Investigation of Josef Kiefer for war crimes in Ostryna and Tschutschin (Szczuczyn)

113 Js 32/65

Regarding:  Investigation of Josef Kiefer and others on suspicion of murder or assistance thereto.

Instruction:
I. The investigation of the accused Josef Kiefer, born 1/2/1909 in Munich, married applied graphicist, resident [address given, omitted].  is instituted accordint to section 170 Abs. 2 StPO.

II. Reason:

I. The accused Kiefer as assigned to the newly-established 707 Infantry Division in May 1941 as Oberleutnant and took over the 12th Company of Infantry Regiment 727.  In August 1941 the 707.  II was set on march for deployment in the East.  Its task was securing the rearward army regions in Belarus.  The Division staff was in Minsk, the staff of Infantry Regient 727 in Baranowicze and the staff of the III Battalion, to which the 12th Comany reported, in Lida.

The accused came to Ostryna with his company by way of Terespol and Grodno.  He first had the assignment of receiving prisoner transports from the battle of Smolensk, to care for them and send them on.  Early September 1941 he took over from another unit the Local Command in Ostryna.  After a short time, he moved the Local Command to Tschutschin.

The 12th Company had 3 platoons.  The 1st Platoon was led by Oberleutnant Nesse, the 2nd Platoon by Leutnant Ritterbusch, and the 3rd Platoon by various junior officers.  Mentioned as leaders of the 3rd Platoon:  Oberfeldwebel Becker, Oberfeldwebel Dietz, Stabsfeldwebel Wimmenauer and Stabsfeldwebel Simmler.  Oberleutnant Nesse was transferred to Baranowicze after a short time, to direct bridge building there.  Ritterbusch took over the 1st Platoon in his place.  Leutnant Schaffitz came to the 12th Company as replacement for Nesse.  He took over the 2nd Platoon and, simultaneously, as Leutnant with the most seniority in the battalion command, Kiefer’s assistant.  He substituted for the accused when he was absent from the company.

The area under the Tschutschin Local Command included Ostryna, Rozhanka, Mosty, and Jeziery, as well as other places whose names can no longer be determined, but not every locality had point of support [substation].  The 1st Platoon under Ritterbusch remained in Ostryna when the Local Command was moved.  Later it is alleged to have been relieved by the 2nd Platoon under Schaffitz.  In Mosty a half platoon under Jr. Officer Brunnhoelzl was stationed, and in Jeziery were the Jr. Officers Herbig & Federau with a few other members of the company.  The town Wasiliszki was certainly not part of the region of the 12th Company, but belonged to the 9th, of which a Platoon was stationed in Wasiliszki (Dr. Schild, - sheet 1 -  and Eichhorn – sheet 56-).  The primary assignment of the 12 Company was to assure the local population in its area stayed home and to prevent civilians from arming themselves with any of the weapons lying around from previous battles & forming partisan groups.  In addition it was to collect the discarded weaponry.  Collecting the discarded weaponry was the primary assignment of the 10th Company.

II.
The 12th Company was quartered in the Tschutschin area from early September 1941 to about mid-February 1942.  In this time members of the company  shot numerous civilians – primarily Jews.  The accused is  accused, as company chief and Local Commandant of Tschutschin, of himself shooting or planning or  knowingly allowing  to be carried out shooting by means of the officers, jr. officers and men under him.  From the admissions of the accused and deposition of witnesses, the following individual acts have become known:

Kiefer (sheet 168, 626) 1. According to testimony of the accused, the village Roshanka was surrounded by members of his unit at a time no longer ascertainable due to a V-notice that a paratrooper was supposed to have landed there.  During the advance into the village, a fleeing Pole – presumeably a Jew – was arrested and interrogated.  He had confirmed the V-notice and led them to a house.  As the soldiers approached, several men fled over the open field.  The young arrested Pole was also able to tear himself loose and flee.  After several futile orders, the accused shot at him with his pistol and hit him.  Another of the fleeing civilians had been shot as well.

Kiefer (sheet 621) 2.  Also according to the accused, in a village whose name he no longer recalls in the area of the 12th Company, several people were shot.  The accused explained that he had received an order via Korueck to uproot a spy and sabotage troop reported by V-people and shoot [the members].  The troop was uprooted, and the house in which it had been headquartered was searched.  Weapons and leaflets were found,  Thereupon the members of this sabotage troop – among them a Polish Oberleutnant – were shot “under martial law”.  He gave the order to shoot these people immediately because they were dangerous.

Kiefer ( sheet 622)  The accused further admitted that in a locality near Grodno  a Russian – presumeably a Commissar – had been shot in flight on his orders.  The Commisar had been denounced by civilians to Feldwebel Wimmenauer, he was agitating against the German occupation among the population, giving out leaflets, and threatening those who collaborated with the Germans.  The man, along with his son, who was hiding him, were arrested.  The accused had interrogated him and threatened to shoot him if he didn’t tell the truth.  The arrested man thereupon fled, and he had ordered [his men] to shoot at him.  A soldier wounded him fatally.  The son he let go, with the order to report daily to Wimmenauer.

Guetl ( sheet 383/384, sheet 596) 4.  While the Local Command was still in Ostryna, it is alleged that in a village between Ostryna & Grodno, a Polish official – a mayor or Commissar – along with another civilian – presumeably the official’s son-in-law – were arrested and on orders or the accused, shot by an execution squad of 4 men under a Leutnant.  The other civilian was let go.  The shooting was alleged to have been under martial law under the jurisdiction of the accused, because the official had been denounced by a Polish teacher, as having killed seven “Volksdeutsche”.  The son-in-law was allegedly aquitted in this proceeding.

Kiefer ( sheet 622)  The accused alleges to know nothing of the conviction and execution of a “mayor” on account of murdering “Volksdeutsche”.  He thinks the event described by the witness Guetl is the same as that he reported as #3, and that the witness is mistaken in some of the details.

Lehner ( sheet 28, 337), Sommer (sheet 55), Heligemeier (sheet 59) Feuchtmeyer (sheet 313), Deutsch ( sheet 600), Waldherr (sheet 261 R), Huber (sheet 280 R) Buetl ( shhet 383), Brunnhoelzl ( sheet 514), Meumaier ( sheet 334), Meier (sheet 540), Strohmeier (sheet 565), Ferner (sheet 404)  5.  About 2 November 1941, it is alleged 4 Polish civilians were hanged in Tschutschin.  A platoon of the 12th Company under leadership of the accused allegedly did the guard duty.  Originally 6 Poles were to be hanged.  The construction of the gallows is alleged to have been assisted by artisans of the 12th Company.  A member of this company is alleged oto have assisted in the hanging.

Kiefer ( sheet 13/14, 622/623)  The accused admits that the 6 Poles had been arrested by local auxiliary police on suspicion of having murdered the mayor of Roshanka.  They had therefore been condemned to death by the Regional Commissar.  The public hanging had also been ordered by the Regional Commissar.  He had received orders from the Battalion to cordon off the execution site to prevent attempts to free [the condemned].  The execution was allegedly carried out by ethnic Germans or Ukrainians under assistant Regional Commissar Windisch.  Windisch had pardoned 2 of the 6 condemned men because he wasn’t convinced of their guilt.  It is possible that the gallows were built by members of his company, he didn’t remember any more.  Possibly Faltermeier voluntarily assisted in the hanging, he had not ordered him to.  He had also not remained to the end of the execution.

Lehner (sheet 27, 335), Meier (sheet 252, 537)  6. Presumeably in November 1941, an exact date can no longer be determined, a Jewish family, man, wife and grown son, were arrested by a patrol, interrogated by the accused in the Commandant’s office and after leaving that office shot by three unknown soldiers of the 12th Company.

Kiefer ( sheet 20, 166, 619)  The accused states that he interrogated the three people.  They were also searched.  The money & papers they carried were hidden so well, that they were not found at first.  He had ordered to move the people to the local jail and warned them explicitly that if they tried to flee, they’d be shot.  A short time after the Jews left the Command Office under guard, he heard shots and he was told that they’d tried to flee & were shot in the process.  He had not in any case ordered the three people to be shot unless they tried to flee.  He could not imagine that the soldiers had shot them against orders.  But if the people had been shot without trying to flee, then they would have been shot against his orders.

Neumaier (sheet 256 R, 533)  7.  The accused is alleged to have shot the mayor of Tschutschin on a day that can no longer be ascertained, because the latter had threatened him with his pistol.

Kiefer (sheet 620 f)  The accused denies having shot the mayor, whose name was Liniewitsch.  He had never had a disagreement with the mayor, Liniewitsch had always trusted him & the relationship had always been a good one.  When he represented the Battalion Commander in Lida, Liniewitsch came to him & asked him for a certificate that he had always worked for German interests & was a good mayor, because the Agricultural Director was after his life.  He had given him such a certificate.  Later he heard that Liniewitsch had been executed by a Feldwebel of the 9th Company, of which a platoon was stationed in Tschutschin after the 12th Company left.

Frank ( sheet 282)  8.  A younger Jew was allegedly shot because he was encountered outside his home area.  The accused is alleged to have ordered Frank to inform the sister of the victim accordingly, when she inquired after his fate.

Kiefer ( sheet 623)  The accused admits he can’t remember the incident.  It is quite possible that a patrol captured the Jew because, on finding him outside his residential area, he hadn’t stopped on command, and was shot fleeing.  He might have learned the identity of this Pole from papers found & delivered to him.

Huber (sheet 280) 9.  Two young Jews are alleged to have been shot in fall 1941 because they were late for work.

Kiefer ( sheet 623/624)  The accused insists he knows nothing of the shooting of these Jews.  He holds it for impossible that Jews would have been shot on the orders of another officer for refusing to work because the same Jews did not always work for the company.   Jews required for work were requisitioned from the Judenrat, and supplied by [this office] in the required number.    Jews had wanted to work for the company, as they were well taken care of there.  They had nothing to fear from him.  He had always treated them correctly.  [This is a stronger statement in German than in English].  As long as he was in Tschutschin, no Jew was shot for refusing to work.

Kraus ( sheet 267)  10.  On a date no longer ascertainible, a Jewish woman, who was standing in front of her house at midnight, was arrested by Schaffitz and taken to the company for imprisonment.  There he’d ordered the soldier Doll to shoot her.

Zlocowski Israel (sheet 101/102)  11.  In fall 1941, the Jew Dvora Kaplan is alleged to have been shot as she stepped outside the front of her house in Tschutschin by a junior officer accompanies by an officer.

Neumaier (sheet 258) 12.  A Jewish teacher is alleged to have been shot by an unknown Obergefreit on the order of a Feldwebel – presumably Simmler.

Gollner (sheet 317) 13. At an unknown time, during a patrol, an elder company officer is alleged to have shot an older Jewish man in a village being patrolled.  The officer in question might be Schaffitz, who was at the time the oldest company officer.  Possibly Wimmnauer, later promoted to Leutnant, might be the perpetrator in question.

Lehner (sheet 27, 335),  Helgemeier * sheet 58) 14. At a date no longer ascertainible, about 20 Jews were alleged ordered to the Local Command with baggage under the excuse they were being transferred to another village, loaded on a light truck & on orders from Schaffitz shot in a woods outside Tschutschin.

Herbig (sheet 356, 524), Weinstein Azriel (sheet 99/100), Heilgemeier ( sheet 545), Boandl[?] (sheet 428), Hiemer (sheet 234), Feuchtmeyer (sheet 311, 508), Lehner (sheet 356) 15. On a date between Christmas 1941 and New Year, Schaffitz allegedly had shot Jews working in the castle, including a young Jewish woman who had translated a book on the Russian Revolution for the accused.

Szwarz Golda (sheet 5), Kirszenbaum Chaja ( seeht 97/98), Weinstein Azriel (sheet 99/100)  16.  After establishment of the ghetto in Tschutschin in December 1941,   it is alleged that near Saturday Jews were tortured and shot on the excuse of unsanitariness.

Szwarz Golda (sheet 5) 17.  Early in 1942 – closer determination of the date is impossible – 40 Jews, including the city Rabbi and his son, the city butcher and the teacher are alleged to have been taken from the ghetto in Tschutschin.  They were all allegedly shot outside the city.

Zlocowski Israel (sheet 101/102)  18. In February 1942 David Zlocowski and his grandmother, Fanny Marksl were allegedly shot by Germany infantry.

Boandl *sheet 428, 604) 19.  Around February 1942, 10 civilians including 4 men, 3 or 4 women and 2 girls, who were relatively well dressed,  were allegedly shot by a execution squad of about 10 men, allegedly led by a member of the 12th Company led by a Feldwebel in approximately his 40s.  The execution squad received the victims from an unknown place from another unit that was stationed there.  The 10 civilians were allegedly Jewish intelligentsia.

Strohmeier * sheet 377, 587) 20.  Presumably in January 1942, it is alleged that, at a substation outside Tschutschin, on the orders of Schaffitz, Jews, men, women, & children, were shot at least on 4 different occasions.  The victims were lined up against the wall of a hut and were shot by an execution squad of about 10 to 15 soldiers of the 12th Company.  The squad as commanded by an unknown officer.  At least 40 Jews were shot in this way.

Neumaier (sheet 257, 531), Beck (sheet 423, 585) 21. A patrol under the leadership of then Leutnant Ritterbusch is alleged to have searched all the houses in an unnamed town.  8 to 10 Jews – men & women – were arrested on this occasion and loaded on a light truck.  Members of the patrol had bought honey from the village shoemaker.  The shoemaker’s son, a 25-year-old deformed man was supposed to taste the honey, as the soldiers wanted to make sure it wasn’t poisoned.  When a solder named Doll tried to take the honey away from the deformed man, he resisted.  Thereupon Ritterbusch ordered the shoemaker’s son to be loaded with the Jews in the truck, saying it was no pity regarding the hunchback, who was only a burden to his parents.  The deformed man was allegedly shot with the Jews in a nearby forest.

Meier (sheet 252 R, 538)  22.  On a further patrol lead by Ritterbusch, 15 Jews, who were allegedly turned over to the patrol by a village mayor, were shot.

Bacher ( sheet 224 R, 556), Feuchtmeyer (sheet 310), Gellner (shhet 316, 520), Beck (sheet 422/243), Bruecklmeier (sheet 564) 23.  Behind the castle in Tschutschin, in which the Local Command was housed, was a wood lot.  In this wood lot, many civilians, predominantly Jews, are alleged to have been shot.  The orders were allegedly given by Schaffitz.

Hiemer (sheet 253), Heilgemeier (sheet 272 R)  24.  Also, Schaffitz often ordered Jews to be taken by truck to a gravel pit outside Tschutschin and shot there.  It is alleged that at least 150 Jews were shot in the gravel pit.

Leyrer (sheet 399) 25.  On Schaffitz’s orders, executions of Jews allegedly also took place in a forest a few kilometers from Tschutschin.  The Jews were taken in groups of 5 people with the execution squad to the execution site and shot there.

Lehner (sheet 32), Bruecklmeier (sheet 263 R, 564) 26.  On the orders of a Leutnant, presumably Schaffitz,  Jews were repeatedly taken by truck to a meadow near Ostryna and shot there.  On orders of this same Leutnant, Jews in Ostryna who were at their windows watching the transport of other Jews, were taken from their houses and also shot.

Wellner *sheet 305 R) 27.  In Ostryna groups of Jews were also allegedly collected in the cemetery and shot there.  Who gave the orders for these executions is unknown.

Kiefer (sheet 617/618)  To cases 10 to 27 the accused stated the following:
During the period in which he was Local Commander of Tschutschin, he was often absent.  Thus, from early December 1941 to shortly before Christmas 1941, he had been ordered to the Landeschuetzen Battalion 564 as instructional director for officer training, and during that time lived at the regimental hq in Baranowicze.  For Christmas he was again with his company & thereafter left for home leave.  He arrived in Munich on his birthday, 1/2/1942.  He had 3 weeks home leave at the time.  The trip back had been delayed, as the leave trains had been commandeered for urgent material transport.  End of January 1942 he rejoined his company.  After a few days he had to go to Lida, to substitute for the Battalion Commander.  As soon he’d returned from leave, one platoon of his company had been transferred to Minsk and the rest of his unit had followed 14 days later.  He returned from the Battalion to his company.  Schaffitz had been named his substitute by the Battalion Command.  He had rather had Ritterbusch, but had not been able to do anything about the Battalion’s orders.  When he returned to Tschutschin from the regiment before Christmas 1941, he learned from Hauptfeldwebel Heilgemeier that Schaffitz had Jews shot on his own authority.  Heilgemeier had told him it was a good thing he was back, there had been “gross atrocities” [the German term is a bit cruder than that] under Schaffitz.  He could no longer recall all the details that Heilgemeier told him, Schaffitz had had Jews collected with baggage under the excuse, they were being moved to another ghetto, but he’d had them transported in trucks and shot.  He had spoken sharply to Schaffitz on that occasion and reported to the battalion to request he be relieved.   He recalled that Schaffitz was sharply corrected by the Battalion Commander at the Christmas celebration.

Kiefer (sheet 618, 619, 624, 2625, 626, 627)  After he’d returned from leave, he’d had to learn from Heilgemeier that Schaffitz had again executed Jews on his own authority.  Among other things, it had been reported to him that a younger Jewish woman, who had translated a book on the Russian Revolution for him, had been shot on orders from Schaffitz.   Schaffitz had already been transferred to another company by the time he returned, so he’d been unable to speak to him about it.   He’d been unable to investigate all the details of Schaffitz’s activities at the time, as he was immediately ordered to substitute for the Battalion Commander in Lida.  He’d only learned of the scope of Schaffitz’s activities during this investigation, and he must say, he was appalled.

He knew nothing of attacks on Jews in Ostryna.  During his presence nothing had ever happened to Jews in  Ostryna nor in Tschutschin.   They’d have had nothing to fear from him.  They’d even come to him to complain of attacks by other units who were travelling through.  The so-called “Blue Division” had allowed itself a particularly high number of attacks.

Waldherr (shet 552) 28.  At a time when the 12th Company had just moved to Tschutschin and found itself deployed against partisans, it is alleged that 4 or 5 Jews were shot in the cemetery of an unnamed village on orders of Feldwebel Wimmenaur by members of the 3rd Platoon.

Neumaier (sheet 258) 20.  In spring 1942, on the orders of a Feldwebel leading the 3rd Platoon, which had been temporarily assigned to guard a prisoner of war transit camp with a fe men, a Jewish family – father, mother, 2 sons & 23daughters – was allegedly shot.  The sons succeeded in fleeing, the remaining people were shot.

Kiefer ( sheet 628) 30.  The accused states he knows nothing of these 2 events.  From the anti-partisan campaign period he knows only that Major Mayr once ordered two spies who’d been captured to be shot.  If the shooting was done by his men or members of the Battalion staff, he no longer recalled.

III.
Sixt ( p 195), Schrott ( sheet 190), Heilgemeier (sheet 154), Mayr (sheet 153), Amberg (sheet 25 a), Dr. Schild ( sheet 9), Binder ( sheet 11), Schaffitz (sheet 24)  The first accusations against the accused came to light during the interrogatiosn of members of the accused’s unit, as well as the Battalion Commander and the Battalion doctors by members of the Special Investigation Section – Special Branch – of the military government.  The unit members Sixt, Schrott & Heilgemeier, Battalion Commander Mayr, Amberg, the leader of the 10./727 and Battalion Doctor Schild stated at the time that the accused had been very harsh to the civilian population, he’d been a brutal slaughterer of Jews and Jews could expect no mercy from him.  He had placed himself at the disposal of the civilian Commissar for execution of Jews.  Binder, Sanitary Officer the unit of the accused, had declared at the time that Schaffitz along with the accused had ordered the annihilation of the Jews in the East.   The accused had allegedly killed 400 Jews, among them women and children, by himself.  Schaffitz had , during his own trial for war crimes on numerous counts of killing Jews, stated that he’d been his superior and had personally ordered him to shoot.  The accused had done the same things in Belarus as he had.

The minutes of the Special Investigation Section cannot be counted as legal evidence.  Meyr (sheet 171/172, 200/201), at the time an accusing witness, already stated during his interrogation at the 1st  Appeals Board against the accused on 9/5/1946, that the minutes of the Special  Investigation Section did not agree with his testimony at the time.  After initial refusal, he finally signed a transcript that had been changed many times, and did not represent the truth, under strong duress.  During the 2nd Appeals Hearing of 9/20/1949, which, after overturning the first verdict, was conducted  by the Appeals Court of the Bavarian Ministry of State for Special Affairs & led to the acquittal of the accused, Mayr had declared that he had been threatened with delivery to Poland if he didn’t sign the minutes.

Heilgemeier (sheet 200), Amberg (sheet 201) The witnesses Heilgemeier and Amberg, who did not appear in the 1st. Appeals Board hearing, declared at the 2nd one, that they had been forced to sign, with threats, the minutes, which had been partially prepared before they said anything, and which did not agree with their statements.

Binder (sheet 202) Binder declared before the Appeals Board on 9/20/1949, he had only spoken in general terms to the Special Investigation Section, no one had then said anything to him that his testimony would have to be repeated under oath in court.

Sixt (sheet 504) The witness Sixt, who was not interrogated in either of the Appeals Board hearings, indicated in his testimony for this investigation, that his deposition at the Special Investigation Section did not correspond to his testimony at the time and he had signed only under strong pressure.

Schrott (sheet 190)  Schrott stated already in his Special Investigation Section interrogation that his accusations rested solely on hearsay.

Dr. Schild (sheet 3)  The accusations by Dr. Schild, as can be seen from the transcript of his interrogation by the Prosecutor’s Office Mainz , rest on hearsay.

Insofar as Schaffitz as accused the accused, it must be considered that he himself was being investigated for numerous killings of Jews, and that – after he had admitted his participation in several shootings of Jews – his only defense consisted of insisting he had acted on orders from the accused.  In this connection it should also be noted that although Schaffitz was handed over by the American authorities to the Poles, and sentenced to death by the District Court Warsaw on 12/9/1948,  a war crimes trial, in spite of the accusatory depositions, could not be undertaken against the accused for “technical reasons”.   Finally, it should be considered how the accusations against the accused were formulated through the American military authorities,  because it’s decisive that they can’t be upheld by this investigation. (sheet 34 ff, sheet 197)

(sheet 18, sheet 19) The letter of the accused to his brother of 10/15/1941 and the caricatures he drew could be taken as indicators that the accused was a fanatic antisemite and allowed his surbordinates – to the extent he did not himself order – the killing of Jews from the low motive of racial hatred.

Kiefer (sheet 629) He himself explains that at the time he came from conversations at the hospital and had been very disappointed that he and his unit were to be stationed behind the front.  He had had to exaggerate, in order that he wouldn’t have to admit to his brother, who was with the SA,  how comparatively safe his assignment was.  The drawings were simply cartoons, not drawn from life.  At the time there were steady reports of atrocities by partisans, and he had reacted in this manner.

The admissions of the accused could be taken as pure self-defense, if it weren’t that several witnesses confirm that the accused was not hostile toward the Jews with whom he interacted personally, but actually helped them occasionally and that he was opposed to the execution of Jews – at least by the Wehrmacht.

Heilgemeier (sheet 200, 547), Herbig (sheet 357, 522/523), Feuchtmeyer (sheet 310, 313), Brunnhoelzl (sheet 512), Leimeier (sheet 248), Strohmaier (sheet 379, 590), Scharberl (sheet 408)  The witnesses Heilgemeir and Herbig state that the accused once sheltered 2 Jewish women in company quarters while the SS was executing Jews, and thus removed them from danger.  Herbig also states that the accused allowed him to add a vacant house in Jeziery to the ghetto, thereby improving living conditions for the Jews.  In the Jeziery Mill, he was allowed to create living quarters for the Jewish workers there.  The witness Feuchtmeyer states that the accused treated Jewish force laborers well, they had not been afraid of him, only of Schaffitz. Brunnhoelzl and Schiele confirm that the accused treated Jews correctly.  The witnesses Strohmaier and Heilgemeier state that the accused opposed executing Jews and stated this was not a matter for infantry.  The witness Schaberl reports that the accused refused to hand over a Jewish prisoner of war to a Lithuanian officer.

Weitekaemper (sheet 201), Gellner (shet 316)  The witness Weitekaemper described the accused as an “old Nazi” and holder of Blutorden, but cannot state from his own knowledge taht the accused ever gave orders to shoot Jews, he assumes so.  Also, the witness seems predisposed against the accused, he admits having been afraid of him without any reason for it.  Gellner insists the accused was a fanatic Jew hater, but restricts this statement with the words “as far as I still have his person in memory”.  He also admits, that, due to 12 years as a Russian prisoner of war, he has only dim memories of this period.

Ferner *sheet 404)  The witness Ferner states, Jews weren’t ill treated.  They’d been forced to do earth moving jobs, had been given very small rations, and had had to dig their own graves after working, just before being shot.  The accused was responsible for all of this.  This statement is subject to grave doubts.  No other witness knows anything about Jews being forced to do earth moving jobs and having to dig their graves thereafter.  In addition, in a further interrogation the witness made statements that contradict those of his first interrogation.  In his first testimony, he declared he had watched about 3 times, from a distance of 300 to 400 meters, groups of 20 to 30 Jews being shot and buried.  In his second interrogation (Ferner sheet 571 ff), he stated he had never himself watched any executions of Jews,  but had only heard about them from comrades.  Furthermore, in this interrogation he said, he only knew from hearsay that Jews had been force to do earth moving jobs and to dig their own graves thereafter, at the edge of which they’d been shot, and that the accused was responsible for it.  Further, he states in his follow-up interrogation, the accused had openly sentenced to death on a Monday in summer 1941 some Jews who had been supposed to report to work on Sunday.  The population had been forced to watch as a warning.  No other witness knows of such an event, although such a public event should be at least as well-known as the hanging of those 4 Poles.

If the accused did share the general national socialist view toward the Jews at the time, it cannot be proved with certainty that his antisemitism  was directed not only toward “anonymous world Jewry”, but also led to his becoming guilty of actions directed by racial hatred of the people with whom he came into contact and whose living conditions scarcely resembled the picture painted by the national socialist rulers of a “dangerous, omnipotent World Jewry”.

IV.
a. (Kiefer sheet 168, 621, 626) Knowledge of cases 1 & 2 rest only on the admissions of the accused, from which one must proceed.

Accordingly, the accused shot, in case 1 a young Pole – presumably a Jew – who had succeeded to attempt to flee, after he had been arrested on the suspicion he was collaborating with enemy agents.  The accused, according to his testimony, only shot after the Pole ignored several orders to stop.  Further, several other fleeing civilians under suspicion of collaboration with the enemy were also shot at on orders of the accused.  In cases 1 & 2 the accused let groups of civilians suspected of spying and sabotage be shot on orders from superiors, after the suspicions were verified by a house search in which weapons and leaflets were found.

b.  Keifer (sheet 622)  Guetl (sheet 383/384) Cases 3 & 4, seem to refer to the same events.  This is confirmed by both the witness Guetl giving the time as when the command was stationed in Ostryna & that they happened in a village nearby.   Both refer to the arrest of 2 people, of whom one was hot and one was let got.  Both also state that the person shot had been denounced by civilians.  According to the accused, a Commissar and his son were arrested.  Guetl thinks it was an official, and is unsure if it was a mayor or a Commissar.  However, the Guetl’s description deviates significantly from that of the accused.  The accused states he had interrogated the Commissar, who was accused of stirring up the populace against the German occupation and threatened locals who collaborated , and threatened to shoot him unless he told the truth.  The Commissar thereupon tried to flee & was shot in flight.  Guetl, on the other stand, asserts the “official” was denounced by a Polish teacher as having killed ethnic Germans and condemned to death under supervision of the accused & shot by an execution squad.  That there had been a cursory proceeding was only the assumption of the witness, as he states he wasn’t present at any proceeding.   It cannot be ruled out that the witness erred as to the grounds of the shooting.  On the other hand, the accused’s assertion that the Commissar was shot in flight can be construed as self-justification.

c. Kiefer (sheet 13/14, 622/623)  In case 5, the accused states his company had guard duty.  It was also possible that the gallows was built with company assistance & Faltermeier (fallen in battle) volunteered to participate in the hanging.  His admission that the 4 executed Poles had been condemned to death by the Regional Commissar because they had killed the mayor installed by the Germans is confirmed by the witnesses Lehner & Sommer.  Lehner (sheet 28, 337), Sommer (sheet 55), Heilgemeier (sheet 59).  The witness Heilgemeier also admits that the execution was organized by the Regional Commissar and the 12th Company was only present for security.  The remaining witnesses who knew about the execution didn’t know who ordered it.  Finally, the witness Ferner (sheet 404 R) insists the accused ordered the execution.  This assertion cannot stand as proof, as explained above.  The details of the conviction of the 4 executed Poles by the Regional Commissar could no longer be clarified.

d. Kiefer (sheet 20, 166, 629)  In case 6, the accused says he interrogated the Jewish family, but he denies that he ordered their execution.  He indicated he’d ordered them to be held in prison.  Later soldiers reported that the 3 people had been shot attempting to flee.  If the 3 Jews had been shot, without having attempted to flee, that would have been against his orders.

If this admission of the accused isn’t credible, it still can’t be disproved with the necessary rigor.  Eye witnesses to the execution were the witnesses Lehner and Meier.  Lehner states the three Jews were shot by three soldiers hidden behind a wooden hut, from ambush, so that in this case it would be a case of murder, (Lehner sheet 335).  The witness Meier confirms the 3 shooters were at first hidden, but had then stepped forward, so that the victims recognized the fate that awaited them.  Maier (sheet 537).  Neither witness knows if the sharp shooters acted on orders from the accused or who else might have ordered it.  Both indicates they don’t know if the accused was in Tschutschin at the time.  Lehner (sheet 497) Meier (sheet 537)

e. In case 7, the accused contests having shot the mayor of Tschutschin Liniewitsch.  (Kiefer 620/621).  He states he later heard Liniewitsch was shot by an Oberfeldwebel of the 9th Company, a platoon of which was stationed in Tschutschin after the 12th was transferred.  The witness Heilgemeier (sheet 546) stated that as far as he knows, the mayor was shot by an Oberfeldwebel of the 9th Company.

The witness Guetl also indicates –Guetl (sheet 384)- that he heard then that the mayor or Tschutschin was shot by a member of a neighboring company.

On the other hand, the witness Neumeier (sheet 256 R, 533) states with certainty that the accused shot the mayor.  He asserts that he had guard duty in front of the castle that day and heard the shot.  He was not an eye witness to the shooting.  He only heard that the mayor had threatened the accused with a pistol.

Heilgemeier (sheet 546) asserts, in contradiction, Neumeier was only a short time in Tschutschin, just before the 12th Company was transferred.

In this matter, it cannot be conclusively ruled out that the accused is mistaken, and that the fact that a platoon of the 9th Company was already in Tschutschin when the mayor was shot has slipped his mind.  Nonetheless, the deed is more than 28 years in the past.

It cannot therefore be proven with necessary certainty that the accused shot the mayor of Tschutschin.

f. Kiefer (sheet 623)  In case 8 the accused states he has no recollection of the event.  His further admission that it’s possible the young Jew encountered by a patrol outside his house & shot when he tried to flee, [and that] his identity was apparent from the papers delivered to him cannot be disproved.

Frank (sheet 282)  The witness Frank was unaware of the shooting.  He only learned about it when  he was ordered to inform the victim’s sister, inquiring about his fate, of the shooting, on the orders of the accused, that the victim had been shot because he had been found outside his residence.

g.. Kiefer (sheet 623)  The admission of the accused to case 9, he couldn’t imagine shooting Jews because they refused to work because they never knew whom to expect, as workers were requisitioned from the Judenrat and supplied in the required number is supported by the witnesses Zlocowski and Lehner, who state that Jews reported for work to the Judenrat and had to requisitioned from the Judenrat.  Zlocowski Israel (sheet 101/102), Lehner (sheet 331).

A further statement, he had always treated Jews with correctness and that Jews working for his company had been treated properly cannot be disproved.

The witnesses Feuchtmeyer and Brunnhoelzl confirm that the accused treated Jews with correctness.  The witnesses Loimeier and Schiele further confirm that Jews working for the company were cared for by the company.  Feuchtmeyer (sheet 310), Brunnhoelzl (shet 512), Loimeier (sheet 248), Schiele (sheet 290 R).

The witness Huber (sheet 280) avoided stating whether the 2 Jews who were shot for refusing to work were interrogated, or who gave the order to shoot them.   With this state of affairs a connection between the witness & this execution cannot be established.

h. The statements of the accused regarding cases 10 to 27 can also not be disproved.

From his OKH personal file, it is apparent that he was instruction director for officer training at Landesschuetzen Battalion 546 fro 12/10/1941 to 12/21/1941.  It cannot be ruled out that the accused, as he states, was already in Baranowicze earlier, to prepare for the training course.

The witnesses Herbig, Sixt, and Strohmeier confirm that the accused had home leave around Christmas 1941.  The witness Beck states the accused went on leave before the Aktionen in Tschutschin and didn’t return to Tschutschin again.  The witnesses Lenher, Heilgemeir, Hiemer, Tury, Sommer, Feuchtwanger, Leyrer, Neumaier, and Maier state that the accused was very often absent from the company, without being able to control his absences.  As reasons for his absences are given:  leave, orders to teach training courses, and substitution for the Battalion Commander.  The witnesses Strohmeier, Leyrer, Heilgemeir, Feuchtmeyer and Lehner also confirm that the accused dressed down his substitute Schaffitz for executing Jews on his own authority.  Herbig (sheet 356), Sixt (sheet 45, 503), Strohmeier (sheet 377/378, 587, 590), Beck (sheet 425, 584), Lehner (sheet 31, 334, 498), Heilgemeier (sheet 59, 545), Hiemer (sheet 23/234), Stury (sheet 271), Sommer (sheet 54),   Feuchtmeyer (sheet 310), Leyrer (sheet 399 R, 568), Neumaier (shet 532), Meier (sheet 537, 539).

The witnesses who specified details designate Schaffitz as the responsible party for cases 10, 14, 15, 20, 23, 24, 25, and 26.  Kraus (sheet 267), Lehner (sheet 32, 355, 356), Heilgemeier  sheet 8, 272 R, 545), Hiemer (sheet 233, 234), Feuchtmeyer (sheet 310, 311), Strohmeier (sheet 377), Leyrer (sheet 399R).

For the executions in cases 21 and 22, Ritterbusch is named responsible by the witnesses Neumaier, Beck  and Meier.  Neumaier (sheet 257, 531), Beck (sheet 423, 585, Meier (sheet 252 R, 538).

The witnesses cannot name the person responsible for the remaining cases, but they are not accusing the accused.  Finally, the witness Gellner states he doesn’ t know who ordered the execution in case 23, but he assumes that the accused was responsible. Gellner (sheet 316).  But the statement of the witness Beck contradicts this, that the accused had nothing to do with the shooting and they only occurred when he was absent form Tschutschin. Beck (sheet 422/423).  The witnesses Strohmeyer (sheet 378) and Leyrer (sheet 568) state that when the accused was present , there were no executions of Jews.  In this connection, the testimony of the witness Meier (sheet 539/540), is also significant:  he stated that initially it wasn’t permitted to shoot Jews.

With such testimony, it is probable that the executions of Jews described under cases 10 to 27 did occur when the accused was absent from Tschutschin and Schaffitz substituted for him.  It cannot be proved that the accused ordered these executions or knew about any planned by Schaffitz  or others beforehand, or knowingly allowed them to proceed as superior officer.

i. The witness Waldherr (sheet 552) names Oberfeldwebel  Wimmenauer (deceased) as the responsible party for the execution of 4 or 5 Jews in case 28.

In case 29, the witness Neumaier (sheet 258) states the primary perpetrator was a Feldwebel whose name he no longer recalls, who at the time was leader of the 3rd Platoon.  Leaders of the 3rd Platoon who can be considered are Feldwebel Becker, Wutz, Zimmler & Wimmenauer (all deceased).

Neither of the two witnesses connects the accused with executions.  The witness Neumeier (sheet 256 R) rules out that the orders might have come from the accused.  Waldherr (sheet 553) states that he doesn’t know if Wimmenauer acted on his own authority or if the accused ordered the execution.

It cannot therefore be proven that the accused was responsible for these executions.

j. Case 30 is known only from statements of the accused (sheet 628).  There are no other witnesses for it.  It is therefore necessary to proceed from his statement.  It cannot be proven that the accused relayed an order from the Battalion Commander and thus became an accessory to these executions.

V.

It cannot be proved that the accused generally acted from low motives in his actions against civilians, as has been shown in III above.  To the extent that he ordered the execution of civilians (1 through 4) or assisted in the execution of Polish civilians (case 5), murder cannot be proved against him.  In cases 1 through 4 there is no evidence the accused acted from base motives.  He wanted to do his job, which consisted of securing the rear of the army and to combat partisans, saboteurs and enemy agents.  This cannot be considered a civil criminal offense, even if the accused had used unusually harsh methods.  The investigation has, however, brought to light no proof in any of the cases, that the accused acted deviously or
that the victims suffered more than the act of killing them made necessary, and that they were therefore murdered brutally.  The accused can, however, be accused of manslaughter.  A prosecution for manslaughter has exceeded the statue of limitations  of 7/1/1960 according to the law of 5/31/1946, BAyGVBl. g. 182, section 67 StGB a. F.  The first judicial proceeding breaking the statute of limitations against the accused ,t he decree of a search warrant by the Amtsgericht Munich (sheet 70) occurred on 4/28/1965, after the statute of limitations took  effect.  Due to this situation, it could not be determined if the manslaughter was criminal.

In case 5, base motives cannot be proven for the accused.  He received only the command to secure the execution site & prevent the escape of the 4 Poles sentenced to death by the Regional Commissar for the death of the mayor.  No proof has come to light that the 4 Poles suffered more than was necessary for death by hanging.  In this case, too, - provided it can be proved the execution was illegal, and the accused knew it was illegal – he could only be charged with accessory to manslaughter.

In case 6, on his own testimony, it can be proved the accused interrogated the Jewish family.  The proof that he ordered their shooting cannot be established with the certainty necessary for prosecution.

In case 7, it cannot be proved with necessary certainty that the accused shot the mayor of Tschutschin,   If one wanted to view the statement of the witness Neumaier as sufficient for binding over the accused – then one would have to assume – according to his further testimony- that the mayor threatened the accused with a pistol, so that he acted in self-defense.  Even if the accused had no legal extenuating circumstances, he could only be accused of manslaughter, because the details of the act can no longer be determined.

In the remaining cases it cannot be proved that the accused ordered the execution of Jews.  There is also no proof to be found that the accused knowingly allowed his subordinates to execute Jews (connivance according to section 357 StGB), nor that he explicitly or implicitly validated executions about which he learned after the fact, thereby quieting inhibitions & so lending moral support for future murderous acts.

As prosecutable acts by the accused cannot be proven, the proceeding was closed according to seciton 170 Abs. 2 StPO.

Munich 5 October 1970,

State Attorney’s Office
at the Landgericht Munich

signed: Koslowski
Gerichtsassessor