The starting point of the first Auschwitz trial was the private lawsuit in the spring of 1958 by a former concentration camp prisoner against the political department of the camp, SS-Oberscharführer Wilhelm Boger. In Auschwitz, Boger was involved in the abuse of prisoners during interrogation in his function as “advisor for matters of escape and intelligence services”. With the help of Hermann Langbein, General Secretary of the Auschwitz Committee, the Stuttgart public prosecutor’s office, which had responsibility for the case, was able to find multiple witness for criminal proceedings against Bolger. Over the course of this, in addition to the investigations in Stuttgart, the newly established central agency in Ludwigsburg also concerned itself with the Bolger case and expanded to additional members of the concentration camp staff.
The second part of the background to the Auschwitz trials came about in Hesse. In January 1959, original writings of the commander of Auschwitz-Birkenau came into the hands of Hessian Attorney General, Fritz Bauer. The documents survived because they were rescued from a burning court building in Breslau in the spring of 1945 by the concentration camp survivor Emil Wulkan. Wulkan was now a member of the council of the Jewish community in Frankfurt am Main. Together with a list of the names of members of the camp personnel put together by a former prisoner, the documents served the attorney general Fritz Bauer as the basis for a petition to the German Federal Supreme Court for a recognition of jurisdiction. On April 17, 1954, the judges there decided to transfer “the investigation and decision in the criminal matter against the former staff of the commander of the Auschwitz concentration camp” to the district court of Frankfurt am Main. On this basis, Bauer was able to assign two investigator from the Frankfurt public prosecution office to prepare comprehensive criminal proceedings.
When the first large-scale Auschwitz trial began on December 20, 1963, attorney general Fritz Bauer sat in the first row of the courtroom at the Römer in Frankfurter, with a large site plan with the barracks and buildings of the camp hanging behind him. Proceedings were held against 22 men, amongst them Robert Mulka, the adjutant and representative of the camp commander Rudolf Höß, who was sentenced to death in 1947 in Poland.
The significance of this trial lay and still lays in the fact that it happened in the first place. This is because the Germans did not only want a clean slate – NS-perpetrators, even former SS members occupied high offices, including within the German Federal Criminal Office. Bauer commissioned a study which analyzed the NS power structure, he called witnesses who described the suffering and dying in the camp so powerfully that even the judge had difficulty maintaining his composure at times. In Frankfurt, Fritz Bauer had an authority working nationwide with nearly 200 public prosecutors and assessors beneath him. In addition, he held the trust of the Hessian premiere Georg August Zinn, who made Bauer the state’s lead investigator. Zinn, a lawyer and social democrat like Bauer, wanted to make Hesse a modern, liberal counterpoint to the Adenauer republic. He defended his attorney general against attacks multiple times.
Through numerous reports in the press, Auschwitz became a public topic of discussion, although the majority would have preferred to have made a clean break with the past. Many young people and students began to question the role that their parents had played during the Nazi regime.
Bauer was, nevertheless, disappointed by the decisions that were reached in the middle of 1965 after 183 days of proceedings. To be sure, there were six sentences of lifetime imprisonment due to multiple counts of murder. Ten of the accused, however, were deemed by the court to merely be “accomplices”, including Mulka. He received 14 years in prison for as an accessory to murder.
Bauer had fought to ensure that participation in the death machine should lead to a conviction for murder – even if it could not be proved that an accused person had killed someone with their own hands. He was not able to bring this about. But he did not give up; the second Frankfurt Auschwitz trial against three additional defendants began only a few months after the decision.
During this period, contemporaries and observers noted that Bauer often seemed depressed and defeated. The attacks against him increased, not only from the judiciary and justice department, which criticized his interpretation of the law. Conservative politicians increasingly targeted the Frankfurt prosecutor. Alfred Dregger, later the CDU chairperson in Hesse, disputed Bauer’s ability to serve as state attorney general in the Hessian state parliament. Bauer also received death threats. He was later quoted by a colleague as saying “When I leave my office, I find myself in a hostile foreign country”.
