Chapter LXII: Section 60: , Penal Code. Costs: Section 465, Code of Criminal Procedure (8)

A. No, certainly not. First, I was still a college student at that time, as I stated before, and also I do not believe I would have lost my job. Many participants that is, many civil servants who participated at least, if they took part in a subordinate role such as I were not in any way affected in their positions. Moreover, I would like to state at that time it was not a Nazi activity within the meaning of that phrase, the Bund Oberland was not a National Socialist organization. It was a patriotic, self-protective organization, which in the years after the First World War in the fight against the attempted Communist uprising and in the fight against the Polish uprising in Upper Silesia in 1921, without a doubt had gained its merits. To be sure, I participated in the Hitler Putsch at that time, but at that time the fronts were not so well delineated as yet that the actual Putsch could be described as unequivocal Nazi action.

Q. If that is so, Dr. von Ammon, apparently officials in the Ministry of Justice were not aware of it really, because as I read your official personnel files here which came from the Ministry, and which I am sure you have seen many times with respect to your membership in the early political associations, you are credited with having participated, and I am quoting, “in the Nazi uprising in Munich on 9 November 1923.” Now, in later years, Dr. von Ammon, did the Nazi Party ever give you any tangible momento of that famous event of 1923?

A. First of all, in order to correct you, I would like to say that I never saw my personnel files, as you assume, Mr. Prosecutor. I do not know at all what is written in these personnel files. As far as the question is concerned whether I have a tangible momento of my participation in the Hitler Putsch, I have to answer that this momento was limited to a pass which permitted me to participate in the festivities which took place yearly on 8 and 9 November in Munich--

Q. Ah--

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

Q. What number was that card or pass?

A. Unfortunately I don’t recall.

* * * * * * *

Q. Now, Dr. von Ammon, there is just one thing further in this custody-of-the-Gestapo business that confuses me. After the arrangement had been made late in 1944 to transfer these Nacht und Nebel prisoners to the Gestapo for protective custody, there has been a lot of talk here about the fact that the court authorities finally handed these people over to the Gestapo, at least in some measure.

What actually was involved in this handing over of Nacht und Nebel prisoners to the Gestapo as far as the courts and the justice administration were concerned? By handing over, what actually did happen, so far as the courts and the Ministry are concerned? Did you sign a release? Did you actually put them in trucks and take them to the other side of town, or what happened?

A. Unfortunately I cannot give you that information. You have to turn to the Referent of the department for penal administration, to the witness Hecker,[492] who carried out those transfers.

Q. Dr. von Ammon, with respect to the winding up of the Nacht und Nebel affairs in the Ministry in the handing over of these people to the Gestapo, the witness Hecker in Exhibit 416[493] says that you attended a number of the conferences during which this method was ironed out. It’s surprising that you don’t know how it happened. How did these people get off your hands? Was it a paper transfer, or what was it?

A. No, two ordinances of Departments IV and V were issued at that time, and they were issued to the chief general prosecutors concerned, to the effect that they were to transfer the prisoners to the competent authority, the Gestapo.

* * * * * * *

Q. You mentioned that the courts in enforcing the Nacht und Nebel program by trying Nacht und Nebel defendants, particularly the Special Courts, had been moderate in their sentences. Now, in view of that, I’m wondering if that is true for the reason that after the Nacht und Nebel program was terminated by these arrangements in 1944, you wrote a letter to the Attorney General in Munich and you told the Attorney General in Munich that in view of the new arrangement concerning the treatment of Nacht und Nebel prisoners in the future, namely their transfer to the Gestapo, “There no longer will be executions of Nacht und Nebel prisoners in any large numbers.”[494] Now, tell me, Dr. von Ammon, if these courts were so lenient and gentle with these Nacht und Nebel defendants, why did you see fit to mention that death sentences weren’t going to be in any large numbers in the future? That’s the same as saying they were large in the past, isn’t it?

A. I stressed above all that the sentences passed by the Special Courts were moderate. It is true that the Special Courts only passed a few death sentences. I did say, however, on the contrary that the People’s Court did pass a large number of death sentences and even mentioned that 50 percent of the persons indicted by the People’s Court were sentenced to death. Those sentences which were intended to be executed in Munich were sentences which had been passed by the People’s Court.

Q. In any event, whether it was the People’s Court or the Special Court, after that Nacht und Nebel program was dissolved, you were of the opinion then that large numbers of death sentences would not be passed in the future?

A. No, actually I was of the opinion that no further death sentences would be passed. The only thing that could still happen was that death sentences would be executed that had been passed prior to September 1944.

Q. And from your letter, it appears that up until that time, they had been large in number, does it not?

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

Q. Oh, of course.

A. I believe that in view of the long period of time--from 1942 until the end of 1944--the number of death sentences which were actually passed is relatively small.

Q. May it please the court, the prosecution offers as Document NG-1886, Prosecution Exhibit 546, the letter written by defendant von Ammon which we have just been discussing.

PRESIDING JUDGE BRAND: The exhibit is received.

* * * * * * *

_EXAMINATION BY THE TRIBUNAL_

PRESIDING JUDGE BRAND: I understood you to say that you did not know of any innocent person who was brought to Germany under Nacht und Nebel procedure.

DEFENDANT VON AMMON: I was referring to the assertion of the prosecution. The prosecution had maintained that evidently innocent persons had been treated in exactly the same manner as guilty NN prisoners, and it was in reply to that, that I stated that evidently innocent persons were never brought to Germany at all; that is to say, as far as my knowledge goes. If, however, it did happen that a person was evidently innocent and had been brought to Germany, then there was a possibility of releasing him back to the occupied territories.

Q. I still understand you to say that you knew of no innocent person brought under Nacht und Nebel procedure.

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

Q. I am referring to what you said. Did I correctly understand you to make the statement that you knew of no innocent person who was brought to Germany under Nacht und Nebel procedure?

A. I would like to restrict that to evidently innocent persons, as opposed to a person whose innocence only later was made clear. That naturally happened, too, and such cases did occur and such cases were brought to Germany.

Q. That is a very material modification of your former statement, because you also said that considerable numbers were acquitted. I assume that you do not consider that persons who were acquitted were necessarily guilty; you presume them innocent if they were acquitted, don’t you?

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

* * * * * * *

_REDIRECT EXAMINATION_

DR. KUBUSCHOK: In reply to a question by the prosecutor, you spoke of your membership with the Bund Oberland, and you stated that the Bund Oberland on 8 November [9 November] 1923 took part in the so-called Hitler Putsch. You stated that the Bund Oberland was an association--a so-called Nationalistic association of which many members were college students. Did that organization Oberland at a later time ever become incorporated in the NSDAP? Did that nationalistic organization ever become a National Socialist unit by way of incorporation?

DEFENDANT VON AMMON: No. After the Bund Oberland had participated in the Hitler Putsch on 9 November, it was dissolved. I believe that at some time later on it came back to life, but I personally no longer took any part in it. As far as I know, it never in any way was incorporated in the National Socialist movement.

Q. How far did you participate in the events of the night of 9 November 1923?

A. The company of the Bund Oberland to which I had been assigned was alerted, on the evening of 8 November 1923. I was not alerted because my name was not on the alert list. I had joined the Bund Oberland only a little before that time. Therefore, I was only told about it on the morning of the 9th. I then joined my company which was stationed in an inn by the Isar, at Bogenhausen, in Munich. There I spent a few hours with the company; then we marched off to the East. There we disbanded and returned to Munich one by one. That was my participation in the event of 9 November.

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

DEFENDANT VON AMMON: Yes, I had a gun.

* * * * * * *

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

PARTIAL TRANSLATION OF DOCUMENT NG-685
PROSECUTION EXHIBIT 259

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

The Chief Public Prosecutor 3130 a GSTA. 1.06/216

Hamm (Westphalia) 29 January 1941
Telephone: 1780-87

REGISTERED

To the Reich Minister of Justice

Attention: Under Secretary Dr. Schlegelberger Berlin W 8 Wilhelmstrasse 65

Subject: Situation report

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

_I. High Treason_

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

_II. Administration of Criminal Jurisdiction for Juveniles_

* * * * * * *

_V. Breach of Work Contracts and Unauthorized Change of
Residence of Foreigners_

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The following points should lend support to--

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

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

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

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

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

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

Acting:
[Signed] DR. HAFFNER,
Senior Public Prosecutor

[Stamp]
Certified: [Signature illegible]
Court Clerk

TRANSLATION OF DOCUMENT NG-548
PROSECUTION EXHIBIT 347

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

The Chief Reich Prosecutor at the People’s Court
File No.: 3 J 85/40 secret
Berlin W 9, 23 February 1942
Bellevuestrasse 15
Telephone: 21 83 41
[Stamp] Reich Ministry of Justice
2 March 1942

To the Reich Minister of Justice in Berlin W 8 Wilhelmstrasse 65

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

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

Enclosures: 3 copies of report

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

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

The Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior
Berlin, 13 December 1941
S II A 4 No. 12/41 = 558 = secret

_SECRET_

To the Chief Reich Prosecutor of the People’s Court

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

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

[Illegible Marginal Notes]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“The application is confirmed--

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

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

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

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

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

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

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

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

[Signed] LAUTZ

PARTIAL TRANSLATION OF DOCUMENT NG-337
PROSECUTION EXHIBIT 186

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

Ds.14/1942

In the Name of the German People

VERDICT

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

1. Local Court Judge Egger

2. Public Prosecutor Durchholz, as counsel for the prosecution

3. Inspector Fuchs, as Registrar

V.R.A. 163/164/42

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

FINDINGS

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

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

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

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

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

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

* * * * * * *

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

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

[Signed] EGGER

No charge because of insolvency.

Neumarkt (Oberpfalz), 6 May 1942
The Registrar of the Local Court Neumarkt (Oberpfalz)

[Signed] SCHROTH
Clerk

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

1 C 566/42 (I StS 26/42)

DECISION

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

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

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

FINDINGS

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

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

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

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

[Typed] signed: SCHULTZE

[Typed] signed: RAESTRUP

[Verdict of the Nuernberg Special Court]

COPY

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

_VERDICT_

In the name of the German People:

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

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

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

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

Chief clerk Kastner as registrar of the office.

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

_FINDINGS_

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

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

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

II

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

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

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

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

III

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

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

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

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

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