Commission 3 I also remember another case, but I can no longer state the same of the defendant in that case.
However, it was some case of robbery in which a juvenile was a co-defendant-
THE PRESIDENT: I think that the witness is extending his remarks far beyond the question. Will you please limit yourself to answering the questions which you are asked. You may proceed, doctor.
BY DR. KOESSL:
Q. I believe that the question has been answered rather extensively, witness. Did you or other prosecutors submit written complaints against the treatment Rothaug dealt out?
A. I frequently called on and told my superior authority, General Public Prosecutor Bens, that the manner in which the prosecutors of the Special Court were treated by Rothaug would present a danger for the independence of the prosecution.
Q. Witness, I believe that the presiding judge has just pointed out to you that you are to limit your answer to the question. I ask you to answer the question with "Yes" or "No".
A. I shall answer the question now. I did not make a written complaint.
Q. In your affidavit you mention that Rothaug applied his good legal knowledge in the wrong way.
A. Yes.
Q. Do you refer to a defeating of the law?
A. I believe that this question exceeds the sphere of testimony of a witness.
Q. Witness, in the affidavit you yourself stated an opinion, namely, in the words that Rothaug applied his legal knowledge in the wrong way. That is an opinion. Only for that reason I asked you how you arrived at that opinion and what you mean to say by it - whether it was a defeating of the law.
A. That matter is as follows; Every judge within the framework of the penal law has different possibilities. In one case he can consider Commission 3 mitigating circumstances; in another case he cannot.
He can advance reasons for extenuating circumstances as applicable in the case or he can refrain from doing so. In the case of Rothaug I noticed that the extenuating circumstances were always considered by him to be secondary, and he paid more attention to the reasons which aggravated the penalty. In other words, he applied his legal knowledge to that extent to the disadvantage of the defendant.
Q. Did you draw any consequences from that fact, witness?
A. We have--
Q. I only want to ask you in regard to legal remedies.
A. Sentences of the Special Court acquired legal force at the moment they were pronounced. There was no legal remedy against them.
Q. Witness, I want to call to your attention expressly that I did not ask you about legal remedies (Rechtsmittel) but legal aids (Rechtsbehelfe).
A. Well, I would have come to those legal aids. Only the reopening of a case would have been possible as a legal aid (Rechtsbehelf). However, at the time when I substituted for the senior public prosecutor it was as follows: In the Penal Chamber which had to decide about the reopening of a case the same judges sat as those who were members of the Special Court. Rothaug too was for sometime presiding judge of this Fourth Penal Chamber. To submit a legal aid would, in view of the members of that chamber, have been absolutely impossible, for Rothaug did not change his sentences. The prosecution only had the possibility to try to change the sentence by means of a clemency request, and that means was frequently chosen by the prosecution.
Q. Witness, now I only want to ask you, after the reopening was refused, why did you not use the legal remedy of complaint to the Senate of the District Court of Appeals?
A. In no case did we make an application for reopening of a case.
Q. Then the statements which you have just made so extensively are only your own assumptions?
Commission 3
A. That is not an assumption, that is a fact.
Q. I now want to ask you about the Platzer case. Is it correct, witness, that Platzer had done away with about 100 kilometers of material and that thereby he had withdrawn it from the rationed material.
MR. WOOLEYHAN: May it please the Commission. One moment, witness, please, The way I got that through the earphone, Your Honors, it was kilometers of something. Now kilometer is a measure of distance. How can you have a kilometer of material?
DR. KOESSL: I could also say one hundred thousand meters of material.
THE WITNESS: As far as the Platzer case is concerned, I know it because Platzer is from my home town.
BY DR. KOESSL:
Q. Witness, you don't have to go to such lengths. You can answer the question quite briefly.
A. Materials are not measured in kilometers.
Q. In the meantime I measured it in meters. Please answer my question.
A. Materials at that time were measured by points.
I only remember that after the Special Court returned from Weiden it was discussed that the large amount of material that was found with Platzer, if it had been spread out, would have stretched over quite a distance.
Q. Is it correct, witness, that this was the biggest case of a violation of war economy of all the cases which had happened up to that time?
A. I have to answer that question with "yes".
Q. Thank you.
DR. KOESSL: I have no further questions to address to the witness.
THE PRESIDENT: If there is to be no further cross-examination, is there any redirect?
MR. WOOLEYHAN: No, Your Honor.
Commission 3
THE PRESIDENT: The witness is excused, Please call the next witness.
(LUDWIG SCHIRMER, a witness, took the stand and testified as follows.)
JUDGE HARDING: Will you hold up your right hand end repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE HARDING: You may be seated.
COMMISSION III CASE III EXAMINATION BY BR.
LINK: (Attorney for Defendant Engert)
Q The affidavit of the witness in regard to which I want to ask a few questions is in Document Book IV-C; Page 12 in the German; it is document NG-553, Exhibit 272. Witness, please state to the Court your first name and last name.
A Ludwig Schirmer.
Q And your age?
A Twenty-eight years.
Q Your profession?
A Director of the Penal Institution Ebrach; I am a jurist.
Q On the 8th January, 1946 you gave an affidavit; you probably still remember that?
A Yes, I do.
Q Would you please state for how long you have been working in the Penal Institution Ebrach?
A Since the 1st of August 1945.
Q That is after the collapse.
A Yes.
Q Then, I would like to draw your attention to the last sentence of your affidavit; I quote: "These statements are based on local knowledge of the penitentiary in Ebrach, and on my experiences which I have made after the change-over and during the events of the war."
MR. WOOLEYHAN: Excuse me, I believe that came over the earphones as "local knowledge." The affidavits reads, "personal knowledge."
BY DR. LINK:
Q May I explain this last sentence in your affidavit in connection with the fact that you worked in Ebrach only after the end of the war to the effect that since you were living in Ebrach you had COMMISSION III CASE III access to information about general matters in the prison without you yourself having made any actual discoveries or would you like to put it?
A I live in Ebrach, and I was born there. My father is an official in the prison of Ebrach, and he is still on duty today. During the war, too, he was in office. The events in the Ebrach Prison were locally known, and, that is how I derived my knowledge.
Q Yes. In your affidavit you are dealing with the facts that treatment, food and especially medical care was supposed to have been very bad toward the end of the war. This part of your affidavit, does it have anything to do with the Reich Ministry of Justice, and, in particular, with the defendant Engert?
A I don't know that.
Q Do you know that these questions had first of all to be dealt with by the director of the prison?
A I know that.
Q Do you know who had the supervision over the Ebrach Prison?
A That was the General Public Prosecutor in Bamberg.
Q Have these events been examined since the end of the war, has a trial been heed of and those responsible for the conditions?
A. The man who was director of the Ebrach Prison, until the end of the war, was imprisoned for one year because of the conditions and then he was released; he was imprisoned in Nuestadt an der Aisch, I assume that that took care of the matter. Further more, a few officials were imprisoned; they were charged with having treated prisoners. At present none of the officials is in prison any longer.
Q I only wanted to know whether you knew the results of these investigations, and that for certain reasons the director of the prison was not reproached by the investigating authorities in the last analysis.
A It is known to me because all of the gentlemen are at large .
COMMISSION III CASE III
Q Witness, you mentioned that largely due to the great number of NN prisoners, Nacht and Nebel prisoners, the institution was overcrowded. Can you state when these NN prisoners came into the institution?
AAccording to the things I found out from the NN records, most of the NN prisoners came to Ebrach in the year 1944.
Q Were they there until the end of the war?
AAt the end of March, 1945, and the beginning of April, 1945, two large transports still arrived -- one with about five hundred prisoners; they came to the Straubing penitentiary; and at the end of April about three hundred prisoners to the Amberg penitentiary; whether they were NN prisoners or other prisoners, I don't know, but I assume that they were NN prisoners.
Q Amberg and Straubing were also penal institutions of the Administration of Justice?
A Yes, they were the same kind of penitentiary as Ebrach.
Q Do you have any reason on the basis of which you can say, that from Ebrach penitentiary NN prisoners were given over to the police?
A I cannot recall any case.
Q Witness, in your affidavit you also mentioned that from time to time a certain number of prisoners were transferred to concentration camps. Do you know the circular decree of the 22nd October 1943 which is the first basis for this action?
A I know this from the prison regulations - basic prison regulations because under the paragraph, release from the secret decree of 1943 was quoted. I don't know the regulation itself.
Q Can you state according to what point of view at that time, that is before you were employed in the prison, this action was carried out?
COMMISSION III CASE III
A I don't know that, but from the basic regulations of the prison, that is, regulations concerning transfer of prisoners, those were prisoners who had been in prison for a longer period; however, I cannot state any exact figures -- what length of time was decisive.
Q From the prison records, could you make any more exact determinations which would enable you to state relative figure's regarding first the number of the penitentiary inmates who served terms of more than eight years, security detained prisoners; and, secondly, as to the number of those who were handed over?
A I cannot do so because I handed the prison records over to Numbers. I only got one of them back, one must still be here.
Q If in your affidavit you mentioned that the director of the institution supposedly made the behavior reports, and then add a remark that they were supposed to be a justification for designating the person concerned as an asocial, that these reports were so to say made for subsequent justification of the action of the director, do you base this on any facts that you found out, or upon an assumption which other gentlemen expressed to you?
A These are not facts I found out myself, but they are remarks of a colleague of mine, who also was director of a prison during the war.
Q Could you state the name of this colleague?
A Eugen Rommel.
Q He is at Ebrach?
A Yes, in Ebrach.
Q Was he prison director at the time when this circular decree was dealt with?
A Herr Rommel was, as far as I know, director of the prison from 1940 to 1943.
COMMISSION III - CASE III
Q. So, you do not know whether the information he gave you was from his own observations or whether they also were based on reports?
A. I do not know.
THE PRESIDENT: Dr. Link, would you be so kind as to repeat for me the date which you specified as being the date of the decree concerning the transfer to concentration camps, I did not got that date.
DR. LINK: The decree dates from the 22nd of October 1943.
DR. SCHILF: (for the defendant Klemm): I only have a few supplementary questions to address to the witness.
Q. Witness, you just mentioned that the man who was director of the prison, was imprisoned for one year because of the conditions before the collapse; you have not yet mentioned the name. Was that the Eugen Rommel, you mentioned?
A. No.
Q. May I ask you to tell us the name?
A. Regierungsrat Hennemann, Government Councillor.
Q. Government Councillor Hennemann is now in Ebrach?
A. Yes, in Ebrach.
Q. Thank you. You further told us that there was a case of ill treatment which was investigated. Did that case of ill treatment concern Hennemann?
A. No.
Q. May I ask you to toll the Court the name of the man, the name of the official?
A. The name of the official is Chief Warden Franz Mueller.
Q. Do you know when this case of ill treatment was supposed to have occurred?
COMMISSION III-CASE III
A. That was not a single case, but a number a cases.
Q. At what time?
A. At the end of the war.
Q. And, this Franz Mueller was also in detention under investigation, and if I understood you correctly he toe was released again by the American investigating authorities?
A. Mueller marched together with the Czechs to Amberg as a supervising authority. He was imprisoned in 1945 by the Czechs in Amberg. In October 1945 I came to Dachau from Amberg,and in 47, in March, he returned as a free man from Dachau to Erbach with a certificate, that he was never to be imprisoned again.
Q. A certificate apparently of the American investigating staff in Dachau?
A. The events of his detention in Amberg were recorded, and are supposedly the subject of a further investigation against the director of Amberg after the war.
Q. I do not quite understand that; I would like to ask you, the certificate which you mentioned, which Herr Mueller brought along with him to Ebrach; this certificate was given to him by an American investigating authority in Dachau?
A. Yes.
Q. Then you say, that an investigation is pending against the director of the penitentiary in Amberg who was the director after the collapse?
A. Yes.
Q. Thus, the ill treatment happened after the collapse?
a June 47-M-AK-10-3-Beard-(Wartemberg) COMMISSION III, CASE III
A. Yes.
Q. But, the responsibilities of the officials within, their competence would not be touched at all?
A. No.
Q. From the fact that Franz Mueller was released and received a certificate it can be assumed probably that he could clear himself of the suspicion of having ill treated prisoners?
A. That is to be assumed.
Q. Do you know of any other cases of ill treatment until the collapse in the Amberg penitentiary?
A. No.
Q. It would probably be rather unusual if such cases had actually happened?
A. It would be outside the scope of the execution of a penalty, of the administration of a penalty.
Q. You stated on the basis of your local knowledge you had an insight into the conditions of Amberg penitentiary, and I am asking you -
MR. WOOLEYHAN: I must call the attention of the Counsel that the affidavit reads, "personal".
DR. SCHILF: The original German says "local". I ask you to excuse me, the original German says not "personal" but "local" knowledge. That is the German original statement. Apparently the English version is not translated correctly.
THE PRESIDENT: We have made that correction.
Q. Witness, may I ask you whether at the beginning of the appearance of the collapse, as a result of the development of the war, basically the conditions in the penitentiary of Amberg, were as they should be and were correct?
A. The conditions were correct and in order with COMMISSION III, CASE III the exception of the over-crowding of the institution and the difficulties created by that.
Q. Would you also attribute the over-crowding of the institution to war-time conditions, I mean that due to the advance of the Allied fighting forces, the institutions which were lying in the center of Germany, which can be said about the Amberg penitentiary, were overcrowded because other lying at the borders of the Reich had to be evacuated?
A. The war-time must have been the only reason.
Q. You further mentioned the bid medical care; I assume that refers only to the last period before the collapse?
A. Yes.
Q. Is it known to you that the civilian population, too, in Germany was suffering from a considerable lack of medical care at that time?
A. Yes.
Q. You further stated that cases of undernourishment occurred during the last months before the collapse Can you now tell us whether in a large number of these cases of undernourishment, the prisoners were brought to Amberg already in a condition of severe undernourishment due to hardships during the evacuation?
A. I can even say that some of the prisoners came to Amberg moribund.
Q. And the reasons? You did not answer that.
A. Well, old age, weak hearts, organic illnesses, TB.
Q. In any case, you attribute the death cases to normal reasons?
COMMISSION III-CASE III A. As normal consequences of illnesses which existed.
Q. You also state the number, how many prisoners died during the last months of the war, namely, 62?
A. This figure can be seen from the existing death certificates of the institution and from the funerals.
Q. This number 62 must, apparently be considered in relationship to the peak of overcrowding of the institution, that is shortly before the collapse in 1945?
A. The figure 62 is the total figure of all deaths amongst prisoners from Ebrach from January until April.
Q. In 1945?
A. Yes, in 1945.
Q. If a relation is established with the largest number of occupants of 1600 mentioned by you, then, expressed in percentage, this would result in the figure 4.1 percent. Under the conditions and circumstances existing at the time, do you consider a percentage of 4.1 percent of death cases too high?
MR. WOOLEYHAN: I object to this question.
THE PRESIDENT: The objection will be sustained.
Q. You then spoke about the bad food, although there were stores of food. If the conditions in the Amberg penitentiary were such that in spite of the sufficient food being there, the food which that the prisoners were given was insufficient, who was responsible for that?
A. The director of the prison.
Q. He alone?
A. And, the physician.
COMMISSION III-CASE III Q. In any case, he was responsible for the food given to the prisoners?
A. Yes.
DR. SCHILF: I have no further questions, your Honor.
THE PRESIDENT: There appears to be no further cross-examination. Is there any re-direct?
MR. WOOLEYHAN: Yes, your Honor.
REDIRECT-EXAMINATION BY MR. WOOLEYHAN:
Q. Mr. Schirmer, you mentioned having gone through the Nacht und Nobel records at Ebrach prison. Can you now describe what kind of records were kept on the Nacht und Nobel prisoners - what did they look like were they regular prison ledgers, or lists, or what were they?
A. They were the same records into which all prisoners were entered. That was called the Prisoner Grundbuch - the prison register. There wore merely differences between NNU prisoners and NNZ prisoners.
Q. What is that difference, Mr. Schirmer?
A. I consider the difference to be that NNZ prisoners had been condemned, and NNU had not been condemned.
Q. From the records kept of these Nacht und Nebel prisoners were you able to ascertain what nationalities they were, or from what country they had come?
A. As far as I know they were mainly Frenchmen and Belgians.
Q. During the time that you wore in and an und Ebrach prison during the war, did you ever hear, or were you over told, or did you over see, what the maximum number of Nacht und Nobel prisoners was in that prison?
A. I myself was never in the prison during the war. I was not allowed to enter it because I was not an official of the prison. I can only refer to the figures which I could gather from the records after the war.
Q. That is what I am now asking. What was the maximum number, the highest number you found?
A. Of the NN prisoners? I cannot say that her without having the document at hand.
Q. But you do remember from the records that they appeared in the majority of cases to be either Frenchmen or Belgians, is that correct?
A. I can only say that NN prisoners were in the cell prison at Ebrach - that the cell prison had sixty-eight individual cells and that in every cell four men were supposed to be living.
Q. Yes, Mr. Schirmer...
A. So that four times sixty-eight would be the number of NN prisoners.
Q. Yes - that would be the number. But I an merely -- well.... No further questions, Your Honor.
BY JUDGE BRAND:
Q. Witness, you said some of the NN prisoners were NNU, and some NNZ.
A. NNZ, yes.
Q. You said that the NNU had not been condemned. Did you mean condemned to death? When you said condemned, did you mean merely sentenced, or did you mean condemned to death?
A. I just meant condemned - without considering the penalty that they were sentenced to.
Q. You mean sentenced by a court?
A. Yes, just sentenced by a court - yes.
Q. And I take it you man that the NNU prisoners had not yet been tried?
A. They had not been sentenced. They were not sentenced prisoners.
Q. And the NNZ prisoners had been tried and sentenced, is that right?
A. Judging from the letters NNZ, they must have been sentenced already.
Q. That is all, thank you. You are excused.
(Witness was excused)
JUDGE BRAND: Call the next witness.
DR. SCHILF: Your Honor, may I ask your forgiveness.. I only want to make a slight correction. Judge Brand asked my colleague Link when this circular decree about the transfer to concentration camps was issued.
Mr. Link made a mistake in the year. It was not 1943. But 1942.
JUDGE BRAND: Thank you.
MR. WOOLEYHAN: May it please the Commissioners, as long as we are discussing what the date of that decree was I would like to direct the Court's attention to the fact that there appear to be a number cf supplementary decrees after 1942, a series, as is evidenced, at least in one place, in Document NG-557. I cannot give you the Exhibit number at the moment but that is the prison lodger from Ebrach prison, which is the entire contents of Document Book 4B. In there you will see a series of dates clearly stating the decrees of the Ministry of Justice relating to these prisoners.
JOSEF PREY, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath).
JUDGE BLAIR: You may be seated.
DR. LINK (for defendant Engert): The affidavit of the witness Josef Prey is in the Document Book 4C, which was mentioned in the examination of the last witness. It is Document NG-506, Exhibit 275.
BY DR. LINK:
Q. Witness, please tell the Court your first and last name.
A. My name is Josef Prey.
0. What is your profession?
A. I am now a carpenter. Formerly I was a main warden at the Amberg Penitentiary.
Q. How long were you an official in the Amberg penitentiary?
A. From 1921 until December 1945 I was in the Amberg Penitentiary.
Q. Were you dismissed after that?
A. What did you say?
Q. Were you dismissed after that?
A. Yes, I was dismissed because I was a Party member.
Q. Witness, in 1946 you signed an affidavit and I have a few questions in regard to it. First you speak of a considerable overcrowding of the Amberg Penitentiary.
A. Yes.
Q. When was this overcrowding, and how did it come about?
A. The overcrowding came about because in 1945, shortly before the end of the war different institutions sent prisoners to tho Amberg Penitentiary.
Q. You say shortly before the end of the war?
A. Yes, most of them say that you also received so-called NN prisoners -- Nacht und Nobel prisoners -- who were transported to you from Bayreuth.
A. Yes.
Q. What do you me an by Bayreuth?
A. The St. Georg Penitentiary, near Bayreuth. The penal institution.
Q. When was that?
A. That must have been about the beginning of April or the end of March. I cannot state that exactly any longer.
Q. Were these NN? prisoners until they were released by the Allied forces in Amberg ?
A. Yes.
Q. Don't you know of any case in which an NN prisoner was transferred any where else before the collapse?
A. No.
Q. You further state that you also had Poles, Mr. Prey?
A. Yes.
Q. Who came from Schiratz?
A. Yes.
Q. How did it come about that those Poles were transferred to Amberg?
A. The Poles were transferred to Amberg because they were to work in the so-called Zeiss Factory which had been established in the Amberg Penitentiary.That must have been about September 1944, and there must have been about three or four transports. In addition, mere Poles came about the beginning of April, or the middle of April 1945 from the Ebrach penitentiary to Amberg Penitentiary.
Q. Witness, in your affidavit you state that the Poles had been sentenced in Poland because of high treason, theft, fraud, et cetera.
A. Yes.
Q. Do you maintain that?
A. Yes, as far as I know there are still files in the Amberg Penitentiary about this.
Q. Thus they were penal prisoners who had been sentenced?
A. Yes, they were penal prisoners.
Q. With short or long sentence?
A. Well, that differed. One or two years.
Q. Did the actual case arise that such a Pole had finished serving his sentence before the collapse?
A. No, they were mostly prisoners who had only been sentenced shortly before, and they still had to serve a longish sentence.
Q. I have to ask you about that case - Chaplain Wein, whom you know, and who referred to you during his examination here as an especially reliable witness, he said something to the effect that these Poles had been sent as freed laborers to Amberg without having been sentenced. Can you exclude that for certain?
A. Yes.
Q. That's enough.
MR. WOOLEYHAN: Your Honor, if the witness is to be tested as to credibility with regarding to anything in evidence before this Comission, I will object to the question unless the transcript is read.
I object to a paraphrase which may, or may not, be in fact what was said. In that case it would have to be a hypothetical question.
BY DR. LINK:
Q. Mr. Link, in your affidavit you are especially dealing with the action which regards the transfer of penal prisoners to the RSMA the Reich Main Security Office. A few questions in regard to that. You were working, as you correctly said, as warden or chief warden?
A. Yes, chief warden in the office of the administration of penalties.
Q. You state here that it was a secret decree of the Ministry?
A. Yes.
Q. Did you, from your own knowledge....do you have exact knowledge about the carrying out of the selection of those, prisoners, about the points of view in which these prisoners were selected?
A. What do you mean, counsel?
Q. I mean whether you know the entire course that this matter took from the Reich Ministry of Justice down to the institution, and then, let us say, to the RSMA in details? Do you from your own observations possess exact knowledge about the manner in which prisoners were selected?
A. Yes.
Q. Would you please describe it to the Court?
A. As far as I can remember the secret decree was issued in the year 1943, about September 1943. It was received at that time in the Amberg Penitentiary, and I, on the order of the then director of the Penitentiary, took out the files and submitted them to the director and the Chaplain Wein at that time divided among themselves the evaluation of the prisoners.
JUDGE BRAND: Mr. Witness, just a moment. We do not wish to Ccurt III (Commission) interrupt but our time for the recess has arrived and it will be necessary to continue after the noon recess.