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?
A Yes.
Q In what department of the Ministry ware you working?
A Only in the department for the administration of criminal law. That is department 3 and later it was called Department 4.
Q Do you know Dr. Mettgenberg?
A Yes.
Q In what relationship were you officially to Dr. Mettgenberg in the Ministry?
A Direct official connections I had very few. Herr Mettgenberg was sub-division chief, and I generally did not work in his subdivision, unless it was once in a while as a substitute or in exceptional cases.
Q Who was chief of department 4 during the time when you were working there?
A When I assumed office Ministerialdirector Krohne and some time after Thierack took over the Ministry Krohne was relieved and Vollmer took over his position.
Q That was in the fall of 1942?
A Yes.
Q Will you please tell the Tribunal what basic attitude Herr Vollmer had as department chief, his attitude toward his associates, referents, ministerial counsellors and ministerialdirigenten, that is his entire staff?
A One can put it on a common denominator, that I would almost like to say, Vollmer was hostile toward his department. The department was a nearly united front against Vollmer. He was unpleasant as superior. He was suspicious and was not frank. He played one man out against the other. He did not mind making a bad name for the subdivision chiefs with their referents, and so forth. The enmity was duo to his entire attitude towards his duties. Vollmer was an unscrupulous representative of the prevailing theory of the state, whereas the department on the whole made efforts to maintain the constitutional state as far as it was still possibles.
THE PRESIDENT: May we have that name a little more clearly? I am not sure that I got it.
DR. SCHILF: The division chief's name was Vollmer, V-o-l-l-m-e-r.
BY DR. SCHILF:
Q Dr. Ehrhardt, in this united front, as you called it, against the serve opinion of Dr. Vollmer, was Dr. Mettgenberg also in this united front?
A Herr Mettgenberg, according to his whole attitude and his whole conception of his duties, was a born opponent Vollmer. Mettgenberg was a civil servant of the old school, who always made efforts to offer resistance to this increasingly severe Administration of Justice and with the greatest efforts always again and again, tried to fight off transgressions and interference in the Administration of Justice on the part of the party and the leadership of the State.
Q Herr Dr. Ehrhardt, may I now ask to describe to the Tribunal quite briefly your own activity in Department 4, what tasks you had?
A I was or soon became referent for penal cases concerning foreign exchange because I had special knowledge of economics. Furthermore, I was in charge of the referat for traffic cases, and about 1942, as deputy, I was in charge of a part of the department for non-political death sentences.
Q The department for non-political death sentences was a refarat concerned with clemency questions?
A This concerned only the review of the clemency questions in the death sentences pronounced.
Q Did you know the former Ministerial Councillor Altmeyer?
A Yes. I worked closely together with Altmeyer. The department for non-political death sentences was, so to say, a double department in which Altmeyer had been put in charge of the majority of the cases, and ho also had to work on the general questions and questions of principle.
Q In your capacity as referent for death sentences cases in non-political cases did you have anything to do officially with Dr. Mettgenberg?
Q With Mettgenberg only when, as deputy of the division chief, he was in charge cf the division. In his capacity as sub-division chief he had nothing to do with death sentences, at least not with non-political death sentences.
Q When, as deputy, Dr. Mettgenberg worked on those cases which concerned non-political death sentences, could you observe whether when these cases were reported to the Minister or to the Undersecretary, he had a tendency toward leniency or not?
A Mettgenberg followed a much lenient line than the Ministerial Director, and if one suggested that clemency should be granted one could be sure that Mettgenberg would support this suggestion, and really, in all cases, whereas Vollmer mostly or overwhelmingly used to oppose such suggestions.
DR. SCHILF: May it please the Tribunal, I have no further questions to put to the witness, as far as the defendant Dr. Mettgenberg is concerned. However I would like to request the Tribunal to permit me to examine the witness, Dr. Erkard also in my capacity as defense counsel for the defendant Klemm.
BY DR. SCHILF:
Q Dr. Ehrhardt, I can assume that you knew the defendant, whose last position was Under-Sekretary, Klemm, in the Reich Ministry of Justice also?
A Yes.
Q The Prosecution in this case introduced a very extensive document against Klemm. It is Exhibit 252. Exhibit 252 is the so-called lists or calenders of reports. It covers the time cf January, 1944, approximately, until February, 1945. These lists of reports exist almost in their entirety. In these lists cf reports your name appear also. Will you please comment as to whether your name could appear in the rep rt lists of the report made to the Minister or the Under-Secretary?
A Yes, it had to appear.
Q Your name appears also in certain groups within these lists, and that is under the heading - first group - Death Sentence Reports, with the sub-division, General Death Sentences, and the further subdivision, Reporting, Referent Senior Public Prosecutor Dr. Ehrhardt.
You said already that your name appears on those lists and can you state -- I had an opportunity to show these lists to you very briefly--whether your name appears as often as Altmeyer's whose name you mentioned before?
A I believe that my name appears less often them Altmeyer's especially in these cases, because I dealt with as smaller group that Altmeyer.
Q I want to repeat my last question, Dr. Ehrhardt, because it did not come over the system in its entirety; I asked you whether you think that your name appeared with the same frequency as the name of Dr. Altmeyer?
A I believe my name appeared somewhat less frequently.
Q Can you state pertinent reasons for this?
A Yes because Altmeyer had to deal with a larger number of districts than I and the districts themselves were larger, but it could happen once in a while that I did not have to report on any death sentences where as he did have to report on some.
Q Excuse me, Dr. Ehrhardt, these report lists contain a socalled heading in every individual report list, there are either reports to the Minister followed by the date or report to the Undersecretary and again the date; I want to ask you basically how these reports were put together?
A It was as follows, in general the day before the report was given or earlier, the instruction was issued that schedules of reports for that day either for the Minister or Under-Secretary had to be compiled, and in that way the lists were made out with the name of the Minister or the Under-Secretary.
Q Was that only a matter of form or were the lists compilled also according to the subject?
A Well there were compilled according to the subject matter because the list was addressed to the gentlemen who........
THE PRESIDENT: The recording system appears to have broken down for the moment. It is reported it will take about five minutes to repair it. We will take a very brief recess.
(A recess was taken.)
THE MARSHALL: The Tribunal is again in session.
BY DR. SCHILF:
Q Witness, we were speaking about the so-called headings of the schedules of reports; may I ask you to speak about that again? You said that the lists were compiled shortly before the dates that the reports were given?
A Yes.
Q Will you please continue.
A The lists were not addressed to a person just by chance, but they were especially addressed to the gentlemen who was to listen to the report.
Q If the headings thus say, "report to the Minister" on that or that date; does that mean that the report was actually made to the minister?
A Basically yes, of course it could happen at the last minute that the minister was unable to be present, then in his place the undersecretary listened to the report, but those were exceptional cases.
Q Do you remember such an exceptional case yourself?
A Yes, not concretely a series of reports but I do recall that it happened that suddenly we were told the minister is not here and the Under-Secretary will listen to the report.
Q Dr. Ehrhardt, you said that the lists were compiled with the name of the person who was to get the report and if the minister suddenly could not appear then the deputy had to listen to the report; did anything change in the contents of the announced reports?
A I do not quite understand that Question, the contents of the reports could not change.
Q I did express myself in a way that was not quite clear, excuse me. I shall have to clarify it concretely by referring to the list and therefore I shall submit the lists to you right away.
(The documents are handed to the witness.)
As I already mentioned before, by way of example, the lists contain certain groups, the groups all bear titles. For example, "General Death Sentences" or "Clear Cases" or "Doubtful Cases.
Q If on a list now doubtful cases were also listed and the minister was not present, what happened to the doubtful cases; were they not reported on at all?
A In that case, as a rule the doubtful cases were postponed.
Q Dr. Ehrhardt, I have to put to you the testimony of the witness Altmeyer before this Tribunal here. Altmeyer was examined on the 15th of July, during the afternoon session, and according to the German transcript. I now quote page 5, 171; that is the German transcript. You already stated that Altmeyer and you had a so-called double capacity, or acted in a double capacity in one department. If I may say so you were the corresponding referent in addition to Altmeyer in non-political cases of death sentences. Thus you can probably judge, independent of the list which we discussed, how often you, possibly together with Altmeyer, reported to the under secretary. Altmeyer stated that he reported to the under secretary once every month.
A I consider that a serious error of memory. The reports which were made to the under secretary in death sentence cases were very infrequent, and I believe that I personally did not report to the under secretary more than four or at the most five times.
Q After you and Altmeyer were both working in that section, perhaps you can judge whether Altmeyer reported more often than you?
A I have already stated that because the referat, the work that Altmeyer dealt with was more extensive, it is probable that he reported more often than I, but so considerable the difference could not have been that Altmeyer reported so much more often to the Under Secretary than I believe I can say about myself.
Q Dr. Ehrhardt, you were also present when Thierack listened to reports?
A Yes.
Q When he received reports?
A Yes.
Q And you were present when the under secretary, that is the defendant Klemm was also attending?
A Yes.
Q You had an opportunity to make observations as to what the relationship between Thierack and Klemm was. I now want to ask you did Thierack during these reports favor Klemm in any way, compared with other gentlemen of the Ministry?
A Not at all. I recall how the late Minister Guertner used to treat his under secretaries when reports were made. I can only say that the manner in which Thierack treated his under secretary frequently lacked dignity.
Q Do you remember any individual cases where you noticed this in particular?
A No. That is a general impression from my memory and I cannot give individual cases or examples at the moment, but in the opinion of all of us, Klemm was considered the young man who worked for the minister; that he had not much to say; and had to do everything the minister told him.
Q The final question, Dr. Ehrhardt. We spoke repeatedly about Altmeyer. I now want to ask you since you worked together with him for a long time, whether it is correct, namely, my information that Altmeyer was characterized in the ministry as a gossiping person?
A That expression is perhaps somewhat strong, but Altmeyer was absolutely inclined to spread rumors and to combine rumors; in addition, he was heavily over-worked, and frequently not quite clear. Well, any way, he had the reputation if one wanted to find out anything new that had happened, then one had to go to Altmeyer and he always knew something about everything that was going on.
DR. SCHILF: Thank you, I have no further questions.
DIRECT EXAMINATION BY DR. KUBUSCHOK: (Attorney on behalf of the defendant von Ammon)
Q Witness, according to your statements you were working in Division IV of the Ministry. There you probably -- you certainly also had an opportunity to meet von Ammon, especially also in the field of the clemencyproblem. Can you tell me something about the attitude of von Ammon in clemency cases?
AAn immediate cooperation between von Ammon and myself never took place. Outside of the picture which one forms of a colleague, I can from my official contacts judge von Ammon only from what I heard from his own mouth when he reported to the Minister.
He was in charge of the so-called NN cases and they were treated with a great deal of secrecy; in general importance was attached to not having too many people, too large an audience in the room of the Minister when NN cases were reported on. Occasionally, however. I did hear a few cases, and when I did, I observed that von Ammon reported in a very moderate manner. Especially I noticed that he always expressed a humane regret. He always let it be seen that he had a humane sympathy for these people because from the point of view of their country they had not done anything dishonorable, and the impression that I gained there is absolutely in accordance with the general picture that I had of von Ammon. He had numerous other interests; also artistic interests; he was such a soft person; and that every severity, at least in my opinion, was foreign to him.
DR. KUBUSHOK: Thank you.
THE PRESIDENT: Is there any other direct examination of this witness by any Defense Counsel? Apparently not. You may cross examine.
CROSS EXAMINATION BY MR. WOLLEYHAN:
Q Your Honors, after having discussed the matter just now with Dr, Schilf, I find that he has no objection to my offering to the Court the organization book of the NSDAP -- not as evidence, but in a manner comparable to a brief for the information of the Court, on certain matters that were of common knowledge in Germany from 1933 until 1945. There is one page I have marked, which, at the appropriate point during the cross examination, I am sure the Court will know when to look at it.
Q Dr. Ehrhardt, you have stated a short time ago here that you yourself and the defendant Mettgenberg's boss in Department IV, that is Vollmer, as far as subordinates in that department are concerned, which included you and. the defendant Mettgenberg, was a very suspicious character; that there was a good deal of emenity between the subordinates subordinates and Vollmer, and that all of you had a united front against him because of his unscupulous attitude toward Nazi and state policies.