A.- Mr. Prosecutor, do you want me to repeat what I have already said about this extensively? If you do want me to, I am ready to do so.
Q.- Dr. Mettgenberg, I don't want you to repeat anything. All I want you to do is say yes or no. Were these necessary or weren't they?
A.- They were absolutely necessary because the appendix which I described yesterday, the solemn completion of the clemency report had to be sent to that office which had to initiate the further steps. Therefore, the accompanying letters were, of course, absolutely essential.
Q.- Now, at various times you participated, in the Minister's office or the State Secretary's office, as the case might be, on the voting or decising what death sentences should be executed. You testified to that yesterday. Now, when you did participate in these discussions and your advice or vote agreed with that of the Minister's, you have testified the order was sent out often signed by you ordering the execution; but when it happened, Dr. Mettgenberg, that you disagreed and you thought, in your opinion, that the death sentence should not be executed, did you ever send out an execution order signed by you anyway, if the Minister desired it?
A.- Whether that ever happened, Mr. Prosecutor, in the way you just described it, I don't know, but I do know that if such a situation would have arisen I, of course,would have issued the order because not I was the authority which had to decide about the clemency question, but the Minister. It was my duty to advise the Minister. It was the duty of the Minister to decide and then in turn it was my duty to carry out the decision of the Minister.
Q.- And whether or not this execution order, going from your office to the Prosecution, was in the shape of a form or a personally disctated letter or an oral communication or by any means, it really made no difference, did it?
A.- No.
Q.- The man was still executed?
THE PRESIDENT: Ask your next question.
BY MR. WOOLEYHAN:
Q.- Dr. Mettgenberg, with regard to this Ploetzensee matter, while Vollmer was away, your boss Vollmer, and this new arrangement was decided upon after your persuasion with Minister Thierack whereby the defendant Rothenberger was to pass on these condemned persons then in prison, did you continue or did your office continue to send execution orders on these people to the Prosecution during the period of time involved in the Ploetzensee matter you discussed yesterday?
A.- Do I understand you correctly, Mr. Prosecutor? Are you interested in finding out how the decisions of Under-Secretary Rothenberger technically were handed on to the prison at Ploetzensee? Is that the question?
Q.- No, Dr. Mettgenberg. I am only interested in knowing if, during that time, you continued the normal practice, after the decision that a person was to be executed, by sending your execution orders to the prosecution for carrying them out?
A.- In the Ploetzensee case the instructions first were given directly to the carrying-out authority, that is, the executing authority, the prison director of the Penitentiary at Ploetzensee. Independent of this action the decisions on the clemency plea were completed, as in every other case, and were forwarded to the competent public prosecution.
Q.- I take it then that your answer to my question is no, you did not sent execution orders in that case but they went directly from defendant Rothenberger to the prison. Is that the case?
A.- I asked you before whether you wanted to know what was the technical way in which this information was sent and I am willing to describe this technical channel to you but if I understand you correctly, you said you were not interested in the technical procedure which was followed.
Q.- Dr. Mettgenberg, please answer if you can, this question, by merely saying yes or no.
During the time in question did you or your office continue the normal practice of sending execution orders to Ploetzensee Prison?
A.- While Under-Secretary Rothenberger was hearing the reports in the Ploetzensee cases one of the higher officials of Department IV was present. I refer to the affidavit of Dernedde, which the Court has. This higher official, Dernedde, whom I just mentioned, was the one who, in the Ploetzensee affair, carried out the mediation; that is to say, he was the one who forwarded the decision of the Under-Secretary to the prison director of the Ploetzensee Penitentiary by telephone.
Q.- I take it then your answer to my question is no?
A.- (No response.)
Q.- With regard to these unpardonable mistakes in Ploetzensee, with regard to the unwarranted executions that you mentioned yesterday, were you familiar or aware of investigations that were carried out to correct those conditions in the prison?
A.- I was in no way competent for these questions. The events that occurred within the Ploetzensee Penitentiary were exclusively under Department V of the Ministry. However, I do recall for certain that in this case I was personally very much interested in having this incident clarified in Ploetzensee. Therefore, I asked the competent gentlemen in Division 5 to inform me what the result of the investigation had been. What the result was can be seen from the documents that were submitted here.
Q.- If what went on in Ploetzensee Prison was solely the responsibility of Division V of the Ministry, how do you explain your presence there rearranging the execution methods from beheading to hanging pursuant to the military authority, as you described yesterday?
A.- I don't know whether the question came over the system in the same way as you put it. May I ask you, therefore, to repeat the question again?
Q.- In response to my question as to what had gone on in Ploetzensee with regard to investigating the mistakes which you described as unpardonable, I ask you, if your statement is correct that only Division V of the Ministry would know about conditions in Ploetzensee, how do you explain your official presence there rearranging the execution machinery?
A.- For the supervision over the employee and civil servants in the prisons only Department V was responsible. If an official or an employee of the Ploetzensee Prison thus committed an error in the carrying out of his official duty or committed an offense, the clarification or the measures which resulted from this offense committed in the carrying out of an official duty was exclusively up to Department V. The further question put by the prosecutor as to what competence I could have within the prison has to be answered as follows:
Without the agreement of Department V I could not issue any instructions of any kind in the prisons. Therefore, at the outset, it was regularly handled as follows; that when I visited the prisons the competent referent or even the Chief of Division V accompanied me. Only later on Division V refrained from sending somebody to accompany me but at no time did it refrain from wanting to get information, and If it did not agree with me, to object to the steps which I took.
Q.- Did you or did you not rearrange the execution facilities in Ploetzensee Prison pursuant to requests from the military in conversion from beheading to hanging.
A.- I believe that I already gave conclusive information about that yesterday.
Q.- I merely said Would you please answer that question yes or no? Did you or didn't you?
A.- I have already answered that question with yes/
Q.- And I also take it that that was in the normal course of your official duty in Department IV?
A.- Yes.
Court No. III, Case No. 3.
Q Now, are you acquainted with the manner in which the defendants, on the 20th of July plot against Hitler's life, who were sentenced to death, were hanged?
A No, I do not know that.
Q Then, why is it Dr. Mettgenberg that you arranged for the hangings and yet you do not know the manner in which they were carried out?
A I believe that I explained clearly yesterday that it was our task in division IV to make the general arrangements so that death sentences could be carried out in an orderly manner and I also explained...
THE PRESIDENT: The Tribunal does not care to hear any more from this witness about the technique of reducing people from life to death.
BY MR. WILLEYHAN:
Q Yes, your Honor.
With respect to your subjective opinions about the death penalty, Dr. Mettgenberg, in a general way yesterday you stated you were opposed to it in principle.
A Yes.
Q But that in time of war it was necessary?
A The execution of death sentences? Yes.
Q May I finish please? ... But that in time of war it should not be used so often as to have a blunting effect. In voting on death sentences, together With the minister and the secretary, you said you usually or often opposed the imposition of death sentenced. Now, in connection with that, I am going to show you a letter that you wrote on the 10th of September, 1943, now in that letter you address a number of criticisms to the President of the Court of Appeals and the General Public Prosecutor in Hamburg, in which you review a number of criminal cases tried by that court and in which you enter, what I quote from the documents, your serious objections to the leniency of these sentences and I ask you how you reconcile your humanitarian approach to the death sentence, which you described yesterday to these apparently notorious objections sent to all parts of the Reich criticizing criminal sentences as being too lenient.
Court No. III, Case No. 3.
A Mr. Prosecutor, you are here submitting to me a bundle of documents, and as far as I can recognize by looking through them, they refer to varying trials. It is self evident that these individual cases, which are dealt with here, I can no longer remember and it also appears to me that even if I looked through them carefully, I would not be able to find out why objections were raised and what sentences were concerned.
Q Dr. Mettgenberg, excuse me, now on page 2 of my copy, which is English, referring to your letter of 12 November 1943, you are addressing the President of the Court of Appeals and the Prosecution at Hamburg in the case against Richard Bauer, your letter concludes by saying: "I refrain from having the sentence annulled by filing an extraordinary appeal." Am I to understand that in your work in division IV you had the power to enter an extraordinary appeal against sentences which you reviewed from the lower courts?
A This letter, Mr. Prosecutor, which you refer to and which I signed, refers first of all to a field of work with which the division chief was directly in charge of and not I myself. This is purely a case of undermining fighting moral, thus a field of competence of Ministerial Counsel Franke, who has been also mentioned here.
Q Dr. Mettgenberg, one moment please. In this sentence you state: "I refrain from having the sentence annulled by filing a special protest or extraordinary appeal," now by "T" don't you mean yourself?
A Mr. Prosecutor, do I have to instruct you about the style of writing official letters in a ministry? If that is necessary, I have to point out to you that the letterhead is the Reich Minister of Justice and that every letter of this kind that is sent out is sent out on order or as deputy in the name of the Reich Minister of Justice and never in the personal name of the person who happens to sign the letter. If it says "I" this is the style in which the Reich Minister of Justice speaks to the authorities which are subordinate to him, that is not Mettgenberg speaking, but the Reich Minister of Justice who is speaking.
Q It was Mettgenberg who signed it, wasn't it?
Court No. III, Case No. 3.
THE PRESIDENT: That's obvious, don't let's argue about this.
BY MR. WILLEYHAN:
Q I take it from your answer that these letters that are collected in document NG-588, which criticizes various sentences are merely your carrying out of someone elses opinions and decisions; is that correct?
A Whether this is true in all cases in these document here, I cannot confirm nor deny so quickly, because there is such a large number of these documents here.
Q Then so far as you know there might have been some that were not only the opinion and decision of your superiors, but were also your opinion and decision; is that correct?
A That is absolutely possible.
Q And if it had been your opinion and your decision, according to your statements a moment ago, the rules of the Ministry in regard to letterwriting, the request would then go out to the recipient in the same form as here; is that correct?
A Yes, in exactly the same form independent of my personal opinion.
Q May it please the Court, the Prosecution offers the Document presently under discussion as Exhibit 541.
THE PRESIDENT: The exhibit is received.
MR. WOOLEYHAN: Will you distribute these please, English and German. The Prosecution also offers into evidence Document NG-591, which is a collection of letters signed by the defendant Mettgenberg on the precise same subject which we have just discussed but covering an additional number of different cases on different dates. We offer this as Exhibit 542 without further discussion.
THE PRESIDENT: The exhibit is received.
BY MR. WOOLEYHAN:
Q Dr. Mettgenberg, throughout the discussion of Nacht und Nebel, there were numerous references to what you termed the "police". I am assuming, so that you and I understand one another, that by the police Court No. III, Case No. 3.you meant the Gestapo in most instances unless otherwise specified; did you not?
A Who within the police was competent for a case was decided exclusively by the police authorities themselves. In the affairs with which we are concerned here, it was as a rule always the Gestapo.
Q Yes, thank you. Now in general at the outset of your discussion of Nacht und Nebel with Dr. Schilf, you said that transfer of Nacht und Nebel prisoners from the occupied countries through the military channels and police channels, ultimately to the Ministry of Justice for trial through the regular courts, was the lesser of many evil choices at the time; by that statement I assume that you apparently admit that Nacht und Nebel itself was an evil; do you not?
A I do not know what you base this assumption on.
Q Well, it is not very important, Dr. Mettgenberg, I was merely pointing out to you that logically your statement that the transfer of Nacht und Nebel, to your Ministry for trial was the lesser of many evil choices at the time, as a logical statement that Nacht und Nebel of itself was an evil?
A Possibly so far as the alternative of the sentencing of a court or sentencing not by a court of law, was concerned. I stated that even the sentencing by a court had its negative side. Therefore, I expressed that sentencing by a court in this manner in a certain sense was also an evil, but a lesser evil.
Q Your Honors, may I ask to break at this moment?
THE PRESIDENT: It is not time for our noon recess. At 1:30 this afternoon we will reconvene.
(A recess was taken until 1330 hours.
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 1 August 1947.)
WOLFGANG METTGENBERG - Resumed CROSS EXAMINATION (Continued) BY MR. WOOLEYHAN:
Q Dr. Mettgenberg, yesterday you were describing what to your mind from 1942 until the end of the war were the legal foundations for the Nacht und Nebel program. The first so-called legal foundation that you cited was Article 161 of the German Military Criminal Code. That section you described, in your opinion, as being completely in accord with accepted international law standards in effect at the time you assumed official responsibility for the Nacht und Nebel program in the Ministry of Justice. With respect to that Article 161, in practical operation, it merely provides that foreigners in occupied territories, if they commit an act which would be criminal according to German Law, can be tried in the occupied territories under German law. Is that a fair statement of what Article says in effect?
A No, that is not a correct account of the contents of Article 161.
Q Well perhaps, Dr. Mettgenberg, with respect to foreigners in occupied countries, would you please state your opinion as to what in effect that article accomplishes. Don't read it.
A I believe that one can possibly adhere too closely to the contents of Article 161. Article 161 says that foreigners who have made themselves liable to punishment by their actions against German troops arc to be punished in the same way if they had committed those acts in the Reich. That means that the same penal provisions are to be applied to their offenses which would have be applied in the offense had been committed in Germany.
Q Yes. Now, Dr. Mettgenberg, I assume that you agree with me that Article 161 was designated to apply to foreign civilians, wasn't it.
A Yes.
Q And if the foreign civilian committed an act against German forces in the occupied territory, you have just said he would be tried as if that had been done in Germany, would he not?
A There they are treated in the same way under penal law as if they had committed that offense inside of Germany.
Q Then, Dr. Mettgenberg, that is the same, isn't it, as saying that that foreign civilian is to be tried in his country of residence by German law; is that correct?
AAs to where judgment was to be passed, Article 161 says nothing. That passing of judgment could be transferred to German Reich territory is not evident from article 161, but it is evident from Article 3, Section II of the special war time decree.
Q That is clear to me, Dr. Mettgenberg thank you. However, my question merely went to the point -- not of transfer to the Reich-but that if this foreigner was tried in his country of residence, under this section, the law to be applied would be the law of Germany, would it not, under Article 161?
A Yes.
Q Yes. Now, in view of that, I am going to read a brief excerpt from Exhibit 380, which are the Hague Regulations, Rules of Land Warfare, which were in effect, as you know, at the time that the Nacht und Nebel program was instituted. Article 43 states: "The authority of the legitime power having in fact passed into the hands of the occupant, the latter, "which in this case would be Germany," shall take all the measures in his power to restore and insure public order and safety while -- and I underline the following portion -- respecting unless absolutely prevented the law enforced in the occupied country."
Now, I ask you, Dr. Mettgenberg to your knowledge -- If Dr. Schilf is going to point out that I have omitted a word or two in reading this section, I admit I have, but I didn't affect the sense.
DR. SCHILF: May it please the court, I do not wish to make any objection, but in respect of the fact that the text was not translated in the version that I have before me -- because of that, I would like to read to the witness Article 16 of the Hague Landwar Convention.
THE PRESIDENT: You needn't interrupt the examination.
MR. WOOLEYHAN: If your Honor please, he is at liberty to put it in front of the witness, is he not?
Q Now, with respect to that phrase in Article 34, Dr. Mettgenberg, which says -- while respecting unless absolutely prevented the law enforced in the occupied country" -- I ask you if, in your experiences with the Nacht und Nebel program, you ever were aware, saw or heard tell of a situation in any occupied country affected by the Nacht und Nebel program wherein Germany was ever absolutely prevented from enforcing the criminal laws of the country they occupied.
A I should like to make the following reply: The occupying power, whether it is the German occupying power or any other occupying authority, that authority is forced to issue a number of decrees. For example, concerning the possession of arms.
Q Dr. Mettgenberg, one moment please. I am not asking about the well known right of an occupier -- whether it lawfully or unlawfully issues basic decrees to keep the public peace, and I grant you that. Please answer my question about whether or not Germany was ever absolutely prevented from enforcing the laws of the country that it occupied, rather than imposing its own.
A Mr. Prosecutor, you have just stated that we agree on the starting point of this. I believe we shall very quickly be able to reach further agreement. Under Article 161 such offenses are liable to punishment which were committed against the occupying troops and the occupying authority. Therefore, we are concerned here with acts which under the local laws inside the occupied territories are not punishable at all, or, at least there they are offenses which are not punishable in the way in which the occupying power has to insist on. Therefore, the occupying power can do nothing else but to introduce its own penal laws. That is net only done where German occupation authorities have to carry out the administration in occupied territories, but it is done everywhere where a foreign country is under military occupation. If believe that you will agree with me that that is correct.
Q Do you know of any crime punishable by German criminal law that goes to basic public peace of nation, such as theft, largency, murder, kidnapping, or what have you, that is not provided for and suitably by the laws of either France, the Netherlands, or Norway?
A Mr. Prosecutor, life is not as primitive as you are describing it to us. In the occupied territories are, as most of us who played a part in it knows today, in those territories there are resistance gangs, there is sabotage, there is espionage, and do you really believe that espionage directed against the occupying power would be liable to punishment to the local laws? I have to put this kind of a question to you.
Q Then, Dr. Mettgenberg, it is very clear from what you say that the crimes against the German occupying forces in the western countries were only those crimes directed against the occupying forces itself, such as sabotage, espionage, or something similar?
A Sabotage, espionage, or actions committed in contravention of the orders issued by the occupying power.
Q Then the Nacht und Nebel, program both enforced by the military and those cases which were transferred to you, was to keep the peace in those western countries, but was to make sure that the occupation succeeded, is that correct?
A These regulations had been issued to maintain order in the occupied territories. It is part of that system of order to allow the occupying power to do its work in peace.
Q I believe you just granted me a moment ago, Dr. Mettgenberg, that criminal laws of occupied territories were quite well equipped to take care of any offenses except those less primitive offenses direct solely against the military occupation, isn't that correct?
A Mr. Prosecutor, may I point out to you that all documents which were written by us in connection with these NN matters, showed the reference:
"punishable actions committed against the occupying power and the occupation troops."
Q I don't believe I got a completed sentence.
A I took the liberty of pointing out that the documents which the Ministry issued on these matters also bear the reference, " punishable acts committed against the occupying troops, or the occupying power."
Q Yes, I understand that. That, I suppose, is a corrollary, Dr. Mettgenberg, of your statement both yesterday and this morning that military interest came first in every consideration and enforcement of Nacht und Nebel, and that the Ministry of Justice was only enforcing what the Military felt was necessary, is that correct?
A Yes, that is correct.
Q And you further said that you or any other official in the Ministry that was engaged in Nacht und Nobel business could even inform yourself about whether or not this Nacht und Nebel affair was militarily necessary, but you just took the word of the military on that, and that your duty was to carry out the order as it was stated. You say then -- and this is a question -- that so far as you were concerned, you and the other Ministry of Justice officials in arranging for the trial and execution of Nacht und Nebel prisoners by the regular courts in the Reich were aiding the military to make their occupations of the western countries secure, is that how you understood your duty?
A We interpreted cur duty to be to see to it that Right and Orders were given a fair run. Furthermore our task in this way. Within the framework of the possible taking our measures we paid to the rights of the foreigners concerned. I have stated that here repeatedly. As concerns military interests in this context, I have stressed that in the final analysis, the question as to whether the question as to whether the military interest required secrecy for NN matters as it was applied in fact, that the answer to that question had to be left with the military authorities.
I furthermore stated that I attached the greatest importance to the fact that all the men who participated in this should maintain close contact with the military authorities and in that, should form a picture for themselves on the question as to whether the measures which the military authorities were not arbitrary but served a purpose, but we did not have the final decision.
Q Dr. Mettgenberg, I ask you to assume that if the OKW had not insisted that Nacht und Nebel measures of secrecy was necessary in the military interest, would you then have thought them justified under international law?
A Do I understand you to mean to say that the Reich Ministry of Justice, if the soldiers had said that secrecy is not necessary not for its own part to carried cut such secrecy measures?
Q I didn't ask you that, Dr. Mettgenberg.
A That wasn't it?
Q No, that wasn't it. I said that if the military had not insisted that secrecy was necessary, would you then have considered enforcement of Nacht und Nobel program as we know it to be justified or lawful under international law?
I think yes or no would do it.
A If the soldiers had not declared secrecy necessary, we ourselves would never have applied secrecy.
Q That doesn't answer my question. Would it or would it not have been within international law, if, in your opinion, it had not been in the military interest?
A Well, Mr. Prosecutor, I am not a soldier. I have been saying all along that we were civilians, and that concerning the question of military interests or not, in the final analysis, we had to give way to the judgment of the soldiers.
Q Dr. Mettgenberg, one moment please. I am not asking you as a soldier, I am asking you in your capacity as the expert international lawyer which you have professed to be here on the stand if there was no military necessity, in your opinion, then would the Nacht und Nebel program, as we know it, be lawful under international law?
A It is a very doubtful question, which one cannot simply answer either yes or no. I should be inclined to say that that doesn't matter very much because we are only talking from a theoretical point of view. I should be inclined to answer that question with no.
Q Then if your answer to that question is no, Dr. Mettgenberg namely that absence of the military requirement of secrecy, Nacht und Nebel would be illegal or unlawful under international law; then the only question that faces us is, was that decree of military security or any military security at all lawful under international law. That is the only question which remains, and in answer to that question, are you familiar with the ruling of the International Military Tribunal in finding that everyone of those occupations which you have described violated international law at the time? Are you aware of that?
A I did not understand all you said in that translation. I didn't get your whole question, Mr. Prosecutor; but I did make out that you asked me whether I was familiar with the findings of the IMT.
Q One moment before your answer, Dr. Mettgenberg. You were correct up to that point, and then I said that that ruling of IMT found that every occupation which you have just described as necessary in the military interest to have the Nacht und Nebel program help it, was unlawful at the time under international law and that therefore any consideration of military necessity is completely immaterial?
Are you aware of that?
A I am not aware of that. So far as my information goes, the questions which arc connected with the NN decree were only treated by the IMT in passing. I suppose there was no necessity to go into them in such detail there as has been done here, and as has become necessary to do here. I am convinced that the IMT, had it known about the things which have been discussed here, would have arrived at a different conclusion.
Q. Dr. Mettgenberg, how can you say that in the face of the fact that whether or not the occupations in western Europe, namely, of France, Norway, and the Low Countries which gave rise to the Nacht and Nebel measures, were declared unlawful occupations pursuant to aggressive wars about which no evidence has been introduced here?
A It seems to me, hut I am not informed about the details, that the IMT did have to deal with entirely different questions than those which are occupying us here. As concerns the NN decree, and the execution of the NN decree by the Reich Ministry of Justice and its officials, I believe that there is no previous decision or ruling from the IMT, but I cannot possibly argue the point, because I do not know the details.
Q Dr. Mettgenberg, once again before we leave this point I will put it to you very briefly so that no details are necessary with regard to your memory of the IMT opinion. You have admitted here that if military measures of necessity, namely the measures of secrecy, were not required by the military, then the Nacht und Nebel program, in your opinion, would have been unlawful under international law. Now I ask you, do you know that whether or not those measures of secrecy were in the military interest is quite immaterial, because the very occupations themselves were held to be unlawful at the time they were committed?
THE PRESIDENT: May I attempt, Dr. Mettgenberg, to phrase a question on this very point, and I think the same question that counsel is driving at. In your opinion can a belligerent state acquire rights under international law in occupied territory if the occupation itself is a crime against the peace and a violation of International Law?
THE WITNESS: Mr. President, I am of the opinion that in respect of the questions with which we are dealing here, it cannot matter whether an occupation of foreign territory was compatible with International Law or not. In the discussion here I must base my argument on the fact that the occupation took place, and I have to ask myself the question whether basing myself on that fact, and furthermore, basing myself on the fact that the military stated that secrecy had to prevail in regard of the NN procedures, that in the carrying out -- that is the question I have to put to myself -- whether then there is anything against International Law in carrying out the procedure in that way, and my answer is no.
THE PRESIDENT: May I ask you one more question, and then I will not interfere further. Suppose that we assume, without deciding, that you in the Ministry of Justice were bound by the decision of the military as to what constituted military necessity. Is it your opinion that an International Tribunal, in determining that question, is also bound by the decision of the German military authorities as to what was required by military necessity?
THE WITNESS: I believe, Mr. President, an international court is completely free in forming its judgment of the facts, but I believe that in one point even an international court is not free, and that is consideration for the opinion and for the good faith of those who acted in view of or on the basis of a different legal opinion.
THE PRESIDENT: On the questions relative to the materiality of good faith I have no Question to direct to you at all at this time. Go ahead.
BY MR. WOOLEYHAN:
Q By the way, Dr. Mettgenberg, with regard to Exh. 319 that you were describing this morning which was a summarization of all the secrecy measures to be enforced by the Ministry, you described that document as having been approved and widely circulated and carefully considered by some fifteen officials of various departments, that included Department 6 as can be seen from the document. To your knowledge, did the defendant Altstoetter initial or sign that document?
JUDGE HARDING: What was the exhibit number?
MR. WOOLEYHAN: Exhibit 319, Your Honor.
A Will you permit me to take the time and find my page?
BY MR. WOOLEYHAN:
Q Certainly
A In the document I have before me, that is the German version, those signatures are not even contained. I assume that I discovered that figure in the original, in the photostat, and that, unfortunately, I haven't available now.
Q Absent the photostat, which we don't happen to have at the moment, I will ask you a hypothetical question. From your knowledge of ministerial functions, of which you have displayed a broad one, in your opinion would you say that Exh. 319 which you described as a very important summary of regulations, which was seriously considered by all the departments concerned, could have been seen and circulated in Department 6 without the defendant Altstoetter knowing about it?
A In itself that is possible, Mr. Prosecutor. It is possible that a deputy signed for Herr Altstoetter just as I in Department IV had to sign quite a few things when I was deputizing for the department chief. Therefore I cannot tell you that for certain.
Q I realize that, Dr. Mettgenberg, and I realize that possibility, and I realize your inability to say for certain. I am merely asking you from your knowledge of ministerial procedure, if Altstoetter as chief of Department VI and responsible for the carrying out of any decrees that affected his department -- officially responsible, mind you -- is it probable that he did neither sign nor know of this decree, in your opinion?
A If he was there at the time, he certainly would have signed that document himself.
Q And supposing he was out of town for a few days and then returned, would he then probably have been informed of the contents, even though it had been signed by his deputy? He was officially responsible for it.
A That is not certain.