Trial held in 1970
In 1965, the Austrian Department of Justice was informed by the Ministry of the Interior that Wendl had participated in gassings and shootings. There was a preliminary investigation against Wendl in February for manslaughter under § 212 of the Austrian Criminal Code (RStGB). After five years of investigations, which were delayed due to other court cases and Wendl's refusal to cooperate, an indictment for murder under §§ 134, 135 no. 1 and 4 of the Austrian Criminal Code (StG) pursuant to § 136 of the StG was brought before a Viennese jury court on 12 May 1970.
The main trial against Wendl lasted four days. In the end, the jury was asked three main questions and two additional questions to convict Josef Wendl.
- Main question
"Is Josef Wendl guilty of having acted in June 1942 or later in Mogilev against about 60 to 70 Jewish men, women and children with the intention of killing them, by the fact that he, as the driver of a gas van in which these persons had been locked, after connecting a gas hose between the muffler and the interior of the van, let the engine run and by means of a hand lever gave the engine more stationary gas, as a result of which engine gases penetrated into the interior of the van, in such a way that the death of these persons resulted?"
- Main question
"Is Josef Wendl guilty of having acted in September 1942 at the Trascjanec/Minsk estate against about 140 Jewish men, women and children with the intention of killing them, by the fact that he, as the driver of a gas van in which these persons had been locked, after connecting a gas hose between the muffler and the interior of the van, let the engine run and by means of a hand lever gave the engine more stationary gas, as a result of which engine gases penetrated into the interior of the van, in such a way that the death of these persons resulted?"
- Main question
"Is Josef Wendl guilty of having acted in at least three attacks in 1943 in Mogilev against about 100 Jewish men, women and children with the intention of killing them, by the fact that he, as the driver of a gas van in which these persons had been locked, after connecting a gas hose between the muffler and the interior of the van, let the engine run and by means of a hand lever gave the engine more stationary gas, as a result of which engine gases penetrated into the interior of the van, in such a way that the death of these persons resulted?"
Additional questions:
- (Only to be answered if at least one of the main questions is answered in the affirmative): "Did Josef Wendl act out of irresistible compulsion (in a state of command necessity) when committing the acts referred to in the main questions no. 1-3?"
- (Only to be answered if at least one of the main questions is answered in the affirmative and the additional question no. 4 is answered in the negative): "Did Josef Wendl err in such a way when committing the acts described in the main questions no. 1-3 that he believed in a situation in which he could not have acted differently due to irresistible compulsion (command necessity)?"
[1]
The eight jurors all answered the main questions 1 to 3 with "yes". The first additional question was answered with six times “No” and twice “Yes”. On the second additional question, all jurors answered "yes" again.
Afterwards, the jury court was sure that the jurors had made a mistake when casting their votes and ordered another vote on the second additional question. This was again answered with eight times "yes", thus Josef Wendl was acquitted. The jury's reasoning was that the accused should have expected a severe punishment if he had disobeyed orders ("order emergency").
On 31 December 1970, the Public Prosecutor filed a nullity appeal against the verdict and justified this in a letter to the Vienna Regional Court. The letter criticised the fact that the jurors had not been given sufficient instructions on the law and that they had not understood them. The insufficient explanation of the consequences, scope and significance of the affirmative answer to the additional questions was criticised. The Procurator General, however, was of the opinion that the objections of the Public Prosecutor's Office were unfounded and therefore requested it to withdraw the nullity appeal. On 10 March 1971, the Vienna Public Prosecutor's Office withdrew the nullity appeal. Josef Wendl was thus a free man. Thus, none of the 50 perpetrators known by name who came from Austria had been prosecuted for the crimes committed in Maly Trascjanec.
Sources:
[1] Rennert, p. 98.
[2] ÖNB Bildarchiv, VGA_E2_0238, Hauptverhandlung gegen Josef Wendl, 6. bis 9.10.1970.