Q Dr. Mettgenberg, one moment, please. I wasn't asking you if it were certain. I was merely asking you if in your professional opinion it was probable in a matter of this importance.
A Well, naturally, you will understand me if I say it is very difficult to answer that.
Q Naturally, naturally. I don't want to pursue it any further. That is all right. In the fall of 1944, Dr. Mettgenberg, you were describing yesterday how you were taken by surprise when the Nacht und Nebel prisoners in the Reich prisons and who had cases pending before the regular courts were ordered to be transferred from your jurisdiction to the Gestapo, you further mentioned that although there had been no agreement between you and the defendant von Ammon and the army, that that decree nevertheless came out ordering the transfer and stated on its face that there had been an agreement.
A Yes.
Q Now why was it really now, in addition to what you said yesterday, that you who in your official capacity spent over half your time on Nacht und Nebel matters and the defendant von Ammon who worked for you, who spent all of his time on Nacht und Nebel matters were taken so by surprise? How was that?
A You didn't listen properly, Mr. Prosecutor. I said that I spent about 5 % of my time on NN cases.
Q Dr. Mettgenberg, if you will pardon me -
A I beg your pardon -- whereas Dr. von Ammon spent 50% of his time on NN matters.
Q Excuse me one moment. Assuming that I incorrectly heard the percentages, tell me a little more any way why you were so surprised.
A I was surprised because our point of view not to return the prisoners to the Gestapo was known to the OKW from former negotiations# The former negotiations had also revealed that the OKW was inclined to share our view on this matter.
Q. One moment, please, Dr. Mettgenberg. One moment. Dr. Mettgenberg, may I interrupt?
THE PRESIDENT: Let him finish his answer. Go head. Go ahead and finish your answer.
A (Continuing) Now, quite suddenly, after the discussion which Dr. von Ammon had attended, there arrived a written decree by the OKW in which -- and that was quite incomprehensible -- our agreement was stressed. Naturally that came as a surprise to me.
Q And as I understood yesterday you at least, and the defendant von Ammon probably, were reluctant to turn these nacht und nebel prisoners over to the police, to the Gestapo because you felt that the fate that awaited them was probably worse than they would get at the hands of the court if they were duly tried; is that correct?
A Yes, that is correct.
Q Yet after that military decree to transfer these nacht und nebel prisoners to the Gestapo came out, the transfer of them from the Ministry was carried out; wasn't it?
A Yes. I said here yesterday that my department chief, after he had discussed the matter with the Minister, decided that we would have to give way to this decree from the OKW because the OKW had to make the last decision and not we.
Q Realizing that you had to obey, as you say, the wishes of the OKW on this matter, to obey them what actual measures did you and others take to arrange for the desired transfer of the nacht und nebel prisoners to the Gestapo? What actually did you do?
A First the departments went to work: Department 5, which was competent for the prisoners, and Department 4, which was competent for the pending proceedings: but I also said yesterday that the instructions to return the prisoners were carried out on only a very limited scale because there were no means of transport, et cetera.
Q Dr. Mettgenberg, incident to this transfer that you have just described, yesterday several times you stated that the treatment before the courts under your jurisdiction of the nacht und nebel defendants was substantially the same as any other defendants, even German defendants, except for the requirements of secrecy?
A Yes.
Q Now I ask you, Dr. Mettgenberg, apart from the Jews as a race and the Poles as a race, whom we know were dealt why by the Gestapo eventually, do you know of any Germans that, as a class, were transferred by the courts to the Gestapo without trial or even with trial for that matter, similar to the way the nacht und nebel prisoners were treated as a class and in similar numbers?
A If we, as you put it, speak of the same treatment for NN prisoners and German defendants during the proceedings, we are referring to the court proceedings. We first refer to the penal provisions which were applied. We refer to the scope of the sentence that was applied. It was an entirely different question as to whether the NN prisoners, after their trial under the judiciary, were to be kept further in our custody or not. And so far I never said that the German prisoners and NN prisoners were treated in the same way.
Q I assume that these nacht und nebel prisoners that were transferred to the Gestapo by the Ministry of Justice ended up by large, in concentration camps and protective custody. Is that true?
AAs to where they ended up we didn't know. The only thing we did know was that probably they would be treated less well than if they had remained in cur prisons. At any rate, we knew that numerous prisoners in the hands of the police worked in industrial enterprises and were there comparatively content.
Q Now, except for these industrial workers you have just mentioned, when the Gestapo took these people and you knew they didn't end up in any of the Reich prisons, what kind of prison did you think they went to? What other kind of prisons were there other than the Reich prisons and labor camps? There weren't any other kind but concentration camps, were there?
A Oh, yes. The police disposed of a variety of prisons and that quite apart from concentration camps. There was a multitude of prisoners in the hands of the police who were employed in agriculture or in industrial enterprises. Others were in concentration camps.
Q Others were in concentrations camps.
A (Witness nods affirmatively.)
Q Did you ever take the trouble to find out what happened to these people that ended up in concentration camps? Did you ever visit one?
A Those who ended up in concentration camps, no. No, I never inspected a concentration camp.
MR. WOOLEYHAN: At this juncture, may it please the Court, I am going to read a paragraph from Document NG-796, which will be subsequently offered in evidence. This document is a sworn affidavit by Dr. Hugo Schomel who was previously appeared in this court as a witness. In this affidavit Dr. Schomel states in part as follows:
"I felt it also as a personal by-passing when in 1943 or '44 Messrs. Mettgenberg and Vollmer went to Mauthausen to inspect the concentration camp. As sub-section chief for Austrian matters I ought to have come along, but I was not notified. Later on I asked Herr Mettgenberg about his impressions of the camp, and he told me that everything seemed to be in order. He said that he had spoken to a number of prisoners in the absence of guard personnel, and was told that the prisoners had to work very hard but that the food was sufficient, and that when good work was performed they were not beaten. Mettgenberg also said that he was sorry he was not an. Austrian, because all prisoners spoke Austrian dialect and it was rather difficult to make himself understood."
The Prosecution offers this affidavit as Exhibit No. 543.
THE PRESIDENT: The exhibit is received.
MR. WOOLEYHAN: That is all.
JUDGE HARDING: Dr. Mettgenberg, I have here NG-264. I am not certain of the Exhibit Number, but it is to the Reich Minister of Justice from Kattowice, and it is dated July 27, 1944, in which it is stated that NN prisoners are already employed to a large extent in the armament industry regardless of whether or not they are held for quest ioning or punishment.
Were you aware of this fact that these NN prisoners were being so used regardless of whether they were merely held for questioning or for punishment?
A.- May I point out to you, Your Honor, that it was our endeavor to keep the NN-prisoners in the custody of the administration of justice as long as it was possible, that was in the interests of the NN-prisoners themselves. For that reason, we had instructed our public prosecutors to see to it that either the sentences, which had been passed on NN prisoners were to last beyond the time in which we supposed the war would end, but in cases where that would have been unjust and it was therefore not possible in those cases, we had instructed our prosecutors to ask the court to have the proceedings suspended, so that the prisoners could remain in custody pending trial. That is to say so they could remain in the hands of the administration of justice. At the moment when we no longer had a legal basis for keeping these people in our prisons we had to return them and that was undesirable in their own interests, That explains that inquiry from Kattowice directed to us.
Q.- You were then aware that these prisoners were being used in the armament industries and that these prisoners were at that time under the Department of Justice?
A.- All prisoners worked after all, either they worked in the prisons or they worked at special barracks and in industry. It was up to department V to give a ruling on individual cases, but I believe for certain that I too came to hear of it.
Q.- Are you aware of the last part of this Exhibit 334, the last paragraph:
"I ask for a decision on whether and, if so, how that demand can be complied with. Considerable doubts arise from the fact that there is no legal right to confine them further and that the judicial authorities would thus take preventive Police measures. There is the question, however, whether the situation of the Reich does not justify even such extraordinary measures. If the demand of the armament industry is to be complied with, I suggest that an agreement be reached with the Reich Main Industry Office that N.N. prisoners employed as skilled workers who, as such, continue to be needed by a certain industrial enterprise, be registered by the Gestapo as prisoners of the Police, after they have been acquitted or have served their sentence, but that they remain in the camp hither to kept by the judicial authorities at the place of the respective armament enterprise."
Are you aware of that?
A.- Your Honor, that is exactly the point I stated before. We, in Department IV, took the view that it was right thus to keep those people in custody under the administration of justice and secondly to let them continue to work in whatever industry they were already employed. Department V however no longer was able to state its views on the subject because on account of current developments that was out of date and no final decision on this matter was ever made.
Q.- Are you aware of the signed statement by von Ammon in this exhibit, which goes on to state: "If you have no objection, I intend to contact the Reich Main Office in accordance with the report of the Advocate General at Kattowice."
A.- I was not able to understand everything.
Q.- Supplemental to this report in the same exhibit, it says: Submitted to the Deputy Ministerial Director - name illegible, with the request for opinion. Then it goes on to say: "If you have no objection, I intend to contact the Reich Main Office, in accordance with the report of the Advocate General at Kattowice." It is signed by von Ammon; are you familiar with that?
A.- Did I know that there was an intention to submit that to the R.S.H.A.?
Q.- Yes.
A.- Certainly, that must have been known to me, yes, certainly.
Q.- I want to refer to another matter that is not entirely clear to me. As I understand it, your contention is that Nacht and Nebel was justified because the offenses committed constitute war crimes under the Hague Convention; is that correct?
A.- They were punishable offenses which had been committed against the occupying troops or occupying power if that is what you arc referring to, Your Honor, so far, N.N. Proceedings wore in accordance with international law.
Q.- Because the crimes Nacht and Nobel prisoners committed were contrary to international law, that is your position as I understand it?
A.- Well, you say they wore contrary to international law, I would ask you to put it more concisely. We were concerned with crimes committed against the occupying power. If there in Nurnberg a punishable offense is committed against the American occupation then the American Military courts here would take steps against that punishable offense, that is in accordance with international law.
Q.- Your comment is that the Nacht and Nebel prisoners could be punished by the German authorities because the crimes committed were contrary to international law against the Hague Convention; is that right?
A.- Your Honor, I don't know whether I can explain it that way. It was not the acts, the offenses which were against international law, neither the offenses nor the crimes, but the offenders being sentenced by the occupying power that was in accordance with international law.
Q.- Then these Nacht and Nabel prisoners, according to your statement were punished for crimes that were crimes, according to international law by this Nacht und Nebel procedure; is that right?
A.- Your Honor, the person who has arms in his possession when it is illegal to have such arms in his possession, such a person is not committing a crime against international law, but is committing a crime against the occupying power and the occupying power is entitled to pass judgment on it, that fact of sitting in judgment over him is in accordance with international law.
Q.- Do you consider that the occupying power has authority to punish a person from the occupied territory in its own German courts who has not committed an offense against international law?
A.- Your Honor, it is very difficult for me to answer your question. I don't know what you mean when you say "crimes against international law".
Q.- Well you were supposed to be an international law specialist and I think you would understand what would be a crime against international law, but to make it clear we will put it "contrary to the Hague Convention".
A.- Well an offense contrary to tho Hague Convention can hardly be committed by an individual in occupied territory. Such an offense against the Hague Convention can only be committed by the state or its representatives, it cannot be committed by an individual in occupied territory. Now that is my view as far as I know and when anyone speaks of an offense against international law you are speaking of white slave traffice, contraband of opium, etc., those are crimes of international law.
Q.- I want it to be clear in my mind that whether you consider a person from one of the occupied territories could be punished by the German courts, military or civil as well, if they were in the Nacht und Nobel procedures, who had not committed a crime designated as such under international law or recognized as such under international law?
A.- I would not designate those crimes that were committed by these Nacht und Nebel prisoners as crimes under international law; is that correct?
A.- No, I would not, but one can do it.
Q.- That leaves my state of mind just where it was before.
A.- Well, Your Honor, I think this would lead us to a very lengthly discussion.
Q.- Not necessarily, but I want to find out whether you think that an occupying power or a belligerent can punish persons in an occupied territory before their courts as was done in this Nacht und Nobel procedure, who had not committed a crime that was recognized by such under international law?
A.- Yes.
Q.- The answer is "yes" they can?
A.- Yes.
Q.- That is all right, that clears my mind as to your opinion on that.
BY THE PRESIDENT:
Q.- May I ask you a question. I think I understood you to say that the Ministry of Justice favored the retention of control over some NN prisoners after their terms had expired and that the reason was to prevent their delivery to the police, to the Gestapo?
A.- Whenever it was possible to do so we favored that.
Q.- What, if any, rules or regulations were ever made by the Ministry of Justice with reference to the return of such NN prisoners who had been acquitted, or who had served their terms, to the places from which they came -- back to France, for instance.
A.- During the war they were not permitted to return to France, with a very few exceptions. Those exceptions consisted of innocent persons with whom in the view of the competent authorities there were no requirements of secrecy to that they might be returned home. That was true in a very few cases, but those few were released.
Q.- No procedure was adopted during the war under which they could not return at all?
A.- No.
THE PRESIDENT: Thank you.
RE-DIRECT EXAMINATION BY DR. SCHILF (Attorney for the Defendant Mettgenberg) Q.- Dr. Mettgenberg, the Prosecution, as we found out under direct examination regretfully, has actually not submitted your entire personnel files.
Under cross examination Exhibit 539 was put to you. Would you please tell the Tribunal whether those arc complete files or whether that is just an extract?
A.- The document which was put to me consists of only a very few pages from my personnel file. I should be very glad to have the complete personnel file and have a look at it. All the more so because a closer inspection of these files has shown that a fairly large number of typing errors has occurred -- particularly in respect to dates.
Q.- Dr. Mettgenberg, in the direct examination you described an event to the Tribunal, and said that in 1934 because you had been kind to Jewish people in the parent's council of a Berlin School, you had been criticized by the Gauleiter and that for sixteen years you had to suffer from that. This event which you described under direct examination, did you find that among the extracts from your personnel file?
A.- No, I didn't, but I know for certain that after that event I submitted detailed reports on the matter and asked for it to be included in my personnel file, without being able to know in those days that the matter would later on be of significance. I regret very much that that report is not included in the extracts from my personnel file.
Q.- Mr. Wooleyhan spoke to you of your membership with the NS Lawyer's League. I believe formerly it had a different name, and he said you joined in 1934 or 1933. Did you hold any office in that association?
A.- No, not at any time.
Q.- Did you perform any other functions?
A.- No, at no time.
Q.- What, in effect, did you membership amount to?
A.- Nothing in fact. Just to paying membership dues.
Q.- By your membership of this jurists' association, did you consider yourself bound in any way by the NSDAP, either politically speaking or from the point of view of ideology -- as one used to say in those days?
A.- No, in no way.
Q.- Dr. Mettgenberg, the second point which the Prosecutor put to you appears on page 4 of this extract of Exhibit 539. In 1927 and in 1934 you received -- we are concerned with Figure 24 of this extract some benefits. Were those benefits -- those moneys entirely of a governmental nature; or, did the party have anything to do with it?
A.- I can remember the reason for the benefits I received. The reason was the birth of my second son which caused a great deal of expense, and in order to pay for these expenses, the state awarded me this emergency support.
Q.- Dr. Mettgenberg, may I interrupt you. All I am asking you is whether the money came from the state agency, or from an agency which was infected by party politics -- as I would like to put it.
A.- Exclusively from the state. The state and the party kept their funds entirely separate.
Q.- Dr. Mettgenberg, the next document which was put to you under cross examination was Exhibit 541, and 542, without Mr. Wooleyhan giving any further explanation. I assume that in the meantime you have had an opportunity to study that large volume of documents of about twenty pages. Do all those sheets bear your signature?
A.- Mr. Wooleyhan only gave me the first bunch. He never put the second one to me.
Q.- Then in that case, I would like to put the second one to you; that is Exhibit 542. Apparently it was not submitted to you by mistake and I will hand it to you now.
A.- The documents which I now have in front of me, in their entirety as I have just convinced myself, all of them are signed by me. Naturally they do not provide a picture of the context in which these letters were written. It is impossible and I believe also without any significance to state my view on the various documents.
Q.- Dr. Mettgenberg, the few lines, any way in some cases, it is only a few lines -- those lines reveal that a certain sentence was considered as too mild in certain circumstances. Although that did not represent your opinion, but that of the Minister - were there in some cases reasons where a court contrary to the legal situation, contrary perhaps to the mandatory sentence, had passed a sentence which was too mild, and did that have to be told to the court?
Court, No. III, Case III A.- Naturally that was the case, and naturally it was the task of the Ministry to keep an eye on it that the courts and in particular the public prosecutors in their applications did not remain behind what was required at the time.
From time to time there was a reason to contact a public prosecution or a court and to discuss with them certain sentences Naturally it was never possible to tell the court and to prescribe to the court as to what the sentence was to be; that never happened; and in the wording of our letters we always saw to it carefully that we did not even give the impression that the court was to be influenced in its independence by our misgivings.
Q.- You said that it was a matter of course that among the cases which have been mentioned one sentence or another had not been in accordance with the legal situation.
A.- Yes. I cannot go into that now because I cannot examine the documents; I do not have the documents.
Q.- The documents which you have before you are not sufficient for that, are they?
A.- No.
DR. SCHILF: Thank you.
THE PRESIDENT: We will recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. SCHILF:
Q Dr. Mettgenberg, during the cross examination you were asked about the legal basis on which the NN cases could be tried by German courts in Germany. I do not want to open up the entire problem again; I only want to ask you throe brief questions. You already mentioned Article 42 and 43 of the Hague Convention concerning land warfare, and I now want to ask you, did these regulations exclude the possibility that the German occupation authority on its part introduced new legal regulations, on principle, yes or no?
A The regulations not only did not exclude that, but under certain conditions made it a duty of the occupying power.
Q The second question is, you where asked whether the regulations issued by the German occupation authorities could be legal if, in the trial before the IMT ex post facto it was laid down that the occupation, per se, was contrary to international law because the occupation of the western territories took place only because of a war aggression which was waged contrary to international law. Thus the occupation came into effect only because of a violation of the peace. I ask you the fact that the occupation existed, did that require that the occupying authority had to issue any legal regulations for the time of the occupation in the capacity of an occupying authority in France, for there the occupation lasted after all four years?
A Yes, that is in accordance with my opinion.
Q Until the surrender in 1945 did you ever worry about the fact that the occupation, for example of Franco by German troops, was contrary to international law in such a way that Germany's attack on France would at sometime be tried here before a court as a crime against peace?
A For us and for me that was out of the question to have a well-founded opinion about this, because we did not have any documents at our disposal which would have made it possible to have a Well reasoned opinion about this. Therefore we, as I said already in answering the last question, have to start with the existing fact as such.
Q Dr. Mettgenberg, during the direct examination we had mentioned the Duesseldorf case. Since during the intermission I could submit a document to you, I would like to ask you, can you clarify or correct this affair in any way?
A In the Duesseldorf case it was a question of the shooting of two Canadian parachutists by an SA leader. In regard to the date when this event had occurred I have said it must have been before August 1942. In the meanwhile my defense counsel has shown me an affidavit which was made out by my referent of that time concerning that incident. Here he says that the incident happened toward the end of the war. I said already this morning that I have to rely on my memory, and therefore I have to concede that it is absolutely possible that these events occurred considerably later. Exactly when they occurred I am, unfortunately, unable to tell , and it doesn't say so in the affidavit here, either. However, it is absolutely possible that we have to move the date of the event up to 1944.
Q I have to put one final question to you. The Prosecution again has surprised us with a new affidavit by Suchomel. One affidavit by Suchomel had already been submitted concerning the question of your participation in the so-called Euthanasia program. During the direct examination you have already commented about this. We don't have to come back to that. Suchomel on the witness stand here during cross examination had to correct his affidavit.
Today the Prosecution has submitted Exhibit 543. That is an affidavit by Dr. Suchomel of 18 February 1947. There a detailed description is given of how you yourself, Dr. Mettgenberg, are alleged to have told Dr. Suchomel what you saw and observed in the Mauthausen concentration camp.
I now am asking you, were you ever in the concentration camp of Mauthausen at all?
A This morning during the cross examination the question was put to me whether I had ever visited a concentration camp, and I answered that with no. When I was interrogated by the interrogator before the opening of this trial, the question was put to me whether I had ever been in the Mauthausen concentration camp. When the interrogator asked me that question, I was under oath too, at that time, I answered I don't even know where Mauthausen is situated; even less have I visited the Mauthausen concentration camp. Therefore, even in view of Dr. Suchomel's affidavit, I can only state here again that it must be a question of a double; he must mistake me for another person. I was never in Mauthausen. And I never told Dr. Suchomel of impressions gained at Mauthausen.
DR. SCHILF: I have no further questions, Your Honors, With that, may I ask the Tribunal to excise the witness, Dr. Mettgenberg?
DR. ORTH: (For the defendant Altstoetter), I have only one question.
BY DR, ORTH:
Q During cross examination, witness, the question was submitted to you, as to whether the possibility and probality exists that Alstoetter might have signed the document Exh. 319. If this did take place, are the contents of the entire letter covered by the signature or only those questions contained in this letter which concern Dept. VI?
A May I correct you counsel. It is not a letter but a circular decree, a circular decree which treats a number of questions. Within the Ministry the procedure is as follows: Every department examines only those questions and is responsible only for these which concerns its sphere of business.
Questions which are at the same time dealt with in such a decree and belong within the sphere of activity of another department are not covered by that signature.
DR. ORTH: Thank you.
DR. SCHILF: I had requested the Tribunal to excuse the witness Dr. Mettgenberg in case no further questions are put to him.
THE PRESIDENT: If there are no further questions the witness may be excused from the witness stand.
DR. SCHILF: May it please the Tribunal, I already at this time want to reserve to myself the right to summon the witness Dr. Suchomel for cross examination regarding Exh. 543. In accordance with experience, however, it will take a very long time before the witness Dr. Suchomel, who is now living in Vienna, Austria, can appear before this Tribunal. However, I consider it absolutely essential in view of the fact that Dr. Mettgenberg definitely denies that he ever was in the Mauthausen concentration camp, that therefore his testimony is absolutely contrary to what is said in Dr. Suchomel's affidavit.
I still have a wothess, whom I ask for permission to call now. He is Dr. Karl Ehrhardt.
OTTO ERHARDT, a witness, took the stand and testified as follows:
BY JUDGE HARDING:
Q Will you hold up your right hand and repeat after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withheld and add nothing.
(The witness repeated the oath.)
JUDGE HARDING: You may be seated.
DIRECT EXAMINATION BY DR. SCHILF:
Q Witness, please first tell the tribunal your full name.
A Ehrhardt. My first name is Otto.
Q Your place of birth?
A Bad Ems.
Q And you birth date?
A 29 May 1903.
Q Herr Dr. Erhardt, did you work in the Reich Ministry of Justice?
A Yes.
Q Will you please tell the Tribunal during what period you were working there and what positions you occupied there?
A In the spring of 1937 I was called to the Ministry of Justice first as assistant. About 1941 I became referent. When I entered the Ministry I was still public prosecutor and in 1941, in the Fall, I was promoted to senior public prosecutor.
Q For how long were you working in the Ministry?
A Until the surrender.
Q If I understood you correctly that is without interruption?
A Yes, without interruption.
Q From 1937 until 1945?