In his usual infantile and obnoxious manner (see for instance his RODOH post of Thu Apr 18, 2013 3:07 pm, commented in my post of Thu Apr 18, 2013 6:59 pm) prominent "Revisionist" Friedrich Paul Berg challenged my assumption, which was based on previous West German court judgments I had read, that the court’s findings of fact about what the children’s death had been like had been based on the assessment of someone with expert knowledge as concerns death from the effects of engine exhaust.
Yesterday I received, from the University of Amsterdam's Justiz und NS-Verbrechen collection, the complete text of the judgment LG München I vom 14.07.1972, 114 Ks 4/70, which includes the court’s rendering of the assessment of evidence that lead to the court’s findings of fact translated in my aforementioned blog.
The court’s rendering of its assessment of evidence as concerns the gas van murder of the Jeissk (Eysk) asylum's children (which precedes the court’s assessment of the evidence regarding the defendant Dr.med. Heinrich Gö’s participation in that crime) translates as follows:
4. The children’s asylum operation at Jeissk
The findings of fact about the children’s asylum operation at Jeissk, the defendant Dr. Gö.’s participation therein, and his attitude towards National Socialism and the operation, were mainly based on the statements of defendants Tri. and Dr. Gö., insofar as they could be considered credible, the testimonies of witnesses Ame., Boc., Bö., Dwo., Dr. Gäb., Get., Hir., Ker., Ko., Lik., Ni., Schl., Schu., Su., Syl., Vol. and Dr. Wes., the assessment of expert Prof.Dr. Ger., the contents of the final report by Local Command (Ortskommandantur) I (V) 296 dated 25.9.1942 and the forensic-medical examination of 214 children’s corpses on 15.4.1943, as well as the viewed photographs of the children’s asylum in Jeissk and the viewed sketch of the asylum’s area.
a) The "gas van" was described by defendants Tri. and Dr. Gö. as well as witnesses Boc., Dwo., Get., Hir., Ko., Lik., Ni., Schl. and Vol., in an essentially coincident and credible manner, as rendered in section II (B) 2a of the reasons. As concerns the time of the event the witness Vol. claimed that the operation had taken place not only in October but earlier. In accordance with this the witness Bö. dated the occurrence to "April 1942".
The court, however, reached the conviction that the operation was carried out on 9 and 10 October 1942. Apart from the witnesses Lik., Ko. and Get. having stated that the children had been taken away in "September or October", "on about 10 October" or on "9 October", and the dates 9 and 10 October being stated in the forensic-medical examination of the corpses, the court bases itself materially on the testimony of witness Dwo. This witness mentioned 9 and 10 October 1942 as the time of the operation. Dwo. had at that time been about 19 years old and accommodated in the building at Shtsherbinovskaia-/Gogol Street. He stated credibly and convincingly that after the operation he had written a poem about it, which he had titled "9 October" and which had also been published. In the night from the first to second day of the operation Nina Sholokhova had furthermore told him that she would be 18 years old on 10 October.
The findings of fact about the sequence of events (section II (B) 2a of the reasons) are based especially on the corresponding information provided by witnesses Boc., Bö., Dwo., Get., Ko., Lik., Su. and Vol. Assessment of the testimonies of witnesses Boc., Bö., Dwo., Ko., Lik., Su. and Vol. especially revealed in this context that on the operation’s first day the children accommodated in the building at Shtsherbinovskaia-/Gogol Street and thereafter the bedridden sick children from the building at Budienny Street, and on the second day – though without participation by members of the partial detachment stationed at Jeissk – the moronic and imbecilic children accommodated in the asylum’s central complex had been taken away with the gas van and killed.
As concerns the deception of children and supervising personnel the witness Bö. stated that he assumed that the children had of course not been told that death awaited them. Like the witness Boc. the witnesses Dwo., Get. und Ko. stated that, after the gas van had driven up to the building at Shtsherbinovskaia-/Gogol Street, an interpreter had told Ko. or the children that the children would be taken for medical treatment to Krasnodar. The witness Dwo. furthermore stated that they had prior to the occupation read in the papers that the "German fascists" had in hermetically sealed vans taken people out of the city and destroyed them. The witness Get. stated that she had also not believed the claims about taking the children to Krasnodar, as she had still in Simferopol read in the papers that the Germans had burned down the children’s asylum at Nikolaiev. She had immediately had the feeling that something terrible would happen and therefore also told the other girls that nothing good could be expected. The witness Ko. furthermore stated, in accordance with the information provided by the witness Lik., that the children taken away on the second day had been told that they would be taken for a ride.
The court has no misgivings about basing its findings of fact as concerns the sequence of events on the information provided by the mentioned witnesses.
As becomes apparent from the testimonies of witnesses Ko., Lik., Dwo. and Get., they still have a good memory of the event. For them this operation was a unique, shocking and stirring event that they could not forget. The witness Ko., who at that time had been 27 years old and head of the instruction and education department, was still deeply shocked about the occurrence when she testified on 7.8.1970, according to the credible statements of witness Dr. Wes. Also the witness Dwo. had been deeply moved internally when testifying on 6.8.1970. The witnesses Lik., at that time 45 years old and manager of the economy department, Dwo. and Get., at that time about 19 and 13 years old and accommodated in the asylum, could watch what was happening from close up. Their descriptions are detailed, clear and illustrative. According to the credible statements of witness Dr. Wes. the instruction of these witnesses was thorough and careful, the interrogation extraordinarily correct and the right to ask questions unlimited. Furthermore there had been no indication of any influence being exercised on the witnesses.
Additionally the description of the sequence of events provided by the witnesses Ko., Lik., Dwo. and Get. is largely confirmed by the statements of witnesses Boc., Bö., Su. and Vol. The court also considers credible the information provided by these witnesses in this context. The witness Boc. had himself participated in the operation. The same applies to the witnesses Vol., Bö. and Su. Vol. pointed out that the operation been one of the ugliest he had experienced. Both Bö. and Su. made their statements as defendants. Bö. admitted to having helped in loading the children [onto the van]. Su. conceded to have taken part in the loading of the children and to have thrown the dead children out of the van. The accounts of these witnesses are objective and precise and largely consistent with each other.
As concerns the cause of the children’s death the expert Prof.Dr. Ger. essentially stated the following:
The death of the affected children had occurred due to brain paralysis, caused by lack of oxygen, which had in the first place been due to poisoning with carbon monoxide. The engine exhaust of the "gas van" had contained carbon monoxide, between 3 and 10 % depending on what load was on the motor. Carbon monoxide is bound by the red blood substance with an affinity 210 times higher than that of oxygen. Therefore red blood substance is lost for the transport of oxygen. If the amount lost is 50 %, death generally occurs (inner asphyxiation). The course of the poisoning depends especially on the respective carbon monoxide concentration in the room’s air as well as the breathing volume. When the carbon monoxide concentration in the room’s air is 0.1 %, transitory poisoning symptoms occur. Death only happens after hours of breathing. With a concentration of 0.3 %, on the other hand, death could already occur after about two hours. With a concentration of 0.5 % there could be unconsciousness already after a few minutes and death after a short time.
Poisoning by carbon monoxide is often not noticed by the victims. When it is noticed, it is often too late already, as the increased need of oxygen caused by the salvation attempt leads to unconsciousness. In other cases, however, it causes an intense sensation of choking. If loading of red blood substance with carbon monoxide reaches 25 %, blood pressure increases. This leads to faster heartbeat, nausea, eye scintillation, buzzing in the ears, pounding in the temples and headaches in the front and temple areas. Further loading of red blood substance with carbon monoxide then leads to sickness and urge to vomit, finally to cramps, vomiting and emission of urine and excrement.
The course of the affected children’s poisoning had been dependent on how large the room in the gas van had been, how many children had been loaded into that room, how high the engine exhaust’s carbon monoxide concentration had been, with what speed it had been introduced, and how high the children’s breathing volume had been. In this respect it was significant that children as a rule have a higher breathing frequency than adults and that the breathing volume increases under stress, especially when screaming.
Additionally hydro-cephalic children may, according to the degree of hydrocephaly, have been more sensitive to the poison. Additionally one has to take into account that the children may also have choked on the vomit, that due to the constriction of the sealed room the exhaled carbon dioxide may have had an additional toxic function and that children lying underneath other children could for this reason alone have suffocated after about three to five minutes.
Summarizing, it could be established that the children in the "gas van" had with certainty not all died at the same time but rather, according to their special situation, died one after the other. It is possible that some children had already shown the most severe signs of poisoning while other children had witnessed these symptoms, especially the cramps, the vomiting, the emission of excrement and urine, while their consciousness was still relatively clear.
The court fully accepts this expertise. It is supported by expert knowledge, coherent, intelligible, convincing and partially also confirmed by the results of the forensic-medical examination of the corpses on 15.4.1943.
As concerns the number of children killed the witnesses Dwo., Ko., Lik. and Su. coincided in stating that there had been a total of 214 children. They pointed out that this number resulted from the asylum’s administrative documents. It is also stated in the corresponding forensic-medical examination of the corpses and, according to the witness Ame.’s credible statement, on the memorial at Jeissk.
About the purpose of the whole undertaking neither the defendants nor the witnesses could provide precise information. However, from the final report of the Ortskommandantur I (V) 296 dated 25.9.1942, in which it is stated that 500 beds in School III and in the children’s asylum at M-Street would be made available to Sick Collection Point 604, the court concludes that by clearing out the children’s asylum in question rooms were to be obtained for a sick collection point. In this context it is of special significance that according to the defendant Tri. there had also been a war hospital at Jeissk, while the witness Schu stated that, after Tri. had moved on, he had still remained at Jeissk and transferred two field hospitals to Rostov.
As concerns the legal qualification of the crime, the court reached the following conclusion:
The legal assessment of the findings of fact regarding the children’s asylum operation at Jeissk leads to the conclusion that this was murder (Section 211 of the Criminal Code).
bb) In this operation 214 persons, namely 214 children accommodated at the respective children’s asylum, were killed deliberately and partially in a cruel manner (Section 211, Paragraph 2 of the Criminal Code).
Those of the children who, while still in a state of relatively clear consciousness, had to witness the death struggle of their companions in suffering with cramps, vomiting, emission of urine and excrement, suffered excessive torments. Especially their death panic was significantly increased thereby.
The deliberate order to carry out this action stemmed from an unfeeling attitude devoid of mercy for the children’s suffering (see Federal Supreme Court, Decisions in Criminal Matters 3, [pp.] 180, 264).
The court is convinced that he who gave the order to use the gas van for the operation in question was aware of the fact that the simultaneous killing of a multitude of persons with the gas van would at least for a part of the victims necessarily lead to excessive psychological and physical torments. Nevertheless he gave priority to obtaining rooms for a sick collection point, without there being any indication that it was even considered to try sparing the victims their excessive torments.
Murder is defined in the German Criminal Code (Strafgesetzbuch) as follows:
Section 211 Murder
(1) The murderer shall be punished with imprisonment for life.
(2) A murderer is, whoever kills a human being out of murderous lust, to satisfy his sexual desires, from greed or otherwise base motives, treacherously or cruelly or with means dangerous to the public or in order to make another crime possible or cover it up.
The defendant Dr. Gö’s participation in the murder of the Jeissk (Eysk) asylum’s handicapped children was found by the court to have been the following:
Who gave the respective order and who commanded the operation can no longer be established.
Together with other members of the delegation that had arrived at Krasnodar and the partial detachment stationed at Jeissk, the defendant Dr. Gö. participated in the operation. In execution of the corresponding order he stood by the gas van on the first day, 9 October 1942, during the loading of the children and observed the operation, without having any noteworthy influence on its execution. He gave instructions to the Russian auxiliaries and the asylum’s nurses and told them what they were to do.
According to prevailing German jurisprudence at the time, this didn’t make Dr. Gö. a murderer but a mere accessory to murder. The distinction between a murderer and an accessory to murder was explained as follows by the court, in its considerations about the culpability of Dr. Gö’s co-defendants Tri. and Sev., who were on trial for their participation in a mass execution of Jews by shooting in the "Petrushinskaia-Balka" near Taganrog on 26 October 1941 (this mass execution is mentioned in the blog The Atrocities committed by German-Fascists in the USSR (2)):
For the differentiation between a perpetrator and an accessory the participant’s inner attitude towards the deed is the determining factor (see Federal Supreme Court, Decisions in Criminal Matters 18, [p.] 87). This attitude is to be established from the overall picture of all the deed’s circumstances.
In this respect an own interest in the deed as well as command over the sequence of events are evidence indications pointing to a perpetrator. Especially he who carries out the deed by his own hand must as a rule, though not without exception, be considered a perpetrator. The accessory, on the other hand, is characterized by his subordination to another person’s will. He means to give assistance to the main perpetrator, to further his deed. Who in this respect shows particularly concurrent eagerness, however, can as a rule not claim to be a mere accessory. While acting under orders does not exclude the obeying subordinate's being a co-perpetrator, in that he also wants the deed as one of his own, the essence of acting under orders is generally that the subordinate wants to commit the deed not by his own will but in fulfillment of a duty, albeit without recognizing its limits.
As concerns the defendant Dr. Gö’s behavior in connection with the handicapped children’s gassing on 9 October 1942, the court’s assessment was the following:
The defendant Dr. Gö., through his contribution to the children’s asylum operation at Jeissk, made himself guilty of a crime of jointly executed accessorizing to murder in 214 legally coincident cases (Sections 211, 47, 49, 73 of the Criminal Code), with the main deed having been committed cruelly.
a) The court reached the conviction that at the children’s asylum operation the defendant Dr. Gö. participated not as perpetrator, but - in conjunction with others – as accessory. Assessment of the overall picture resulting from all circumstances reveals that he did not provide his contribution with a perpetrator’s will of his own. To be sure, he participated in the operation insofar as he stood by the gas van during the loading of the children on 9 October 1942, observed the operation and gave instructions to the Russian auxiliaries and the asylum’s nurses. In doing so, however, he acted under a corresponding order and without an interest of his own in the deed. He rather disapproved of the operation. There are no indications that he had a noteworthy influence on the operation’s execution or showed particular eagerness.
The defendant, however, knowingly and actively provided assistance, in conjunction with others (Sections 47, 49 of the Criminal Code), to a crime of murder in 214 legally coincident cases (Sections 211, 73 of the Criminal Code).
Through his contribution to the deed, through his instructing the Russian auxiliaries and nurses of the asylum and telling them what they were to do, the defendant furthered the deed, without however acting out of an own unfeeling, merciless attitude towards the victims’ suffering. To be sure, he provided his contribution to the deed conscious of the fact that excessive suffering was being inflicted on the children. However, as already mentioned, he disapproved of the operation. It also didn’t become apparent that in his activity he exceeded the scope of the orders given to him or had the possibility of diminishing the victims’ suffering. According to the testimony of witness Schl. the defendant was never taken seriously.
The defendant, however, provided his contribution to the deed in awareness of the fact that he was thereby furthering the premeditated killing of the affected children, 214 in total. As becomes apparent from his own statements, he also knew the circumstances that made the operation a cruel deed. It was especially clear to him that the order to carry out the operation, under circumstances that caused the victims excessive torment, had emanated from an unfeeling, merciless attitude. Finally he was also aware, also due to his intelligence and his consolidated values, that this order was unlawful. It was known to him that the children to be killed were completely innocent, that they were killed indiscriminately and under horrendous circumstances.
As concerns Dr. Gö’s punishment, the court ruled as follows:
5. The penalty range
For the crimes of accessorizing to murder committed by the defendants in the years 1941/1942 the Criminal Code stipulates a penalty range of 3 to 15 years imprisonment or – the conditions of Section 50 Paragraph 2 of the Criminal Code are not present – lifetime imprisonment (Sections 211 Paragraph 1, 49 Paragraph 2, 44 Paragraph 1 and 2 of the Criminal Code in conjunction with Section 4 of the Decree against Violent Criminals dated 5.12.1939 – Reich Official Gazette I, 2378).
6. Fixation of the penalty
When fixing the penalty the jury court let itself be guided essentially by the following considerations:
a) In favor of all defendants it was taken into account that they provided their contribution to the deed only under orders, that they internally disapproved of the deed and didn’t pursue any personal goals in contributing thereto, that before and after their time of belonging to Einsatzkommando 10a they always led an orderly and laborious life, that due to the long duration of the proceedings they were subject to increased psychological pressure, and that none of the defendants requires re-socialization, as they all found their way back to civilian life.
In favor of defendant Dr. Gö. is was additionally taken into consideration that his experiences while being part of Einsatzkommando 10a still haunt him and are a considerable psychological burden for him to this day, that he, even when this was difficult for him, granted his patients the same medical treatment regardless of their person, and that he is in a bad health condition.
b) Against the defendants it was taken into consideration that their respective contribution to the deeds furthered the killing of at least 200 Jews respectively of 214 children.
c) After assessing the entire culpability content of the defendants’ deeds and their personality the court saw itself compelled to, according to Section 49 Paragraph 2 of the Criminal Code, derive the penalty from the penalty range of Article 44 Paragraph 2 of the Criminal Code. The decisive factor for this, in the end, was the fact that the defendants had provided their contribution to the respective deed only under orders.
d) Again taking into account all circumstances speaking in favor of and against the defendants, the court considered that, within the penalty range of 3 to 15 years imprisonment, a prison sentence of 4 (four) years was appropriate in each case, the circumstance that none of the defendants requires re-socialization being the main factor weighing in their favor.
The defendant Dr.med. Heinrich Gö. was thus sentenced to 4 years imprisonment. He was furthermore deprived from holding public office for a period of 5 years.