E. High Treason and Treason, Malicious Acts, Undermining the Military Efficiency, Public Enemies

EXTRACTS FROM A LETTER BY CHIEF PUBLIC PROSECUTOR AT HAMM TO THE MINISTER OF JUSTICE, FOR DEFENDANT SCHLEGELBERGER, 29 JANUARY 1941, CONCERNING TREASON, BREACH OF REGULATIONS BY FOREIGN WORKERS, CRIMINAL PROCEEDINGS AGAINST POLISH CIVILIANS, AND APPLICABILITY OF DECREES AGAINST PUBLIC ENEMIES AND VIOLENT CRIMINALS

The Chief Public Prosecutor

3130 a GSTA. 1.06/216

REGISTERED

To the Reich Minister of Justice

Attention: Under Secretary Dr. Schlegelberger

Berlin W 8

Wilhelmstrasse 65

Subject: Situation report

Enclosures: 2 copies of the report
2 printed forms
1 bulletin of the Criminal Police Office, Dortmund

I. High Treason

The department in charge of high treason cases is highly taxed because of the numerous, and in part also very extensive emigrant problems. Upon my request, the president of the court of appeal has seen to it that the criminal senate will hold 4–5 meetings a week from now on. I hope that in this way the majority of all cases can finally be settled in the course of the spring.

II. Administration of Criminal Jurisdiction for Juveniles

*******

V. Breach of Work Contracts and Unauthorized Change of Residence of Foreigners

1. In my last situation report I already pointed out the difficulties which are created by the criminal prosecution of foreigners, especially Polish civilian workers, who leave their place of work and their assigned place of residence without authorization.

The directors of the labor offices and the Reich Trustee for Labor of the economic territory of Westphalia-Lower Rhine as a rule do not prefer the necessary charges for criminal prosecution, in accordance with the decree concerning the restrictions for changing the place of work, dated 1 September 1939—Reich Law Gazette I, page 1685—and in accordance with the decree concerning the fixing of wages, dated 25 June 1938—Reich Law Gazette I, page 691.

Upon inquiry, the Reich Trustee for Labor for the economic territory of Westphalia-Lower Rhine has informed me that “in accordance with an agreement between the Reich Minister for Labor and the Reich Leader SS and Chief of the German Police, breach of work contracts by Poles are to be punished by the Secret State Police with protective custody or concentration camps. The meaning of this step”—so writes this Reich trustee—“is that in the case of Poles the strictest measures are to be taken at once in order to create a deterrent effect. For this reason we made it a point in my office to transfer the cases involving breach of work contract by Polish civilian workers to the Gestapo (Secret State Police) for further action. Only in those cases where the Polish workers involved were already under arrest on charges of vagrancy, vagabonding, etc., and investigated, have I in those cases known to me, preferred charges for breach of work contract, so that all the punishable offenses of the Pole could be adjudicated in one court trial.”

In one individual case, concerning a member of Protectorate, the Reich Labor Trustee for the economic districts of Westphalia and Lower-Rhine refrained from demanding legal action stating, as a reason, that “all foreigners including the Czechs” were exempt from criminal action where this question is concerned.

Contrary to the opinion of the above-named authority, the Reich Trustee for Public Service, who had been informed of the attitude fundamentally taken by the Reich Labor Trustee for the economic districts of Westphalia and Lower-Rhine, has strictly upheld the charges he had preferred against members of the Protectorate who had broken their contracts. In the case in question, the demand for punitive action was based upon the recommendation of the Reich Minister for Transportation to the Reich Trustee for Public Service, dated 24 June 1940 and 13 August 1940 respectively—51.533 Pldaa. According to a statement by the Reich Trustee of Public Service, entered into the criminal record files, the Reich Minister of Labor stated at that time in reply to the report of the Reich Trustee for Public Service referring to a regulation dated 17 July 1940—III b 15062/40, that he had no objections, if he—the Reich Trustee—should prefer charges in accordance with the wishes of the Reich Minister of Transportation. On the other hand the competent office of the Reich Protector thinks it more advisable, not to punish workers from the Protectorate employed within the Reich proper for breach of work contract or to punish them only very mildly as otherwise great difficulties would be encountered in the further recruitment of Czech workers from the Protectorate for jobs in the Reich proper. At any rate, I have dealt with the criminal procedure against workers from the Protectorate for breach of work contract in a special report to the Protectorate also taking up the question concerning the competence of the German courts in the Protectorate for passing sentence in case of breach of contract, committed in the Reich proper.

According to this there seems to be a difference of opinion within the Reich Ministry of Labor as to the question in which cases the competent authorities should prefer charges against foreigners who have broken their contracts. In order to get uniform action on matters concerning punitive regulations it seems desirable to have the Reich Minister of Labor effect a settlement that negotiations between the Ministries concerned and the Reich Protector will result in an agreement to follow one standard rule in preferring charges against members of the Protectorate.

Polish civilian workers leaving their working place and their place of residence without permission have at times—when no charges had been preferred against them—been prosecuted and punished according to the viewpoint of article 2 of the ordinance [VO], concerning the treatment of foreigners of 5 September 1939—Reich Law Gazette I, page 1667. This procedure is not without objection, because the Poles concerned were not in the Reich proper on 6 September 1939 when this decree took effect, and it is not known whether they had been informed of this regulation according to article 1 of the ordinance.

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

With regard to criminal proceedings against the so-called Zivilpolen—as has been pointed out by me before—an uncertainty has developed which can no longer be tolerated. One cause for the uncertainty regarding criminal proceedings is found in the fact that some matters are handled by the State police independently, and the other is that sentences passed by the regular courts are not based on uniform standards. It may happen that the regular court may sentence a criminal to 2 to 3 years of imprisonment—concurrently or separately—while the State police may pronounce the death sentence for the same crime. In order to overcome these intolerable conditions I have issued directives to the senior public prosecutors and to the public prosecutors of the district and have therein called attention to the following aspects:

Civilian Poles are under the jurisdiction of the regular courts because no special provisions are made for them. However, it is not sufficient, firmly to advocate this principle, but the real effect of jurisdiction can only be secured by consequent and energetic action according to this principle, and by administering justice with the speed and severity called for by the situation. In this way it was made possible in the criminal case Bugajny (IIIg 23 5023/40) for the regular jurisdiction to become effective and to do justice to the case. The State police had decided not to hand the case over to the office of the public prosecutor and, with the objective of having the State police deal with the case, reported it to the Security Main Office. I learned about this case from a newspaper report, and I asked the senior public prosecutor to procure a legal warrant of arrest, to put the accused into a court prison, and then through investigations of his own to ascertain the facts of the case, and to prefer charges as soon as possible. The Pole was thereupon condemned to death for criminal violence and forthwith executed without intervention of the State police.

The result obtained in this case must, however, not mislead us, and make us forget that as a rule successful action depends on two other conditions.

For one thing, it is necessary that the office of the public prosecutor be notified immediately. One cannot depend on the chance that a newspaper will report a case. It must be made sure, therefore, that the local police will immediately report crimes committed by civilian Poles to the office of the public prosecutor.

The other thing is the question of the measure of punishment. According to article 1 of the GewVVO[496] the death sentence was called for in the criminal case Bugajny. But what punishment should be given, e.g., for indecent assault—cases in which the State police generally also pass the death sentence. The question is whether Zivilpolen should on principle be judged according to article 4, VVO[497] when in the individual case special circumstances according to article 4, VVO do not exist.

In my opinion this question may be answered with yes, if (1) political crimes or, (2) crimes against the body, life, or possession of a German are involved. The term “body, life, or possession” is taken from article 2 of the VVO and it is, therefore, to receive an accordingly free interpretation. It would not apply, e.g., to refusal to work, and also not to any crimes of the Zivilpolen among themselves.

The following points should lend support to—

(1) That Poles are citizens of an enemy state, whose representatives in foreign countries are continuing to fight against Germany.

(2) That they are citizens of a nation which contrary to all international laws has massacred 60,000 German civilians and mistreated and plundered others.

Therefore, this is not a question simply of malicious crimes, work sabotage, or indecent assault, etc., but crimes which due to the fact that they were committed by Poles against the German Reich or against a German fellow countryman considering the type of Polish warfare (see (1) and (2) above) appear in a different light.

Of this type of crime it can, in my opinion, be said that it was committed by taking advantage of war conditions and is therefore especially contemptible. For the Zivilpolen have only come to Germany proper because of the war conditions (insufficient work in Poland, lack of workers in Germany). Here they are due to the war situation (drafting of fathers, shortage of other personnel) without sufficient supervision, in the midst of German nationals especially women and children, and in German factories as well as in other establishments of great importance to the German armed forces.

The Zivilpole too is without doubt aware of all these circumstances. These circumstances have not necessarily been the actual reasons for this action. But often this will be the case with the stirred up Polish national hatred.

Of course it is not quite certain whether the courts, especially those courts which until now have punished the crimes committed by Zivilpolen very moderately or even mildly, will agree with this legal conception and, if the occasion arises, will pronounce the death sentence in case of an especially serious crime. However, this question does not seem hopeless to me, if the Ministry will exert its influence through circulars, articles in the “Deutsche Justiz”, or in oral discussions. I think that a special directive stressing the importance of such an administration of justice in the interest of safeguarding a normal course of jurisdiction, would also bring results. According to our experience so far, it should generally be possible to avoid the application of Article 4, VVO in cases of Polish females.

Acting:

[Signed] Dr. Haffner,

Senior Public Prosecutor

[Stamp]

Certified: [Signature illegible]

Court Clerk

LETTER FROM DEFENDANT LAUTZ, CHIEF REICH PROSECUTOR AT THE PEOPLE’S COURT, TO THE REICH MINISTER OF JUSTICE, 23 FEBRUARY 1942, CONCERNING THE QUESTION OF PROSECUTING FOREIGNERS FOR TREASON AGAINST GERMANY FOR INJURIES TO ETHNIC GERMANS ABROAD

The Chief Reich Prosecutor at the People’s Court

File No.: 3 J 85/40 secret

[Stamp] Reich Ministry of Justice

2 March 1942

To the Reich Minister of Justice in Berlin W 8

Wilhelmstrasse 65

[Handwritten] Is this matter to be taken with the attached file? St. g 10a. No! In my opinion it belongs to Gp. 4 March [Signed] A [von Ammon]

Subject: Application of article 91, paragraph 2, Penal Code, in conjunction with article 2, Penal Code for the protection of Germans with foreign citizenship

Enclosures: 3 copies of report

The Reich Leader SS and Chief of the German Police [Himmler] recently asked me to recheck several expert opinions given in several preliminary proceedings here, among them criminal case 3 J 85/40, secret, against Haupt and others; the above-mentioned legal question, which was not definitely decided in the judgments passed by the 2d senate on 19 May 1938 in the criminal case 14 J 785/37, secret, against Krippner; and that passed by the 3d Senate on 14 June 1938 in the criminal case 7 J 105/37, secret, against Zueckert.

The expert opinion in the case against Haupt and others, contains the following statements, in the part concerning this:

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

Ministry of the Interior

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

Berlin, 13 December 1941

SECRET

To the Chief Reich Prosecutor of the People’s Court

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

Subject: Preliminary proceedings against the employee Edith, Margarete Haupt, born in Poznan on 7 May 1918, on a charge of treason

[Illegible Marginal Notes]

The systematic shadowing of ethnic Germans also served to obtain reasons for persecution measures and chicaneries in the course of the battle for suppression and extermination. The Poles carried out these measures against the ethnic Germans in a manner which the Germans considered to be absolutely arbitrary, contrary to international law, and brutal (cf. for instance, Freisler, “Development of the nationality law of ethnic German groups,” in German Justice, 1941, pp. 881 ff.).

As far as Reich Germans, who in exceptional cases were not prohibited from participating in the above-mentioned ethnic German organizations, are concerned by this, article 91, paragraph 2 of German Penal Code, is to be taken into consideration.

As far as ethnic Germans are concerned, paragraph 91, section 2 of German Penal Code, is not directly applicable, as ethnic Germans according to formal national law were not German, but Polish citizens. I can only express my opinion in the form of a suggestion, that in the case of the betrayal of ethnic Germans to the foreign police, article 91, paragraph 2 of German Penal Code is to be applied accordingly on the basis of article 2 of German Penal Code (vide People’s Court 2d Senate of 19 May 1938, vs. Wenzel Krippner, document number 14 J 785/37-2 H 22/38; different opinion: People’s Court 3d Senate of 14 June 1938, vs. Walter Zueckert, document number 7 J 105/378-3 L 78/37; decision of 24 October 1940 to quash criminal proceedings in the criminal case, vs. Anton Reiprich, document number 4 J 86/40g).

An offender who has caused, or who wanted to cause ethnic Germans to be punished or otherwise prosecuted by Polish (Czech, or Lithuanian) authorities was hitherto almost never punished, because in such cases the intention, according to articles 88, 89, and 90c of the German Penal Code, i.e., the knowledge that he had acted against the interests of the Reich could not be proved satisfactorily owing to a lack of comprehensive political training and of judgment, article 91, paragraph 2 of the German Penal Code, was considered to be nonapplicable.[498] Such an offender deserves a much heavier punishment, for his dishonorable behavior—behavior which up to now has generally been considered as contemptible in judicial decision and conclusions made by public prosecutors—than, for instance, a person who only apparently was connected with a foreign intelligence service for purposes of treason, but who must be punished according to Article 90c of German Penal Code. The offender nearly always knew that “Germans” were concerned.

Even considering the possibility that a decision, according to article 91, paragraph 2 of German Penal Code, falls into the hands of a foreign government, it would not cause additional attacks against the Reich in foreign affairs, if this decision contains a complete explanation. Such a legal standpoint neither demands the ethnic Germans living on the former borders of the Reich to behave disloyally toward the foreign nation, nor does it take away from the foreign nation the right to exercise a normal police control over the ethnic Germans. This corresponding application according to the above always provides that foreign police control served purposes and measures contradictory to international law and law of minorities. This is especially applicable to the border districts which were taken from the Reich, according to the Treaty of Versailles. Nor does this opinion, for instance, object if single members or groups of ethnic German organizations now and then should have overstepped the bounds of loyalty, for this was not the cause, but the consequence of foreign compulsory measures.

I would consider as improper only the laying down generally and legally of a treatment applicable to treason committed by ethnic Germans, by adding a supplementary regulation to the second paragraph of article 91 of the Penal Code. It is true that consideration regarding foreign policy would oppose this. But on the other hand, in my opinion, the lack of an express regulation of penal law for the protection of ethnic Germans does not prove that article 91, paragraph 2, of the criminal code should be applied in every case. On the contrary, I consider this to be a task for the courts to fill a gap in the law, which has been left open for state political reasons, by creating a law in the appropriate cases.

The basic idea of article 91, paragraph 2 has been expressed as follows in the verdict of the People’s Court 4th Senate of 8 April 1940, against Horst Moses (4 L 2/40):

“The National Socialist State is especially well aware of its responsibility toward its citizens, and of its duty to protect all its members, especially if they are abroad and do not enjoy the full protection of law. Hence, it feels its integrity endangered, even in the case of a conspiracy by a foreign government against a single Reich citizen, and wants to lend the threatened person its legal protection, as far as this is possible, from the home country.”

The Reich made no secret of the fact that with regard to the protection of Germans it does not only claim the right to protect Reich Germans, but also ethnic Germans living on its borders. The Reichstag speech made by the Fuehrer on 20 February 1938, strikes me as fundamental, even if it was directed especially against the then Czechoslovakian Republic. In this speech, he pointed out, among other things:—

“* * * two of the states situated on our frontiers alone have more than ten million Germans * * *.

“The fact that [these persons] were separated from the Reich by constitutional law, cannot deprive [them] of their ethnic political rights (volkspolitische Rechtlosmachung); i.e., the general rights of an ethnic self-determination which, incidentally, were solemnly granted to us as prerequisites of the armistice in Wilson’s Fourteen Points. These rights cannot be disregarded simply because Germans are concerned! In the long run it is impossible for a world power with self-respect to know that they have ethnic comrades [Volksgenossen] at their side who, owing to their sympathy or their ties with the whole population [Gesamtvolk], its fate, and its ideology, are being continually, and gravely harmed. The fact that it is possible, if there is good will, to find ways to reach compromise [Ausgleich] or to ease this suffering, has been proved. But he who tries to prevent such easing in Europe by force will one day invite force among the nations.

“For it cannot be denied, that as long as Germany was powerless and defenseless, she had simply to tolerate the fact that there was a continual persecution of German people on our frontiers. But in the same way as England represents her interests over the whole world, the Germany of today will know how to represent and to protect her interests, even if they are more limited. And these interests of the German people comprise also the protection of those Germans who, of their own accord, are not in a position to ensure for themselves along our frontiers the right of commonly human, political, and ideological independence * * *.” [End of quote from Hitler’s speech.]

I request, therefore, the re-examination of this question on account of its fundamental importance in regard to legislation and to clarify its principle—in the first place, for the jurisdiction of the Chief Reich Prosecutor at the People’s Court—so that this question may through indictments in the respective cases, also be decided in court. It is, of course, not intended by these statements to anticipate the weighing of evidence in the present case.

“* * * I induced the Foreign Office to participate in the afore-mentioned expert opinion. The Foreign Office did not make any particular comment on the statements concerning purely legal matters, but has pointed out that questions in the sphere of foreign politics could not be raised, if the court in cases such as the present, acted in accordance with article 91, paragraph 2 of the Penal Code for the above-mentioned reasons. This comment applies firstly to such cases in which the ethnic groups of former Poland, Lithuania, as well as the former Czechoslovakia, and Soviet Russia are concerned. In cases in which other countries are involved, the question would, if necessary, have to be examined individually.” [End of Himmler’s letter.]

The president of the People’s Court, to whom I applied for a comment on this judicial problem, in view of the above-mentioned two different verdicts, has stated:

“A discussion with the presidents and the deputy presidents of the senates of the People’s Court on the legal question, whether article 91, paragraph 2 of the Penal Code may be applied in connection with article 2 of the Penal Code[499] in connection with the protection of ethnic Germans of foreign nationality, resulted in the following unanimous interpretation:

“The application is confirmed—

(1) if the wrong [Unrechtsgehalt] of the act—apart from the requirements that all other necessary constitutive elements [of the crime] must be present—is so serious as absolutely to demand punishment,

(2) if the granting of equal rights to an ethnic German and to a German national does not present for the state to which the ethnic German belongs, a grave detrimental proposition from a political point of view, which is prejudicial to its sovereignty and to its friendly relations with the Reich,

(3) if the act is not subject to punishment from any other legal point of view according to German penal law nor subject to punishment according to the laws of the foreign state (article 4 of the Penal Code).”

I agree firstly with the Reich Leader SS and the President of the People’s Court that a direct application of article 91, paragraph 2 of the Penal Code, which obviously, expressly, and knowingly—see also the draft of the new penal code—protects only German nationals will not be made in favor of ethnic Germans. Furthermore, I concur with the conception that the general political development which has meanwhile come about, particularly during the last years, enabling the Reich largely to protect its ethnic members of foreign nationality to a greater extent than has been possible hitherto must be borne in mind in this particular instance. Therefore, I find it necessary on principle to protect by means of the German Penal Code those ethnic Germans who have seriously suffered through action such as mentioned in article 91, paragraph 2 of the Penal Code, provided that the action, in accordance with sound public sentiment, deserves punishment analogous to this provision, but where such punishment considering the wrong of the particular case cannot be pronounced on account of any other directly applicable penal regulation. In this connection, my standpoint—and this agrees with Laemmle, “German Justice,” 1940, page 775, and with the practice of the People’s Court mentioned therein—is that the act which is punishable according to article 91, paragraph 2 of the Penal Code must be considered as an act of high treason against the Reich to which article 4, paragraph 3, number 2, of the Penal Code, not article 4, paragraph 2, is applicable. Whether in other respects the prerequisites for an appropriate application of article 91, paragraph 2, in conjunction with article 2 of the German Penal Code exist, will, in my opinion, depend upon the examination of each individual case, in which also questions of foreign politics will have to be taken into consideration, although these already have been eliminated to a large extent by the comment of the Foreign Office contained in the expert opinion of the Reich Leader SS.

In this connection, I wish to quote, by way of example, two cases of preliminary proceedings which have recently come to my hands, and which concern particularly serious aspects.

In the proceedings of 3 J 304/41 vs. Hellig, the defendant, an ethnic German, formerly resident in Northern Bukovina, and formerly of Rumanian nationality, who since became a German national, repeatedly guided, for high reward, ethnic Germans of Rumanian nationality, who had been surprised by the Russian occupation of Northern Bukovina by the Soviet Russians in 1940, allegedly in order to enable them to illegally pass the frontier into Rumania, but then played them into the hands of the Russian frontier guards.

In the proceeding 11 J 8/42 g vs. Golek, the defendant, a former Polish national, of the Polish ethnic group, in the years of 1938 and 1939 in Poland handed over to the Polish authorities his friend, the ethnic German Leo Hardt, of Polish nationality, by accusing him wrongly of treason in favor of the Reich and by concealing in the latter’s house a Polish army regulation book for the purpose of incriminating him. As a result of this action of Golek, Hardt was condemned to 6 years of imprisonment for espionage in favor of Germany.

In the majority of the cases, as in the two cases cited, it will be offenses, which have been committed by foreign nationals abroad against ethnic Germans. To that effect I shall have to report in each individual case especially for the purpose of reaching the decision on initiating prosecution according to article 153a, paragraph 2, Code of Criminal Procedure, so that the doubtful problems mentioned above will have to be decided upon there in each case. There are cases possible, however, in which the offender acted also or only within Germany proper so that a report is practically unnecessary. In view of this and on account of the fundamental importance of this problem, I believed, I should submit it in general already at this time with the request for a decision, as to whether my interpretation is approved.

[Signed] Lautz

THE LOPATA CASE, APRIL-DECEMBER 1942. EXTRACTS FROM THE OFFICIAL FILES INCLUDING: VERDICT OF LOCAL COURT SENTENCING LOPATA, A POLE, TO 2 YEARS’ IMPRISONMENT; DECISION OF THE REICH SUPREME COURT GRANTING NULLITY PLEA FILED BY CHIEF REICH PROSECUTOR; VERDICT OF THE NUERNBERG SPECIAL COURT (DEFENDANT ROTHAUG PRESIDING) SENTENCING LOPATA TO DEATH; THIERACK’S REFUSAL TO PARDON; LOPATA’S LAST PETITION FOR CLEMENCY; AND THE RECORD OF EXECUTION OF THE DEATH SENTENCE

Ds.14/1942

In the Name of the German People

VERDICT

Local Court Neumarkt (Oberpfalz) in the criminal case against— Lopata, Jan, Polish farmhand in Bodenhof at present under arrest pending trial for assault, in its public session on 28 April 1942 in which took part:

1. Local Court Judge Egger

2. Public Prosecutor Durchholz, as counsel for the prosecution

3. Inspector Fuchs, as Registrar

V.R.A. 163/164/42

On the basis of the trial—Lopata, Jan, born 24 June 1916 in Kajscowka, District Myslenice; parents: Michale and Anna Lopata, née Mosul, single, Polish farmhand, at present in arrest pending trial, is sentenced to an imprisonment of 2 years in a prison camp for the crime of assault according to article 185 of the Penal Code together with a violation according to section 1a, 7 of the Police Regulation of the Governor in Regensburg, 28 May 1940, No. 1032 f 47; and of 23 December 1941, No. 1032 f 48, section 44a of the Police Penal Code, both in connection with articles III and XIV of the penal decree for Poles of 4 December 1941,[500] Penal Code I, page 759, and to a fine of 35 RM—and in default of payment an additional week in prison camp, and to the costs for the trial and for the execution of the sentence.

FINDINGS

The accused who is a Pole and who on 1 September 1939 was resident at Kajscowka in the district of Myslenice in Poland was employed as an agricultural laborer by the farmer Therese Schwenzl at Bodenhof in the parish of Muehlen. In the beginning of February 1942, Mrs. Schwenzl together with the accused and a Polish maid were cutting chaff. The accused stood to the right of the chaff-cutting machine. Without saying anything he suddenly touched Mrs. Schwenzl’s genitals through her dress. When thereupon she said: “You swine, you think nothing terrifies me. You think you can do that to me because my husband is sick.” The accused just laughed and repeated his action. At this Mrs. Schwenzl slapped his face. In spite of this he did it again. Finally, he had a quarrel with the Polish maid and did no longer molest the farmer’s wife.

On 8 February 1942, the accused left his place of employment without permission and was arrested on 9 February 1942 when calling at the employment exchange at Neumarkt/Oberpfalz.

The circumstances are proved by the absolutely trustworthy statement given by the witness Mrs. Schwenzl under oath. The stubborn denial of the accused is disproved by statements made by the witness.

In the witness Schwenzl’s description there is nothing to prove that the accused went as far as to use force against the witness. Therefore, this is no case of sexual crime according to article 176, paragraph (1), Penal Code, but only a case of personal assault according to article 185, Penal Code.

No sentence has been proposed pursuant to article 2 of the decree concerning wages of 25 June 1938. The fact is that the accused left his place of employment and cannot be punished under articles 2 and 8 of the ordinance, dated 5 September 1939, Reichsgesetzblatt I, page 1667, dealing with the treatment of foreigners, since it has not been established that the accused had left the place where he stayed at the time of a public summons in accordance with section 1 of the same ordinance. However, articles 1a and 9 of the police decree of the Regierungspraesident [president of local government] of Regensburg dealing with the treatment of Polish labor should be applied.

According to this, the accused has been proved to have assaulted another person and to have violated the police orders regarding the treatment of Polish labor by another action. He therefore is to be punished for personal assault according to article 185, Penal Code, together with a violation of articles 1 and 9 of the police decree of the Regierungspraesident of Regensburg, dated 28 May 1940 No. 1032 f. 47, supplemented by the ordinance dated 23 December 1941 No. 1032 f. 48 and dated 3 June 1941 No. 1032 f. 27 in conjunction with articles III and XIV of the Criminal Code for Poles dated 4 December 1941, Reichsgesetzblatt I, page 759.

*******

Although the accused was treated well in Schwenzl’s house, he was as lazy as he was insolent and presumptuous. The manner in which the accused committed this act of insult to the honor of his employer [Mrs. Schwenzl] shows an enormous degree of insolence and shamelessness which can be found only among persons belonging to the Polish people. The fact that the husband Schwenzl was ill in bed at the time the crime was committed has an aggravating effect. It demonstrates the mean and treacherous character of the accused that he did not find it convenient to confess but denied it all stubbornly. He stubbornly continued his denial even in the face of the sworn statements of the witness Schwenzl. It therefore seems appropriate to sentence the accused to 2 years’ imprisonment at a detention camp in application of articles III and XIV of the Penal Code for Poles dated 4 December 1941, Reichsgesetzblatt I, page 759. For the unauthorized leaving of his place of residence the usual fine of 35 RM or 1 week of detention camp was considered to be an appropriate punishment.

Costs—Article 465, Code of Criminal Procedure.—There is no cause to take into account the time spent in arrest pending trial in view of the mean conduct shown by the defendant, article 60, Penal Code.

[Signed] Egger

No charge because of insolvency.

Neumarkt (Oberpfalz), 6 May 1942

The Registrar of the Local Court Neumarkt (Oberpfalz)

[Signed] Schroth

Clerk

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

1 C 566/42

(I StS 26/42)

DECISION

In the criminal case against the Polish agricultural laborer, Jan Lopata, last residence Bodenhof, in the parish of Muehlen, now at the main camp at Maltheuren, for assault among other offenses:

The Reich Supreme Court, Penal Senate, in secret session of 14 July 1942 has decided with regard to the nullity plea of the Chief Reich Prosecutor.[501]

The sentence of the local court at Neumarkt (Oberpfalz) dated 28 April 1942, Ds 14/42, is annulled with its relevant findings in as far as the accused was sentenced for assault. In this connection the case will be returned to the lower court, namely to the Special Court at Nuernberg, for a new trial and sentence.

FINDINGS

By the afore-mentioned verdict the accused has been sentenced to 2 years at a detention camp for personal assault according to article 185, Penal Code, in conjunction with articles III and XIV of the Criminal Code for Poles dated 4 December 1941, Reichsgesetzblatt I, page 759. The sentence has been declared valid.

The Chief Reich Prosecutor has filed a nullity plea and has moved to annul the sentence by decision and to return the case to the lower instance, namely the Special Court at Nuernberg for a new trial and sentence. The motion has been granted.

The sentence passed by the local court is defective in law insofar as it does not discuss at all as to whether article 4 of the decree against public enemies of 5 September 1939[502] (Reichsgesetzblatt I, p. 1679) is applicable. That this is applicable may very well be assumed considering the facts established. According to these facts the possibility exists that the defendant knowingly took advantage of the wartime conditions when committing the crime, inasmuch as he was aided by the lack of other labor and a thereby conditioned insufficient supervision and watching, or inasmuch as he presumed that because of the labor shortage no charges would be preferred against him lest not to lose a hand. In the summary of the local court as to the sentence imposed it has been emphasized that the action of the defendant proved an unheard of amount of impudence. This impudence, considering the facts, could possibly be explained only by the fact that the defendant considered himself indispensable, and therefore presumed he did not have to reckon with the preferring of charges.

With this judicial error the judgment has become unjust since, if also article 4 of the decree against public enemies is applicable which may very well be assumed, a much more severe sentence is deemed necessary.

[Typed] signed: Schultze

[Typed] signed: Raestrup

[Verdict of the Nuernberg Special Court]

COPY

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

VERDICT

In the name of the German People:

The Special Court for the district of the Nuernberg Court of Appeal at the Nuernberg-Fuerth District Court pronounces the following sentence in the case against Lopata, Jan, Polish agricultural worker, last place of residence Bodenhof, on account of defamation and other offenses. The sentence was pronounced in open session on 26 October 1942. Persons present were—

The Presiding Judge: President of the District Court Chamber Dr. Rothaug.

The Associate Judges: District Court Judge Dr. Ferber and Local Court Judge Dr. Pfaff.

The Prosecutor at the Special Court: Senior Public Prosecutor Paulus.

Chief clerk Kastner as registrar of the office.

Lopata, Jan, born on 24 June 1916 in Kajscowka, single, Polish agricultural worker, last place of residence Bodenhof, in arrest pending trial for this case is, by application of articles II, III, and XIV of the decree concerning Poles and Jews, sentenced to death for a crime under section 4 of the decree against public enemies in connection with assault, and will have to bear the costs.

FINDINGS

1. The accused is a Pole; he belongs to the Polish ethnic group. He grew up in Kajscowka as son of a farmer and cattle dealer, he attended school for 6 years according to local custom. He can read, calculate, and write. According to his testimony, the parents of the accused died over 20 years ago. A brother and a sister of the accused live in the Government General. After he left school—in 1931—the accused worked on a farm for his aunt because his parents had died. At the age of 20—in 1937—the defendant took up work as a farm hand.

2. After reporting voluntarily, in spring of 1940, the defendant was assigned by the labor office Neumarkt/Oberpfalz to work for the farmer Josef Schwenzl in Bodenhof, district Neumarkt/Oberpfalz. Early February 1942—on a day which can no longer be clearly specified—the wife of the farmer Schwenzl, together with the accused and a Polish girl were cutting chaff in the barn. The accused was standing on the right hand side of the machine to carry out the work. Suddenly while working, the accused without saying anything, touched with his hand the genitals of farmer Schwenzl’s wife through her dress. When she said after this unexpected action of the defendant, “You swine, you think nothing terrifies me, you think you can do that because my husband is sick,” the accused laughed and, in spite of this admonition, again touched the genitals of the farmer’s wife through her dress. The wife of farmer Schwenzl slapped his face after that. In spite of this, the accused continued with his aggressive conduct, for a third time he touched the genitals of the farmer’s wife through her dress.

On account of that the farmer’s wife started a heated quarrel with the accused. The accused started to quarrel with the Polish maid too, and no longer molested the farmer’s wife.

II

The accused did not make a complete confession. He states that he only once, for fun, touched the genitals of the farmer’s wife through her dress.

The court is convinced, on account of the testimony given by the witness Therese Schwenzl, who makes a trustworthy impression, that the incident occurred exactly as described by the witness. Therefore, the court based its findings on the testimony given by this witness.

The prohibition to have sexual intercourse with a German woman was known to the accused, he also knew about the severe punishments laid down for Poles who do not comply with this regulation. When the accused was assigned a place of work by the labor office Neumarkt/Oberpfalz in spring 1940, this regulation was pointed out to him according to the testimony of the witness Reiser; he was also given a printed guide of conduct for enlightenment. The statement of the accused that, in spite of all, he had no knowledge of this regulation because when given the instruction no interpreter was present, and because he did not peruse the guide of conduct, proves to be a scant excuse; because when asked why he denied having been aggressive towards the farmer’s wife in his interrogation by the local court at Neumarkt, a fact which can be proved on hand of the record made there on 28 April 1942, the accused says that he did not want to confess, not even partially, fearing that the death sentence would be pronounced.

Thus, the defendant gives the impression of a definitely degenerate personality who is distinguished by irritability and a positive propensity to lying; all his inferiority is based on his character and the reason can obviously be found in his belonging to the Polish subhuman race.

III

The established facts show first of all that the defendant grossly assaulted the honor of farmer Schwenzl’s wife by his frequently touching her genitals. The defendant fully realized the despicable nature of his mean and base aggressive conduct. He thereby committed the offense of personal assault—article 185, Penal Code, 13 March 1942. The insulted person preferred charges in writing on account of the personal assault.

This, however, does not cover the full extent of the defendant’s crime.

The drafting of men into the armed forces effected a serious labor shortage in all spheres of life at home, last but not least in agriculture. To balance this, Polish laborers, among others, had to be used to a large extent in the Reich, mainly as farm hands. These men cannot be supervised by the authorities to such an extent as their insubordinate and criminal disposition would necessitate. Since there is a lack of the necessary supervision, these Poles are becoming impudent and insubordinate. At the same time, they know that they can indulge in all manner of activities, because we have to depend on them, and because it is difficult to find replacements.

The defendant has lived in the greater German domestic sphere for a sufficient length of time to know about these circumstances caused by the war as he saw them daily with his own eyes.

From the very beginning of his employment with Schwenzl the defendant was a lazy and stubborn fellow. Frequently he refused to work; when once in the morning in the presence of the Pole, farmer Schwenzl’s wife made a casual remark to her husband to the effect that someone would have to beat her to death if she had to eat as much as the “Polak” did, the defendant at noontime refused to take his midday meal. He also induced the Polish servant maid to offer the same passive resistance. Farmer Schwenzl did not permit the defendant to act like that, he called the Pole to account in the stable. The defendant put up resistance toward his admonitions by arming himself with a pitchfork. In the hallway of the farm, farmer Schwenzl continued his admonitions. The impudence and disobedience of the defendant is shown in all its impressiveness by the fact mentioned by the witness Schwenzl, that the Pole at the threshold of the farm hallway turned against the farmer again and only let him go when the sheep dog which they kept on the farm attacked the defendant from the back.

As proved by the defendant’s behavior as a whole, he took advantage of the circumstances caused by the war also in the crime under discussion. Being a Pole who had been given the opportunity to earn a fair wage in the Reich, he acted in the basest conceivable way. His crime as well as all the rest of his impudent behavior classify him as a public enemy. The German population which today is especially sensitive toward such attacks and needs—according to the sound public sentiment—an increased protection against such foreign elements by sentences beyond the customary penal code.

Accordingly, the defendant was to be sentenced in connection with personal assault also a crime under section 4 of the decree against public enemies of 5 September 1939.

IV

The defendant is a Polish national in the meaning of the Ordinance on Legal Procedure against Poles and Jews in the Incorporated Eastern Territories of 4 December 1941. On 1 September 1939 he was living on former Polish territory; therefore punishment has to be pronounced according to article III of the ordinance mentioned above, of articles II and XIV in other instances.

The action of the defendant means a considerable violation of the peace to the persons immediately concerned by his base actions. The rural population is right in expecting most severe measures against such terrorization by foreign elements. But beyond disregarding the honor of farmer Schwenzl’s wife, the attack of the defendant is directed against the purity of the German blood. Looked at from this point of view, the defendant showed such a great deal of insubordination living in the German domestic sphere that his action has to be considered especially grave. Anyone who is acting like the defendant commits an outrage against the defensive power of the German people in the emergency of war. Wartime demands an essentially increased protection of the home country against the dangers of war.

Accordingly, as outlined in article III, paragraph 2, second sentence of the ordinance concerning Poles and Jews, the crime of the defendant which, compared with his other conduct, shows a climax of unspeakable impudence, has to be considered as especially serious. Thus, the death sentence had to be passed as the only just punishment which is also necessary in the interest of the Reich security to deter Poles with a similar attitude.

Decision as to the costs—article 465 Criminal Code of Procedure.

[Typed] signed Dr. Ferber

[Typed] signed Rothaug

[Amtsgerichtsrat] AGR. Dr. Pfaff was not in town on account of official business.

[Typed] signed Rothaug

Certified.

Nuernberg, 29 October 1942

The registrar of the Office of the Special Court for the District of the Nuernberg Court of Appeal at the Nuernberg-Fuerth District Court.

[Signature illegible]

Clerk

[Stamp]

District Court

Nuernberg-Fuerth

[Refusal of pardon by the Reich Minister of Justice]

Certified true copy

In the criminal case against Jan Lopata, sentenced to death by the Special Court with the Nuernberg-Fuerth District Court on 26 October 1942 as a public enemy according to the ordinance concerning penal law applying to Poles, I decided after having been authorized by the Fuehrer not to make use of the right of pardon, but to let justice take its free course.

Berlin, 19 November 1942

The Reich Minister of Justice

[Typed] signed: Dr. Thierack

(Seal)

[Stamp]

Reich Ministry of Justice

Ministerial Chancellery

This is to testify that the text corresponds with the original.

Berlin, 22 November 1942

[Signed] Petersen

Senior Secretary of the Ministerial Chancellery

IV g-11-2417.42

[Petition for Clemency]

[Handwritten marginal note] Special Court Nuernberg. Sentence: 26 November 1942.

[Handwritten] Translation from the Polish language of a petition for clemency.

Stanislaus Bieniasz

Jan Lopata, born on 24 June 1916 in Kajscowka, district of Myslenice.

Petition for Clemency

In 1940, I stayed in Germany as an agricultural worker with the farmer Josef Schwenzl at Bodenhof, where I had my residence together with Angelike Murzyn until 1942. Later on, on Sunday 7 February, I went to another farmer whose name was Josef, I do not know his surname, but I know where he lives. He urged me continuously to come to him, and I went to see him on Sunday 7 February. On Monday 8 February, I went to the regional labor office together with the farmer’s wife and from there the policeman took me along to prison, for what reasons, I do not know. Maybe on the grounds that for 2 years I worked hard and well at the farmer’s; the Lord can see that from heaven how they treated me and such things. The Polish woman is my very best witness, because she has been working together with me and she knows everything, how the farmer beat me in the beginning, and how he did not want to pay me. The testimony given by the farmer’s wife during the proceedings is not absolutely true. She has not told what they had hidden in the corn on the second floor of the barn. Neither did she tell that they slaughtered a pig for New Year’s day. At that time they chased us out of the house, and we were supposed to go to Peihof? [sic] and have a glass of beer together with the Polish woman. I immediately refused to do that, and that is the reason why they urged us and said that they would also go and have a glass of beer and that we should not return home too early at least not before 8 o’clock. They themselves would not return so early either, at any rate not before late in the evening. When we then came back later—the sun had already set—they were already at home. I was just about to enter the room in order to cut a few slices of bread for myself, as I always did. When I came home Sunday night, and at that time cut bread for New Year’s Eve, the farmer was already at home and was doing something in the other room. He called to his wife to bring him some salt. She went upstairs to get the salt. When she came down with the salt she tried to hide it in a way that the Polish woman should not see it. The pig had been delivered only shortly before the New Year. On New Year’s day, in the morning, the pig was still there and on the other day, Friday morning, that pig was not there any longer. At the time mentioned in the evening, we were urged to go to bed and later on, they turned on the light and arranged something in the other room at night. The windows were screened. I do not know why. Because I was angry I left them. The farmer’s wife said that I did not want to get up in the morning, and that I did not want to work. All that was seen by the Polish woman. Now I would be deeply obliged if the death penalty could be commuted into a prison term. I beg you very much to do that, I forward my petition to the lawyer so that he may try to bring it about. If I had enough money, I would pay him, but what can I do, if I have not got any? Perhaps I might beg the defense counsel to do so without pay, and I beg him most humbly to have this petition carried through as soon as possible.

Munich, 22 November 1942

Signed: Jan Lopata

For the correctness of the translation:

Munich, 26 November 1942

[Signed] Stanislaus Bieniasz

[Report of execution of Lopata]

Sg 433/42 V.R. Sg. II 371/42

Nuernberg, 3 December 1942

The Chief Public Prosecutor

I. Report: To the Attorney General—personally or to his official representative in Nuernberg

Subject: Execution of the death sentence against the Polish farm worker Jan Lopata, single, last residence: Bodenhof

In addition to the ordinance of the Reich Minister of Justice, IV g-11-2417 b/42 issued 19 November 1942

Enclosure: Original of the decree IV g-11-2417.42 of the Reich Minister of Justice, dated 19 November 1942

The death sentence was carried out on 30 November 1942

The execution took 1 minute 10 seconds altogether. From the defendant’s being handed over to the executioner until the falling of the axe, 7 seconds elapsed.

The execution took place without any incidents.

Please find in the enclosure the original of the decree of the Reich Minister of Justice, dated 19 November 1942.

II. To Public Prosecutor Dr. Dorfmueller for due information and further orders (carrying out of the sentence).

III. Information to the Chief Public Prosecutor, Munich, according to Reich Ordinance of 21 May 1942, 4417—VIII a-10-1003 Article 2b (2).

[Signed] Hollmann

Senior Public Prosecutor

[Handwritten marginal notes]

I. duly noted.

II. To Attorney at law, Dorfmueller.

3 December 1942

REQUEST BY UNDER SECRETARY FREISLER FOR A “DRAFT ON THE RETROACTIVE EFFECT OF THE MORE SEVERE NATIONAL SOCIALIST REGULATIONS” FOR TREASON, 18 MAY 1942; AN INTEROFFICE MEMORANDUM THEREON, AND A CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO VARIOUS REICH AUTHORITIES ATTACHING A DRAFT OF A PROPOSED LAW AND REQUESTING APPROVAL

[Handwritten] Reich Chief Prosecutor Lautz will return from official trip on 22 May.

To Ministerialdirektor Schaefer

I ask you to submit as soon as possible a draft on the retroactive effect of the more severe National Socialist regulations for cases of treason upon the earlier period. You can perhaps discuss the cause with the Chief Reich Prosecutor on the telephone.

18 May 1942

[Initial] Fr (Freisler)

[Handwritten Notes]  Urgent

Herr Rietzsch:

Please discuss this with me.

[Initial] Sch [Schaefer]

19 May

Settled.

[Initial] R [Rietzsch] 20 May

Note—Reich Chief Prosecutor Lautz, who could be reached only after his return from a journey, states that one case has been discovered where a German subject from the Memel district had betrayed to Lithuania prior to 1933 important State secrets on the organization of the supporting operation set up by the Reich for the Memel district.

In view of the extent and importance of the State secrets which were revealed, and betrayal was deserving of death. The disclosure of further severe cases of treason from the time prior to the seizure of power is to be expected.

[Signed] Rietzsch 26 May

By order of Under Secretary Dr. Freisler:

Berlin, 27 May 1942

The Reich Minister of Justice

III a 454.42 g

Official in charge: Ministerialrat Rietzsch

Secret

[Handwritten Notes] III a 891/42 g.

Immediately!

To:

1. The Chief of the High Command of the Armed Forces, III a 683/42 g.

2. The Reich Air Minister and Commander in Chief of the Air Force.

3. Reich Marshal Goering, Plenipotentiary of the Four Year Plan, III a 608/42 g.

4. The Reich Minister of the Interior.

5. The Reich Minister and Chief of the Reich Chancellery, III a 454/42 g.

6. The Chief of the Party Chancellery, III a 609/42 g.

7. The Foreign Office, III a 537/42 g.

Draft of a Law to Supplement the Regulations against Treason

Dispatched: 2 June 1942

1 Enclosure

[Handwritten] to be mimeographed

I. The trial of the emigrated Jew Leo Israel Sklarek before the People’s Court has proved anew that, in severe cases of preparation for treason (art. 92 Reich Penal Code), there is need of instituting the death penalty which so far is not provided for in article 92 of the Reich Penal Code. When deliberating on the draft of the Penal Code, the Fuehrer, during a cabinet session, had personally emphasized the necessity of threatening even with the death penalty in cases of preparation of treason. I, therefore, propose to supplement article 92 of the Reich Penal Code accordingly.

II. Inquiries that could be opened on the grounds of discoveries in the occupied eastern towns have disclosed a case of treason in the time prior to the seizure of power, when a German subject betrayed important military secrets. The act of treason of that German subject deserves death but cannot be punished with the death penalty according to the hitherto valid regulations since a retroactive effect of the law altering regulations of the Penal Code, dated 24 April 1934,[503] Reichsgesetzblatt I, page 341, which reformed at the time, the regulations against treason, is not provided for as yet. The disclosure of further severe cases of treason may be expected. It is, therefore, recommended that in the individual case, the section chiefs concerned be authorized to order the retroactive effect of the regulations against treason in order to arrive at the imperative severe punishment in particularly serious cases of more remote date.

Enclosed please find the draft of a law containing the two regulations discussed above with the request for approval.

The Acting Minister,

[Initial] Sch (Schlegelberger) 27 May

[Initial] Fr (Freisler) 26 May

2. Copy to Ministerialrat Rietzsch.

3. To Ministerialdirector Schaefer after his return with the request to note.

4. 1 month.

Dispatched: 2 June 1942

[Handwritten] Enclosure to III a 454.42 g.

Law for supplementing the regulations against treason of 1942.

The Reich Cabinet has enacted the following law which is herewith promulgated:

Article I

Paragraph 1

Article 92 of the Reich Penal Code is supplemented by the following concluding paragraph:

In particularly serious cases the death penalty has to be passed.

Paragraph 2

The regulation of paragraph 1 is also valid in cases of criminal acts which were committed prior to the date this law came into effect.

Article II

The Chief of the High Command of the Armed Forces, the Reich Air Minister and Supreme Commander of the Air Force, as well as the Reich Minister of Justice may each order within their jurisdiction that the penal regulations against treason (articles 88 to 93a of the Reich Penal Code in the version of the third part of the law dated 16 September 1939, Reichsgesetzblatt I, p. 1841) should be applied also to criminal acts which were committed prior to the date the law dated 24 April 1934, Reichsgesetzblatt I, page 341, came into effect.

Article III

The law is also valid in the Incorporated Eastern Territories. Fuehrer Headquarters,..............1942

The Fuehrer and Reich Chancellor

The Chairman of the Ministerial Council for Reich Defense

The Reich Marshal

The Chief of the High Command of the Armed Forces

The Reich Minister of the Interior

The Acting Reich Minister of Justice

The Reich Minister and Chief of the Reich Chancellery

[Handwritten] to III a 454/42 g.

THE BRATEK CASE, 10 DECEMBER 1942–20 JULY 1943. EXTRACTS FROM THE OFFICIAL FILES, INCLUDING GESTAPO REPORT OF 10 DECEMBER 1942; JUDGMENT OF THE PEOPLE’S COURT AFTER TRIAL OF 20 MAY 1943; AND NOTE OF 20 JULY 1943 ON THE EXECUTION OF THE DEATH SENTENCE

Secret State Police

Office Innsbruck

File No. III B-3240/42 g.

Imprisonment!

To Chief Reich Prosecutor at the People’s Court or deputy in office

Berlin W 9

Bellevuestrasse 15

[Stamp]

SECRET!

[Stamp]

The Chief Reich Prosecutor at the People’s Court

Received: 14 December 1942

Subject: Case against the Pole, Stanislaw Bratek born on 3 January 1920 in Wolbrom

Incident: Your file No. 9 J 195/42 g.

Enclosures: None

The Secret State Police Office Breslau informed me additionally about the following details concerning the accused:

“From January 1940 to 6 September 1942 Bratek was employed as a farm hand in Roggendorf at the State-owned farm Buchenhang. On 13 October 1941 and on 6 September 1942, he left this place of work without permission. In the first case, he was arrested at the police border in Kosten on 13 October 1941, district of Kreuzburg (Upper Silesia), and after having been warned, was taken back to his place of work. After the second breach of his working contract he was arrested at the station in Munich on 8 September 1942. When being arrested B. illegally wore the Hitler Youth badge, and was in possession of 2 tobacco ration cards, bearing his name, and stated that he wanted to escape to his aunt, Stefanie Truempler, Zuerich 4, Zwinglistr. 24 (Switzerland). On 8 September 1942 he was sent to the reformatory labor camp Munich-Moosach by the Secret State Police Office Munich—Document No. 27311/42 II E 3/Hoe—from which he escaped on 10 September 1942. B. has not been involved in any activity of a criminal, political or counter-espionage nature.”

By order:

[Signed] Schmid

SS Obersturmfuehrer

File after acknowledgment.

15 December 1942

9 J 195/42 g

1 H 90/43

In the name of the German people

In the case against the shoemaker Stanislaw Bratek of Buchenhang (Lower Silesia), born at Wolbrom (Government General) on 3 January 1920, a Pole, at present held in custody during judicial proceedings, charged with preparation for high treason and other crimes, the People’s Court, First Senate, as result of the trial, held 20 May 1943, in which took part as judges—

People’s Court Judge Laemmle, president

District Court Judge Dr. Schlemann

S.A. Gruppenfuehrer [Major General] Haas

S.A. Gruppenfuehrer Hohm

S.A. Gruppenfuehrer Koeglmaier, as representative of the Reich chief prosecutor

Local Court Judge Dr. Pilz

duly pronounces—

The defendant, as a Pole, ventured to aid the enemy of the Reich by leaving his job in Lower Silesia, on 6 September 1942, to go to Switzerland and to get in contact with the Polish Legion there. After having been arrested first in Munich, he succeeded in escaping from an internment camp with two other Poles and in proceeding toward the Swiss frontier. On his way, he was arrested at Lochau (Vorarlberg).

He therefore is sentenced to death

The defendant, who is an ethnic Pole and who, as a former Polish subject, had on 1 September 1939 his residence within the territory of the former Polish republic, in November 1939 volunteered for employment on a farm in Germany which he obtained at Metschlau (Lower Silesia). His conduct, however, was by no means in accordance with his voluntary enlistment. Already a few weeks later he left his working place without permission. He was picked up and allocated for work to a farmer in Buchenhang (district of Glogau, Lower Silesia). In October 1941, although his living was provided for by free board and lodging and monthly wages of 30 reichsmarks, he left that job, too, without authority. Again he was arrested and brought back to his Buchenhang working place after having served a prison term of 3 months, pronounced on charges of breach of the working contract, in January 1942. Instead of, as a Pole, taking his sentence as a serious warning, the defendant after having received certain pieces of information on Switzerland from Poles when on leave to his home town, gradually made up his mind to deprive Germany permanently of his capability to work, to escape to Switzerland, and to apply there with the Polish or English consular office for enlistment in the Polish Legion. On 6 September 1942, he began to carry out his plan. Secretly he left Buchenhang and took a train running toward the Swiss frontier, taking with him his savings of 100 Reichsmarks and a Hitler Youth badge as camouflage. He was, however, arrested in Munich on 8 September and brought to the labor reformatory camp Moosach. On 10 September 1942, he escaped from the camp together with two other Poles who also wanted to go to Switzerland and continued his trip to Switzerland by going to Lindau. From there he tried to get to the Swiss border on foot and in order would have had to cross it illegally. On his way there he then was arrested by a customs official in Lochau (Vorarlberg) on 12 September 1942.

The defendant admits the facts with the one proviso that his sole motive had been to look for a job in Switzerland and that he wanted to get in touch with some Polish people who, as he knew, lived in Switzerland, and whose addresses he had got in his home town as being able to get him work.

This defense cannot be given credit. The defendant held a job in Germany and got, as a Pole, such fair wages that he was able to save 100 RM within a comparatively short period. There was therefore no good reason why he should have given up his place of work in Germany, in order to look for work in a foreign country, especially considering the illegal frontier crossing which in wartime is particularly dangerous. How little, after all, he really did care for serious work is shown clearly by the fact that he repeatedly and without authorization left his place of work.

It must therefore have been for other reasons that the defendant considered the idea of going to Switzerland. Based upon the experience gained by the senate in similar cases, the way which was chosen by the defendant, in order to reach the Swiss frontier, was taken by many other Poles escaping from their employment in Germany for the purpose of enlisting in the Polish Legion in Switzerland. On account of the hostile propaganda from abroad, carried on everywhere among the Poles, it was generally known to the latter that in Switzerland, through the Polish Consul of the Polish puppet government, or through the British Consul, there existed an opportunity of joining the Polish Legion, whose aim, as the court knows, is to bring about the restoration of an independent Polish state including forced separation of the Incorporated Eastern Territories from the Greater German Reich, by rendering military service on the enemy side. According to the view taken by the senate, the defendant became informed about these circumstances while on leave in his home town. All the more so, as he expressly admits having acquired the idea of escaping into Switzerland from there. Furthermore, it should be added that the defendant is a young and sturdy Pole, who was absolutely fit for military service in the Polish Legion. Besides this, his general anti-German attitude which is shown by his breaches of contracts is compatible with his enlistment in the Polish Legion, hostile to Germany. Finally he makes the same statement for his defense as has always been made by other Poles trying to join the legion, who are arrested in the neighborhood of the Swiss frontier. Apparently, this was recommended as a pretense by the Polish propaganda machinery from the very beginning in cases in which escape should fail. Taking into consideration all these circumstances, the defendant’s escape to Switzerland leads to the only possible conclusion that he wanted to join the Polish Legion intending to fight as a member of the latter against the armed forces of the German Reich and to help bring about the success of the treasonable purposes of the Legion, which in spite of his denial and according to the view of the senate, were known to him. He therefore may be considered as convicted of preparation of high treason according to article 80, paragraph 1; article 83, paragraphs 2 and 3 of the Penal Code and of undertaking to aid the enemy from inside our country according to the provisions of article 91b of the Penal Code.[504]

At the same time he has made himself guilty of a crime according to article I, paragraph 3, last sentence, of the Penal Decree for Poles of 4 December 1941.[505] Because, being a Pole, he has intentionally inflicted damage to the interests of the German people by malevolently leaving his important agricultural job, above all, during harvest time in September 1942, and by escaping abroad, thus trying to rob forever the German people of his own labor. In view of the lack of farm workers, each single farm hand is decisive for maintaining the food supply of the German people, and in consequence, for its staying power in the fight for freedom. Every deduction of manpower whatever is detrimental to the German interests in a total war. This was absolutely clear to the defendant who admits it, too.

According to article 73, Penal Code, the penalty can be drawn from the penal decree concerning Poles which loc. cit. demands exclusively the death penalty as a rule, this being taken from the most severe penal law applicable here.

The senate, considering the defendant’s character, could see no reason for deviating from this threatened basic punishment, and for treating it as a less serious case. By serving a 3 months’ prison term imposed previously on account of breaches of contracts, the defendant had been given sufficient warning. He was offered a last chance finally to come to his senses and to reason by his internment in the labor reformatory camp Moosach. All that, however, could not make the least impression on him. On the contrary, although as a Pole he was held to excellent conduct and unrestricted labor service in view of the blood guilt of which the Poles before and at the outbreak had made themselves guilty against the German people, he stubbornly stuck to his hatred against Germany. Furthermore, beyond the fact that he deprived us of his services, he stubbornly and without disregarding the opposing difficulties, continued to pursue his aim of fighting against Germany on the enemy side, and of accomplishing his attempt at high treason. The death penalty therefore represents the only adequate measure which does justice to the criminal action committed by the defendant, who is dominated by his fanatical hatred against Germany, and to the security requirements of the German people. This appears absolutely necessary in order to create a deterrent. It has been for these very reasons that the People’s Court passed the death sentence on the defendant.

As a condemned person, the defendant has to bear all costs of the proceedings.

[Signed] Dr. Schlemann

Laemmle

Munich, 20 July 1943

File number: AR. VII 442/43

The Chief Reich Prosecutor Munich I

To the Reich Minister of Justice

Berlin

SECRET

through the Chief Reich Prosecutor at the People’s Court, c/o the Local Court Judge Dr. Pilz or his representative in office

Berlin W. 9

Bellevuestrasse 15

Subject: The case against Stanislaw Bratek. Concerning decree of 1 July 1943—IV g 10a 1098/43 g—

Official in charge: Senior Prosecutor Roemer

In 2 copies—With one attachment for the Reich Minister of Justice and 2 further enclosures for the Chief Reich Prosecutor

Concerning 9 J 195/42 g.

The execution of the death sentence against the person named took place on 19 July 1943 at the Munich-Stadelheim prison. 1 minute, 10 seconds elapsed between his leaving the cell and final execution, and from the moment he was handed over to the executioner to the fall of the axe, 10 seconds. There are no accidents or other happenings to be reported.

[Typed] signed Kummer

Certified: [Signature illegible]

Clerk

[Stamp]

The Chief Prosecutor

Munich

THE BECK CASE, 5 APRIL-21 SEPTEMBER 1943. EXTRACTS FROM THE OFFICIAL FILES INCLUDING REPORT OF LOCAL NAZI OFFICIAL, 5 APRIL 1943; REPORT TO THE GESTAPO IN VIENNA, 4 JUNE 1943; LETTER FROM DEFENDANT BARNICKEL TO THE PRESIDENT OF THE PEOPLE’S COURT, 30 JULY 1943, ENCLOSING INDICTMENT SIGNED BY BARNICKEL; AND JUDGMENT OF THE PEOPLE’S COURT AFTER TRIAL OF 20 SEPTEMBER 1943

Ortsgruppe

Rembrandtstrasse

2., Obere Donaustrasse 35

Telephone: A 43-0-72

[Stamp]

NSDAP Kreisleitung II

12 April 1943

S/Jo.

Subject: Oskar Beck, of mixed race, Vienna, 2.,
Obere Donaustrasse 12

I enclose a report from the competent block leader on Oskar Beck. Beck is of mixed race, 1st degree, but he behaves like a 100 percent Jew and is a malicious enemy of Party and State, who unfortunately could not be caught up to now. I had already raised objections against the man when, at approximately 11 o’clock at night, he removed wireless sets from his shop to install them in his flat. I reported to you personally on this matter at the time, but there was then no means of initiating proceedings against him.

The present report may make it possible to apprehend Beck.

Heil Hitler!

The Ortsgruppenleiter

[Illegible Signature]

[Stamp]

National Socialist German Workers Party

Ortsgruppenleitung Rembrandtstrasse

To the NSDAP, Gauleitung Vienna

Gau Personnel Office

Main Office for Assessing

Political Reliability

Vienna, I, Gau Building

Assessment to be sent to:

To the Secret State Police,

State Police Office Vienna,

Vienna, I

Morzinplatz No. 4

[Handwritten] 285981

Political assessment requested for:

Name: Beck

Date of birth: 21 July 1899

Occupation: Radio dealer

Place of residence: Vienna II

Other addresses from 1932 until now:

Purpose of inquiry: State Police proceedings

[Handwritten] 10 June 1943

Confidential!

Answer from Personnel Office

The above-mentioned was a member of the Social Democratic Party, and while it was banned he was a voluntary member of the Fatherland Front.[506] He was at that time an adversary of the [National Socialist] movement.

There has been no change in his opinion up to the present. He does not belong to any of the affiliated associations of the NSDAP and gives very small sums to collections.

On political grounds exception must be taken to Beck, who is of mixed race, 1st degree.

Heil Hitler!

[Signed] Volkmer

Heide

The Reich Chief Prosecutor at the People’s Court

Reference: 9 J 617/43

Please quote in your answer

[Handwritten] E 19/8

R.

To the President of the People’s Court

Here

Subject: Criminal case against
radio engineer and dealer, Oskar Beck
from Vienna for undermining military efficiency

Enclosure: 1 volume of files
9 copies of the indictment

I enclose the indictment together with enclosures, with reference to my submissions contained in the latter part of it.

If Attorney Dr. Jerabek obtains admittance as defense counsel, no counsel need be appointed (pages 14 and 15 of the indictment).

Prosecution under article 2 of the law of 20 December 1934[507] has been ordered as a precaution (page 17 of the indictment).

As deputy:

[Signed] Dr. Barnickel

Berlin, 30 July 1943

Chief Public Prosecutor at the People’s Court

9 J 617/43

Arrest!

Indictment

The radio engineer and radio dealer Oskar Beck, born on 21 July 1899 in Vienna, from Vienna II, Obere Donaustrasse 15; bachelor, no previous convictions, provisionally arrested on 3 June 1943, from that day on under detention pending judicial investigation in virtue of the warrant issued by the examining magistrate at the Court of Appeal in Vienna on 17 June 1943—2 S Js 1750/43—at detention prison I in Vienna, so far without defense counsel, is charged by me, in Vienna in March or April 1943 to have undermined the defensive strength by malicious incitement against war work for women.

Crime according to article 5, paragraph I, number 1 of the Extraordinary War Penal Ordinance.[508]

Main result of investigations

The accused attended the elementary school and a 4-year high school course in Vienna, and for 5 years attended a trade school for electro-technicians, was employed until 1924 in a number of places; and since then has had a shop of his own with a net income of 200 reichsmarks per month. He is of mixed race, first degree; his mother was a Jewess. From 1919 until March 1922 he was a member of the Social Democrat Party. He is now a malicious adversary of the National Socialist State.

In March or April 1943, he repaired the wireless set of Theresia Draxler, retired post office secretary. When leaving her apartment, he saw an application form for joining the total war effort on the kitchen table. He asked the witness Draxler whether she had already filled in the form and added:

“Do you know that every woman who goes to work, sends one soldier to his death”?

The witness Draxler did not answer him. Then the accused left the apartment.

He denies, but has been convicted by, the trustworthy statement of the witness.

The remark of the accused aims at preventing a person from fulfilling the duty of registering for the total war effort. This attempt to burden the conscience of a woman who is willing to work by seeking to make her responsible for the heroic death of soldiers jeopardizes the devotion of women for work, and has a damaging effect on the nation’s fighting morale and its will of self-preservation in total war. The accused could not count on Mrs. Draxler keeping his remark to herself, but had to reckon with the fact that she would speak of the incident to other people and that his utterance would become known to wider circles.

Evidence

I. Statements of the accused.

II. Witness: Post office secretary, retired, Theresia Draxler in Vienna II, Scholzgasse Nr. 2.

I request that trial shall be ordered, detention pending investigation be maintained, and defense counsel be appointed for the accused.

As deputy:

[Signed] Dr. Barnickel

Received: 21 September 1943

9 J 617/43

4 L 150/43

In the Name of the German People

In the case against the radio engineer and radio dealer Oskar Beck, born 21 July 1899 in Vienna, resident in Vienna, at present under detention pending judicial investigation for undermining the military efficiency, the People’s Court, 4th Senate has decreed that, following the trial held on 20 September 1943, at which the following were present, as judges:

People’s Court Counsellor Mueller, president

District Court President Mittendorff

Kreisleiter Reinecke

City Councillor Ahmels

City Councillor Vahlberg, as representative of the Reich Chief Prosecutor

Senior Prosecutor Jaeger

The defendant is sentenced to death and to the loss of civil rights for undermining the military efficiency.

He bears the cost of the proceedings.

Findings[509]

The 44-year old defendant has had German citizenship since the “Anschluss.” His deceased mother was a Jewess. After passing through primary school and a 4-year high school course, he was trained as an electrician at a trade school in Vienna which he attended for 5 years, and then held several jobs until 1924. Next, he worked independently as a radio engineer and radio dealer in Vienna. He claims to have earned about 300 RM a month lately. From 1919 to 1922 he was a member of the Social Democratic Party. Later on he belonged to the “Fatherland Front.”

The Draxler couple were among his customers in Vienna to whom he had sold a radio several years ago. At Mrs. Draxler’s request he had repaired it several times. In March 1943 Mrs. Draxler called him in again to overhaul the radio. As he left the apartment, he happened to see lying on the kitchen table an application form for employment in the total war effort. Believing this to be Mr. Draxler’s form, he asked Mrs. Draxler whether she too had filled in such a form. When she informed him that she had got the form for herself, he said: “You realize, of course, that every woman who goes out to work, sends a soldier to his death”? Mrs. Draxler who was very indignant about this remark refused to answer, and he left very soon afterward. Later on she spoke of this incident to some of her acquaintances, among others to the wife of a political leader in the NSDAP who reported it to the Ortsgruppe.

The senate considers these facts to be correct on account of the trustworthy statements made under oath by Mrs. Draxler. The defendant admits that he was in the apartment of the witness in the spring of 1943 to test the radio and to have left through the kitchen; he denied emphatically, however, during the preliminary proceedings as well as at the trial to have made the remarks with which he is charged or any similar remark. He maintains to have only discussed business matters with Mrs. Draxler as with his other clients. The woman might have been annoyed that the radio had been out of order several times and had therefore reported him. The witness might have heard the remark from somebody else and mixed it up. His attitude was not hostile to the Third Reich. He had advised a National Socialist, Walter Pindur, who during the Schuschnigg period had supplied him with cardboard out of which swastikas had been cut, to be careful. The Party members, senior customs inspectors Schmidt and Scerences would be in a position to testify to it that he had not been an enemy of national socialism. An inquiry at the Ortsgruppe Rembrandt would show that he had done repair work for them free of charge.

The defendant cannot have any success with this defense. The witness Draxler firmly maintained her statements in the face of all his objections and the senate, from her bearing at the trial, gained the conviction that the witness did not wrongfully accuse the defendant out of annoyance because her radio did not work. Furthermore, she denied to have been annoyed at all and pointed out quite rightly that she had not made the report. The senate is convinced that by his denials the defendant is only trying to avoid the serious consequences of his offense. To interrogate the witnesses Pindur, Schmidt, and Scerences and to obtain a statement from the Ortsgruppe Rembrandt in Vienna is superfluous in view of the facts, especially if one considers that for ulterior motives the defendant would not have disclosed his true opinion to these witnesses nor to the Ortsgruppe.

The way in which the accused spoke calmly and deliberately, and without any apparent cause, only an enemy of the State can think and speak.

The utterance which the accused is known for certain to have made to the witness Draxler was liable to impair her as well as other people’s willingness to work for the total war effort. By this remark he attacked therefore the fighting morale and the will for self-preservation of the German people, and this he did “publicly” within the meaning of article 5, number 1 of the Extraordinary War Penal Ordinance, as he had to count on the fact and he actually did count on it that the witness, whom he did not know well would spread his remarks—as actually did happen. The senate is furthermore of the opinion that the accused was fully aware of the defeatist nature of his remark and the publicity in the above sense. Thus, the conditions under article 5, paragraph 1, number 1 of the Extraordinary War Penal Ordinance of 17 August 1938 apply. The fact that the intention of the accused was without any result as regards the witness, does not affect this state of affairs—the purpose of the above ordinance is not merely to prevent any undermining of the people’s will to self-preservation, but to prevent all possibility of undermining it.

It is out of the question to assume a less serious offense because the accused acted with the intention to undermine morale and because [by the remorse combined with it][510] the appeal to the emotions of a woman prepared to join the war effort represents a well calculated and particularly mean and dangerous attack on the German nation’s will to self-preservation. Accordingly, the death sentence, which is the only penalty provided for the crime of undermining the military efficiency, was passed on the accused.

Owing to the dishonesty of his offense, the accused forfeited his civil rights.

Costs have been awarded according to the law.

[Signed] Mitterdorf

Mueller

DRAFT OF A NOTICE TO HITLER, INITIALED BY DEFENDANT ROTHENBERGER AND VOLLMER, NOVEMBER 1943, REPORTING A DEATH SENTENCE IMPOSED BY THE PEOPLE’S COURT UPON A FORMER GERMAN NAVAL CAPTAIN FOR REMARKS ALLEGED TO HAVE ASSISTED THE ENEMY AND UNDERMINED THE MORALE OF THE ARMY

The Reich Minister of Justice

Fuehrer Information 1943 No.

On 18 October 1943, Guenter Paschen, retired naval captain [in German navy] from Flensburg, was sentenced to death by the People’s Court for assisting the enemy and for undermining the morale of the army.

Paschen, whose family on his mother’s side comes from Denmark and who is married to an English woman, was a veteran in World War I and took part in the Skagerrak battle and later on in the Finland operation. Last, he was liaison officer with General von der Goltz. Having retired after the collapse, he was a naval training officer from 1926–1936.

Paschen, since his retirement, is a resident of Flensburg and moves in the circle of the Danish minority. He had a political discussion at the end of August 1943 with two Danes, unknown to him, who wanted to rent a furnished room in his house. He then expressed the view that he did not believe in a German victory and that he thought the secret weapons to be propaganda bluff. Furthermore, he stated that Denmark had been treated unjustly in 1864 and that the Reich must give Schleswig back to Denmark.

One of the Danes adopted these views as his own and tried to shake the confidence in victory of a woman naval auxiliary with whom he had an affair.

The sentence will be executed.

Berlin, .... November 1943

(Expert on the case: Chief Public Prosecutor Dr. Franke)

[Initials] R [Rothenberger]

V [Vollmer]

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

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.

*******

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

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.

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

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

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

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

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

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

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

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

A. I just wanted to talk about that.

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

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

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

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

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

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

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CROSS-EXAMINATION

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

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

Presiding Judge Brand: The objection is overruled.

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

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

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

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

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

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

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

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

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

A. No, no. I cannot remember the—

Q. Would you like to see that exhibit?

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

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

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

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

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

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

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

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

Q. Yes.

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

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

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

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

Defendant Lautz: Yes.

*******

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

Presiding Judge Brand: What exhibit are you referring to?

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

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

Defendant Lautz: Yes.

Q. Go ahead, please.

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

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

Those are your words, are they not?

A. Yes.

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

A. Yes, it is.

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

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

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

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

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

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

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

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

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

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

A. Yes.

Presiding Judge Brand: What was the answer?

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

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT BARNICKEL[532]

DIRECT EXAMINATION

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

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

*******

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

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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.

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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.

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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.

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