CLOSING SPEECH FOR THE DEFENDANTS OSCAR SCHMITZ AND KARL FRANCIOH
Captain Roberts opened his address by saying that the word "concert" had been defined in the court on the opening day as meaning "plan," "contrive," or "pre-arrange," and that upon the construction put upon that word depended the meaning of Regulation 8 (2), and upon the meaning of that Regulation stood, or fell the whole of the Prosecution case in regard to joint responsibility of the accused for the alleged war crime at Belsen. The Prosecution maintained that common action was the same as concerted action but he submitted one of the basic rules of construction was that words should be construed according to their normal meaning. Since the words "concerted action" did appear in the Regulation, then the Court must construe them according to their normal meaning and not in the way the Prosecution suggested. In "concerted action" there must be full knowledge of the plan and of the end in view by those carrying it out. The scenes so graphically described by Mr. Le Druillenec and Brigadier Glyn Hughes at Belsen made it quite obvious that there was chaos and disorder on a colossal scale - it would be difficult to find anywhere a clearer example of unconcerted action. If what had occurred at Belsen had been the result of concerted action, it would have been necessary for each member of the staff, when they arrived there, to have been told, "Here in this camp we mean to kill as many people as painfully as possible. To that end we have introduced typhus into the camp; to that end we have, with the co-operation of the Royal Air Force, ensured that prisoners receive little food and no water; to that end we are asking all the other camps in the district to pour as many prisoners as possible into this camp; will you not become a partner with us in this joint enterprise?" There had been no evidence of any such thing ever occurring at Belsen.
There had been no evidence whatsoever of concerted action on the part of that section of the staff at Belsen who were then in the dock, and the Court were not justified in receiving any evidence against an individual accused other than that evidence which was specifically directed to that individual. The Prosecution suggested, by inference, that the mere presence of the accused during the commission of a war crime in itself made them guilty of that crime. Dealing with principals in the second degree, Archbold, at page 1429, read as follows: "There must also be a participation in the act; for even if a man is present whilst a felony is committed, if he takes no part in it and does not act in concert with those who commit it, he will not be a principal in the second degree, merely because he did not endeavour to prevent the felony, or failed to apprehend the felon." That passage relating to felonies under English law must be adopted by the Court when trying war crimes. And the Court, in considering the cases of Schmitz and Francioh, should put aside all the general allegations and accusations made against the other accused and regard only the evidence specifically affecting each one of them.
Raymond Dujeu said in his affidavit that he knew Schmitz, and that although he had never seen him beat anyone his friends had told him that he had often done so, to them. These friends had never come forward, and Counsel submitted that it was a case of mistaken identity, or that he had seen Schmitz in Camp No. 1, where he had gone after the liberation to assist in burying corpses. The other affidavit, that of Vaclav Jecny, had been taken fairly late on during the investigation, when the investigating team had stopped taking evidence against a number of the accused, and were sending their investigators round with one or two photographs of people, against whom they had little or no evidence. That, Counsel submitted, was very significant, and from the evidence of Sergeant Dinsdale it had appeared that the preparation of this deposition was no other than cursory and incomplete, and nothing more than hearsay upon hearsay. The statement alleged that Schmitz was an S.S. man, but from the evidence it was very clear that he had never been a member of the S.S. Klippel had known Schmitz as a prisoner both at Tettenborn and Belsen; Hoessler also knew him as a prisoner at Belen and confirmed his appointment as Lagerältester; and from his criminal record and the fact that he was a deserter from the German Army, it was obvious that he would never have been accepted by the S.S. or any other force. Further, he had not got his blood group tattooed on him. The details of the incident as they appeared in Jecny’s deposition showed that it referred to Camp No. 1 as opposed to the Wehrmacht Barracks, and the same evidence, which supported Schmitz’s story that he had never been in the S.S., also supported him when he said he never went to Belsen Concentration Camp. Was it likely that Schmitz, a prisoner in Camp No. 2, should dress up in S.S. uniform, borrow a bicycle, ride to Camp No. 1, fire off a revolver and then bicycle back to his own camp? Not one of the Prosecution witnesses had recognised, still less identified, Schmitz in court, and his presence there depended solely upon alleged photographic identification.
Schmitz was a Communist, had been in prison off and on since 1936, and it was not until 1944 that he first encountered a concentration camp, still as a prisoner. He had only arrived in No 2 Camp in the Wehrmacht Barracks at Bergen-Belsen about 10th April, 1945, and that he was then a prisoner had been amply corroborated. No evidence had been produced against him to show that, because he had only been a short time at Belsen and had not therefore done the things charged, he had done them at other places. Schmitz had been caught in what one might almost call a comedy of errors, and had never been given any opportunity of explaining his true identity. If he as a prisoner had had such a black character as the Prosecution sought to establish, was it not strange that out of the 15000 men in Camp No. 2 not one had ever denounced him?
Before referring to the evidence regarding Francioh, Captain Roberts read the following passages from Archbold, page 458: "Disinterestedness. A witness to be perfectly credible must not be in the slightest degree biased or partial to one party or another. Therefore if it appears that the witness is prejudiced against the party against whom he appears or has before expressed sentiments indicative of such prejudice or if it appears . . . All these are circumstances which detract proportionally from his credibility." And page 460, "Veracity. The character of a witness for habitual veracity is an essential ingredient in his credibility, for a man who is capable of uttering a deliberate falsehood is in most cases capable of doing so under the solemn sanction of an oath. If therefore, it appears that he has formerly said or written contrary to that which he has now sworn, unless the reason for his having done so is satisfactorily accounted for, his evidence could not have much weight with the jury, and if he had formerly sworn the contrary the fact that although there is no objection to his competency is almost conclusive against his credibility." Counsel asked the Court to keep those two passages clearly in their mind when considering the weight to attach to the evidence against Francioh. Captain Roberts pointed out that whereas Dr. Bimko in her two depositions had alleged the shooting of a man by the accused, in cross-examination she said she had always said it was a woman. This witness was an educated and intelligent woman and it seemed extraordinary that she had twice referred to a man if she in fact had meant a woman, and a simple explanation would be that the whole episode was imaginary and never in fact had occurred. There had been no love lost between the cookhouse and the hospital personnel, and it was clear that she had been determined that her well-deserved hatred should be visited upon people who had oppressed her for so long. Francioh had been selected as the unfortunate victim of that hatred although she admitted in court she never knew his name or had seen his photograph until after she had made her first statement. How could she possibly then have known the name of the person to whom she was referring? He suggested that the only way in which she could have done that was to have referred to "a cook" and when later shown the photograph of Francioh she had said, when asked if he was the man, "Yes, that is him." The Court would notice how from a simple statement in her affidavit the story had grown as time had passed.
Szafran also had shown a remarkable change between her deposition and her evidence in court, and whilst she had deponed that three men had fired with Schmeisser guns at a group of prisoners through the kitchen window, killing about 22 people, she had changed that in evidence to two people firing from separate buildings, killing 50 people. In cross-examination she did not know what a Schmeisser gun was, and had then said that Francioh had done his part of the shooting with a revolver and the other participant had used a rifle and run after them towards the wood. Did it not seem strange that this young girl, some hours after liberation, knowing she was free, should remain in the kitchen "working hard," or that she should have approached that S.S. man whom she alleged acted as a homicidal maniac and discussed the killings with him while he was still standing there with a revolver in his hand discharging a fusillade of bullets? Not only had the witness contradicted herself in court, but when asked to account for the discrepancies between her depositions and her evidence all she could say was that perhaps the report had not been made carefully and that the mistake was only caused by incorrect writing down. It was remarkable that such a large-scale shooting as she alleged had not come to the notice of the British authorities, and that no other witnesses had been produced to corroborate it. Francioh in evidence said that that afternoon he was out of camp helping his wife to pack, and Counsel submitted that the whole story was a complete fabrication and worthless as evidence against the accused.
Ilona Stein, in her deposition, had accused Francioh of killing a girl who had come into the kitchen whilst she was there. In court her evidence was that she had never been in the kitchen at all, that on this particular occasion she was walking towards it helping her friend to carry a container and that Francioh did not shoot the girl in the kitchen but came outside whereupon she, the witness, had run away and never saw her friend shot either in the kitchen or elsewhere. To account for the discrepancies, the witness said there was no Hungarian interpreter, and as she spoke German very moderately they must have been caused by the translation Colonel Champion, in cross-examination, had said that if he was satisfied that a Hungarian deponent understood German he employed the German interpreter, but if she could not understand German he would have got hold of a Hungarian interpreter. In this case Colonel Champion as presumably satisfied that Stein understood German. These three witnesses, who had suffered so long under the harsh hand of their oppressors, could not be otherwise than violently prejudiced against any and all of the accused, and when considering that the sworn evidence in their depositions differed so materially from what they had given in court as to amount to a complete contradiction, then the Court must disbelieve these witnesses and reject their evidence completely.
Irene Löffler, in her, affidavit, accused Francioh of shooting a girl in February, 1945, but he had only come to Belsen about 17th March and therefore could not have done this. Maria Neumann accused him of an incident in No. 1 Kitchen, but that was a kitchen with which he had never had anything to do at all. The deponent was a nurse, though what she bad been doing in the men’s compound or in the vicinity of the kitchen, Counsel could not suggest.
Three out of the five depositions relating to Francioh had been checked and found completely unreliable, and Captain Roberts maintained that it was reasonable to argue that the statements contained in the other two affidavits were equally unreliable. All five deponents were young women, Jewesses from central Europe ; all were in the same camp and went through the same ordeals; and all presumably were inflamed by the same desire for revenge. All were thoroughly unreliable, and the Court should place even 1ess reliance on those affidavits than on the evidence of the witnesses who had appeared in the court. Sunschein had made no allegation against Francioh in her deposition at all, and the first mention of it had been made in court. She said that when in Cookhouse No. 2 he beat so terribly that they were trembling when he came. The occurrence took place at the end of February or the beginning of March, when he had not arrived in Belsen. As he had said in his own evidence, it would have been a most peculiar course of conduct to adopt when he was a newcomer in somebody else's kitchen. A lot had already been heard about Koper’s affidavit, and from what she had said in the witness-box it was obvious that she was lying deliberately and maliciously, and continuing the same course of conduct which she had done for the last few years, that is to say, trying to ingratiate herself with people who were immediately over her.
Francioh they had seen in the witness-box. He was a coal miner from Silesia, a conscript into the S.S., and had great difficulty in explaining dates and expressing himself. He had bad health and for that reason had worked in the Officers’ Mess at Auschwitz for four years as a mess cook, and after roving round the country for three months had finally arrived at Belsen in the middle of March. It was clear, whatever, argument there might be about dates, that he had been in prison in Belsen for a period of eight to ten days. Why should this man have had this sudden outbreak of madness; why should he suddenly in an insane fashion and a very short space of time kill some 54 people when he knew that the British troops had already arrived? The reason why all those people had made accusations against him was that he, like all cookhouse personnel, was very well known. The cookhouse was the most important part of the lives of those people, and if they went short of rations or did not get any food it was him whom they blamed above anybody else and it was against him that their hatred was directed. The Court had heard that round the cookhouse had been placed a number of Hungarian guards to keep people away and that they had been ordered to shoot and had shot. The women internees, when they were released, were shown no photographs of these Hungarian guards who had done the shooting and were only shown photographs of S.S. personnel who were connected with the cookhouse, and Captain Roberts suggested that they had taken such incidents as had occurred and pinned them on to this one man whom they knew had been at the cookhouse because they were determined somebody should suffer. Only one of the 70 odd internees, employed in that cookhouse had given any evidence against Francioh, and that one Francioh denied had in fact ever been in his cookhouse at all. |