Berlin, .... November 1943
(Expert on the case: Chief Public Prosecutor Dr. Franke)
Initials] R [Rothenberger]
V [Vollmer]
PARTIAL TRANSLATION OF DOCUMENT NG-674
PROSECUTION EXHIBIT 100
CIRCULAR LETTER FROM THE REICH MINISTRY OF JUSTICE TO LEADING JUDGES
AND PROSECUTORS, 19 FEBRUARY 1944, TRANSMITTING EXCERPTS FROM REPORTS
OF A CONFERENCE OF JUSTICE OFFICIALS ON CASES OF “UNDERMINING” AND
“MALICIOUS POLITICAL ACTS”[511]
The Reich Minister of Justice
3131 E--I p 2 43
Berlin W 8, 19 February 1944
Wilhelmstrasse 65
Telephone: 110044
Long distance: 116516
_Confidential_
To: 1. The Presidents of the Reich Supreme Court and of the
People’s Court
2. The Reich Chief Prosecutors at the Reich Supreme Court and at
the People’s Court
3. The Presidents of the District Courts of Appeal
4. The Attorneys General at the District Court of Appeal
Subject: Meeting on 3 and 4 February 1944
Enclosures: Additional copies for the presidents of the district
courts and the chief public prosecutors
Enclosed please find a copy of excerpts from some of the reports in the
field of criminal justice of the Reich Ministry of Justice made at the
session on 3 and 4 February 1944. Point No. 7 was not discussed at the
session, I beg you to discuss this point, too, at the meeting planned
with the judges and prosecutors of your district and to see that they
observe the instructions given in the copy.
[Stamp]
Reich Minister of Justice
Ministerial Chancellery
BY ORDER:
[Typed] DR. VOLLMER
Certified: [Signed] BLUENKE
Clerk
313 E--3 a 3376
To: The Chief Public Prosecutors, for information
Munich, 7 March 1944
The Attorney General
BY ORDER:
[Typed] signed: KEIDEL
Chief Public Prosecutor
1. _Definition of cases of “Undermining” [Military Efficiency] and
cases of “Malicious Political Acts”_[512]
The relations between the law on malicious acts against State and
Party, article 2, paragraph 1, and the decree concerning special
penal law in wartime, has changed during the fourth and fifth year of
the war. The development was speeded up by the events at Stalingrad
and in Italy. This found its outward expression in the following
measures: setting up a special committee for cases of undermining the
morale--for serious and acute attempts at undermining morale--in the
Reich Ministry of Justice, a corresponding agreement with the Reich
Security Main Office, by taking steps concerning the distribution of
work at the People’s Court and by a press campaign. A number of Special
Court districts and also certain criminal divisions with the district
courts of appeal have not yet followed the new practice. The severity
of their sentences does not agree with the penalties of the sentences
at the People’s Court. Conditions are to be made clear by this report
and by a Judges’ Letter.[513] The temporary defensive attitude at the
front means a burden for the home front. The enemy is looking for weak
spots, and thinks he has found them in the will for self-assertion of
the inner front, as it was 1914–1918. Since the Italian events he has
been intensifying this attack. The not very numerous cases of defeatism
resulting from it have led to a new line in the administration of
justice in cases of undermining of military efficiency, which is to be
organically followed in the treatment of cases concerning malicious
political acts. The following cases dealt with by the Reich Ministry of
Justice, are intended to illustrate this line.
Clear cases of serious undermining of the military efficiency
_Case Dr. Geiger_--a 52-year-old physician, Party member, no prior
convictions.
_Offense_--In summer 1943, the condemned man made a remark during
the treatment of the pregnant wife of a Hitler Youth Leader who was
at the front at that time that she had courage in having a child now.
For if things went wrong, we would be in a bad way. After the events
in Italy the war was lost for us, a victory of the Russians meant our
physical death, a defeat by the English and Americans was still the
smaller evil. She--the patient--was too much under the influence of
Nazi propaganda. To the scared question of the pregnant woman, what was
going to happen to all of them, the condemned man answered that persons
living such an “exposed” position (as her husband) naturally would be
dealt with in the first place. Then there would be a mass Katyn.[514]
Sentence of the People’s Court--8 September 1943--death sentence.
Request of the public prosecutor--death sentence. Plea for clemency was
refused.
_Case Weber_--a 60-year-old dentist, Party member, no previous
convictions.
_Offense_--In August 1943 the condemned man made the remark to a
patient--hardly anybody still believed in victory. Medieval methods of
torture were applied in our concentration camps; especially homosexuals
were being too harshly dealt with; we had murdered a million Jews and
therefore had incurred a grave burden of guilt. Rudolf Hess was the
right man but not the Fuehrer. The condemned man went on literally:
“Moreover, in 4 weeks’ time, the Fuehrer will no longer be alive. You
will hear about it.”
Sentence of the People’s Court of 15 September 1943--death sentence.
Request of the public prosecutor--death sentence. Plea for clemency was
refused.
In cases of undermining the morale the consideration of the actual
nature of the facts must not be excessive. In the fifth year of the
war every German has to think about the effect of his remarks to other
people. The same applies to foreigners, who are working here and enjoy
German hospitality. Critical, for instance, authorized discussions of
the political and the war situation are not punishable only as long as
they are not calculated to shake the convictions of others.
Up until now, no need has been observed to give the prerequisite
“publicly” in article 5 of Extraordinary War Penal Ordinance a more
rigid interpretation than is done in cases of malicious political acts.
As such to be considered are remarks falling under article 2 of the
law against insidious attacks on State and Party, which do not result
in influencing other people. Two examples are the cases of Krejci and
Kochzius.
_Case of Krejci_--41-year-old home worker, no previous convictions.
_Offense_--In spring 1943 the condemned woman told the following
joke:
“Who is the biggest farmer in Germany”?
“Adolf Hitler, he owns a lame dog, a fat pig, and many million
sheep.”
(With the lame dog and the fat pig she meant Goebbels and
Goering.)
Sentence of the Special Court II Berlin of 5 October 1943--6 months
imprisonment.
_Case of Kochzius_--a 57-year-old printer.
_Offense_--At the beginning of 1942, the condemned man answered
the greeting, “Heil Hitler,” with, “Shit.”
In December 1942 when Fuehrer parcels were distributed in the plant, he
made the remark that he did not want the Fuehrer and these parcels, he
was no beggar.
In January 1943 the condemned man declared, that the Fuehrer was a
tramp; a vagabond without a Fatherland who came from abroad where only
beggars lived; he intended to make the Germans into beggars too; he was
making the people ridiculous in the eyes of foreigners by the street
collections. The entire government as well as the Party consisted of
tramps and rascals.
To a Party member he remarked, that he had better hurry up and get out,
otherwise he would be hanged from a tree later on. Sentence of the
Special Court II Berlin of 28 September 1943--1 year imprisonment.
Border line cases are the cases of Graf, Kessel, Eckert, and Heinitz.
_Case of Graf_--a 65-year-old farmer, no previous convictions.
_Offense_--In spring 1943 the accused declared, “Hitler must
abdicate, then the war will stop.”
In autumn 1943 he made the remark, “The war will not stop until Hitler
abdicates.”
In October 1943 he remarked, “The Germans bled to death in the advance,
and now they bleed to death in the street. In summer, one runs to save
every little berry, and now one has to watch how everything perishes.
It only depends on a few gentlemen. With the war it is just the same
thing. All their throats should be cut.”
In agreement with the general public prosecutor, the Chief Public
Prosecutor proposes not to order prosecution under article 2 of the
statute against malicious political acts but to warn the defendant
by imposing a fine. The defendant had a good reputation and was a
participant of World War I, had several sons at the front, and had
already backed the NSDAP before it had taken over.
The opinion of the field offices that this case was one of malicious
political acts cannot be agreed to. It rather represents a case of
undermining the morale, which has already been submitted to the Chief
Public Prosecutor for examination.
* * * * *
_Case Eckert_--domestic servant, 50 years of age, single, no
previous convictions.
_Offense_--In the afternoon of 14 September 1943, the accused,
in a shop, said to the female proprietor in front of partly unknown
persons, “By Christmas, the war will long be over. Germany has long
since been divided up.” Obviously she alluded to a defeat in the very
near future. When asked by an employee of the local health insurance
office, how she thought it would be if the war were lost and we would
all have to go to Russia, the accused replied, “Very well, let them
send those 5 million SS men there. During the last air raid on Mannheim
the SS, those bloody swines, chased the people out of the shelters with
rubber truncheons for fire-fighting and clean-up work.”
The Chief Public Prosecutor with the approval of the General
Public Prosecutor wants to base the charge on article 2 of the law
against malicious political acts or insults to the State or Party
(Heimtueckegesetz)[515] and to propose a prison term of 9 months. This
is a border line case. Certainly the statements made by the accused in
their second part fulfill the conditions of malicious political acts
or insults to the State or Party. Regarded as a whole, however, the
accused obviously had in mind to injure the listeners’ will to pull
through, as can be seen from the first part of her statements. When
she met with resistance in doing so, she tried to support her opinion
by abusive language and by telling atrocity stories. The trend of her
statements therefore was directed toward undermining [the military
efficiency].[516] Therefore, the accused will, in the first place, have
to be prosecuted under this provision.
* * * * * * *
PARTIAL TRANSLATION OF DOCUMENT NG-671
PROSECUTION EXHIBIT 220
EXTRACTS FROM THE SITUATION REPORT OF DEFENDANT LAUTZ, CHIEF PUBLIC
PROSECUTOR AT THE PEOPLE’S COURT, TO THIERACK, 19 FEBRUARY 1944,
CONCERNING THE UNDERMINING OF MILITARY EFFICIENCY
Copy
Berlin W 9, 19 February 1944
Bellevuestrasse 15
The Chief Public Prosecutor of the People’s Court
4206 E--2.36
[Initials] KL [Klemm]
[Stamp]
SECRET
To the Reich Minister of Justice
Berlin W 6
Wilhelmstrasse 65
Decrees of 25 October 1933--IIIa 19570/35 and 29 October
1942--3130-Ia _9_ 1746-.
Enclosures: 2 copies of the report.
[Handwritten illegible marginal notes]
[Handwritten note] M.D. IV Mr. B.S.S. request to be informed in
regard to p. 9.
[Signed] MARTIUS 28 February
_Situation Report_
A. _High treason and undermining of military efficiency within the
Reich territory (except for the Protectorate)_
I. _General._
* * * * * * *
In accordance with the expectation expressed already in my previous
report of 8 October 1943, the number of incoming reports on
investigations concerning undermining of military efficiency has again
increased considerably. At present the daily average amounts to about
25 cases. Since, in addition, numerous investigations which are not
handled by special proceedings and which could not yet be concluded are
pending, I am forced at present due to the pressure of business in my
office and the further difficulties caused by the effects of the terror
raids to make more extensive use of my right to turn matters over to
another office. However, in the interest of a uniform jurisdiction the
indictments will principally be served before the People’s Court in all
cases where--
_a._ The undermining activity involves members of the Wehrmacht.
_b._ Greater significance is ascribed to the statements of the
accused because of his position in public life or in the economy.
_c._ The accused has become known as an enemy of the State
on principle or a systematic instigator either according to his
personality or because of the nature of his offense.
_d._ The personality of the accused in connection with the nature
of his offense or the effect he strived for seems to point to special
treatment.
_e._ The offender belongs to the clergy.
In view of the necessity of turning over proceedings, even in which the
offense can be called a serious one without question, I have generally
informed the chief public prosecutors concerned in advance of the
altered way in which I am going to handle my right to turn matters over
to another authority. In addition to this they will in each single
case be especially informed about my conception of the case and will
be requested within the limits of my right of turning cases over to
them, not to consider taking on less serious cases but to strive for
the highest possible penalty if the state of the investigations at
the moment the case is handed over gives a sufficiently clear picture
of the case in this respect. In comparison with the previous report,
no essential new experiences were gained regarding the nature of the
offenses and the personality of the offenders. Especially could it
not be determined that the number of punishable offenses increased,
particularly in those territories subject to a special air terror of
the enemy. It is rather characteristic that the manifold rumors about
alleged riots among the population in the cities damaged by air raids
often arose in regions not at all or only slightly affected by the
air terror. This leads, on the one hand, to certain conclusions as to
the intentions of the propagators of these rumors. On the other hand,
however, it can be taken as a pleasing sign for the truly disciplined
attitude of the population that suffers most from the enemy’s air
terror.
II. _Special Proceedings._
* * * * * * *
[Typed] signed: LAUTZ
EXTRACT FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[517]
_DIRECT EXAMINATION_
* * * * * * *
DR. KUBUSCHOK (counsel for defendant Schlegelberger):
According to the document I have before me, Document NG-412,
Prosecution Exhibit 77,[518] the Ministry of Justice made a suggestion
to increase the severity of penal provisions concerning the preparation
of treason. Would you explain this?
DEFENDANT SCHLEGELBERGER: The situation with regard to the law
was the following: Preparation for treason [Landesverrat] could not be
punished by death. Treason, that is to say the betrayal of the native
country in my opinion, is the most severe and most serious political
crime, and the danger inherent in that crime reveals itself already
in its preparation. As can be seen from the document, the question
had come before the public and had been discussed in public on the
occasion of the Sklarek case, and had become the subject of a heated
discussion. It was known to me that Hitler once before in a cabinet
meeting had taken the position that preparation for treason should be
punished by death. It was quite obvious for me that as a consequence
of the Sklarek case and, on that, Hitler’s point of view was also
known to other people, a new storm would come up; in fact it was the
expressed purpose to force matters upon the administration of justice
so that afterward one could make use of these matters, by saying that
the administration of justice itself was not strong enough to find
the right position, or in order to institute and justify proceedings
outside the administration of justice. I considered it appropriate,
therefore, to bring this question into the stage of a legal regulation
as quickly as possible. In the draft the death penalty was provided
for very serious cases, cases of aggravating circumstances, and that
provided the guaranty at least for the fact that in ordinary court
proceedings it would have to be examined whether that really was a
severe case. The danger was quite acute that unless in time such a law
would be promulgated, other elements, namely, the police, would have
seen to it and would have taken care of it wholesale without examining
individual cases. Since the cases in question were cases of the past,
retroactive measures had to be permitted. That is well within all legal
guaranties.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT LAUTZ[519]
_DIRECT EXAMINATION_
* * * * * * *
DR. GRUBE (counsel for defendant Lautz): Mr. Lautz, is it
correct that in 1938 you received an offer to become senate president
in the Reich Military Court?
DEFENDANT LAUTZ: That is correct. I was well known to the
Ministerial Director at the High Command of the Wehrmacht, Lehmann, who
appeared as a witness before this Tribunal and who offered me in 1918
to become senate president at the Reich Military Court.
Q. Just a moment, I believe you made a mistake, you meant to say 1938?
A. Yes, 1938.
Q. At that time, would you have improved your financial situation if
you had accepted?
A. Yes. The position was much better paid.
Q. Why did you not accept that position?
A. I did not accept it only for the one and decisive reason that I did
not want to leave the beautiful district of Karlsruhe for the time
being.
Q. For how long were you general public prosecutor in Karlsruhe?
A. Unfortunately, only until 1939.
Q. May I now ask you, who was Parey?
A. Parey was Reich Public Prosecutor since 1936, later chief Reich
prosecutor [Oberreichsanwalt] at the People’s Court in Berlin.
Q. And for what reason did Parey leave his office as Chief Reich
Prosecutor at the People’s Court?
A. At the beginning of November 1938. He had an automobile accident.
Q. When did you find out for the first time that you were being
considered as Parey’s successor?
A. At the beginning of December 1938. The then Under Secretary
Freisler, on order of Minister Guertner, informed me that Guertner had
chosen me as his--that is, Parey’s--successor.
Q. Did you make any efforts to obtain that position?
A. Not at all.
Q. Did you do anything against your appointment as chief Reich
prosecutor at the People’s Court?
A. I was very much interested in getting out of being appointed to that
position, and because of that I consulted with the personnel division
of the Ministry as to how I could prevent my appointment. However, I
was told that Minister Guertner attached importance to my taking that
position, and therefore, being a civil servant I complied.
Q. May I ask you why you had an aversion to that office?
A. First of all, because of the exclusive occupation with political
penal cases and in connection with that the absolute dependence upon
the Ministry which was my superior was not an inducement for me; even
though, at that time, I could not have the remotest idea that war would
shortly break out, that Minister Guertner would die, and that through
all these events a course would be followed in politics which, in any
case, was not in accordance with the one that I imagined.
That was my main reason. My second reason was that I wanted to remain
in Karlsruhe.
Q. When were you appointed Chief Reich Prosecutor?
A. I was appointed on 1 July 1939.
Q. At that time, did you still count upon becoming Chief Reich
Prosecutor, since Parey had already left the office some time before?
A. Since it took such a long time I had the hope, quietly, that perhaps
another person would be found.
Q. Did you ever find out whether any office of the Party or any other
organization of the Party was in favor of your appointment as Chief
Reich Prosecutor?
A. I never heard anything about that.
Q. When, in effect, did you assume your office as Chief Reich
Prosecutor at the People’s Court?
A. Due to illness, I only assumed office on 20 September 1939, in
Berlin.
Q. However, you had already been appointed on 1 July?
A. Yes.
Q. Mr. Lautz, may I ask you this? Before 1933, did you belong to a
political party?
A. From 1924 to 1930, I was a member of the German People’s Party. That
was the party of Minister Etresemann, who became well known through
the policy of understanding which he followed toward the victorious
countries of 1918, and whose efforts, in particular to reach an
understanding with France in order to bring about peace in Europe, I
welcomed very warmly and supported.
Q. When did you become a member of the National Socialist Party?
A. On 1 May 1933.
Q. Will you please tell the Tribunal for what reasons you joined the
Party?
A. Before the spring of 1933, I belonged to the Prussian Judges’
Association, in which organization I worked on press matters as a
member of the board of directors. The Prussian Judges’ Association
decided to urge its members to join the Party. I joined because,
according to the situation prevailing at the time, I considered it to
be the correct and proper thing to do.
Q. Mr. Lautz, at that time in 1933, did the joining of a party have the
significance of 100 percent approval of the Party platform? Was it not
rather like this, that since the Weimar era joining a party by no means
implied that one approved of its ideology?
A. In the case of many persons who joined the Party at that time, that
was so.
* * * * * * *
Q. Through my documents in Lautz document book 1, I have already shown
that the competence of the People’s Court to sentence defeatist cases
was introduced only beginning in February 1943. Witness, for how long
did the special penal regulations for wartime exist on which these
trials against undermining of military efficiency were based?
A. This special wartime penal order is from 1938[520] which was put
into effect only on 26 August 1939.
Q. Originally the Reich military court was competent for those cases
of undermining of fighting force or the other military courts, is that
correct?
A. Yes. That is correct, not only for members of the Wehrmacht but also
for civilians.
Q. In 1940 the competency in regard to civilians was transferred to the
general courts?
A. Yes. That is correct.
Q. Who became competent at that time for the cases of the so-called
public undermining of military efficiency?
A. Public undermining of military efficiency was prosecuted by the
senior public prosecutors at the special courts and/or was to be tried
by the Special Courts.
Q. When in 1943 the cases of so-called public undermining of military
efficiency were transferred to the People’s Court, had the law, in
effect, been applied for 4 years?
A. Yes.
Q. Is it correct, Witness, that the decision as to whether a public
undermining of military efficiency was proved depended upon the
following two points: first, what does the legislator mean by an
attempt to undermine; and second, when was this attempt to undermine
committed in public? Is it correct that those were the two nuclei in
this question?
A. Yes.
Q. Is it furthermore correct that, when in 1943 the People’s Court
became competent, these two basic questions of undermining of fighting
efficiency were based on a general jurisdiction originating first from
the Reich Military Court, then the Reich Supreme Court, and then of the
Special Court--that these decisions existed already?
A. The Reich Military Court had in several very basic decisions decided
these questions without any doubt.
Q. In regard to these points from which it is especially evident that
the definition of “public attempt of undermining” had already been
laid down definitely in 1943, I shall prove by some further documents.
Witness, how did the individual cases of undermining come to your
office?
A. That differed. In part, the senior public prosecutor at the Special
Court who considered the case as leaving room for no doubt submitted
the files to me. If, on the other hand--and that occurred in the
majority of cases--he harbored doubts whether this was not merely a
malicious act, then, as was his duty, he reported it to the Minister
of Justice, and the Minister of Justice decided whether a case was
to be regarded as undermining of fighting efficiency and should be
transferred to the chief Reich public prosecutor.
This is evident from the affidavit by the witness Franke, which the
prosecution submitted.
Q. May I refer to the fact that this is Exhibit 515[521] submitted by
the prosecution. Furthermore, I am referring to Exhibit 97[522] of the
prosecution. Witness, did it continue the way you described it just
now, later on too?
A. Later on, two more basic changes occurred. A very severe decree
of 13 August 1943 was introduced. Minister Thierack required a more
expeditious and more emphatic trying of certain especially serious
cases of undermining of fighting strength. For this purpose, it
had been ordered that the RSHA submitted those cases which were not
very numerous, either through the hands of the Minister of Justice
or directly to me. I submitted them to a special division because
the division which treated other cases of undermining of military
efficiency was no longer in a position, merely due to the large number
of cases, to take over this new work also. These cases in the main
are those in which the so-called quick trials [schnell termine] took
place which have frequently been discussed here already. Due to the
importance of the cases, Freisler also did not let anybody deprive
him of trying these cases basically in his senate. Moreover, due to a
later decree by the Minister of Justice, it was laid down that in the
preliminary investigation of the cases which were to be submitted to
the chief Reich Public Prosecutor, that the presidents of the district
courts of appeal should be included in order to avoid too many of these
files being submitted to the office of the Reich Public Prosecutor.
The final decree which concerns these cases, and which I am citing
because perhaps it is important in the von Braun case, is the
following instruction by the minister. If an indictment is filed
before the Special Court in a malicious acts case, and during the
trial the Special Court decides however that possibly this might be an
undermining of military efficiency in which case the Special Court was
not competent to sentence, then the Special Court should not through an
uncontested decision refer this to the People’s Court, but the Chief
Reich Public Prosecutor should ask for an adjournment so that the chief
Reich public prosecutor could examine the case in every individual
case. If he considered it not suitable, he was to return it to the
Special Court. In this way, it was intended to prevent that through
such decisions against which it could do nothing, the People’s Court
was burdened with cases which did not concern it.
Q. Witness, how were pending cases treated? How were the cases
which came to it treated by the office of the Reich prosecutor, and
especially how was the conduct of the members?
A. When the order came into effect--the order of 29 August 1943--at
which time the People’s Court became competent, at that time I was on
an official trip outside of Berlin. When I returned, I found out that
the defendant Barnickel, who at that time was my deputy, had handed
over the handling of the cases which came to his division. At that
time, he was of the opinion--at least, that is what he told me--that
his division was less burdened and therefore was in the best position
to be able to handle the new influx of cases. I let matters stand as
they were.
First, we introduced the following treatment of the cases and we also
maintained this for several weeks and months. At certain intervals of
2 or 3 days, every case that was handled by the expert or the Referent
in the presence of the division chief was reported to me, and then we
made a decision as to whether we wanted to file an indictment before
the People’s Court and for what reasons this was necessary. Varying
reasons governed this. In part, the cases were so serious that there
was no doubt about this. In part, we considered it necessary in order
to bring about certain basic decisions on principle--to bring about
the sentencing by the senate of the People’s Court. During that time,
the number of prison sentences that were pronounced was without doubt
larger than the number of death sentences. The enormous incidence of
new cases, however, brought it about, and this is also apparent from
the situation report which the prosecution submitted, in the beginning
of 1944--
Q. I may interpolate here that the defendant is speaking of Prosecution
Exhibit 220.[523]
A. That at the end of the year 1943, quite a considerable number of
cases were in arrears. Therefore, I decided that in regard to the
cases of undermining of fighting strength to gather them in a special
division which would have the task--especially in regard to the backlog
cases--to clean it up as quickly as possible. Among these, there were
a number of cases of arrest whose expeditious handling was necessary
especially because in a large number of these cases the transfer to
a subordinate court was necessary. Therefore, I could not act in
any other way. No division chief was anxious to be given this new
division. Therefore, I decided that the defendant Rothaug should take
it over.[524] First of all, he was the youngest division chief, and
up to then he had been in charge of a division which was so small and
insignificant that it was easiest to replace him by a senior public
prosecutor.
From the situation report which I mentioned, it is also evident what
the number of cases was which came to us at the time. They amounted to
about seven to eight hundred a month. This figure shows me that when I
was interrogated preliminary to this trial, I made a wrong estimate. At
that time I thought it was twice as high as it actually was.
Q. Witness, you have just said that the number of cases in the
undermining of military efficiency increased to about seven to eight
hundred cases a month. I would like to put another question to you
on that subject. Did that mean that before the People’s Court seven
hundred to eight hundred cases of undermining of military efficiency
were tried every month?
A. No. That figure refers to the number of cases which were submitted
to the Reich prosecution for examination. As I will mention later, only
a small percentage of those cases--I estimate about 10 percent--were
kept back. All other cases were returned to subordinate courts. In my
situation report, if I may repeat that, I only gave the number which I
did mention there because only at the trial here I saw that situation
report again. I ascertained that the figures which I had given in
Exhibit 126,[525] from memory were evidently incorrect.
Q. By that you mean to say that the figures in Exhibit 126, the figures
which you gave from memory, are too high?
A. That is what I did mean to say.
Q. How did you, in general, treat these questions of undermining
military efficiency?
A. To a large extent the treatment of such cases depended on the clear
instructions from the Minister of Justice. It also depended on the
basic importance of these cases. To mention one example, I would like
to revert once again to the situation report of 9 February 1944, that
is Exhibit 220. In that report it says that the undermining of military
efficiency when committed by clergymen would have to be tried before
the People’s Court. That was due to a decree by the Reich Minister
of Justice. Generally speaking, however, in treating these cases I
attached the greatest importance to having every single file examined
carefully by the head of the department so that those points would not
be left unobserved which would justify treating that case in a more
lenient manner. For in particular the transfer of these cases as being
cases of lesser importance to the district courts of appeal or to the
Special Courts, to that I attached the greatest importance, as far as
it was at all possible. That is proved not only by the testimony of the
witness Gruenwald[526] before this Tribunal but it is also evident from
Prosecution Exhibits 178, 474, and 100.[527] For the numbers of cases
where criticism was exercised by the ministry on sentences passed by
lower courts, and in particular at the Weimar conference [_NG-674,
Pros. Ex. 100_] would remain incomprehensible unless many cases
which were more serious had been transferred to the lower courts by the
Reich prosecution.
In the last analysis, perhaps the percentage of cases which we kept
back, as I mentioned before, and of the cases where an indictment was
filed, at the People’s Court, I estimate those cases at 10 percent.
* * * * * * *
Q. Witness, do you still remember what information you received in
regard to the question whether recruiting offices for the Polish Legion
existed in Switzerland?
A. I said that already. From the answer of the head office of the
border police in Stuttgart, it was apparent without doubt that
according to the information which they had from Switzerland that
there was an illegal recruiting and transport service which helped
Poles to get to Switzerland and to Africa; to that extent, Switzerland
apparently did everything that it was possible to do, and as far as it
could; and from the files it is occasionally apparent that the Swiss
border officials returned the Poles who had crossed the border from
Germany; but in all cases they probably did not succeed.
Q. Had the Ministry of Justice also informed you to what extent
recruiting offices for the Polish Legion existed in Switzerland?
A. If I remember correctly, the same information had also reached us
from the Foreign Office via the Ministry of Justice.
Q. Thank you. The prosecution seems to assume that the indictments
were not the results of attempts to join the Polish Legion, but were a
means to prosecute Poles because of their flight from Germany and their
places of work. Please comment on this.
A. For us, that certainly was not the motive for the filing of an
indictment, because we were convinced that the suspicion was justified.
Moreover, against such allegations the fact probably speaks which can
be gathered from Exhibit 259[528] of the prosecution. From that it can
be gathered that particularly at the time in question here, hundreds
perhaps thousands of Poles left their places of work in the Reich; and
if only a very small number of these were tried before a court because
they wanted to join the legion, this makes it apparent that they
were not tried only because they left their place of work. The other
participating offices, that is the police and the counterintelligence
of the OKW, were probably also of the opinion that here we were faced
not only with flight from the place of work, but flight for a special
purpose.
The general situation was just as I described it. During the war the
German Reich, as any warring power, had closed its borders and this had
been done for reasons of the security of the State and was therefore
necessary because everybody who crossed the border and reached neutral
country or an enemy country took along with him important experiences
and knowledge which he had gained in the warring country. Poles knew
that too.
Q. Witness, you have already stated before that a Pole, only for the
reason that he had left his place of work on his own, could not be
tried and sentenced by the People’s Court. Now, according to your
determinations in the individual cases in which Poles were indicted
because of attempts to reach the Polish Legion, did other reasons for
suspicion also play a role which supported the suspicion on the basis
of which then in accordance with the law you were obliged to raise an
indictment?
A. I just wanted to talk about that.
Q. Will you please state what reasons for suspicion have regularly
played a role also?
A. If somebody crosses the border with a certain purpose in mind and
he is caught in the act, then, in the most infrequent of cases will he
be inclined to say and be ready to say what intentions he had in mind,
for in so doing he would damage his own case. Criminal cases which were
conducted under this point of view--and this is probably not the case
only in Germany--therefore are based to a large extent on the justified
conclusions one can draw from the facts available.
Now, it was here known generally what I have already stated, that this
way led to the Polish Legion if one started out on it. Secondly, it
was known that among the Polish workers in south-western Germany these
conditions and knowledge thereof were widespread. Furthermore, it was
generally known to those workers too that favorable conditions for work
could not be expected in Switzerland; and finally, it was in accordance
with the experiences which had been gathered in other trials that a
large number of these people who crossed the border after their arrest
did not even deny this intention. These general considerations alone
would have, in my opinion, justified such a strong suspicion that in
accordance with German Code of Criminal Procedure sufficient suspicion
for the filing of an indictment existed, and that thus the indictment
had to be filed in accordance with the law.
The two indictments which bear my signature are the Bratek and
Stefanowitsch cases. The following element, however, is added. Bratek
had referred to the fact that he only wanted to cross the border in
order to avoid work.
DR. GRUBE: In the Bratek case here we are concerned with
Prosecution Exhibit 136.[529]
DEFENDANT LAUTZ: As I said, he claimed it was only for the
reason to attempt to seek work that he did want to cross the border.
By means of the additional investigations which the division chief
instituted, however, it had been found that he did not like to work;
he had already left other places of work, so that his statement that
he wanted to seek new work in another country in which there were
difficult conditions of work did not seem very credible. So for that
reason his statement had to be accepted with reservations.
* * * * * * *
_CROSS-EXAMINATION_
* * * * * * *
MR. KING: I ask you if it were possible to commit treason
against an individual who was not of German citizenship in the period
which we are discussing.
DR. GRUBE: I object to this question. This is a question which
is asking only for the personal opinion of the witness.
PRESIDING JUDGE BRAND: The objection is overruled.
DEFENDANT LAUTZ: If I understand you correctly, Mr.
Prosecutor, you want to know whether the act of treason was punishable
only when it, the act, was directed against the State as such, or also
when it was directed against an individual person.
MR. KING: Yes. My following question was going to refer to
the differences which you raised. But actually you have stated it very
well. I want to know whether at this time the period which we are
concerned with at the moment, if during that period treason could be
committed against an individual who was not a German citizen, and I
take it that your answer on that is no, is that correct?
DEFENDANT LAUTZ: That had been different ever since the law of
1934.
Q. Yes. I know but I am speaking of the law prior to 1944.
A. No, what I said was 1934. I said the law before 1934. I am referring
to the law 1934 with article 91 [of the Reich Criminal (Penal) Code]
which then became a law.[530]
That article says that the act of treason can be directed against
a German national as an individual, and it was a question of
interpretation whether “German” should here be interpreted as being
of German blood or being a German citizen, and the famous document
in which I made a report to the Reich Ministry of Justice deals with
that question.[531] It is that report which concerns itself with that
question. The courts in the Reich interpreted article 91 to the effect
that it was not the nationality which was decisive but the race, the
blood.
Q. Yes. Well, it is that letter to which I want eventually to refer. I
wanted, however, to get your understanding of the earlier laws before
we get around to discuss the question of that letter. What you have
just said was that article 91 which was adopted in 1934 expanded the
concept of treason to the extent that there could be treason against an
individual who was a Reich national; is that correct?
A. Against a German. And who is a German? That was a question of
interpretation. I believe I can best make myself clear if I come back
to the example which is mentioned in this report. After the occupation
of the eastern territories, that is Poland, that is to say after the
occupation of those territories, which formerly had been German, the
following case came to our knowledge. An ethnic German, a person who
was a German by blood, had had the following experiences. Behind his
back a Polish agent had hidden espionage material in his home without
the German knowing that that material had been hidden there. The
Polish agent then chased the Polish police after him, and his home was
searched by the Polish police. The material was found and the German
who was completely innocent but who could not prove his innocence was
tried in Poland before 1939 and he got a very heavy prison sentence. I
don’t think you would approve of that, would you? When we occupied the
eastern territories that case came to our knowledge--
Q. Excuse me, Dr. Lautz. Is this the Krippner case to which you refer,
or is this the Moses case? There are two of them which you mentioned in
this report.
A. No, no. I cannot remember the--
Q. Would you like to see that exhibit?
A. I cannot remember the name unless you would show me the document.
The name doesn’t matter. It is the facts of the case that matter here.
Q. I think you will find this report referred to in document book 5-B,
beginning on page 73 of the German text.
PRESIDING JUDGE BRAND: Dr. Lautz, will you finish what you
were saying when counsel interrupted you?
DEFENDANT LAUTZ: Yes. I will. After the occupation of Poland
that shameful case, to use a mild expression, came to the knowledge of
the German authorities; and we were now concerned with the question as
to what could be done; and the application of article 91 of the German
Criminal (Penal) Code was interpreted so that in this case treason had
been committed against a German. Treason had been committed against a
man of German blood, treason which could be prosecuted.
Q. It was treason against one of German blood who was not then a German
citizen.
A. He was not a German citizen, but he was of German blood.
Q. The date of that again? When that happened, when it came before this
department?
A. Your Honor, may I just have a look at the report? May I have a look
at the report to make sure of the date?
Q. Yes.
A. That is the case Goleck, which is mentioned in the report. The false
accusation against the person of German blood was made in the year
1938, that is to say, it happened before the war.
Q. And it came up to the Ministry of Justice after the war to decide?
A. That happened during the war when Polish files were confiscated.
MR. KING: Dr. Lautz, you have the letter before you now?
DEFENDANT LAUTZ: Yes.
* * * * * * *
Q. May I ask you to refer to the top of page 75 in the German text, I
believe it is? It is the middle of page 68 in the English.
PRESIDING JUDGE BRAND: What exhibit are you referring to?
MR. KING: I am referring to Document NG-548, Prosecution
Exhibit 347, Your Honor.
Now, could we look at that separate opinion of yours at the end of the
letter?
DEFENDANT LAUTZ: Yes.
Q. Go ahead, please.
A. It begins with the words, “With the Reich Leader SS and the
President of the People’s Court I agree with this.”
Q. Dr. Lautz, see if you can find this portion in the document which
you have. I am sorry you don’t have the document book as it was
originally distributed. I had it paginated for that. Can you find this
statement? You say, “Therefore”--and I believe this is part of your
letter--“Therefore, I find it necessary, on principle, to protect by
means of the German Criminal (Penal) Code those racial Germans who have
seriously suffered through action such as mentioned in article 91,
paragraph 2 of the Penal Code, provided that action deserves punishment
in accordance with sound German sentiment but where such punishment,
considering the elements of wrongdoing of that particular case, cannot
be brought home on the strength of any other directly applicable penal
regulation.”
Those are your words, are they not?
A. Yes.
Q. And then you say in the final paragraph of the letter, “In the
majority of the cases it will be offenses which have been committed by
foreign nationals abroad against racial Germans.” Is that correct?
A. Yes, it is.
Q. That is correct, and those are your words?
PRESIDING JUDGE BRAND: Will you answer audibly so that
reporters may get it?
DEFENDANT LAUTZ: What the prosecutor stated just now is what I
reported.
MR. KING: And then you asked for approval of your
interpretation; is that correct? That is the very last sentence in the
letter?
DEFENDANT LAUTZ: Yes. I had to ask for that because the
decision lay with the Minister of Justice.
Q. Yes. Now, in subsequent cases that came before the People’s Court in
which you were required to file the indictment, you based the charges
on the interpretation which was subsequently approved by the Reich
Ministry of Justice, the interpretation which you ask here? Is that
right?
A. From case to case the Minister of Justice afterward decided as to
whether that procedure was to be adopted or not. He did not issue a
general instruction or directive.
Q. Do I understand you correctly? Let me restate it. Did you mean to
say that even after you asked for this interpretation it was necessary
in the future when cases came up involving these facts that the
Minister of Justice give his approval before you filed your indictment?
Is that correct?
A. The indictment was drafted, and the draft was submitted to the
Minister of Justice, and he approved it or did not approve it.
Q. But the draft of the indictment was based on the law which you
suggested be interpreted as we have discussed it. Then having drafted
the indictment based on this interpretation you got approval or
disapproval, as the case might be, from the Minister of Justice. Is
that right?
A. Yes.
PRESIDING JUDGE BRAND: What was the answer?
MR. KING: The answer was yes, Your Honor.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT BARNICKEL[532]
_DIRECT EXAMINATION_
* * * * * * *
DR. TIPP (counsel for defendant Barnickel): Witness, please
describe further events.
DEFENDANT BARNICKEL: About the end of 1937--beginning of
1938, I was in Berlin again. I told the personnel Referent, who was a
different official then, about my wishes for the position in Munich,
but the case was not that far yet. To my great surprise, on 30 November
1938, I received the communication that, on 1 December 1938, I was to
be appointed Reich prosecutor with the People’s Court.
* * * * * * *
Q. When and how did you assume your new position?
A. As I have already explained, I received the formal appointment on 30
November 1938. The Minister granted me a few days to straighten out my
affairs in Munich, and thus, I assumed office on 6 December 1938.
Q. What position did you hold in the beginning?
A. On 3 November 1938, the chief Reich prosecutor of the People’s
Court, Parey, had had a fatal accident. His permanent deputy, at
that time the only Reich prosecutor, Parisius, was in the hospital
seriously injured. On 1 December 1938, three new Reich prosecutors
had been approved for that office. Of those, two were from the office
proper, and I was the third one. Upon instruction by the minister, I
was to be in charge of the office as a deputy because according to my
age I was the oldest of the three Reich prosecutors there.
Q. Witness, in this connection, I should like to discuss a document
submitted by the prosecution. It is Prosecution Exhibit 347, Document
NG-548. The letter has the heading “Chief Reich Prosecutor with the
People’s Court” and is of 23 April 1942, and is directed to the Reich
Minister of Justice. In this letter, another letter by the Reich Leader
SS and Chief of the German Police of 13 December 1941 is quoted. The
latter letter is directed to, and I quote, “The Chief Reich Prosecutor
with the People’s Court, attention: Senior Reich Prosecutor Dr.
Barnickel, or deputy.” You are therefore addressed as Chief Reich
Prosecutor with the People’s Court, Witness. Can you please explain how
it may have come to that designation?
A. I cannot answer that question with absolute certainty because I do
not happen to know why the office which sent that letter did it. It
is, however, certain that I was never Chief Reich Prosecutor with the
People’s Court. I was only Reich prosecutor at all times, although,
during the first 2 months, I deputized for the Chief Reich Prosecutor,
but during the first few years of my activity I frequently received
similar letters. The first few times, I actually opened them. Later, I
sent them to the office for incoming mail unopened. I assumed at that
time that some office of the Gestapo, by mistake, had entered my name
as Chief Reich Prosecutor on their records because, in the beginning,
I was in charge of the office as a deputy. But the main point seems to
be the following. I can see from the letter which is addressed to me,
that it is quite clear that I never had anything to do with the answer
to that letter. I see that with absolute certainty from the contents of
the letter.
Q. For how long after you assumed the office were you in charge of the
affairs of the Chief Reich Prosecutor?
A. Until 1 February 1939.
Q. Did it happen frequently later that you had to deputize for the
chief?
A. Yes, but not very frequently. The Chief Reich Prosecutor and his
permanent deputy appointed by the Minister, Reich Prosecutor Parisius,
of course, tried to arrange not to be absent at the same time. Only
if that did happen, I, as the oldest Reich prosecutor, had to take
care of affairs. I have to correct myself, that is to say, after Reich
Prosecutor Parisius, I was the oldest. Since the end of 1943, I was
no longer used to deputize. I was evacuated to Potsdam at that time
and Reich Prosecutor Weyersberg was the deputy of the Chief Reich
Prosecutor.
* * * * * * *
Q. * * * May I ask you now to direct your attention to Prosecution
Exhibit 159, which we have already mentioned? That is the Prosecution
Document NG-381.[533] It appears in document book 3-G, on page 22
of the German and page 19 of the English text. The subject of these
proceedings is the trial of Oscar Beck, for undermining the military
efficiency.
PRESIDING JUDGE BRAND: A correction, for the purposes of the
record. Exhibit 159 is in document book 3-D, at page 17 of the English.
DR. TIPP: Thank you.
The indictment appears on page 2 of the document, and following pages.
On page 4 there is the signature, “As deputy, Dr. Barnickel.” That is
to say, you signed that indictment. Apparently you did so when you were
deputizing for the chief who was away. At any rate, the document does
bear your signature. Would you please tell us why that indictment was
filed with the People’s Court?
DEFENDANT BARNICKEL: Because of the fact that I was so
overburdened with work at the time, I cannot remember any details of
the case. However, I can say for certain that the reason for filing the
indictment with the People’s Court was not--I am referring to the fact
which has been mentioned here before--that Beck was of mixed descent,
first degree. I think I have explained sufficiently my attitude to that
question in general, but I shall revert to that subject later. That
attitude of mine had remained the same for 10 years, and I did not
change it in 1943. The fact that it was a Vienna Ortsgruppenleiter who
denounced the man--that fact, too, is of no importance. I believe it is
hardly necessary for me to mention this, but for my department, too,
which submitted that case to me, it was of no importance either.
As I look at that indictment now, I am inclined to assume that we
wanted to arrive at a basic decision. The novel element in the
proceedings against Beck was the fact that he had criticized the
employment of women. That was a measure which only started in the first
weeks of 1943. It was designed to keep up production, and it had been
ordered by the Reich and not by the Party. I believe that all the
belligerent countries had introduced measures of that kind.
According to the date when the indictment was filed, it is possible
that this indictment of Beck was the first one of its kind. Not only
the legal questions decide what the basic element of such a case is,
but novel facts of a case also can constitute a basic element.
For the rest, ever since I had been acquainted with the Reich
prosecutor’s office, occasionally less significant cases, where one
was not expecting a very serious sentence and certainly not the death
sentence were indicted with the People’s Court if they were of a
certain importance for the whole country.
Q. Witness, you say, then, that you believe the indictment was filed
with the People’s Court because the case was important for the whole
country and because it contained a novel element?
A. Yes, that is possible.
Q. Does the form of the indictment show that it was the intention to
ask for the death sentence?
A. No, on no account. When the indictment was phrased, and in
particular because of the legal provisions which were cited, in all
that there is nothing to indicate that it was intended to ask for
the death sentence. On the contrary, and I should like to refer to
the enclosure, the letter which was sent with the indictment. It was
written on 30 July 1943, to the presiding judge of the People’s Court.
In the second paragraph of that letter, which is also signed by me, it
is expressly pointed out that under article 2 of the law of 20 December
1934, prosecution under that law had been ordered. That law was the
Insidious Acts Law, which has been mentioned here a great many times.
I should think that is a proof for the fact that we considered the
application of that law also possible, for otherwise it would have been
stupid to make reference to it. The maximum penalty for violation of
the Insidious Acts Law would have been a 5-year sentence. I think it is
possible that not only the question of the employment of women was the
cause for taking this case to the People’s Court, but also the question
of the application of the law in general.
Q. Witness, what was the senate with which your department cooperated
in the field of undermining military efficiency?
A. It was the fourth senate, and the presiding judge was Dr. Koehler,
whose name has been mentioned in a favorable context repeatedly here.
May I state that in 1944 Dr. Koehler was transferred from the People’s
Court to Stettin, because Freisler did not approve of him. The fourth
senate dealt mainly with high treason cases. Later on it also had to
deal with the undermining of military efficiency. However, when the
distribution of work was changed again, it had to return those cases
because there was dissatisfaction with the sentences that that senate
had passed.
* * * * * * *
PRESIDING JUDGE BRAND: I wonder if you could tell me what
was meant by the last phrase in that letter, where you say, “The
prosecution under article II of the law of 20 December 1934 has been
ordered as a precaution.” The part, “the prosecution has been ordered
as a precaution,” what did you mean by that?[534]
DEFENDANT BARNICKEL: Your Honor, by that I want to say that
that passage points out that if sentence was not to be passed on
the basis of undermining military efficiency, prosecution under the
Insidious Acts Law would be made.
Well, that was a case of a measure which might be taken, Your Honor.
Q. I understand. Was it the practice to appoint defense counsel even in
cases where the death penalty was not expected, in your court, in the
People’s Court?
A. Your Honor, at my time--I don’t know what happened later--but at my
time, every defendant who appeared before the People’s Court had to
have a defense counsel without exception. That had nothing to do with
the death penalty.
PRESIDING JUDGE BRAND: Thank you.
DR. TIPP: Witness, may I repeat my question. I may ask you to
tell us what were these general prerequisites for filing an indictment?
DEFENDANT BARNICKEL: Well, that question has been touched
upon repeatedly here. There had to be sufficient suspicion that
the defendant had committed the offense, that is to say, a certain
probability was sufficient.
Q. In connection with the undermining of military efficiency
particularly in this case, I think a further question is important. The
question, what did one mean when one said the undermining of military
efficiency in public?
A. According to the jurisdiction of the Supreme Reich Court and the
Supreme Military Court, military efficiency was undermined in public
even if statements had been made in front of only one person, if the
offender had to expect that that person would pass on his statements to
an indefinite number of other persons.
Q. These two prerequisites, therefore in your opinion in the Beck case,
did exist?
A. Yes.
Q. Now, one more question concerning the undermining of military
efficiency cases in general. Were all those cases dealt with by your
department?
A. To start with, yes; from the summer of 1943, however, certain
categories of cases were transferred to Department I, which
collaborated with Freisler’s senate. According to the distribution plan
of the People’s Court, Freisler could also deal with certain cases from
my department, at his senate.
Q. How long was it that your department dealt with those undermining of
military efficiency cases?
A. Until 31 December 1943. Then they were transferred to another
department.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG
ON THE LOPATA CASE[535]
_DIRECT EXAMINATION_
* * * * * * *
DR. KOESSL (counsel for defendant Rothaug): The Lopata case
was first tried by another court and not by the Special Court in
Nuernberg.[536] Please tell us what was the first court that tried his
case and whether that court was a Special Court.
DEFENDANT ROTHAUG: The case was tried for the first time on 28
April 1942, before the local court at Neumarkt in the Upper Palatinate.
The local court was not a Special Court.
Q. What were the facts which were the subject of the proceedings
against Lopata during the trial at Neumarkt?
A. The defendant had been charged only with having approached a woman
in a way which was sexually offensive, although that woman again and
again tried to get rid of him. He was also charged with irregular
behavior, which, however, in the course of developments played no
important part and that charge was dropped.
Q. Please tell us what was the personal description of the defendant
which was given by the local court at Neumarkt?
A. In the judgment, it is pointed out that the defendant looked well
groomed, but he was insolent, lazy, and he had been guilty of the
offense with which he was charged in a way, and I quote, “Which showed
an unheard of extent of shamelessness and insolence of which only a
member of the Polish nation would be capable.” However, that is a
statement made by the local court at Neumarkt.
Q. Did the local court at Neumarkt have anything to do with the Special
Court at Nuernberg?
A. Nothing. No.
Q. Was the judgment by the local court at Nuernberg upheld?
A. The judgment by the local court at Neumarkt was by decision of the
Reich Supreme Court of 14 July 1942 annulled by way of a nullity plea,
and the trial was transferred to the Special Court at Nuernberg.
Q. What was the criticism of the Supreme Reich Court in the judgment
passed by the Neumarkt local court?
A. The Reich Supreme Court criticized the fact that the local court
at Neumarkt, concerning certain generally known conditions which were
connected with wartime conditions, although that had been obvious in
the case in question, had not taken such conditions into consideration,
and therefore apparently had ignored the fact that the offense with
which the defendant had been charged also violated article IV of the
law against public enemies. For that reason, it was necessary to refer
the case to another court so that the case be examined from that point
of view, and if that should be found right, so that article IV of
the law against public enemies could be applied, if that were found
applicable. Further reasons for the decision which are given are that
the application of article IV of the law against public enemies would
mean that a considerably higher penalty could be pronounced, and that
for that reason the case would have to be tried again.
* * * * * * *
Q. In its opening statement the prosecution quoted the following
sentence from the judgment: “The inferiority of the defendant lies in
his character, and the reason for it evidently is that he belongs to
the subhuman race of the Poles.” Is that quotation correct?
A. Well, there is a typing error here which rather distorts matters
because actually it says in the judgment--it doesn’t say “the subhuman
race,” but it means the subhumanity of [Polnisches Untermenschentum],
and that is something essentially different. We have subhumanity in
Germany and we have developed our own laws against that and when we
speak of Polish subhumanity we do not mean the Polish people as such;
that is what we would have meant if we had spoken of the subhuman
Polish race, and for that idea and opinion there is a concrete reason.
In many cases we had found that among the Poles who had been brought to
Germany there was a considerable number of highly criminal types from
Poland. The agencies which dealt with getting labor from Poland did
not select properly and thereby created a great danger. We discovered
people who had been previously convicted for murder and had been
sentenced to penitentiary for life, but who on account of the outbreak
of war had been set free, and who had now come to Germany. That point
of view played a part in considering all these questions. That is to
say, we did not speak of the subhuman Polish race but we spoke of the
subhumanity in Poland.
PRESIDING JUDGE BRAND: May I interrupt, please? The question
of translation has arisen. The Tribunal would be glad to have a check
made by the prosecution as to the original document and the proper
translation of it. That will dispose of this entire matter.
MR. WOOLEYHAN: Yes, Your Honor.
DR. KOESSL: The originals of the files here--I don’t
know--probably the prosecution has the copy, and perhaps that copy also
has the mistake.
PRESIDING JUDGE BRAND: It is a question of what the document
says and it should be able to be ascertained with definiteness. The
suggestion that the document may have used the wrong word is not
satisfactory to us. We want to know what word was used in the original
document.[537] Go ahead to something else and straighten that out
afterward.
DR. KOESSL: Witness, at the trial before the Special Court at
Nuernberg, were any facts brought to light which were not mentioned by
the judgment passed at Neumarkt?
DEFENDANT ROTHAUG: That is clearly evident from the judgment.
In addition to the facts which had originally been established, a
further fact had been established according to which the defendant had
attacked the old people who were living on a lonely farm with a dung
fork and had exerted so much pressure on them that the only way for
them to save themselves was to unleash the dog.
When evaluating the character as a whole of the defendant, as the
judgment shows, that fact was taken into account. That fact in the last
analysis was decisive.
Q. Can you show that that point in particular was very decisive? Can
you show us that by quoting a passage from the original file?
A. That is shown by our attitude to the clemency question. In our
opinion on the clemency question we, without exception, repeated those
facts which had been decisive for us in deciding on the sentence. We
did not state other general points of view concerning the clemency
plea because we didn’t know them, and secondly, because we were of the
view that they didn’t affect us in any way. That brief opinion on the
clemency question says--
“The character of the defendant has been clearly described at
the trial, in particular also the fact that the defendant, apart
from the offense which in its execution was very grave, has also
made himself guilty of violent behavior toward his employer.”
In other words, it is made perfectly clear here that the last point of
view was decisive for us.
PRESIDING JUDGE BRAND: May I ask you a question to which the
answer, I think, could be brief? My notes show that the defendant was
sentenced to death for violation of articles 2, 3, and 4 of the law or
decree concerning Poles and Jews. Is there such a provision in your
judgment? You needn’t read it. Just tell me if that is in there.
DEFENDANT ROTHAUG: Yes.
PRESIDING JUDGE BRAND: Thank you.
DR. KOESSL: The witness Doebig said that the offense in his
view was not designed to prove that the offender was a public enemy.
Would you, therefore, please briefly summarize the points which led
you to assume that a very serious offense had been committed?
DEFENDANT ROTHAUG: The justification for our sentence can
be seen from the opinion given by the court, and that is before this
Tribunal. I cannot say any more. All I can add is, that specifically
for this case that is to say for the original case that had to be dealt
with, that is to say, for molesting the woman in a sexual way, there
was a decision from the Reich Supreme Court which stated an opinion
specifically in regard to this question and discussed it from its basic
angles, and that decision evidently was the cause for considering the
death sentence at all.
With us a further point of view was added and it was that decision that
was made available to the court.
* * * * * * *
PRESIDING JUDGE BRAND: I should like your professional
opinion. Was the nullity plea[538] involved in the Lopata case? I don’t
remember at the moment.
MR. WOOLEYHAN: Yes, Your Honor.
PRESIDING JUDGE BRAND: What is your best, honest judgment as
to whether or not if Lopata had been a racial German there would have
been a nullity plea and a direction from the Reich supreme court to
retry the case? What is your honest opinion about that?
DEFENDANT ROTHAUG: Mr. President, these two cases cannot be
compared with each other because the Reich Supreme Court in this case
stated its opinion on the basis that he was a Pole.
Q. Now, I am asking if Lopata had been a racial German, all other facts
being the same as they were in the Lopata case, is it your judgment
that the nullity plea would have been invoked and that the Reich
Supreme Court would have ordered the case sent back to you for another
trial? I should like your opinion on that.
A. Mr. President, this question is very interesting, but I cannot even
imagine that possibility, even theoretically, because the very elements
which are of the greatest importance could not be applied to a German.
PRESIDING JUDGE BRAND: That’s all I wanted to know.
* * * * * * *
F. Handling of Religious Matters
TRANSLATION OF DOCUMENT NG-630
PROSECUTION EXHIBIT 428
LETTER FROM DEFENDANT SCHLEGELBERGER TO CHIEF PUBLIC PROSECUTORS AND
SENIOR PUBLIC PROSECUTORS, 20 JULY 1935, CONCERNING THE “STRUGGLE
AGAINST POLITICAL CATHOLICISM”
The Reich Minister of Justice
V a 25 399
Berlin W8, 20 July 1935
Wilhelmstrasse 65
[Illegible Stamp]
[Handwritten] 2 copies sent to [illegible]
To: Messrs. Chief Public Prosecutors and Senior Public
Prosecutors
Subject: Struggle against political Catholicism
For your confidential information and notice, I enclose a copy of the
Prussian Ministerpraesident’s decree of 16 July 1935--St.M.I. 7905--to
the Oberpraesidenten and Regierungspraesidenten, etc.
I decree it to be the duty of all prosecuting authorities to cooperate
closely with the competent State Police and administrative authorities
in taking action--with the deliberation necessary to avoid mistakes but
also with the severity necessitated by the dangerous nature against all
manifestations of the efforts of political Catholicism to undermine the
unity of the State and create discord among the people, wherever they
appear without regard for the person or rank of the perpetrator.
[Handwritten remarks on left margin illegible; illegible signature.]
For this purpose, the application of the following laws will be found
particularly useful: Articles 130a, 131, 134a, 134b (as of 1 September
1935) Reich Criminal (Penal) Law; further, articles 1 and 2 of the law
against insidious attacks on the State and Party and for the protection
of Party uniforms of 20 December 1934[539] (Law Gazette I, p. 1269);
the decree of the Reichspraesident for the Protection of People and
State of 28 February 1933[540] (Law Gazette I, p. 83); the law against
the founding of new parties of 14 July 1933 (Law Gazette I, p. 479);
and the law against public collections of 5 January 1934 (Law Gazette
I, p. 1086).
The cases must be investigated with the utmost rapidity, so that
the punishment will follow the crime as quickly as possible. The
penalties called for at the trials shall be such as the national
sense of justice deems appropriate to the dangerous nature of these
intrigues against the State and people and the unscrupulousness of the
perpetrators.
A report must be made to me in quintuplicate in all cases where
proceedings of this type are initiated. At the close of the
investigation a concluding report on the incidents indicating the
measures to be taken will be submitted to me. In case of an indictment,
the bill of indictment, and later the sentence, will be submitted,
each in quintuplicate. If the sentence imposed is made the subject of
an appeal, a report must be made to me immediately, indicating the
probable result.
This circular decree will be published in the next number of “Deutsche
Justiz,” together with an extract from the decree communicated below,
issued by the Prussian Ministerpraesident Goering on 16 July 1935.
As deputy:
[Signed] DR. SCHLEGELBERGER
PARTIAL TRANSLATION OF DOCUMENT NG-1808
PROSECUTION EXHIBIT 557
EXTRACTS FROM THE OFFICIAL FILES IN THE CASE AGAINST LUITPOLD SCHOSSER,
A CATHOLIC PRIEST, SENTENCED ON 19 DECEMBER 1942, UNDER THE LAW AGAINST
INSIDIOUS ATTACKS ON STATE AND PARTY, BY A SPECIAL COURT HEADED BY
DEFENDANT ROTHAUG
National Socialist German Workers Party
Kreisleitung Amberg-Sulzbach (Gau Bayrische Ostmark)
Bayreuth
Daily newspaper of the
district: Amberg-Sulzbacher
Zeitung
Office and Editor’s Office Amberg
Regierungsstrasse 1
Phone No. 6
Amberg, 12 June 1942
Kreis Office
Amberg, Kaiser Wilhelmring 9
Telephones: 346 and 325
Banking accounts:
County Savings Bank Amberg, Account No. 1501
Municipal Savings Bank Amberg, Account No. 150
The Kreisleiter Dr. K./St.
Journal No. 1156/42
(to be quoted in replies)
To the Public Prosecutor at the Special Court, Nuernberg-Fuerth
[Stamp]
Received: 13 June 1942
Prosecutor’s Office
Nuernberg-Fuerth 1c
Subject: Charge against the priest Luitpold Schosser, born at
Burghausen/Lower Bavaria, 28 April 1909, at Vilseck since
27 March 1939
On 17 May 1942 the Polish farm laborer, Martin Strysow, died in
hospital at Vilseck. The priest Schosser announced in church after
the usual Sunday evening May devotion that the transportation to the
cemetery and Last Sacrament of the Pole would take place immediately
afterward. Induced by this announcement, about 50 people, mainly women
and children, participated in the funeral procession and praying
loudly, as usual, rendered last honors to the Pole. A large number of
the population took offense at this incident.
By this action the priest Schosser has malevolently criticised
the national political demands of the National Socialist State.
Furthermore, he has debased the dignity of the German people in an
incredible way and has caused a great number of fellow Germans to
behave in an undignified manner.
Judging from the usual attitude of the priest Schosser it may be
expected that after having been informed of the charges made against
him, he will try to influence possible witnesses. Therefore, I request
his immediate arrest.
Heil Hitler!
[Signed] DR. KOLB
Oberbereichsleiter
[Rank in Nazi Party Leadership Corps]
[Stamp]
National Socialist Workers Party
Kreis Amberg-Sulzbach
[Handwritten]
To the President of the Special Court with the request to issue a
warrant of arrest for an offense against the law against insidious
attacks on State and Party.
Nuernberg, 15 June 1942
[Signed] SCHROEDER
Chief Public Prosecutor
Secret State Police
State Police Office Regensburg
Regensburg, 18 June 1942
[Stamp]
Received: 19 June 1942
Public Prosecutor’s Office
Nuernberg-Fuerth
B. No. 1854/42 II B 1.
With 1 file returned
To the Chief Public Prosecutor
as Chief of the Prosecuting
Authority at the Special Court,
Nuernberg
As I request you to gather from the enclosed reports, the case has
already been dealt with here. The offense committed by Schosser was
handled here in such a way that he was under police arrest from 1–15
June 1942. For that reason I have desisted from carrying out the
warrant of arrest against Schosser for the time being. In case the
warrant of arrest should nevertheless be executed, I request further
information.
BY ORDER:
[handwritten]
[Signed] Alt
[Stamp]
I. Make note of dispatch.
II. With file.
Secret State Police
State Police Office
Regensburg
Received: 24 June 1942
No. 1854/42 B 1
[Handwritten] To the Secret State Police, State Police Office
Regensburg, repeating my request of 15 June 1942.
Local Court
2 July 1942
Weiden (Oberpfalz)
[Stamp]
Nuernberg, 20 June 1942
Chief Public Prosecutor
[Signed] SCHROEDER
Arrest! Very urgent
Copy
1 c Sg 948/42.
Received: 21 August 1942
District Court Nuernberg-Fuerth
Criminal Cases
St.
To the President of the Special Court,
Nuernberg,
With the request to return the files, and to suspend the warrant of
arrest, and order the release of the accused.
Nuernberg, 21 August 1942
The Chief Public Prosecutor
as Chief of the Prosecuting Authority
at the Special Court
BY ORDER:
[Signed] HOFMANN
I. At the request of the Chief Public Prosecutor the warrant of arrest
of the President of the Special Court of 15 June 1942 has been revoked,
article 126 Criminal Procedure.
II. Order for release!
To the office of the Special Court--give order by telephone to
release the prisoner.
III. To the Chief Public Prosecutor--time of release from arrest--13.15
hours.
Nuernberg, 21 August 1942
The President of the Special Court
[Signed] DR. FERBER
Acting President
To II
Telephone conversation: Court Jail Weiden;
Telephone Charges: 3 Reichsmark
21 August 1942
Wi.
Received: 21 August 1942
Public Prosecutor’s Office
Nuernberg-Fuerth
Certified.
Nuernberg, 27 August 1942
Public Prosecution Nuernberg-Fuerth
[Signed] HUEMMER, Chief Clerk
The Registrar
[Stamp]
Chief Public Prosecutor
Nuernberg-Fuerth
Files for cases concerning insidious attacks on State and Party
Sg No. /194
_Verdict_
In the name of the German People
The Special Court for the district of the Nuernberg Court of Appeal
at the Nuernberg-Fuerth District Court rules in the criminal case,
against--on account of--in public session as follows:
[Handwritten]
Schosser, Luitpold, born in Burghausen, 28 April 1909, single, Catholic
priest at Vilseck, at present in detention pending trial is to be
punished by imprisonment of 1 year and 3 months and costs on account
of two compound offenses, namely misusing the pulpit, as well as
[violation of] article 2, paragraph 1 of the law against insidious
attacks on State and Party,[541] committed by attacks against the
National Socialist Reich in the religious-political sphere.
The 3 months of police arrest and of detention pending trial will be
taken into consideration.
[Signed] ROTHAUG
DR. GROS
GROBEN
TRANSLATION OF DOCUMENT NG-770
PROSECUTION EXHIBIT 291
CIRCULAR OF THE REICH MINISTER OF JUSTICE, SIGNED BY DEFENDANT ENGERT,
TO THE ATTORNEYS GENERAL, 12 DECEMBER 1944, REDEFINING LIMITATIONS ON
DIVINE SERVICES FOR PRISONERS[542]
The Reich Minister for Justice
Berlin W 8, 12 December 1944
Wilhelmstrasse 65
To the Attorneys General (except Prague)
Subject: Adjustments in the application of the execution of
sentences and detention custody (administrative ordinance)
of 29 September 1944 “Deutsche Justiz” [German Justice]
page 270.
Copies to the independent institutions, the district court prisons and
other court prisons for early distribution.
There is reason to believe that the regulation under No. 4 of the
Administrative Ordinance of 29 September 1944--“Deutsche Justiz”,
page 270--concerning adjustments due to the war in the application
of penalties and detention custody, is being misinterpreted. The
regulation that divine services for prisoners and persons in custody
will no longer be held is to be interpreted from the context. As the
title already indicates, the measures of the ordinance are due to the
war. The preamble to the ordinance already defines the purpose of the
adjustment of the application of the ordinance due to total war. This
purpose also restricts the application of the regulation under No. 4.
Divine services are only temporarily canceled and only then where they
are incompatible with the demands of total war.
Divine services at the present time are incompatible with the demands
of total war where and insofar as they necessitate time which is
essential to work for the waging of total war. Nor are they compatible
when and where the crowding of prisoners or detainees during divine
service constitutes a danger in itself or mixing the congregation of
the institution’s church or in view of the small number and the age
of the supervisory staff, it represents a danger to the institution’s
security and thereby continuous production.
Insofar, however, as the time needed for the requirements of total
war is not interfered with by the hours of divine services and the
maintenance of the institution’s safety can be guaranteed, divine
services may also be held in future especially at Christmas and other
sacred holidays.
BY ORDER:
[Typed] ENGERT
Certified: [Signed] LORENZ
Clerk
[Stamp] Reich Ministry of Justice
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
FATHER LUITPOLD SCHOSSER[543] CONCERNING HIS
ARRESTS AND TRIAL
_DIRECT EXAMINATION_
MR. WOOLEYHAN: Witness, would you please state your full name
and your profession?
WITNESS SCHOSSER: My name is Luitpold Schosser; I am a
Catholic priest.
Q. Father, where is your parish?
A. My present parish is at Wolfseck near Regensburg.
Q. Has that been your parish for some time in the past?
A. That has been my parish for 3 years and 3 months.
Q. Where was your parish before that?
A. Before my trial, my parish was at Vilseck.
Q. Father, where were you born and when?
A. I was born on 28 April 1909 at Bernhausen, in the Holledau [Central
Bavaria].
Q. What education did you have, and where was it?
A. For 4 years I attended grammar school in my own home village
Hadersbach. Then, for 9 years I went to the high school at Straubing.
Then, for 5 years I attended the university at Innsbruck, and for 1
year the Theological Seminary at Regensburg. In 1934 I was consecrated
priest. Then, I was assistant vicar in several places. At the end,
I was at Vilseck. Then my trial started, and after my trial from 1
February 1944 I have been a priest at Wolfseck.
Q. Father, while you were a priest at Vilseck, were you ever arrested
and imprisoned?
A. At Vilseck, I was arrested twice, and at Regensburg, I was arrested
once, because after my arrest I was not allowed to go back to Vilseck.
Q. Would you please state the dates, so far as you remember, of each
time that you were arrested and imprisoned?
A. Yes. For the first time I was arrested on 1 June 1942, and I was
kept in prison for 14 days by the police. That warrant was filled in by
the Gestapo. After I had been imprisoned for 2 weeks, I was released.
In the meantime, a second warrant for my arrest was issued by the
Special Court of Nuernberg, and on 1 July I was arrested again. Then,
until 21 August--that is for 7 weeks, I was in custody pending trial
at Weiden in the district court prison of Weiden. Then, again, I was
released and a few days later another warrant for my arrest was issued
again by the Special Court of Nuernberg. Then, I had been in prison
until 18 December 1943. For the third time I was arrested, that was at
Regensburg--and my arrest was made by the Gestapo.
So, altogether, I was arrested three times; twice at Vilseck and once
at Regensburg.
Q. Father, at any time during any of these three arrests, did the
police ever tell you who had signed the warrant for your arrest?
A. Yes, when I was arrested the second time, the police commissioner of
Vilseck told me that the warrant was issued by Rothaug from the Special
Court of Nuernberg.
Q. After you had been arrested, Father, and imprisoned those three
times that you describe, you also mentioned a trial. Were you ever
indicted and tried before a court?
A. My trial took place on 18 December, that is on 19 December 1942, and
the trial took place before the Special Court of Nuernberg at Amberg.
The trial took place because of a [Heimtuecke] insidious attack, during
a sermon which I had made 15 months before at Vilseck.
Q. Father, you state that you were tried on 19 December 1942, by the
Special Court of Nuernberg, but that the trial took place in Amberg. Is
that correct?
A. Yes, that is correct; it took place at Amberg, at the town hall.
Q. Would you please repeat again, so far as you know, the violation of
law for which you were indicted and tried?
A. Well, the first arrest originated from the burial of a dead Pole
who died at Vilseck and was sent over to the morgue from the hospital
as was customary there with the dead. The dead Pole, as every other
Catholic, was transported from the hospital to the morgue, therefore,
the church had given him the sacrament in the morning. In the morning
of this day he asked for a priest, and he was prepared for death.
During the afternoon, then, he died. In the evening before we had our
evening vespers--that was on a Sunday--the attendant of the morgue came
to see me, and he informed me that I had to order the transport of this
dead Pole from the hospital to the morgue and would have to take over
the arrangements. I asked him whether it was permissible for me to do
that, and he said, “Yes; the Magistrate has ordered that you do it.”
Therefore, I had no further doubts, and I went to the morgue, that is,
to the hospital, and I ordered the transport which was sponsored by the
church.
Before I made my sermon at the evening vespers, as is customary at
every transport of the dead, I communicated to my parish people that
later on a dead Pole would be transported from the hospital to the
morgue, because the people want to know who is the dead, who is in the
coffin in order to be able to know whether they have any obligation
to attend the funeral or not. Of course, as it was a Sunday, there
were quite a number of people in the church, comparatively, and quite
a number of them attended the funeral, because thus they had an
opportunity to go to the cemetery, which was situated outside of our
village.
Now, because of this communicating the fact to the people, I was
charged mainly by the Special Court. They considered it an invitation,
that is to say, that I intentionally invited the population to attend
the transport of the dead Pole. That was the main charge made against
me by the Special Court of Nuernberg.
They said that at this occasion, as the president said during the
trial, I was said to have expressed religious feelings and used them
intentionally in order to sabotage the directives of the State.
Q. Father, may I interrupt, please? You state that at the trial, the
main charges, so far as you know, were this conducting of a funeral
for the Pole and a sermon that you preached the previous year. Is that
correct?
A. Well, the main charge in my trial was the sermon. That was the real
reason for the trial, during the trial, the sermon was not so much
dealt with but rather this whole matter with the Pole was dragged into
the trial. In each detail it was talked about--just about this matter
of having had the Pole transported. I was considered an insidious
priest, and this was told to the public.
* * * * * * *
Q. Now, Father, the sermon that you delivered on the occasion in 1941,
to which the indictment referred, what text was that sermon?
A. Well, the text was the sermon of the seventh Sunday after Pentecost.
It is read every year. It is in Chapter VII of Matthew. “Beware of
false prophets who walk around in the cloak of lambs but who in their
interior are roaring wolves. You will recognize them from their
cloaks.” That was the beginning of my sermon.
Q. Father, was this verse from Matthew the text of the sermon on that
day every year?
A. Every year we use the same text.
Q. Now, Father, of the witnesses that were called against you--I
believe you said there were four or five, which was it?
A. There were four witnesses from Vilseck and the Gestapo official Alt,
but during the trial he didn’t talk at all.
Q. Well, of those four witnesses that did speak at the trial for the
prosecution, how many of them heard your sermon of the preceding year,
on the seventh Sunday after Whitsuntide?
A. Two witnesses had heard my sermon. It was the wife of the
Ortsgruppenleiter and the newspaper distributor Meyer Johann.
Q. What did the newspaper distributor say or testify about your sermon?
A. During the interrogation by the Gestapo official, he declared
that my preaching had been aggressive; he said that my sermon was an
incitement.
Q. Father, you said that during the Gestapo investigation, he said that
your sermon was aggressive and inciting, but that during the trial he
denied that. Is that true?
A. Yes, during the trial he denied that he had said that the sermon
had been an inciting sermon. This expression “Hetzpredigt,” [inciting
sermon] he did not use. That is what he said during the trial.
Q. Describe, Father, the testimony of the other witness that had heard
your sermon; namely, the wife of the mayor and Ortsgruppenleiter.
A. Well, the wife of the Ortsgruppenleiter had only referred, during
the trial, to what she had told the Gestapo official, and the other
witness, Kuffer, brought forward merely personal matters in order to
paint me as an insidious priest.
Q. But this last witness that you speak of, Kuffer, had not heard your
sermon, had he?
A. No, he had not heard my sermon.
Q. But the mayor’s wife had, is that correct?
A. Yes, the wife of the Ortsgruppenleiter attended the sermon and heard
it.
Q. Well, Father, at your trial did the mayor’s wife testify or was the
statement she had given the Gestapo only introduced?
A. No, the wife of the mayor only answered questions put to her by the
presiding judge. She, herself didn’t say much.
Q. During the trial, Father, so far as you remember having observed it,
will you please describe Rothaug’s conduct and words and statements
from the bench.
A. Right after my trial, in the cell of my prison, I took some
stenographic notes concerning the remarks made by the presiding judge,
Dr. Rothaug, and on the strength of those stenographic notes which I
have here on my table, I can make the following statement concerning
the trial. First of all, the presiding judge referred to my education
and there he became very personal right away and charged me with the
fact that my whole theological education was rather backward, and
that it would have been much better if I had studied something other
than theology. He said that I only observed the whole development of
national socialism as a bystander looking from the window. During my
trial, the Hitler Youth passed the town hall, and at that occasion
the presiding judge made the remark, “those down there, the Hitler
Youth, that is the real life.” Later on, in the course of the trial,
the presiding judge very often made ridiculing remarks concerning the
Catholic religion, and made insidious remarks concerning the profession
of priest. Some of these remarks, I can tell you literally, and they
were the following: “You Catholics allege that only Catholics will
reach heaven, all others will be in hell.” That is an assumption which
no Catholic will ever make. Then, he said, and this remark was repeated
again and again, “Not water gives value to man, but rather the blood.”
And, of course, the water he referred to was the Catholic sacrificial
water, or the water on the head--sanctifying water. For the National
Socialist ideology has to be given to the child already with the milk
of his mother; and there it appears my parents had failed to educate me
in this direction. Those were merely personal remarks.
Q. Father, may I interrupt a moment. Are you saying that the presiding
judge, Rothaug, made the remarks, such as you have just described, to
you from the bench, during the trial?
A. Yes, from the bench, during the trial. These remarks, I may say that
after all they were not only meant for me, myself, but for the whole
profession of priesthood.
Q. Father, you have said that in your indictment, the main charge was
one of malicious statements made during that sermon in 1941, but you
also said that during your trial Rothaug said much more about the
business of your giving a funeral service to the Pole. Can you give any
facts to explain why you say that?
A. Yes. Special Court Judge Rothaug dragged two things mainly into
this trial. First of all, the removal of crosses from the schools in
the district of Vilseck, and then this transporting of the dead Pole
from the hospital to the morgue. If I may add something concerning this
matter of transferring the dead Pole; there again I can give you some
more details.
Q. Yes, Father, I would be very interested in what Rothaug said about
your transporting the dead Pole.
A. The whole courtroom was fully occupied. I, as well as the people
attending the trial, was quite astonished especially by Rothaug going
into the details concerning this Pole matter. He came back again and
again on this matter in order to prove to me that I really had made
insidious statements; and that I had had insidious and bad intentions,
and on this occasion Rothaug showed a terrible hatred against the
Polish people.
* * * * * * *
Q. Father, after your trial was concluded, what sentence did you
receive?
A. I was sentenced, on the grounds of insidious attacks, to 15 months
of prison, and 3 months of custody pending trial were counted.
Q. Father, after the ceremony and sermon which you preached on the
seventh Sunday after Whitsunday 1941, how long was it from then until
your trial, approximately?
A. About 15 months.
Q. Then, for 15 months after you preached the sermon for which you were
tried as having made insidious utterances, nothing was done to you by
the way of trial; is that correct?
A. No, during these 15 months nothing happened.
Q. One moment, Father, please. Fifteen months after your sermon, during
which nothing was done, you were tried, and part of the case was the
funeral sermon you conducted for a Pole, is that correct?
A. May I ask you to repeat the question, please?
Q. Father, 15 months after your sermon, during your trial, your conduct
of a funeral for a Pole was a part of the trial, wasn’t it?
A. Yes, during the trial.
Q. Now, Father, when was this funeral for the Pole that you conducted?
A. That was on the third Sunday in the month of May. I think it must be
about 17 May 1942.
Q. In other words, Father, the sermon that you preached, on which the
main count of your indictment was based, was 15 months before your
trial, and the Polish funeral was 2 or 3 months before your trial? Is
that correct?
A. Well, the funeral of the Pole was in May 1942, and the trial took
place in December 1942. That would be about 6 months.
MR. WOOLEYHAN: There is no further direct examination, Your
Honor.
PRESIDING JUDGE MARSHALL: Does any defense counsel desire to
cross-examine this witness?
DR. KOESSL (counsel for defendant Rothaug): I ask to examine
the witness.
THE PRESIDENT: You may proceed.
_CROSS-EXAMINATION_
DR. KOESSL: Witness, for the first time you were arrested on 1
June 1942, is that correct?
A. Yes.
Q. You said before that you made the church sponsored transfer [to the
cemetery] of the Pole, and that you were arrested because of that. Was
this church sponsored transfer of Poles prohibited?
A. It was not prohibited for Poles, but I was charged with only the
publicizing of this fact.
Q. I could not quite get that, unfortunately. May I ask you to repeat
what you were charged with?
A. I was charged with the fact of having publicized this church
sponsored transfer which is usual at Vilseck, and that I made it
public. That was explained as if I had invited and even asked the
population to attend the funeral.
Q. In other words, you were not charged with having transferred this
Pole and sponsored it by the church, but rather, it was the fact that
you had violated the State directives, is that correct?
A. Yes.
Q. The first point was dealt with only by the Gestapo?
A. Yes.
Q. In other words, Rothaug had nothing to do with that?
A. No, he had nothing to do with that.
Q. However, you were charged with other violations of State directives,
were you not? Is that correct?
A. No, that is not correct. The Ortsgruppenleiter Stubenvoll had
informed the Kreisleiter, Dr. Kolb, and he raised the point again
because this sentence of 2 weeks was not enough for him, and that is
the way this matter came to the Special Court in Nuernberg, and then it
went on.
Q. Well, did this matter lead to a trial then?
A. No. As far as I know--
Q. Please go on.
A. As far as I know from my lawyer, this matter was diverted by Berlin,
and that is why the second time, on 21 August, I was released again.
Q. But then there were other denunciations against you?
A. Yes, later on. After I had been released for the first time and when
I was in custody pending trial for the second time, only then was this
sermon brought to the knowledge of the [Nuernberg] Special Court.
Q. It seems that you were also denounced by the Ortsgruppenleiter for
other activities.
A. Well, no, I was not denounced. I was only charged with them and
reprimanded, but they had nothing to do with the court.
Q. Just a little bit slower, please.
A. At Vilseck, I only discharged my general duties as a priest.
Q. But your activities at school were talked about and other activities
which were not compatible with State directives at that time?
A. Well, I have to object to that. That was only the opinion of
Stubenvoll. Only in his opinion were those activities against the
State. I never violated any State directives in that matter. I only
stuck to my church directives.
Q. However, your youth organization and your school activity, what did
they object to in those matters?
A. Well, for instance, as far as the pupils of the vocational school
were concerned, I gathered them for education after the lessons.
The Ortsgruppenleiter Stubenvoll didn’t like that, and then he made
quite bad and mean difficulties for me. He threatened that I would be
charged. Furthermore, I gathered the adult youth every 3 or 4 weeks in
order to have discussions and a little lecture. There again, Stubenvoll
sent informers, in spite of the fact that he had no right whatsoever to
intervene in church matters.
Q. You speak of intervening in church matters. Can you confirm that
as a result of the centuries-old tension between church and state in
Germany, there were penalties for the misuse of the priest’s profession
which were as old and which had been issued centuries ago?
A. I know only the “Pulpit Article,” and that had existed for quite
some time.[544] Otherwise, I don’t know anything.
Q. Well do you know for instance, the Protizio of common law? You don’t
know that?
A. No.
Q. The Protizio.
A. No, I don’t know that.
Q. But, you know that the “Pulpit Article” was issued during Bismarck’s
rule; that is 1871, is that correct?
A. Yes. Even during the trial, Rothaug made a remark about it to me.
* * * * * * *
Q. Now, on the strength of that sermon at that time, you gave as a
basis, chapter 7 of the Matthew’s Evangelical?
A. Yes.
Q. Was it the fact that this text was made the basis for this sermon
which was objected to?
A. Well, that could not be objected to because I had no power over
that. I had to take that text.
Q. Is it correct if I assume that, of course, the words which you
joined to that chapter were objected to?
A. Well, yes. The whole sermon, as I said, was explained by the witness
in a way as if I meant by the false prophets the leading personalities
of Germany of that day.
Q. Did you mean them at that time?
A. I spoke in quite a general way, and I left to the people what they
wanted to understand from my sermon.
Q. Well, did you mean the leading personalities? I would like to know
that.
A. I spoke in a quite general way on these matters of ideology, and I
left it to everybody. If I meant somebody then, of course, I meant,
first of all, Rosenberg who actually was the man who was involved with
the National Socialist ideology versus religion, by his book.
Q. In other words, the assumption of the public prosecutor was correct?
A. It was an assumption and they couldn’t prove it.
* * * * * * *
Q. Now, witness, you have admitted that the newspaper distributor
Geyer expressly stated that your sermon was very aggressive.
A. Yes, the witness Geyer in the minutes taken by the Gestapo had
testified that, and they had written it down.
Q. Also, the wife of the Ortsgruppenleiter, according to your own
testimony, had testified that in church she had objected to what you
said?
A. Yes.
Q. Was the wife of the Ortsgruppenleiter a woman who went to church
very often?
A. Yes, relatively she went rather often to church. But one gained the
impression--and also the other people who went to church confirmed
this--that she went to church because she wanted to hear everything
that was said in church.
Q. This woman, did she go to church before the time her husband became
an Ortsgruppenleiter?
A. Yes, also during that period already, Frau Stubenvoll went to church
regularly.
Q. And now you assume that this woman suddenly went to church only as
an informer?
A. That was the general opinion in the village; it was not only my
opinion.
Q. You have admitted that when Rothaug questioned this woman he
generally stuck to what she had testified before the Gestapo, that is,
as a line for his questioning.
A. Yes.
Q. Furthermore, you said that he asked leading questions?
A. He submitted it to her in a way that she could only answer yes or
no in a very easy way. That was the impression the public gained. My
family was there partly.
Q. However, this woman had already told all that. How can you say that
Rothaug put leading questions to that woman and told her what she was
to say?
A. Because in her testimony she was rather uncertain.
Q. Why did she suddenly get uncertain in her answers if she had already
told the Gestapo the very same things?
A. Between the questioning by the Gestapo in August and the questioning
during the trial in December there was quite a period of time, and Frau
Stubenvoll didn’t have a good memory of what she had stated at that
time. This impression my defense counsel gained, also.
Q. In other words, the first statements of this woman were apparently
under the impression of your sermons, weren’t they?
A. Well, only what she may have stated to the Gestapo. During the
trial, from her own knowledge, she didn’t speak too much. She only
answered.
Q. Did you ever see a witness who does anything else than answer
questions?
A. Well, the first witness, Stubenvoll--he just spoke and he told
and reported everything he knew against me though he didn’t get any
questions to that effect at all.
Q. But this man probably, on the strength of the Code of Criminal
Procedure was summoned to explain what he knew. Can you remember that?
A. I cannot remember well whether he was summoned to do just that. He
started to speak against me.
Q. Now, you mentioned the fact that Rothaug had alleged that in your
tender youth your parents had forgotten to give you the education of a
National Socialist.
A. At that time I was much older, but indirectly this came as a hint
concerning my parents, and my brother confirmed that to me and the
young lady who attended the trial, that he even hinted at my parents
just when he spoke of education, of education from the tender youth
onward.
* * * * * * *
Q. Witness, the entire question of the burial of the Pole was mentioned
only because, apparently, it was contained in the files, and there it
was used as further evidence of your attitude of opposition to the
State?
A. These files, however, had nothing to do with the actual matter
charged in the trial.
Q. However, it was further evidence of your entire attitude toward the
State at that time?
A. Yes, that is how the presiding judge interpreted it and also
expressed it.
Q. How long did the whole trial take?
A. From about 8 o’clock until 1:30 in the afternoon.
DR. KOESSL: I have no further questions. Thank you.
* * * * * * *
EXAMINATION BY THE TRIBUNAL
PRESIDING JUDGE MARSHALL: I understand that your testimony now
is that the sermon referred to in your testimony was preached on the
third Sunday in July of the year 1941. Is that correct?
WITNESS SCHOSSER: I can now tell you the exact date. It was 20
July 1941.
Q. I understand you to say that from the time of the preaching of that
sermon a period of 15 months elapsed during which nothing happened. Is
that correct?
A. Fifteen months passed until the trial. About a year later there was
the denunciation because of this transfer of the Pole.
Q. About a year elapsed, then, before you were arrested, and then 3 or
4 months after that until the trial took place, is that correct?
A. Yes, that is how it was.
PRESIDING JUDGE MARSHALL: Very well.
MR. WOOLEYHAN: May the witness be excused, Your Honor?
PRESIDING JUDGE MARSHALL: The witness may be excused.
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG
CONCERNING THE CASE OF FATHER LUITPOLD
SCHOSSER[545]
_DIRECT EXAMINATION_
* * * * *
DR. KOESSL (counsel for defendant Rothaug): I want to talk
to you about the Schosser case, S-c-h-o-s-s-e-r. The Schosser case
is mentioned in the English transcript on page 1743 by the witness
Ferber;[546] and in the English transcript on page 3021 through 3066
by the witness Schosser. Witness, in this case the main charge against
you is that you displayed special initiative. In addition to that the
charge is made repeatedly that Schosser was prosecuted because he
buried a Pole. Between what proceedings does one have to distinguish
when the name Schosser is mentioned?
DEFENDANT ROTHAUG: This is a case of two proceedings, in fact.
The first case had to do with the funeral of a Pole, but I want to
state right now that naturally the funeral itself was not considered
a punishable offense. That is the more recent case. Then, another
proceeding is of importance here which has to do with the sermon on a
Sunday in church. That case, the first case, in connection with the
funeral of a Pole did not lead to a main trial or a sentence, but this
sermon on the Sunday did. Those are the first things between which one
has to distinguish, because in this connection the charge is made that
I had started or initiated the second case after I had failed with
the first one; and my aim is now to prove to the Court by submitting
evidence, submitting documents, that I was not the initiator in this
case, and in general, I object against that charge.
Q. Did you also deal with the first case that you find in the file
before you? Look at page 6 of the file attached to the main file. It is
the case SG-948, from 1942.
A. There are two cases, and it would probably be helpful to mention
the file designations to avoid confusion. The first case--the case of
the funeral of the Pole, if you want to call it that--has the file
designation 1-C SG 948, from the year 1942.
Q. What was the cause for that case?
A. That case was initiated on the basis of a denunciation which the
Kreisleiter of Amberg on 12 June 1942 sent to the public prosecutor
at the Special Court Nuernberg-Fuerth. In this report it is set forth
that, by the behavior of the accused Schosser in church, particularly
by making an announcement about the funeral, and by guiding people to
the cemetery, the German population to a far-reaching extent was caused
to attend the funeral; and that that behavior was considered an offense
against the measures which were prevailing at the time concerning the
separation between Germans and Polish people.
Q. What did the senior public prosecutor do?
A. In this connection it may be necessary to point out that there was
a definite regulation which I find in the official gazette for the
diocese at Regensburg, published by the bishop’s office, Regensburg.
In this publication, periodical, is a reprint of a decree, an official
decree, concerning the spiritual care of civilian workers of Polish
nationality employed in Germany. The bishop’s office reprints that
decree by the Reich Defense Commissioner in the defense districts 7
and 13. Our area was in that district and this was published for the
information of the priests. The decree deals in detail with everything
that had to be done. Figure 5 is of importance. It says that the
interment of Polish civilian workers, male or female, can be taken care
of by German priests. Participation of the German population has to be
reduced to the absolutely necessary minimum. No sermon may be held.
That decree contains eight sections. I do not know if the remainder
is interesting to the Tribunal. I could just refer to them if it is
desired.
Q. If the Court is interested, will you please refer to them.
PRESIDING JUDGE BRAND: You may.
DEFENDANT ROTHAUG: First, on figure 1, it is stated that
participation of civilian workers of Polish nationality in the church
services of the German population is prohibited. Then it is stipulated
that church services for Polish workers, male or female, have to
be conducted separately. Where there aren’t enough Poles living,
individual spiritual care is permitted, but under all circumstances it
should be avoided that Poles and Germans should be together in the same
room for that purpose. Services should only be conducted in the German
or the Latin language. Publication of newspapers, periodicals, or
Sunday magazines in the Polish language is prohibited. The priests had
to restrict themselves just to the spiritual care of the Polish people.
It ends with the words as follows: It is expected that the German
priests should always be conscious of being Germans and of the duties
arising from that fact and that offenses will be punishable.
DR. KOESSL: Was it made clear whether Schosser knew anything
about that regulation?
DEFENDANT ROTHAUG: That, at first, could not be seen from the
report received, but after he was interrogated, he referred to the fact
that he had not known anything about all these circumstances and that
that was what had got him into this trouble.
Q. Now, we want to find out what happened after that report was made.