A Yes, and I would much rather talk about that, because I am permitted here to remember one person to whom I owe a great deal.
When I entered the Reich Ministry of Justice in 1920, I met there, as Undersecretary, Dr. Kurt Joel --the same name, but not a relative of the defendant Joel who is here in the courtroom. Dr. Kurt Joel was the Undersecretary, later Secretary, and finally Reich Minister of Justice and during the years from 1920 to 1932. I owe him my training in the Ministry. He was my ideal of a person: thrifty, fair, upright, and straight. The Ministers--and I mentioned this before --came and left according to the political situation, but Dr. Joel remained. When he resigned in 1932, the year he himself had become Reich Minister of Justice, I did not discontinue friendly relations with him or with his family, not even after 1933; when people were looked at ascance for doing so. On the occasion of his 80th birthday, in 1945, I could still congratulate him; and I remember --it must have been around 1936--a conversation during which I, so to speak, made a promise to him, a promise to the effect that I would not write a single line, for publication which one could not want to read with approval ten year hence. He and I understood very well what was meant by that. That was to mean that I did not believe in the duration of the National Socialists era either, and that It was not inclined to give in to the political trend of the time in my writings. Dr. Joel died in 1945; I continue to maintain friendly contact with his family.
Q Dr. Joel was of Jewish descent, I don't think you mentioned that.
A I think that a German can almost deduce that from the name. I have to state that he was a full Jew, according to the race.
Q Dr. Mettgenberg, you were not a member of the NSDAP?
I only have to breack these questions because of the documents submitted by the Prosecution. We shall talk about these documents now. May I ask you to comment first about Exhibit 198?
A I don't think I have to speak about the contents of that exhibit. To explain this letter which I have signed, may I say the following?
As Subdepartment Chief, I received that letter from the competent Referent dealing with the District of Hamburg. The letter was in order so far as its contents was concerned, it was in accordance with the legal situation, and I could not stop it. I signed it and sent it out.
Q I believe, however, for the benefit of the Tribunal, we have to elucidate and state the fact that in this Exhibit 198 a large number of decrees or laws are cited; the letter gives the impression that it was merely a reproduction of these laws and decrees.
A Yes, that is so. That letter is only a reference to a number of legal provisions which had not been abided by in Hamburg, and that was pointed out to the District Court of Appeals in Hamburg.
Q The second exhibit is 368. The prosecution, when submitting that document, mentioned your name, but your name cannot be found on the document.
First, would you please tell the Tribunal -- It is 368, a file designated with the words "Concerning legislation for Jews." It contains a notation and a memorandum of 15 January 1941. That memorandum reveals that we are concerned here with matters of so-called citizensship of Jews (Staatsangehoerigkeit) in the German Reich. To that document--as I said, of 15 January 1941--a distribution list is attached, and you are not mentioned on that distribution list. Would you please tell the Tribunal whether you had any connection with that document at that time?
A I could not find any connection with that document, neither factually nor formally. My name is nowhere on that document. It would be quite improbable, because I had nothing at all to do with the legal matter with which is concerned. These are documents which emanated from the Reich Chancellery. It was a conference with many representatives of the Reich Ministry of Justice attended-persons concerned with these matters -- but not I. There is no connection in the case of another document, which I am not quite sure -- but which I don't think the Prosecution has submitted. That is designated as NG-1066. It seems to me that was not submitted as an exhibit. This document bears several notations that is to be submitted to me, and I have put my initials on it to signify that I had seen it. That was for a very specific reason. It deals with the question whether the Nuernberg laws, which were as such only applicable to full Jews, should also be extended to half Jews, a question which, according to our distribution of work, was none of my business. That in spite of that there are various notations on this document to show that it head been submitted to me for information was based on a personal wish on my part, quite unofficially, a request which I had submitted to the Referents.
At that time I happened to advice a couple about to get married, but did not get any approval. Therefore, they wanted to go abroad in order to get married there. I was, so to speak, at the source where I could perhaps get some information ahead of time, and had been asked to try and find out what the probable development of matters concerning hakl--Jews would be. Therefore, and for that personal reason alone, I had asked the gentleman concerned with that matter to keep me posted, that is the reason why those documents were submitted to me and why I initialed them.
Q Just for the purpose of further explanation, would you please tell the Tribunal whether you were actually able to find out anything on the basis of these documents?
A I did not find out any more than can be seen from the documents themselves. They are drafts, which remained drafts; they never became law. However, I was in a position to explain to the couple that a certain danger existed that the Nuernberg laws would also be applied to half-Jews, that is to say, would apply to them also.
DR. SCHILF: May it please the Tribunal -
THE PRESIDENT: We will recess until 1:30 this afternoon.)
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 31 July, 1947)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Before you proceed, Dr. Schilf, I desire to revert for a moment to the contempt proceedings which were concluded this morning in order to correct, for the record, my own error. In one sentence I find from the transcript that I referred to the testimony of the two German doctors and then said that it was opposed only by the somewhat equivocal denials of the respondent Engert. Of course, I meant to say the respondent Marx. It was an inadvertant slip of the tongue. I am now correcting it for the record and have directed that a note be placed in the transcript, showing that the error has been corrected.
My associates have agreed with me that we should also state to you that we consider this unfortunate matter entirely an isolated circumstances and that it should not be treated or considered in any way as a reflection upon the body of German counsel who have appeared in this Tribunal and whose conduct we consider to have been high minded and ethical. We would add that the two counsel, one lady counsel and Dr. Orth, who conducted the defense in the contempt proceeding, in our opinion, performed their duties conscientiously and capably. That is all we have to say about that matter.
You may proceed with your case.
WOLFGANG METTGENBERG - Resumed DIRECT EXAMINATION (Continued) BY DR. SCHILF:Q.- Dr. Mettgenberg, at the Reich Ministry of Justice you last held the position of a subdepartment chief.
In the course of this trial a great many things have been said about that subdepartment chief, but you are the only defendant who last held that position. Therefore would you please give the Court an outline of that last position you held?
A.- Perhaps I may somewhat exceed the scope of the question and say a few words about the structure as a whole of the Reich Ministry of Justice, of which so far nothing has been said here. The entire personnel of the Reich Ministry of Justice amounted to approximately 800 men. Those 800 people were composed of three groups, the workers, the employees, and the officials. As an example for the workmen may I perhaps mention the cleaning women and the boileman. As an example for the employees, the majority of the secretaries and typists. And officials were all those who held the posts of civil servants. Conditions to fulfill the status of a civil servant were mainly of a formal nature. Within the body of civil servants there were three groups which must be distinguished, the lower grade, the intermediate grade, and the higher grade, Lower civil servants were, for example, those who carried the files, etc., the chief messengers, etc. Officials of the intermediate grade were the men whose task it was to keep the registers and to draft documents, which were made by the dozen. The higher grade of civil servants was held by all beginning with assessor up to the minister himself. The scope of work for the higher grade civil servants was distributed in such a way that the younger among these civil servants were employed as so-called collaborators, Mitarbeiter assistants. Above the collaborators there were the referents, Referenten. They were older officials who held the rank of an Oberregiorungsrat and Ministerial Counsellor. Above them there was the next category. They were the subdepartment chiefs. These subdepartment chiefs were either the more senior Ministerial Counsellors or Ministerialdirigenten. Above them there were the department chiefs, as a rule a Ministerialdirektor, sometimes it was a Ministerialdirigeant. Above them, but only temporarily, there was an assistant undersecretary. Above him there was one undersecretary or several undersecretaries, and at the very top there was the Reichsminister. When one keeps that survey in mind then the answer to the question which counsel put to me becomes fairly clear. The subdepartment chief was bet ween the Referent and the department chief.
His task was to take reports from the Referent on matters which were of a somewhat supernormal importance; matters which were altogether normal and clear and unambiguous, where there were no misgivings, no doubts, there the Referent made the decision. But as soon as a matter from any point of view achieved somewhat greater significance he had to report on it to the subdepartment chief who, in turn, had to consider as to whether he himself was competent to decide on the question. If it was of real significance a report had to be made to a higher authority, to the department chief, to the undersecretary, and possibly to the minister. In the absence of the department chief the subdepartment chief had to deputize for him in his business as department chief. And the organization with us was such that every subdepartment chief for his sphere of work had to undertake that work as a deputy. In the big Department IV which has been discussed here such a great deal there were at the end six subdepartment chiefs, each of whom had his own sphere of work. When the department chief was absent each one of the six subdepartment chiefs had to deputize for the department chief within and for his own sphere of work. In the main, my defense counsel has already explained the matter in his opening statement, and I may therefore refer to it. As concerns myself as a subdepartment chief, I too had to deputize for the department chief when matters were concerned which belonged within my sphere of work as a subdepartment chief.
Perhaps it is not unimportant to say at this moment that I, on account of my international affairs, frequently was absent from Berlin for weeks at a time. I remember, for example, that in one year in the '40's I was absent on trips to Budapest no fewer than six times and sometimes I had to work there for a fairly lengthy period.
DR. SCHILF: May it please the Court, the Prosecution has introduced Exhibit 510. That Exhibit contains the socalled distribution-of-work plans. That exhibit contains in brief the information which the defendant has just given to us.
BY DR. SCHILF:
Q: Dr. Mettgenberg, those work distribution plans which the Prosecution has submitted refer only to certain periods. Those plans were not submitted in respect of all years. In Exhibit 510 there will be found on Page 2 of the German text that your name appears under Department 3. Would you tell us briefly what work you did in Department 3?
A: During the whole of the time since the Administration of Justice became centralized, that is to say, since 1935, I worked in Departments 3 and 4. In Department 3 -- that is the legislative department for penal matters, a legislative department as opposed to an administrative department --- in that department I was a referent for legislation in the field of international penal law. And in the Administration Department 4 I was sub-department chief in charge of a sphere of work which, above all, also concerned affairs of international penal law. Beyond that, however, it also concerned itself with district referate and referate which were of a different type than of the international variety. The allocation of work changed a great deal in the course of time.
Therefore, the distribution plans in every case only provide a picture of a certain period.
Q: Herr Mettgenberg, you said that the sub-department chief, as you yourself have been one for a long time, in the absence of the department chief had to deputize for him. Now, I ask you. The Prosecution has submitted two documents and I am referring to Exhibit 244, which refers to the Jankowitsch case, and Exhibit 493 which refers to the Deibel case. Your name appears in these documents and in both cases what was at stake was whether a death sentence which had been passed on these two men was to be executed or not.
The documents show that evidently, while deputizing for the absent chief of department, you acted officially. As this was a question of whether a death sentence was to be carried out or not, I would like to ask you first as to what your basic attitude to the death penalty was.
A: As regards matters of penal law, I am a student of the Berlin Professor Franz von List. He was an ingenious teacher who enriched the theory of penal law a great deal. Von List had a very great influence on me and it was he who made me take up penal law as a profession. Politically he was far to the loft and in particular, as regards the death penalty, he was very skeptical. I inherited his views on that subject. Experiences of my own of many years and my own conviction led me to the belief that the death penalty in normal times is an utterly useless, superfluous punishment and that it should, therefore, not be applied.
I expressed that conviction in my writings. The wellknown letters by Charles Dickens against the death penalty I translated and published and my view to which I testified in those days has changed in no way today. I know for certain that point of view, in times of tension, in times of war that is to say briefly, in abnormal times -- cannot be applied.
I know that in such times the death sentence is indispensable.
But on account of this my basic opinion I am of course of the opinion that in difficult times too the death penalty should not be misused because an overfrequent use of the death penalty can only produce a blunting effect.
When I had the referate for the Administration of punishment incorporated in my sub-department, I became competent for this very question of the death penalty. As an expert I had an unusually efficient and legally minded man, my friend Westphal, who has unfortunately since died.
The execution of the death penalty in my eyes is always something so disgusting that I went close to the limits of the impossible not to have to be present when such sentence was carried out. One single time I had to overcome my disinclination, and my sense of duty took me to Ploetzensee, there to be present at an execution. That was the first and last time in my life when I personally attended an execution.
Q: Herr Mettgenberg, will you now please comment on the two documents which I named, that is to say, Exhibit 244 and Exhibit 493? When a decision was made about the execution of sentences which amounted to the death penalty, did you have to do any preparatory work for those or did you participate in any way in these two cases, Jankowitsch and Deibel?
A: What usually happened was this. The subdepartment chief did not participate in the examination of the question whether a death sentence was to be executed or not. That has been mentioned here in various contexts.
No death sentence was allowed to be carried out, whether a clemency plea had been made or not, until that authority, which was in charge of clemency plea matters, had decided not to make use of clemency.
It has been explained here repeatedly that a large number of men at the Ministry had to prepare that decision. The sub-department chief did not take part in that preparatory work and that for the mere reason that the chain of pre-examinations would otherwise have become too long. The preparation for such clemency pleas had always taken up too much time, during which the condemned person was left in suspense and, therefore, that period in itself could not be brief enough. The sub-department chief, however, did have to play a part and that in virtue of his general duty of deputizing, a duty which I have just explained -- in the preparation of decisions on death sentences too, when his department chief was not available. Only to such an extent did he occasionally participate in such matters. If the authority which was in charge of dealing with clemency matters had made a decision, then this decision was produced and the State Seal were affixed. It was then passed on with an accompanying letter to the prosecuting office which was in charge of the execution or of the announcing of clemency.
This accompanying letter was, in its working, like a form. A civil servant of the intermediate grade drafted it and only for the sake of its importance it was as a rule signed by the department chief who had taken part when a report was made on the clemency plea. But if the department chief was away on an official trip or was otherwise not available, that accompanying letter was handed to any sub-department chief who happened to be present, who then signed the accompanying letter which was in the shape of a form. Thus my signature to is to be found on several letters of that kind which were addressee to the local public prosecutor and which ordered him to carry out the execution.
These accompanying letters had no particular contact, they had merely the significance of passing on the decision which had been made and, of course, to cause the public prosecutor to take steps in accordance with the decision. Here in this witness stand Altmeyer was examined on these matters and what he testified to is altogether correct.
Q. May it please the Court, Exhibit No. 244, which I have mentioned contains such an accompanying letter signed by Dr. Mettgenberg. It is on page 18, and on page 19 there is the decision by the Minister himself. This, as the witness says and that is evident from the document, has the so-called Large Reich Seal solemnly affixed to it. Document No. 493 contains the account of a similar affair.
Herr Mettgenberg, the Prosecution also introduced against you, as a. document, Exhibit 464, which is a file note signed by Freisler, the date is 25 June 1942. Your name appears on the document, also the names of a number of other civil servants. Would you please tell the Tribunal in what way that document would involve you?
A. I remember the matter very well. I was present at the discussion and in that document I am mentioned as one of those persons who attended. As to why the Prosecution introduced this document, I have no idea. The explanation is very simple. Complaints had reached Freisler from several experts. These experts, Sachreferent, had complained that the district referents - I may assume that in the meantime the difference between district referents and the such referents has been made sufficiently clear - that the district referents, in the course of telephone conversations with the general public prosecutors in the district in which they were working, had discussed among other things also matters which were within the competence of the Sachreferenten. The Sachreferenten did not want the district referents to interfere with their competency and merely to have that limited did Dr. Freisler call us to him and requested us including me as a sub-department chief to talk to the district referents and tell them that in their telephone conversations they were not to interfere with the competency of the Sachreferenten.
This is a matter which has no significance of any kind.
Q. Dr. Mettgengerg, you are also mentioned in the document of the prosecution in connection with the Ploetzensee case, that is the occurence of September, 1943, which led to quick decisions. Would you please first of all tell the Tribunal in what capacity you were connected with these matters.
A. This concerns the much mentioned Ploetzensee case, if you want to call it that. I, deputizing for the department chief, participated.
Q. I would like to mention the exhibit numbers to the Tribunal. The numbers have often been mentioned, they are 286, 287, 288, and 289. You have told us that you only dealt with the matter as deputy for the department chief, would you please tell us briefly how you saw the occurrences in those days?
A. In exhibit 336, I have already commented on the matter and for the next, may I refer you to the testimony by Drs. Rothenberger, Altmeyer and Eggensperger. In order to summarize it briefly, the Ploetzensee affair was as follows. My department chief, Dr. Vollmer, the head of department 4, was away when telephone call from the minister requested him. The minister was ill and was at home, he wanted Dr. Vollmer to go out to his home. Dr. Vollmer was not there, so I took his place. I went out and found the minister in a very bad temper. He immediately said to me that he was very anxious on account of conditions at the Floetzensee prison. At the Ploetzensee prison there was an overlarge number of prisoners who had been sentenced to death in whose case no decision had been made as yet whether death sentences were to be carried out or not. In view of the frequency and the severity of the air-raids, however, it was possible that at Ploetzensee larger destructions might occur, that had already occurred, therefore something thorough would have to be done.
The minister then discussed the possibility as to whether, without any further examination, those prisoners who had been sentenced to death could not immediately be poisoned. As the minister met with my horror and I contradicted him violently, it took quite a while until I got him to see that such illegal procedure was out of the question. I entrenched behind the legal provisions, I entrenched behind technical difficulties and in spite of inward resistance the minister yielded to me. He went to the telephone and contracted under secretary Rothenberger or his adjustnt's office, I don't remember which for certain. He requested the under secretary to have reports made to him on these death sentence cases and to decide in the place of the minister whether and which of these death sentences were to be carried out.
Pleased with this result, I went back to town, and Herr Altmeyer has given a descriptive report of the excitement I showed at the ministry. In effect, I was rather worn out because of the struggle I had with Thierack, but now everything was alright. I contacted under-see cretary Rothenberger and he knew about the orders given to him. Referents which dealth with death penalties were called together and reports were made to the under secretary for hours and days. I do not want to repeat or mention all the details, but the under-secretary was able to make an orderly decision as to whether and which death sentences were to be carried out. The outcome of all this was a peculiarity only in a three fold manner.
The peculiarity was that first of all the under-secretary decided and not the minister - a perfect order. Second, that all the decisions about the death sentences referred to one and the same prison where as normally when reports were made to the minister on death sentences, the persons sentenced were not housed in one and the same prison, but in a large number of prisons, so that no such accumulation of executions at one and the same prison occurred. That was a peculiarity of this case. The third and worst peculiarity of this case was that thru an unpardonable mistake committed by an official at the Ploetzensee prison, who admitted this mistake, four persons were executed on whom the undersecretary had not made a decision.
The exhibit to which reference has been made does show what horror we felt at that and with what thoroughness we investigated the case as to who was responsible for that illegal execution, and finally it reveals that at least afterwards we were in a position to obtain a decision by the under-secretary on the question as to whether he would have ordered the execution, had the execution reports on these cases been made to him before. Fortunately, the undersecretary was able to convince himself that in those four cases, too, he would have ordered that the death sentence be carried out.
Q. Herr Mettgenberg, you have just mentioned an exhibit, and I assume that you are referring to 288. That is the report by the general public prosecutor at the Prussian Supreme Court of Justice to the Reich Minister of Justice, dated 25 September, 1943. It is an extensive report which describes all details.
A. Yes.
Q. May I ask you, did you read that report at the time; or, did it only come to your attention here when the documents were introduced?
A. As soon as these first days had passed, Ministerdirector Vollmer returned to Berlin, and from that moment, I for mine own person no longer had anything to do with the matter, but naturally in such an unusual matter as this Ploetzensee case, I continued to be interested in the developments. Therefore, I was informed continuously by the men concerned with the case at to the future developments. The report which counsel has just mentioned was not known to me. It was submitted to the department chief Herr Vollmer who had returned long ago and was back at work.
Q. Herr Mettgenberg, did the sub-department chief have to give his vote when the department chief was away and reports were made on the question as to whether a sentence was to be carried out or not; and, if that was so, did you feel any inclination, if in such exceptional cases, you had the right to share in the responsibility of decisions, to support clemency or not in cases of death sentences?
A. That in such cases when I deputized for the department, did on the death sentences matter, I did have to give my opinion, that was a matter of course because that was my duty. And as to whether in fullfilling that duty I was -- how shall I put it -- particularly severe, I believe I can hardly give an opinion on that point -- first, because others must talk about that who have standards of comparison. In view of my basic views on the subject of the death penalty, which I have mentioned, it would be somewhat surprising if I should have been very much inclined to have death sentences carried out.
Perhaps I might quote a word spoken by Thierack himself to me when during one of this reports, my turn came to speak. Minister Thierack said to me: There is no need for you to say anything; I know your opinion. That could be nothing else but naturally you are always in favor of not executing the death sentence. That was one of the tactless remarks such as Thierack liked to make. Naturally, I was not always in favor of clemency, but I was in favor of clemency when I saw reasons for the exercise of clemency.
Q. Dr. Mettgenberg, the Prosecution has also submitted against you a number of documents which I should like to say refer to technical matters connected with executions, the directives, the instructions which constituted a supplement to the legal previsions. A number of documents bear the designation: Re: Matters concerning execution of death sentences. Among these documents are Exhibits 289, 294, 295. Exhibit 289 contains an affidavit by Strelow. Exhibit 294 is concerned with file notes made by Ministerdirector Westphal, whom you have mentioned; and Exhibit 295 is a report by yourself about a trip to Frankfurt on the Main about the negotiations there and about inspection of installations which were used for executions. Would you please briefly explain the first group of those documents to the Tribunal.
A. I believe it is necessary to differentiate between the cases which were concerned with execution of one single death sentence, that is to say, the preparation for the clemency plea and the execution of the death sentence if clemency was refused. That is one group of cases, and I believe I said everything that is essential to be said about them. I have stated that accompanying the letter in which the presecurtion was informed that clemency had not been granted was a letter in the nature of a form and that I signed that several times as a deputy for the department chief who was away. What is quite a different thing, and that is the thing which now must occupy us, that is the general, ruling as to the actual carrying out of the death sentences which are to be executed.
Naturally, instructions had to be issued as to the manner in which executions were to be carried out. The legal basis for the manner in which, in Germany, a death sentence has to be carried out, is contained in Article 13 of the German Penal. Code. That Article 13 ordered that the death sentence is to be carried out by beheading. In our neighboring countries, a different method is used; in Austria, for instance, hanging was the method by which a death sentence was executed.
THE PRESIDENT: It is not necessary to go into the comparative laws on executions.
A. Article 454 in the Code of Criminal Procedure ordered that the execution of the death sentence has to take place in an enclosed space that is to say with the exclusion of the public. Later legislation made it possible to carry out the death sentence in Germany, too, by hanging instead of by beheading; and then, too the provision was extended by authorizing the execution of the death sentence by shooting. As to the general ruling concerning execution of the death by either beheading or hanging, or shooting, if it had to be carried out by one of these methods, it was up to the general department for the execution of punishment, within my sub-department, to issue these general rulings. From the experiences of many years and from the questions which appeared again and again when a decision had to be made, from all that there resulted the general orders which the prosecution has submitted in Document 530.
Q. May I interrupt you. May it please the Tribunal, the Prosecution submitted Exhibit 530 during the cross examination of the defendant Klemm. That document, too, has the title: measures for the execution of death sentences; and, therefore, it contains a reference to other documents which bear the same title, and which for the sake of completeness I will quote them. They are Exhibits 298, 209, 261, 366, 367, and, as the witness has just said, the final, summary of all the various rulings, the document of 17 January, 1945, which is contained in Exhibit 530.
Dr. Mettgenberg, Exhibit 530, which you have already mentioned, deals in detail with the three types cf execution which you have mentioned. Would you please comment on these three methods of execution, not in respect of their legal foundation, but in regard to how they were evaluated officially and generally by the people.
A. At the Ministry we took the view that the execution of a sentence was a state act of the highest importance, and that, therefore, the execution naturally had to be carried out in a humane manner; and, also in a dignified and solemn manner. Consequently, we attached great importance to the fact that the places of execution that is to say the places where the death sentence had to be executed were to be equipped in a dignified manner; and that, of course, the development of the executions was to be as void of horror as it was possible in the nature of things. In order to achieve that, and to make sure that that would be so, I myself sometimes with Herr Westphal, sometimes neighboring department, who were competent for the prisons, went to these places, and from that point of view inspected the placed of execution. I attached great importance to making these visits -- unpleasant as they were in themselves.