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.
Court No. III, Case No. 3.
This duty became particularly important when one day, and that very suddenly, we had to depart from the previous method of beheading and suddenly adopt the method of hanging. This was the connection that, according to the law, we were under an obligation to carry out death sentences which had been passed by the Military Courts. That is how it was. We didn't like it but we had to do it. One day we were confronted with the fact that the Military Commander had ordered that instead of beheading the method of hanging was to be adopted. Therefore, we had to make the necessary arrangements at Ploetzansee, where the first cases of this kind occurred. That explains the exhibit which counsel has mentioned, exhibit 294, in which Westphal, in the style of a diary, noted what steps we took to comply with these new military orders, and I would like to say that was the only case where I personally also attended the execution itself and not only had a look at the installations. As regards popular opinion in Germany, beheading is considered the normal way to execute a death sentence. Hanging is considered definitely derogatory, shooting is definitely considered honorable. Therefore, in very very many clemency pleas we met with the plea to be shot and not beheaded. The persons who submitted that plea were hardly aware of the significance of their wish, because from the mere point of view of humaneness there can be no doubt that beheading and hanging are more humane than shooting. In the first two cases the person loses conscious within a matter of seconds, whereas with the method of shooting, that is by no means so. With us, it was mainly due to police methods that shooting became known to the population, because the police put up bulletin boards everywhere in the towns, saying he who plunders will be shot. That went ahead of the facts, but it was right insofar as there was in effect a possibility to have a death sentence carried out by shooting.
Q Dr. Mettgenberg, you have told the Court that these matters concerning death sentences were dealt with in your General Section, "Generalreferat". You remember, I assume, that the Prosecution said Court No. III, Case No. 3.when they submitted Exhibit 530, during the Klemm cross examination, that they wanted to establish some connection with the shooting method and the occurrences which took place at the Sonnenburg penitentiary, and as you were the official in charge at the ministry, I would ask you to tell us briefly whether such a connection can be established at all.
A Naturally, there is no such connection. It was here in the courtroom that I heard for the first time of the occurrences at Sonnenburg and what happened at Sonnenburg happened there at a time when I had long since left Berlin. It did not come to my notice before what happened at Sonnenburg, but whatever may have happened at Sonnenburg, naturally that had nothing whatever to do with the execution of the death sentences. The people who were in the Sonnenburg prison were sitting there for their prison terms, they had not been sentenced to death. If I remember rightly the witness Eggensperger explained the matter here in the same way.
Q Dr. Mettgenberg, again in connection with the title: "Measures concerned with Death Sentences", the Prosecution has submitted further documents against you which deal with the handing over of the bodies. I am referring to Exhibits 366 and 367. I would ask you because that is not evident from the documents, what were the legal provisions?
A The legal situation was such that the administration of justice had fulfilled its duty as regards the execution of a death sentence, at the moment when the execution had been carried out. As to subsequent events it was not a matter for the administration of justice but for the police. Thereupon, the transfer of the dead body and the funeral arranged for either by the relatives, either by the police was not a matter for the administration of justice but for the police. That hasn't always been very clear and the police did not always realize that. The police was reluctant to have to deal with this unpleasant business, and often long negotiations were required to remind the police that after all it had to take care of public safety and order, and that, therefore, it Court No. III, Case No. 3.could not shirk its duty in this matter.
In fact later on there was no doubt that the police had performed that function. The final regulation which we made, in agreement with the police, is contained in Exhibit 530, which has been mentioned several times, the terms of which cannot possibly be of any interest here.
Q Dr. Mettgenberg, finally a number of documents belong to this context, documents which deal with the notification of relatives, that is to say, where relatives had to be notified of the executions. So far the Prosecution has introduced three documents. They are 398, 299, and 361. Please comment on the matter.
A I do not know whether you made a mistake in quoting these figures. I have 298, then 299, then 361.
Q Yes, I made a mistake, 298. Would you first please comment briefly on 298?
A 298 is concerned with a letter which was not known to me up to now. It was as follows: notification of the relatives originally was a matter for the prison where the person who had been executed had been housed. However, it was found that the prisons frequently had failed to notify the relatives. Consequently, it was considered to be a better method if the Prosecution offices dealt with notifying the relatives. That was the last solution which was adopted and following instructions by the defendant Klemm it was incorporated in Exhibit 530. No doubt it was the best solution because the Prosecution had the documents available as to where the residence of the relatives might be. Those are exhibits 298 and 299. Exhibit 361 refers to a special case. That is a case where the Chief Reich Prosecutor at the People's Court had worked on matters relating to Alsace. In Alsace, there was a judiciary which was completely separate from the administration of justice of the Reich. The Chief of the Judiciary in Alsace, the chief of the civil administration there could not immediately issue instructions to the Chief Public Prosecutor at the People's Court because he was not immediately subordinate to him.
Therefore, he had to use the Reich Minister of Justice as an intermediary. That is what happened in Exhibit 361. I have no further comments on the matter.
Q: Herr Mettgenberg, outside of NN cases, the Prosecution has submitted no further documents against you, with one exception, and that is Exhibit 362. That exhibit deals with the suggestion for a ruling as to how the population was to be informed by a public notice that a number of executions had taken place. When introducing that document, the Prosecution mentioned your name and alleged that you signed that statement. Would you comment on that please, 362?
A: I believe that this is a matter of very moderate importance. That the execution of death sentences was announced to the population by way of placards, that is probably a general custom; at any rate, it was the custom in Germany. The letter with which we are concerned here is, in effect, of technical importance only. With us in Germany, a letter like this would no doubt have been signed by the Referent, unless the person to whom the letter was addressed had been the Reich Protector; and only that circumstance led to the fact that the letter was submitted to the subdepartment chief for his signature to be affixed.
Q: Herr Mettgenberg, we have now discussed all documents which refer to the first group of charges against you which the Prosecution has filed. I would now like to discuss, in brief, Counts I and III of the Indictment. Under those Counts you are charged with having contributed to passing exceptional laws against foreign peoples. Those are Counts 10 and 22.
As far as I can tell, the Prosecution has not submitted any proof, neither by documents nor by witnesses, and I would ask you now whether you have any comments to make on that matter.
A: I can really not say anything more about it. I played no part in such matters. I have already explained today that as regards legislative work - - and such legislative work is referred to here -- that with such work, as opposed to administrative work, I only dealt in the field of international penal law and I was only competent for it in that field. I did not possess competence for the matters which are mentioned here.
Q: Dr. Mettgenberg, Counts II and 23 of the Indictment were also mentioned, and it is stated there that you extended and distorted existing legal provisions. No proof has been submitted. Have you anything to say to that?
A: That is a matter which does fall into the field of penal law, but, again, I do not know how I could have played a part. I know that I never exercised influence on penal legislation.
Q: And finally, would you refer to Counts 12 and 24 of the Indictment? Because there it is stated, too, that you played a part in illegal annexation.
A: I can only repeat the same thing here that I have already said about my competence.
Q: We are now coming to the last Count, and that refers to the so-called NN cases. In reference to this, the Prosecution has submitted against you document books VI and VI Supplement, and Exhibit 80, NG-482, NG-720, that is the Roemer affidavit; and finally, Exhibit 469, NG-380. 6268 I want to ask you, first, do you remember that Dr. Lehmann, a witness for the prosecution, her in the witness stand, spoke about the developments of the NN decree?
Do you further recollect that the defendant Dr. Schlegelberger too has spoken about the developments and has explained the reasons?
A: Yes, I remember that.
Q: Do you have anything important to add to the testimony of those two witnesses? I am referring to the history, the development, and I would like to know whether you possess any knowledge of your own as to when these developments occurred.
A: No, from my own knowledge I can say nothing about the origin of the NN legislation. I only began to deal with NN matters in the autumn of 1942. At that time NN matters were transferred to my subdepartment. Yet complete knowledge of these matters relating to NN cases -- that is to say, their origin and the reasons for the transfer of NN cases to the Administration of Justice -- of all that I heard only here in the courtroom. Nor is that very surprising, for Exhibit 313 contains a note by Undersecretary Freisler according to which NN matters were sometimes never laid down in documents. Therefore, a person who had not attended the original discussions hardly had any way of gaining a complete survey of these matters.
Today I am still of the view which I expressed in my affidavit. My view is that it was regrettable to have to burden the courts with the NN cases, and it was regrettable because the courts, in these matters, could not completely do justice to their foremost task, the finding of the truth. Now that I believe I have heard everything and believe myself to be able to survey the whole matter, I have to say that as concerns the various evils between which one had to choose, a transfer of the NN cases to the Administration of Justice was, after all, the lesser evil, so that this emergency solution which was made was probably the only possible solution.
Q: Dr. Mettgenberg, who was your collaborator in NN cases in your subdepartment?
A: When hese cases were allocated to my subdepartment, Dr. von Ammon, the previous Referent for these case, was also allocated to my office. I had every reason to be pleased with that assignment, for I had known von Ammon for many years of cooperation in the field of international penal law and I bad worked towards the end that von Ammon, who had been at the Ministry for some time and then had left, would be recalled to the Ministry to collaborate with me on cases concerning international penal law. I always hold him in high esteem, as a reliable worker with excellent qualifications. He remained by Referent in these matters until the end.
Q: Dr. Mettgenberg, you mentioned that it was only later on that you were put in charge of NN matters. When these cases came to you for you to deal with, were you able to form a picture of the legal basis which was decisive for work on those NN cases?
A: Yes. AS soon as these matters were assigned to my subdepartment, and I therefore assumed responsibility for NN cases, I formed a picture for myself of the legal basis. I will try now to pierce through the fog which has formed around the NN cases. I believe that has not yet been properly done in this courtroom.
THE PRESIDENT: I think this would be an appropriate time for our recess, then.
Fifteen minutes' recess.
(A recess was taken)
Court No. III, Case No. 3.
THE MARSHAL: The Tribunal is again in session.
DP. KOESSL: Dr. Koessl for the defendant Rothaug. May it please the Tribunal, I am forced to discuss a question which, for plausible reasons, I really do not like to discuss here. The Court repeatedly admonished the defense to do everything for expediency. I have taken into account these admonishments as far as I could. Every day I worked until the late hours of the night and my client did the same thing, who still is under medical care. But by circumstances which were beyond our power and for which nobody really can be blamed, the defense was handicapped.
I have already pointed out in my opening speech what tremendous amount of detailed work has to be done on account of the charges brought in the indictment and that, therefore, a large amount of files has to be studied. Several weeks ago, at any rate before the time limit of 17 days which existed to prepare the defense, I tried to obtain that material, these files. The files which were promised to me for today, however, were again not given to me for the reasons stated, that the president of the District Court of Appeals would still have to look through them.
In spite of the written approval which was submitted, further telephone conversations were conducted with an office -- but also after the files are given to me, nothing has been achieved as the material still has to be screened and brought into the required shape so that it can be introduced in this trial.
THE PRESIDENT: I think it would be very helpful if you would follow the unual procedure of stating your motion first and then supporting it with your reasons so that we may know what you are getting at. Will you state to us specifically what your motion is?
DR. KOESSL: Yes, your Honor. My motion is the following: The Tribunal should kindly consider the following. After the defendants who have been members of the Ministry have been heard to make a recess for several days so that the defense in the case of the judges can be Court No. III, Case No. 3.prepared.
In this connection it must be pointed out in particular that as far as the defense of the former members of the Ministry of Justice are concerned, there are hardly any documents available with the exception of a part of the Schlegenberger documents. The documentary material for the defendants Klemm and Rothenberger has not been received. That material also, in preparation of the defense for the judges, has to be screened and taken into consideration because it will contribute to a very decisive role.
In the course of the defense, points of view have evolved according to which the point of view of the Ministry of Justice and the point of view of the judges and prosecutors, who are defendants here, in certain basic questions, were at variance. In the course of the procedure this contrast was made somewhat deeper and we were forced to make considerable changes in the line of our defense. Therefore, it is extraordinarily important to know the material which was submitted by the members of the Ministry of Justice.
By the manner in which the defense material is submitted now, frequent delays and interruptions occur in the presentation of documents which offer a great disadvantage to the defense. I am of the opinion that a thorough preparation of the defense will have a beneficial effect later because it will make the individual cases of the defense shorter, and that again will make it possible to make up for the loss of time.
THE PRESIDENT: We understand the nature of your motion. The Tribunal had not anticipated mentioning the previous complaint which was made by Dr. Koessl or the statement of the Tribunal that every assistance would be given in attempting to get the documents to him; but it should be mentioned now that we did make a request upon the various organizations whose duty it is to aid in securing the documents; that we had a report from them and that they have, in view of very great difficulties, apparently done the very best that they can in overcoming the tremendous congestion which has resulted from the trial of so many cases and the great burden which is imposed upon them in translation and similar labors.