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.
One further word. When a question is presented by an objection of counsel which properly calls for a ruling by the Commission, the Commission will rule. But when, after the objection, another question has been asked we assume, of course, that the question to which objection has been made has been waived. It was for that reason that we did not rule upon Mr. Wooleyhan' objection. I don't want a counsel to think that we will not rule on a proper objection. But we had no opportunity to do so.
DR. KOESSL: Your Honors, may I, briefly, ask you to excuse the defendant Rothaug for the afternoon from appearing in the session because he is still suffering from very serious stomach trouble.
JUDGE BRAND: We will excuse him today.
We will adjourn now until one-thirty.
(Commission adjourned until 1330 hours)
A Those in security detention? At the penitentiary of Amberg there were about two to five.
Q And how many of this group, according to your knowledge, were transferred?
AAccording to my knowledge, there may have been 80 to 110 prisoners, possibly a few less or a few more. I could not state that with certainty any more, it is just approximate.
Q Approximately.
AApproximately 80 to 110; I think that might be right.
Q Now, I should like you to follow me through the following calculation.
If you mention 150 to 170 prisoners who, according to the regulations, were to be selected for that action, and if you state that about 80 to 110 were then actually put on these lists and turned over to the Gestapo, is the calculation correct, then, that well over one-third were not transferred, that although the prerequisites were given, they were excluded from the transfer? Is that correct?
A That should be about correct, for the simple reason that we also had the possibility of retaining prisoners.
Q Yes. Well, I will revert to that right away. You state in your affidavit that prisoners who worked in an armament plant could be excluded from that transfer by you.
A Yes.
Q Well, how did that come about? Was it so that prisoners who fulfilled these requirements were excepted from the outset so that their names did not even appear on these lists; or were they also put on these lists to be transferred and were then retained by the management of the prison?
A That happened in two ways. Some of them had been excluded from the outset before. That is to say, when Engert was there we discussed that with him right away, and others were excepted later. An appropriate report was then made to Department 15, Abteilung 15, of the Reich Ministry of Justice.
Q Perhaps I did not express myself quite clearly. Is it correct that generally those prisoners who -- owing to the fact that their work in prison was important to the war industry -- were not transferred did not at all appear on the lists, that is, their names did not at all appear on the lists that came from Berlin?
A Yes; that is what I just said, that some of them did not have their names on the lists from the outset, and in the case of others the necessity appeared later that they were still needed and an appropriate report was made.
Q Witness, do you know that of those prisoners whose files were examined at the time by Engert and others for the purpose of transfer, a certain number did not figure in the list of transfers finally?
Did you understand my question?
A No, I did not quite understand it.
Q If, of these 170, about one-third had not been transferred, then somebody must have made a decision, for some reason, that third should not be transferred and why although from the outset it would have been covered by that instruction or that decree.
A Yes, yes, because these people were needed for the armament industry.
Q Of that entire third, were those all people who were needed for the industry?
A Yes, certainly.
Q Do you know that for certain?
A Yes, certainly.
Q You are quite sure?
A Yes, of course, because these people were needed, badly needed, and that was the reason why they were excepted.
Q Could you state that people who met the requirements were then not transferred because, in the course of the investigations, one found that they were not incorrigibles?
A No, I cannot say that, because I did not see these requirements in detail.
Q I see. If I understand you correctly, then you do not know the principles according to which that so-called commission investigated the files?
A No, I don't know that.
Q You had nothing to do with them?
A No.
Q Now, a few brief questions, witness:
After Engert and his assistants had left, how long did it take, in your estimation, until you heard anything further about the matter?
A Engert was here about in March, and -
Q Excuse me if I interrupt you. You mean March of 1944?
A March of 1944. It may have been April or May when, from the Reich Ministry of Justice, a list was sent down according to which such and such prisoners had to be transferred. In June of 1944 the first transport was carried out by the Criminal Police or the State Police at Regensburg, who came to Amberg to get the prisoners.
Q Then you apparently correct the statement made in your affidavit that you received that frequently-mentioned list from the RSHA; you received it from the Reich Ministry of Justice. And the Gestapo at Regensburg, on the basis of the list which they probably also received from Berlin, came to call for the prisoners?
A It is possible, or it may have happened that the list came from both the RSHA and the Ministry of Justice, but I could not be quite sure about that.
Q But that the list came from the Ministry of Justice, that you know?
A I can't be quite sure of it.
Q Herr Prey, would you have released anybody from your penitentiary or from your penal institution if just a letter had been received from the Gestapo saying "turn this prisoner over to us?"
A Well, I think that might not have happened. However, I remember that there were two lists, and I assume that one list came from the RSHA and the other from the Reich Ministry of Justice.
Q I see. Now a last question, just for the purpose of clarification. In that affidavit you say that the basic directive of the Reich Ministry of Justice was to the effect that the so-called asocial elements should be transferred to the concentration camp Mauthausen.
A Yes.
Q Did it especially state in the decree, as far as you have heard about it, or was there any mention made of a concentration camp, by name?
A No.
Q No? Well, then, that probably may have been a little less clear when that affidavit was written.
Commission III, Case III.
A No, we only found out about that through the secret state police, the gestapo, at Regensburg, that these people were to be transferred to Mauthausen.
Q That the people were to come to Mauthausen, you -
A Yes, we found out.
Q Where did you obtain the information that Engert went from one institution to another and selected the people, as you have expressed yourself?
A That Engert told me himself, that I don't remember for sure that he came from Ebrach and continued to Straubing or whether he was first at Straubing and then continued on his way to Ebrach, but Engert told me that himself.
Q Did I understand you correctly whether Engert told you at the time when he was in Amberg that he was also going to Ebrach or Straubing or had been there already?
A Yes.
Q And that is what you are referring to?
A Yes.
DR. LINK: I have no further questions.
DR. SCHIIF: Schilf for the defendant Klemm.
MR. WOOLEYHAN: May it please the Commission, before Dr. Schilf begins the cross examination of this witness, I would like to inquire on behalf of which of Dr. Schilf's clients the examination is being conducted.
THE PRESIDENT: Dr. Schilf expressed the intention to cross examine for the defendant Klemm.
MR. WOOLEYHAN: I must have misunderstood.
EXAMINATION BY DR. SCHIIF:
Q Witness, you mentioned that NN prisoners as well as Poles from other penitentiaries and penal institutions in April, 1945, were brought to Amberg?
Commission III, Case III.
A Yes.
Q Do you happen to know when the American troops marched into Amberg?
A Into Amberg? The American troops arrived on 23 April. That is to say on 22 April in the city and on the 23d of April 1945, in the penitentiary of Amberg.
Q That means, apparently, that a large number of prisoners had arrived only a few days before the American troops occupied the penitentiary?
A Yes. At the time, it was shortly before the American troops arrived, we received from various institutions shipments of prisoners from Kassel, Wuerzburg, Nurnberg, Bayreuth, and from Brieg.
Q And those apparently were towns, the ones you have just mentioned, which had previously been occupied by American troops before Amberg?
A Yes.
Q So that transfer, was only connected with the advance of allied troops?
A Yes.
Q In your affidavit you mentioned as maximum capacity the figure 1100, the maximum number of prisoners?
A Yes.
Q And then later you said it was over 2,000 shortly before the collapse?
A Yes.
Q And that, as you say, was only a few days before the arrival of the Allied troops?
A Yes.
Q Witness, according to your affidavit, you worked at the penitentiary at Amberg for 24 years?
A Yes.
Q In your affidavit you were only asked about conditions as Commission III, Case III.
we have found out now, about conditions as they were shortly before the American troops arrived.
A Yes.
Q Could you tell us anything as to whether conditions in Amberg before that time were generally correct, as they should be?
A Before that time conditions were always correct in Amberg.
Q You have also told us that in September 1944 Poles were brought in?
A Yes.
Q Do you happen to know whether these Poles came from a penal institution which was in the so-called incorporated eastern territories, that is to say, the former Polish territories?
A Yes, these prisoners or these Poles came from Schiraz.
Q And that is in the territory of the occupied Polish region?
A Yes.
Q And do you know why they came?
A Yes.
Q May I ask you to tell us that?
A They came for the purpose of working in the Zeiss plant in Amberg.
Q You have misunderstood me. I didn't ask for the purpose. I asked for the cause, why they came from the occupied Polish territory to Amberg.
A Yes, they were transferred because in the Zeiss plant workers were needed, and these Poles already had worked in the Zeiss plant at Schiraz, but that Zeiss plant at Schiraz had been dissolved and the prisoners were therefore transferred to Amberg.
Q And that penal institution at Schiraz was dissolved and that was in December 1944, because the Russian troops were approaching?
A That I cannot say for sure, but I would assume so.
Q Then one last question. Then, witness, before you the penitentiary director Schirmer has stated that in Ebrach also there were Commission III, Case No. III.
NN prisoners and that these NN prisoners were marked with three letters. There were two different groups, the first group was marked NNZ and the second group NNU. Could you give an explanation to the Tribunal what it was all about, what these markings meant, these designations, because you also received NN prisoners, at least shortly before the collapse?
A No, I could not explain that, but I assume that they may have been prisoners in detention pending trial, and others who had already been tried and sentenced.
Q That you assume from the designation, that is, from the letters "U" and "Z" which, to anybody working in a penitentiary, are quite clear?
A Yes.
Q Now, witness, the statements made here before the Tribunal by Father Wein in have been put to you, and Father Wein stated that you kept the books at the penitentiary of Amberg. That is correct, isn't it?
A Yes.
DR. SCHIIF: I have no further questions.
THE PRESIDENT: I would like to ask, is there any further cross examination? If not, I should like to ask the witness a question or two.
BY THE PRESIDENT:
Q In connection with the prisoners who were transferred to the Gestapo, how can you describe the nationalities? How many nationalities?
A Only Germans.
Q Only Germans were transferred to the Gestapo?
A Yes.
Q Were they NN prisoners?
A No, they were asocial elements.
Q And what had been their sentences before they were trans Commission III, Case III.
ferred to the Gestapo?
A They were prisoners with life terms and those who had received terms of over eight years.
Q Are those the transfers that were made in April, or were those made before that?
A No, they were the prisoners who were transferred to Mauthausen.
Q And when was that?
A That was in June, 1944, and in about July 1944, possibly in September, and then again in January the balance. In January 1945.
Q And in your affidavit you used the term "asocial". What kind of people did you include as the asocial people?
A Well, I really couldn't say that precisely. I assume that those were the kind of people, or are the kind of people, who do no more fit into human society.
Q Well, you used the term in your affidavit. Who did you mean? Did you refer to people of some particular race?
A No, generally that was based on that secret decree from the Reich Ministry of Justice, and that was concerned only with German prisoners.
Q I referred to any particular race of Germans. Did the asocial people refer to the Jews, as you used the term?
A No. At that time we did not have any Jews at the penitentiary of Amberg.
Q I didn't understand about the NN prisoners. Were any of the NN prisoners transferred to the RSHA?
A No, at that time in April 1945 there was no longer any possibility to got in touch with any other offices of the Reich Ministry of Justice or the Prosecutor General.
Q And what was done with the NN prisoners? They were kept in Amberg?
A Until the arrival of the troops they were kept and then re Commission III, Case III.