetzblatt I, p. 1841) should be applied also to

criminal acts which were committed prior to the date the law dated 24

April 1934, Reichsgesetzblatt I, page 341, came into effect.

Article III

The law is also valid in the Incorporated Eastern Territories.

Fuehrer Headquarters,..............1942

The Fuehrer and Reich Chancellor

The Chairman of the Ministerial Council for Reich Defense

The Reich Marshal

The Chief of the High Command of the Armed Forces

The Reich Minister of the Interior

The Acting Reich Minister of Justice

The Reich Minister and Chief of the Reich Chancellery

[Handwritten] to III a 454/42 g.

PARTIAL TRANSLATION OF DOCUMENT NG-595

PROSECUTION EXHIBIT 136

THE BRATEK CASE, 10 DECEMBER 1942–20 JULY 1943. EXTRACTS FROM THE

OFFICIAL FILES, INCLUDING GESTAPO REPORT OF 10 DECEMBER 1942; JUDGMENT

OF THE PEOPLE’S COURT AFTER TRIAL OF 20 MAY 1943; AND NOTE OF 20 JULY

1943 ON THE EXECUTION OF THE DEATH SENTENCE

Secret State Police

Office Innsbruck

File No. III B-3240/42 g.

Innsbruck, 10 December 1942

Herrengasse 1

Telephone: 1230, 1231, 2107

Long Distance: 2159

Imprisonment!

To Chief Reich Prosecutor at the People’s Court or deputy in office

Berlin W 9

Bellevuestrasse 15

[Stamp]

SECRET!

[Stamp]

The Chief Reich Prosecutor at the People’s Court

Received: 14 December 1942

Subject: Case against the Pole, Stanislaw Bratek born on 3

January 1920 in Wolbrom

Incident: Your file No. 9 J 195/42 g.

Enclosures: None

The Secret State Police Office Breslau informed me additionally about

the following details concerning the accused:

“From January 1940 to 6 September 1942 Bratek was employed as

a farm hand in Roggendorf at the State-owned farm Buchenhang.

On 13 October 1941 and on 6 September 1942, he left this place

of work without permission. In the first case, he was arrested

at the police border in Kosten on 13 October 1941, district of

Kreuzburg (Upper Silesia), and after having been warned, was

taken back to his place of work. After the second breach of

his working contract he was arrested at the station in Munich

on 8 September 1942. When being arrested B. illegally wore the

Hitler Youth badge, and was in possession of _2_ tobacco

ration cards, bearing his name, and stated that he wanted to

escape to his aunt, Stefanie Truempler, Zuerich 4, Zwinglistr.

24 (Switzerland). On 8 September 1942 he was sent to the

reformatory labor camp Munich-Moosach by the Secret State Police

Office Munich--Document No. 27311/42 II E 3/Hoe--from which he

escaped on 10 September 1942. B. has not been involved in any

activity of a criminal, political or counter-espionage nature.”

BY ORDER:

[Signed] SCHMID

SS Obersturmfuehrer

File after acknowledgment.

15 December 1942

9 J 195/42 g

1 H 90/43

In the name of the German people

In the case against the shoemaker Stanislaw Bratek of Buchenhang (Lower

Silesia), born at Wolbrom (Government General) on 3 January 1920, a

Pole, at present held in custody during judicial proceedings, charged

with preparation for high treason and other crimes, the People’s Court,

First Senate, as result of the trial, held 20 May 1943, in which took

part as judges--

People’s Court Judge Laemmle, president

District Court Judge Dr. Schlemann

S.A. Gruppenfuehrer [Major General] Haas

S.A. Gruppenfuehrer Hohm

S.A. Gruppenfuehrer Koeglmaier, as representative of the Reich

chief prosecutor

Local Court Judge Dr. Pilz

duly pronounces--

The defendant, as a Pole, ventured to aid the enemy of the Reich

by leaving his job in Lower Silesia, on 6 September 1942, to go to

Switzerland and to get in contact with the Polish Legion there. After

having been arrested first in Munich, he succeeded in escaping from an

internment camp with two other Poles and in proceeding toward the Swiss

frontier. On his way, he was arrested at Lochau (Vorarlberg).

He therefore is sentenced to _death_

The defendant, who is an ethnic Pole and who, as a former Polish

subject, had on 1 September 1939 his residence within the territory

of the former Polish republic, in November 1939 volunteered for

employment on a farm in Germany which he obtained at Metschlau (Lower

Silesia). His conduct, however, was by no means in accordance with his

voluntary enlistment. Already a few weeks later he left his working

place without permission. He was picked up and allocated for work to a

farmer in Buchenhang (district of Glogau, Lower Silesia). In October

1941, although his living was provided for by free board and lodging

and monthly wages of 30 reichsmarks, he left that job, too, without

authority. Again he was arrested and brought back to his Buchenhang

working place after having served a prison term of 3 months, pronounced

on charges of breach of the working contract, in January 1942. Instead

of, as a Pole, taking his sentence as a serious warning, the defendant

after having received certain pieces of information on Switzerland

from Poles when on leave to his home town, gradually made up his mind

to deprive Germany permanently of his capability to work, to escape to

Switzerland, and to apply there with the Polish or English consular

office for enlistment in the Polish Legion. On 6 September 1942, he

began to carry out his plan. Secretly he left Buchenhang and took a

train running toward the Swiss frontier, taking with him his savings

of 100 Reichsmarks and a Hitler Youth badge as camouflage. He was,

however, arrested in Munich on 8 September and brought to the labor

reformatory camp Moosach. On 10 September 1942, he escaped from the

camp together with two other Poles who also wanted to go to Switzerland

and continued his trip to Switzerland by going to Lindau. From there he

tried to get to the Swiss border on foot and in order would have had to

cross it illegally. On his way there he then was arrested by a customs

official in Lochau (Vorarlberg) on 12 September 1942.

The defendant admits the facts with the one proviso that his sole

motive had been to look for a job in Switzerland and that he wanted

to get in touch with some Polish people who, as he knew, lived in

Switzerland, and whose addresses he had got in his home town as being

able to get him work.

This defense cannot be given credit. The defendant held a job in

Germany and got, as a Pole, such fair wages that he was able to save

100 RM within a comparatively short period. There was therefore no

good reason why he should have given up his place of work in Germany,

in order to look for work in a foreign country, especially considering

the illegal frontier crossing which in wartime is particularly

dangerous. How little, after all, he really _did_ care for serious

work is shown clearly by the fact that he repeatedly and without

authorization left his place of work.

It must therefore have been for _other_ reasons that the defendant

considered the idea of going to Switzerland. Based upon the experience

gained by the senate in similar cases, the way which was chosen by

the defendant, in order to reach the Swiss frontier, was taken by

many other Poles escaping from their employment in Germany for the

purpose of enlisting in the Polish Legion in Switzerland. On account

of the hostile propaganda from abroad, carried on everywhere among

the Poles, it was generally known to the latter that in Switzerland,

through the Polish Consul of the Polish puppet government, or through

the British Consul, there existed an opportunity of joining the

Polish Legion, whose aim, as the court knows, is to bring about the

restoration of an independent Polish state including forced separation

of the Incorporated Eastern Territories from the Greater German Reich,

by rendering military service on the enemy side. According to the

view taken by the senate, the defendant became informed about these

circumstances while on leave in his home town. All the more so, as he

expressly admits having acquired the idea of escaping into Switzerland

from there. Furthermore, it should be added that the defendant is a

young and sturdy Pole, who was absolutely fit for military service in

the Polish Legion. Besides this, his general anti-German attitude which

is shown by his breaches of contracts is compatible with his enlistment

in the Polish Legion, hostile to Germany. Finally he makes the same

statement for his defense as has always been made by other Poles trying

to join the legion, who are arrested in the neighborhood of the Swiss

frontier. Apparently, this was recommended as a pretense by the Polish

propaganda machinery from the very beginning in cases in which escape

should fail. Taking into consideration all these circumstances, the

defendant’s escape to Switzerland leads to the only possible conclusion

that he wanted to join the Polish Legion intending to fight as a

member of the latter against the armed forces of the German Reich and

to help bring about the success of the treasonable purposes of the

Legion, which in spite of his denial and according to the view of the

senate, were known to him. He therefore may be considered as convicted

of preparation of high treason according to article 80, paragraph 1;

article 83, paragraphs 2 and 3 of the Penal Code and of undertaking to

aid the enemy from inside our country according to the provisions of

article 91b of the Penal Code.[504]

At the same time he has made himself guilty of a crime according to

article I, paragraph 3, last sentence, of the Penal Decree for Poles

of 4 December 1941.[505] Because, being a Pole, he has intentionally

inflicted damage to the interests of the German people by malevolently

leaving his important agricultural job, above all, during harvest

time in September 1942, and by escaping abroad, thus trying to rob

forever the German people of his own labor. In view of the lack of

farm workers, each single farm hand is decisive for maintaining the

food supply of the German people, and in consequence, for its staying

power in the fight for freedom. Every deduction of manpower whatever is

detrimental to the German interests in a total war. This was absolutely

clear to the defendant who admits it, too.

According to article 73, Penal Code, the penalty can be drawn from

the penal decree concerning Poles which _loc. cit._ demands

exclusively the death penalty as a rule, this being taken from the most

severe penal law applicable here.

The senate, considering the defendant’s character, could see no reason

for deviating from this threatened basic punishment, and for treating

it as a less serious case. By serving a 3 months’ prison term imposed

previously on account of breaches of contracts, the defendant had

been given sufficient warning. He was offered a last chance finally

to come to his senses and to reason by his internment in the labor

reformatory camp Moosach. All that, however, could not make the least

impression on him. On the contrary, although as a Pole he was held to

excellent conduct and unrestricted labor service in view of the blood

guilt of which the Poles before and at the outbreak had made themselves

guilty against the German people, he stubbornly stuck to his hatred

against Germany. Furthermore, beyond the fact that he deprived us of

his services, he stubbornly and without disregarding the opposing

difficulties, continued to pursue his aim of fighting against Germany

on the enemy side, and of accomplishing his attempt at high treason.

The death penalty therefore represents the only adequate measure which

does justice to the criminal action committed by the defendant, who is

dominated by his fanatical hatred against Germany, and to the security

requirements of the German people. This appears absolutely necessary in

order to create a deterrent. It has been for these very reasons that

the People’s Court passed the death sentence on the defendant.

As a condemned person, the defendant has to bear all costs of the

proceedings.

[Signed] DR. SCHLEMANN

LAEMMLE

Munich, 20 July 1943

File number: AR. VII 442/43

The Chief Reich Prosecutor Munich I

To the Reich Minister of Justice

Berlin

SECRET

through the Chief Reich Prosecutor at the People’s Court, c/o

the Local Court Judge Dr. Pilz or his representative in office

Berlin W. 9

Bellevuestrasse 15

Subject: The case against Stanislaw Bratek. Concerning decree of

1 July 1943--IV g 10a 1098/43 g--

Official in charge: Senior Prosecutor Roemer

In 2 copies--With one attachment for the Reich Minister of

Justice and 2 further enclosures for the Chief Reich Prosecutor

Concerning 9 J 195/42 g.

The execution of the death sentence against the person named took place

on 19 July 1943 at the Munich-Stadelheim prison. 1 minute, 10 seconds

elapsed between his leaving the cell and final execution, and from the

moment he was handed over to the executioner to the fall of the axe, 10

seconds. There are no accidents or other happenings to be reported.

[Typed] signed KUMMER

Certified: [Signature illegible]

Clerk

[Stamp]

The Chief Prosecutor

Munich

PARTIAL TRANSLATION OF DOCUMENT NG-381

PROSECUTION EXHIBIT 159

THE BECK CASE, 5 APRIL-21 SEPTEMBER 1943. EXTRACTS FROM THE OFFICIAL

FILES INCLUDING REPORT OF LOCAL NAZI OFFICIAL, 5 APRIL 1943; REPORT TO

THE GESTAPO IN VIENNA, 4 JUNE 1943; LETTER FROM DEFENDANT BARNICKEL TO

THE PRESIDENT OF THE PEOPLE’S COURT, 30 JULY 1943, ENCLOSING INDICTMENT

SIGNED BY BARNICKEL; AND JUDGMENT OF THE PEOPLE’S COURT AFTER TRIAL OF

20 SEPTEMBER 1943

Ortsgruppe Vienna, 5 April 1943

Rembrandtstrasse NSDAP Gau Vienna

2., Obere Donaustrasse 35 Kreis II

Telephone: A 43-0-72 The Kreisleiter

[Stamp]

NSDAP Kreisleitung II

12 April 1943

S/Jo.

Subject: Oskar Beck, of mixed race, Vienna, 2., Obere

Donaustrasse 12

I enclose a report from the competent block leader on Oskar Beck. Beck

is of mixed race, 1st degree, but he behaves like a 100 percent Jew and

is a malicious enemy of Party and State, who unfortunately could not

be caught up to now. I had already raised objections against the man

when, at approximately 11 o’clock at night, he removed wireless sets

from his shop to install them in his flat. I reported to you personally

on this matter at the time, but there was then no means of initiating

proceedings against him.

The present report may make it possible to apprehend Beck.

Heil Hitler!

The Ortsgruppenleiter

[Illegible Signature]

[Stamp]

National Socialist German Workers Party

Ortsgruppenleitung Rembrandtstrasse

To the NSDAP, Gauleitung Vienna

Gau Personnel Office

Main Office for Assessing

Political Reliability

Vienna, I, Gau Building

Assessment to be sent to:

(Exact designation and address

of office to which reply is to

be sent).

To the Secret State Police,

State Police Office Vienna,

Vienna, I

Morzinplatz No. 4

Reference of inquiring office:

IV A 3--853/43

Vienna, 4 June 1943

[Handwritten] 285981

Political assessment requested for:

Name: Beck

Date of birth: 21 July 1899

Occupation: Radio dealer

Place of residence: Vienna II

Other addresses from 1932 until now:

First name: Oskar

Place of birth: Vienna

Where employed: Independent business man

Street: Obere Donaustrasse 15/9

Of mixed race: 1st degree.

Purpose of inquiry: State Police proceedings

[Handwritten] 10 June 1943

Confidential!

Answer from Personnel Office

Vienna, 29 June 1943

P.B. 285.981/hei/bu

The above-mentioned was a member of the Social Democratic Party,

and while it was banned he was a voluntary member of the Fatherland

Front.[506] He was at that time an adversary of the [National

Socialist] movement.

There has been no change in his opinion up to the present. He does not

belong to any of the affiliated associations of the NSDAP and gives

very small sums to collections.

On political grounds exception must be taken to Beck, who is of mixed

race, 1st degree.

Heil Hitler!

[Signed] VOLKMER

HEIDE

Berlin W 9, 30 July 1943

Bellevuestr. 15

telephone: 21 83 41

The Reich Chief Prosecutor at the People’s Court

Reference: 9 J 617/43

Please quote in your answer

[Handwritten] E 19/8

R.

To the President of the People’s Court

Here

Subject: Criminal case against

radio engineer and dealer, Oskar Beck

from Vienna for undermining military efficiency

Enclosure: 1 volume of files

9 copies of the indictment

I enclose the indictment together with enclosures, with reference to my

submissions contained in the latter part of it.

If Attorney Dr. Jerabek obtains admittance as defense counsel, no

counsel need be appointed (pages 14 and 15 of the indictment).

Prosecution under article 2 of the law of 20 December 1934[507] has

been ordered as a precaution (page 17 of the indictment).

As deputy:

[Signed] DR. BARNICKEL

Berlin, 30 July 1943

Chief Public Prosecutor at the People’s Court

9 J 617/43

_Arrest!_

Indictment

The radio engineer and radio dealer Oskar Beck, born on 21 July 1899 in

Vienna, from Vienna II, Obere Donaustrasse 15; bachelor, no previous

convictions, provisionally arrested on 3 June 1943, from that day on

under detention pending judicial investigation in virtue of the warrant

issued by the examining magistrate at the Court of Appeal in Vienna on

17 June 1943--2 S Js 1750/43--at detention prison I in Vienna, so far

without defense counsel, is charged by me, in Vienna in March or April

1943 to have undermined the defensive strength by malicious incitement

against war work for women.

Crime according to article 5, paragraph I, number 1 of the

Extraordinary War Penal Ordinance.[508]

_Main result of investigations_

The accused attended the elementary school and a 4-year high school

course in Vienna, and for 5 years attended a trade school for

electro-technicians, was employed until 1924 in a number of places;

and since then has had a shop of his own with a net income of 200

reichsmarks per month. He is of mixed race, first degree; his mother

was a Jewess. From 1919 until March 1922 he was a member of the Social

Democrat Party. He is now a malicious adversary of the National

Socialist State.

In March or April 1943, he repaired the wireless set of Theresia

Draxler, retired post office secretary. When leaving her apartment, he

saw an application form for joining the total war effort on the kitchen

table. He asked the witness Draxler whether she had already filled in

the form and added:

“Do you know that every woman who goes to work, sends one

soldier to his death”?

The witness Draxler did not answer him. Then the accused left the

apartment.

He denies, but has been convicted by, the trustworthy statement of the

witness.

The remark of the accused aims at preventing a person from fulfilling

the duty of registering for the total war effort. This attempt to

burden the conscience of a woman who is willing to work by seeking to

make her responsible for the heroic death of soldiers jeopardizes the

devotion of women for work, and has a damaging effect on the nation’s

fighting morale and its will of self-preservation in total war. The

accused could not count on Mrs. Draxler keeping his remark to herself,

but had to reckon with the fact that she would speak of the incident to

other people and that his utterance would become known to wider circles.

Evidence

I. Statements of the accused.

II. Witness: Post office secretary, retired, Theresia Draxler in

Vienna II, Scholzgasse Nr. 2.

I request that trial shall be ordered, detention pending investigation

be maintained, and defense counsel be appointed for the accused.

As deputy:

[Signed] DR. BARNICKEL

Received: 21 September 1943

9 J 617/43

4 L 150/43

In the Name of the German People

In the case against the radio engineer and radio dealer Oskar Beck,

born 21 July 1899 in Vienna, resident in Vienna, at present under

detention pending judicial investigation for undermining the military

efficiency, the People’s Court, 4th Senate has decreed that, following

the trial held on 20 September 1943, at which the following were

present, as judges:

People’s Court Counsellor Mueller, president

District Court President Mittendorff

Kreisleiter Reinecke

City Councillor Ahmels

City Councillor Vahlberg, as representative of the Reich Chief

Prosecutor

Senior Prosecutor Jaeger

The defendant is sentenced to death and to the loss of civil rights for

undermining the military efficiency.

He bears the cost of the proceedings.

Findings[509]

The 44-year old defendant has had German citizenship since the

“Anschluss.” His deceased mother was a Jewess. After passing through

primary school and a 4-year high school course, he was trained as an

electrician at a trade school in Vienna which he attended for 5 years,

and then held several jobs until 1924. Next, he worked independently as

a radio engineer and radio dealer in Vienna. He claims to have earned

about 300 RM a month lately. From 1919 to 1922 he was a member of the

Social Democratic Party. _Later on he belonged to the “Fatherland

Front.”_

The Draxler couple were among his customers in Vienna to whom he had

sold a radio several years ago. At Mrs. Draxler’s request he had

repaired it several times. In March 1943 Mrs. Draxler called him in

again to overhaul the radio. As he left the apartment, he happened

to see lying on the kitchen table an application form for employment

in the total war effort. Believing this to be Mr. Draxler’s form, he

asked Mrs. Draxler whether she too had filled in such a form. When

she informed him that she had got the form for herself, he said: “You

realize, of course, that every woman who goes out to work, sends a

soldier to his death”? Mrs. Draxler who was very indignant about this

remark refused to answer, and he left very soon afterward. Later on

she spoke of this incident to some of her acquaintances, among others

to the wife of a political leader in the NSDAP who reported it to the

Ortsgruppe.

The senate considers these facts to be correct on account of the

trustworthy statements made under oath by Mrs. Draxler. The defendant

admits that he was in the apartment of the witness in the spring of

1943 to test the radio and to have left through the kitchen; he denied

emphatically, however, during the preliminary proceedings as well as

at the trial to have made the remarks with which he is charged or any

similar remark. He maintains to have only discussed business matters

with Mrs. Draxler as with his other clients. The woman might have been

annoyed that the radio had been out of order several times and had

therefore reported him. The witness might have heard the remark from

somebody else and mixed it up. His attitude was not hostile to the

Third Reich. He had advised a National Socialist, Walter Pindur, who

during the Schuschnigg period had supplied him with cardboard out of

which swastikas had been cut, to be careful. The Party members, senior

customs inspectors Schmidt and Scerences would be in a position to

testify to it that he had not been an enemy of national socialism. An

inquiry at the Ortsgruppe Rembrandt would show that he had done repair

work for them free of charge.

The defendant cannot have any success with this defense. The witness

Draxler firmly maintained her statements in the face of all his

objections and the senate, from her bearing at the trial, gained the

conviction that the witness did not wrongfully accuse the defendant out

of annoyance because her radio did not work. Furthermore, she denied

to have been annoyed at all and pointed out quite rightly that she

had not made the report. The senate is convinced that by his denials

the defendant is only trying to avoid the serious consequences of his

offense. To interrogate the witnesses Pindur, Schmidt, and Scerences

and to obtain a statement from the Ortsgruppe Rembrandt in Vienna is

superfluous in view of the facts, especially if one considers that

for ulterior motives the defendant would not have disclosed his true

opinion to these witnesses nor to the Ortsgruppe.

_The way in which the accused spoke calmly and deliberately, and

without any apparent cause, only an enemy of the State can think and

speak._

The utterance which the accused is known for certain to have made

to the witness Draxler was liable to impair her as well as other

people’s willingness to work for the total war effort. By this

remark he attacked therefore the fighting morale and the will for

self-preservation of the German people, and this he did “publicly”

within the meaning of article 5, number 1 of the Extraordinary War

Penal Ordinance, as he had to count on the fact _and he actually

did count on it_ that the witness, whom he did not know well would

spread his remarks--as actually did happen. The senate is furthermore

of the opinion that the accused was fully aware of the defeatist

nature of his remark and the publicity in the above sense. Thus, the

conditions under article 5, paragraph 1, number 1 of the Extraordinary

War Penal Ordinance of 17 August 1938 apply. The fact that the

intention of the accused was without any result as regards the witness,

does not affect this state of affairs--the purpose of the above

ordinance is not merely to prevent any undermining of the people’s will

to self-preservation, but to prevent all possibility of undermining it.

It is out of the question to assume a less serious offense because the

accused acted with the intention to undermine morale and because [by

the remorse combined with it][510] _the appeal to the emotions_

of a woman prepared to join the war effort represents a _well

calculated_ and particularly mean _and dangerous_ attack

on the German nation’s will to self-preservation. Accordingly, the

death sentence, which is the only penalty provided for the crime of

undermining the military efficiency, was passed on the accused.

Owing to the dishonesty of his offense, the accused forfeited his civil

rights.

Costs have been awarded according to the law.

[Signed] MITTERDORF

MUELLER

TRANSLATION OF DOCUMENT NG-546

PROSECUTION EXHIBIT 141

DRAFT OF A NOTICE TO HITLER, INITIALED BY DEFENDANT ROTHENBERGER AND

VOLLMER, NOVEMBER 1943, REPORTING A DEATH SENTENCE IMPOSED BY THE

PEOPLE’S COURT UPON A FORMER GERMAN NAVAL CAPTAIN FOR REMARKS ALLEGED

TO HAVE ASSISTED THE ENEMY AND UNDERMINED THE MORALE OF THE ARMY

The Reich Minister of Justice

Fuehrer Information 1943 No.

On 18 October 1943, Guenter Paschen, retired naval captain [in German

navy] from Flensburg, was sentenced to death by the People’s Court for

assisting the enemy and for undermining the morale of the army.

Paschen, whose family on his mother’s side comes from Denmark and who

is married to an English woman, was a veteran in World War I and took

part in the Skagerrak battle and later on in the Finland operation.

Last, he was liaison officer with General von der Goltz. Having retired

after the collapse, he was a naval training officer from 1926–1936.

Paschen, since his retirement, is a resident of Flensburg and moves in

the circle of the Danish minority. He had a political discussion at the

end of August 1943 with two Danes, unknown to him, who wanted to rent

a furnished room in his house. He then expressed the view that he did

not believe in a German victory and that he thought the secret weapons

to be propaganda bluff. Furthermore, he stated that Denmark had been

treated unjustly in 1864 and that the Reich must give Schleswig back to

Denmark.

One of the Danes adopted these views as his own and tried to shake the

confidence in victory of a woman naval auxiliary with whom he had an

affair.