IntroductionThe source documents the investigation initiated in 1939 into the execution of the National Socialist July putschist Friedrich Wurnig. It focuses on the question of what possibilities for intervention were available to his court-appointed defence counsel, Dr Franz Pessler, before the Innsbruck Military Tribunal. English translation and critical contextualisation with particular reference to the lawyer Dr Franz PesslerCritical Commentary on the Source The report of the Innsbruck Public Prosecutor’s Office dated 26 January 1939 was produced under the political and legal conditions of the National Socialist dictatorship. The investigations concerned events connected with the prosecution of National Socialist participants in the July Putsch by the Austrian authorities in 1934. The source should therefore not be regarded as a politically neutral investigation motivated exclusively by the principles of the rule of law. Following the “Anschluss”, the Nazi regime also used criminal investigations against former representatives of the Austrian state to portray the suppression of the July Putsch retrospectively as an injustice and to discredit the former Austrian government. In the case of Friedrich Wurnig, it was suspected that he had been severely mistreated following his arrest. Because of his physical condition, the execution of his death sentence might have had to be postponed. Consequently, the conduct of the presiding judge and the public prosecutor was investigated, as was the role of Wurnig’s court-appointed defence counsel, Dr Franz Pessler. The source records a suspicion, not proof that Pessler had culpably neglected his professional duties. According to the current state of research, Pessler was neither brought to trial nor convicted in connection with the case. The sources presently available do not allow a definitive assessment of what specific possibilities for intervention were open to him during the accelerated proceedings before the Military Tribunal or immediately before the execution. It is particularly contradictory that, at the time the report was written, Pessler was himself already being held as a so-called “protective custody prisoner” in Dachau Concentration Camp. The National Socialist term “protective custody” (Schutzhaft) concealed an arbitrary deprivation of liberty imposed without due process or judicial protection. Note on the English translation: The following English translation closely follows the wording and structure of the historical document. Period terminology and National Socialist administrative expressions have been retained where they are necessary for understanding the source. Explanatory additions by the editor appear in square brackets. Illegible passages are marked [illegible], while uncertain readings are marked [?]. The German original should be consulted for scholarly citation. English Translation of the Original Source (1939) Source: Judicial proceedings connected with the National Socialist putsch of 1934. In: DÖW, ed.: Widerstand und Verfolgung in Tirol und Vorarlberg 1934–1945. Eine Dokumentation, Vienna/Munich 1984, pp. 412–413. Document 24: Report of the Innsbruck Public Prosecutor’s Office to the Senior Public Prosecutor’s Office at the Higher Regional Court in Innsbruck concerning the indictment of Public Prosecutor Dr Ernst Grünewald of Innsbruck and others for offences under §§ 101 and 152 of the Austrian Penal Code, dated 26 January 1939. Original source held by the Central State Archives, Potsdam. DÖW 1906. The document reads as follows:
Facts of the Case During the National Socialist uprising of 25 July 1934, at approximately 3:00 p.m., SS Squad Leader Friedrich Wurnig shot and killed Police Staff Captain Franz Hickl in Innsbruck as Hickl was about to enter the Federal Police Commissariat in Herrengasse. Wurnig was arrested immediately after the shooting. He was initially detained in the police building and transferred to the Innsbruck Regional Court Prison during the night. While being escorted from the police building to the motor vehicle, during the journey and, in particular, immediately after his admission to the Regional Court Prison, he was severely and brutally mistreated by members of the executive authorities. Among the accused persons listed above, former Senior Police Constable Albin Rieger, former Police District Inspector Heinrich Gamper, gendarmerie officers Josef Eisner and Johann Burger, and prison officers Josef Treichl and Johann Reichmann were suspected of having participated in the mistreatment of Wurnig. They were consequently suspected of having committed the offences of abuse of official authority under § 101 of the Austrian Penal Code and grievous bodily harm under § 152 or § 157 of the Austrian Penal Code. On 1 August 1934, the main hearing concerning the charges brought by the Public Prosecutor’s Office against Friedrich Wurnig took place in Innsbruck before the Military Tribunal established under Federal Law Gazette II No. 163/1934. The prosecution was represented by Public Prosecutor Dr Grünewald. Senior Higher Regional Court Councillor Dr Josef Ziegler presided over the proceedings, while lawyer Dr Franz Pessler served as court-appointed defence counsel. Wurnig was found guilty of murder under § 134 of the Austrian Penal Code. He was executed by hanging in the courtyard of the Innsbruck prison at 8:00 p.m. on the same day. The relevant files are held by the Historical Commission of the Reichsführer-SS in Vienna. On the basis of a report submitted by the police, it is now suspected that, as a result of the mistreatment and injuries inflicted upon him, Wurnig was in such a physical condition at the time of his execution that the presiding judge, the public prosecutor and possibly also the defence counsel would have been obliged to ensure that the death sentence was not carried out until his condition had improved. 2. The Killing of Dr Josef Honomichl On 25 July 1934, also in connection with the National Socialist uprising, the Tyrolean Home Guard took a number of hostages in Innsbruck and detained them in the headquarters of the regional leadership of the Home Guard in Wilhelm-Greil-Straße. Among those arrested was the National Socialist retired Captain Dr Josef Honomichl. During the night of 25–26 July 1934, Honomichl was killed by Home Guard Captain Johann Tomaschek, who fired two pistol shots at him in the stairwell of the regional headquarters building. Criminal proceedings concerning this act were not initiated until after the political change of regime in the spring of 1938. These investigations allegedly established beyond doubt that Tomaschek had treacherously murdered Captain Honomichl. The accused, Dr Ernst Grünewald, is alleged to have appeared at the scene during the night of 25 July 1934 but, in abuse of his office, failed to initiate criminal proceedings against those responsible. Instead, he allegedly accepted the explanation given to him at the time that Tomaschek had shot Honomichl in legitimate self-defence when Honomichl appeared about to attack him. In this context, Dr Grünewald was further accused of being responsible for the decision of the Innsbruck Public Prosecutor’s Office to dismiss, under § 90 of the Austrian Code of Criminal Procedure, a report submitted to it in early August concerning the killing of Honomichl, rather than fulfilling its duty to initiate a preliminary judicial investigation against the perpetrator or perpetrators. Extract from the Judgment of the Innsbruck Regional Court Extract from the judgment of the Innsbruck Regional Court, sitting as a jury court, against Johann Tomaschek of Innsbruck and others for the crime of murder or incitement to murder, dated 30 June 1939. Source: DÖW, Vol. 1, pp. 413–414; Innsbruck Regional Court, file 5 Vr 897/38; DÖW 7962. Pursuant to § 265 of the Austrian Code of Criminal Procedure, it was ordered that the death sentence should first be carried out on Johann Tomaschek and subsequently on Rudolf Penz. read more:Click here to edit.
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