“After the defeat of France in the present war, as is known to the senate (court) from other proceedings, detachments of the Polish Legion crossed the border into Switzerland and were interned in camps. The legion continues under the command of Polish officers and is kept in readiness for military action against the Reich on the side of the enemy in the event of German troops invading Switzerland.”
The evidence of intent to join the interned legion is paltry, but as before we will not attempt to retry the case on the facts. The court held that according to the law against Poles, the death sentence must be imposed. We quote:
“They wanted to deprive the German nation forever of their labor. Thus, they have damaged the welfare of the German nation. This is an offense under the ordinance on the administration of penal law against Poles. * * *
“The precept of the Regulation of Penal law against Poles applies to the defendant’s offense, although it was committed before the regulation came into force for, according to article I of the Supplementary Regulation of 31 January 1942, the Regulation of Penal Law against Poles can be applied to offenses committed before the regulation was in force with the approval of the prosecutor. This approval has been given by the Reich Chief Prosecutor.”
In another, the Kalicki case, the record of which is marked “Secret,” three Poles were sentenced to death for preparation of high treason upon the same grounds as in the previous case. The court held that “the sentence to be pronounced has to be based on the ordinance concerning the administration of penal law against Poles, since this ordinance provides the heaviest penalty of all laws applicable to the case.” The evidence does not disclose that the defendant Lautz personally signed the indictment, but it was certainly filed under his authority. The question of clemency in the Kalicki case was presented to the defendant Rothenberger. On 28 July 1943 he wrote:
“ * * * I have decided upon authorization by the Fuehrer not to exercise my right of pardon but to let justice take its course.”
The defendant Lautz filed an indictment against the Pole, Bratek. The specific charge was leaving his work in Germany and attempting to cross the border into Switzerland to join the Polish Legion. The general charge was the treasonable attempt to separate from the Reich an area belonging to the Reich and the violation of the law against Poles and Jews. The court said (NG-595, Pros. Ex. 136):
“At the same time he has made himself guilty of a crime according to Article I, paragraph 3, last half sentence, of the Ordinance on the Administration of Penal Law Against Poles, issued 4 December 1941. 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 planning to rob the German people forever of his own labor by escaping abroad. * * *
“According to article 73, Penal Code, the penalty must be based on the ordinance concerning the administration of penal law against Poles which loc. cit. demands exclusively the death penalty as a rule, this being the most severe penal law applicable here.”
A secret communication by the defendant Lautz to the Reich Minister of Justice is of especial interest. The proposal under consideration as for the prosecution of certain Poles upon the charge of high treason on account of acts done in Poland before the war. In his discussion Lautz quotes from Himmler, the Foreign Office, and the president of the People’s Court. The facts on the basis of which opinions were expressed may be illustrated thus: Within Poland and before the war, a Pole institutes proceedings against a Polish citizen of German blood, charging the racial German with fifth column activities directed against Poland. During the war the Pole who instituted the prosecution against the racial German is captured. The question was: Can the Pole be prosecuted in a German court on a charge of high treason against the Reich, basing the charge on the fact that he had prosecuted the racial German in Poland? The German penal statute involved was section 91, paragraph 2, which provides that “whoever with the intention of causing a serious detriment to a national of the Reich, enters into relations as described in paragraph I shall be punished,” in especially serious cases by death. Himmler, as quoted by Lautz, discusses the basis for punishment by German courts of “an offender who has caused racial Germans to be punished or otherwise prosecuted by Polish authorities.” Himmler asserts that foreign police used methods against racial Germans which were contrary to international law and “the laws of minorities” and that such offenders deserve heavy punishment, but he also states that as far as racial Germans are concerned, section 91, paragraph 2, of the German Penal Code “is not directly applicable, as racial Germans, according to formal national laws were not German, but Polish, citizens. I can only express my opinion in the form of a suggestion, that in case of the betrayal of a racial German by the foreign Poles * * * section 91, paragraph 2, of the German Penal Code is to be applied * * *.” (Citing decisions of the People’s Court.) Himmler directly states that the provisions of section 91, paragraph 2, are “nonapplicable”. We emphasize the fact that the question under discussion related to the proposed prosecution of a Pole for acts committed before the war while Poland was in the exercise of its sovereign powers throughout its territory. The question could not well have related to acts done after Poland had been overrun and part of it purportedly annexed, for, at that time Polish authorities would have been in no position to prosecute racial Germans. Furthermore, in discussing the problem, Lautz mentions a case against the Pole Golek which had recently come into his hands on preliminary proceedings. He states that Golek in the years 1938 and 1939 in Poland had turned over to the police authorities a racial German of Polish nationality and had accused him of high treason committed in favor of the Reich.