EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG[418]
DIRECT EXAMINATION
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Dr. Koessl (counsel for defendant Rothaug): It has been asserted that you had coupled together the Katzenberger and Seiler proceedings in order to exclude the Seiler woman as a witness.[419] What was the situation there?
Defendant Rothaug: Under the German Code of Procedure, there are always as many penal proceedings pending as there are defendants. Under certain conditions, such penal proceedings can be tried together for the purpose of uniform trial and decision. That is what we call joinder of penal cases. That joinder may be decided by the court, concerning cases which are pending with it separately. But such joinder may be established by the prosecution itself by one combined indictment. That was what was done in the Katzenberger-Seiler case. The prosecution, by filing one indictment for both defendants, had already established the joinder prior to the files reaching the court. The joinder of the two cases was therefore neither due to a file prepared by me, nor to a file prepared by the court.
Q. Would it have been possible for the prosecutor to proceed differently?
A. Naturally. He could have filed separate indictments. The question was merely whether that would have been correct from the technical point of procedure.
Q. What are the legal provisions on which a joinder of penal cases is based at the Special Court?
A. A joinder is based on article XV, section 2 of the competency order.
Q. When do the conditions exist for a joinder, such as demanded by the law?