Now, it appears from your testimony, Dr. Ehrhardt, that this Vollmer, much like Thierack, and Freisler, was a very harsh and extreme official. Is this Vollmer dead by any chance?
A I received a message from Berling according to which Vollmer was seriously wounded and supposed to have died as a consequence.
Q I thought so. You further mentioned, Dr. Ehrhardt, that the defendant Mettgenberg was, as you put it, a born opponent of Vollmer's increasingly severe administration of justice. Tell me, were you likewise opposed, as was Mettgenberg, to what you described Vollmer's increasing severe policies?
A Yes.
Q That being so, Dr. Ehrhardt, I am going to read you something from your official personnel file, which I want you to correct me if I misread it. Page, will you please hand this to the witness. Now, Dr. Ehrhardt, please turn to page 69 of that personnel file. There you will find an efficiency rating, and recommendations for promotion written in your behalf on the 8th August, 1943, by your boss, Vollmer. It begins like those: "Chief Public Prosecutor, Dr. Ehrhardt, deals with non-political death penalty cases, currency and traffice penal cases, and economic sabotage cases, and is liaison officer with the SA. In death penalty matters he combines the necessary severity and ruthlessness with humane insight and experiences. His political attitude is positive, corresponding to his activity in the party." Did I read that correctly, Dr. Ehrhardt?
A Yes.
Q Now, tell me, Dr. Ehrhardt, didn't you join the Nazi Party in 1933?
A Yes.
Q Did you become a member of the SA in 1933?
A Yes.
Q On or before 1937 you were promoted to Oberscharfuehrer in the SA?
A I cannot remember any more when I became Oberscharfuehrer. May be -- just a moment -- 1937-- no, I believe, well, in 1937 I came to Berlin. At that time I was still Oberscharfuehrer.
Q In 1942, Dr. Ehrhardt, were you promoted to Obersturmfuehrer in the SA, with the staff of the supreme SA leadership, attached to the adjutant of the chief of staff of the SA?
A Yes.
Q In November 1943 were you promoted to Hauptsturmfuehrer with the staff of the Supreme SA leadership?
A Yes.
Q That's all.
THE PRESIDENT: Are you through with the witness, Dr. Schilf?
REDIRECT EXAMINATION BY DR. SCHILF:
Q Dr. Ehrhardt, at your present place of residence, Kassel, was the so-called "Denazification Trial" started against you or did you start it?
A It must have been started because I filled out the questionnaire and handed it in. I haven't heard anything about the proceedings.
Q There was no warrant of arrest issued against you in regard to this Denazification proceeding?
A No.
Q Thank you. That is enough. That's sufficient.
Dr. Ehrhardt, another thing: as referant for non-political criminal cases, you are presumably in a position to estimate, to state the approximately number of sentences which were confirmed in 1944 during the course of the year. Are you in a position to do so?
A Yes. That's difficult. I estimate that all the death sentences that wore reported on during the year 1944 were approximately 3,500 and the number of clemency pleas granted may have been about 8 to 10 percent of those; but that is an estimate and I cannot say for certain.
DR. SCHILF: Thank you. I have no further questions.
THE PRESIDENT: The witness may be excused. Have you another witness, Dr. Schilf?
DR. SCHILF: Your Honors, I have no other witness. However, I do have -- in regard to my submission of evidence, I do have to submit my document books some time. Again I have to express my regret that my document books for Dr. Mettgenberg have not been completed. With the reservation that I may submit these document books later, I can therefore conclude my case for Dr. Mattgenberg for the time being.
THE PRESIDENT: You may do so.
DR. SCHILF: Excuse me, your Honor. I believe I didn't understand correctly.
THE PRESIDENT: I said you may do so by which I meant you may rest at this time subject to the right to introduce your document books later.
DR. SCHILF: Thank you very much, your Honors.
THE PRESIDENT: The next case is that of Dr. von Ammon.
DR. KUBUSCHOK: With the permission of the Tribunal, I call the defendant von Ammon to the witness stand.
THE PRESIDENT: Dr. Kubuschok, I suggest that you cover your preliminary matters this afternoon. Then we will recess before you go into the more serious questions. Cover your preliminary matters.
JUDGE BLAIR: The witness will be sworn, please.
Will you hold up your right hand and be sworn?
I swear by God, the Almighty and Omniscent, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath).
You may be seated.
DIRECT EXAMINATION BY DR. KUBUSCHOK:
Q About your education and training, your professional career, your membership in the Nazi Party, et cetera, you submitted an affidavit which was introduced as Exhibit 55 to the Tribunal. In order to supplement the picture which can be seen from this document, I first want to put a few questions to you regarding your relationship to the NSDAP, Nazi Party. First, how did you become a member of the NSDAP?
A Before 1933 I was not a member of any political party. As a high school student and a university student, I belonged to patriotic youth organizations and Nationalist fraternities. After this time, since about 1924, I was no longer active politically. I participated in elections without being a member of a definite party. Before 1933 I never voted for the National Socialists. The leading men of that party and the policies which they represented were not in accordance with my attitude.
Therefore, the Spring of 1933 I refused to follow the example of numerous colleagues who already at that time had joined the NSDAP.
During the course of 1933, however, within the civil service, those voices became louder who were in favor of joing the NationalSocialist movement. The National Socialist movement without doubt had conquered the State. More and more people emphasized that it was the duty of a civil servant not to stand aside from the National Socialist movement. Whoever did so was characterized as an enemy of the State; and, in the course of personnel measures in my office also -- that was the Bavarian Ministry of Justice -- more and more National Socialist civil services were employed.
Therefore, following the examples of most of my colleagues. I finally gave up most of my resistance and, in September 1933, first became a member of the National Socialist professional organization; that is, the N.S. Lawyers' league; and in December 1933 I became a member of the SA. I became only in 1937 a member of the party itself. This was handled rather automatically at the time the restrictions for admittance into the party was removed and all SA men who were not yet members of the party were requested to try to become members. My Munich SA Sturmfuehrer at that time I was still in the SA in Munich although I had been working in Berlin already for years, requested me in writing to try to become a member of the party. I followed his advice and then, either towards the end of 1937 or the beginning of 1938 -- I don't remember the exact date -- I became a member, or was accepted into the Nazi Party and it became effective retroactively in May 1937.
AAfter you joined the SA and the Party, were you an enthusiastic member of the Nazi Party?
A I too, could not withdraw from the influence of Nazi Proponganda and, therefore, saw many things in a more favorable light than they wore in fact. An enthusiastic National Socialist, however, I was not since from idealogical point of view many things separated me from the Party program.
In the SA, of which I Was a member for more than 11 years, I reached only the very low rank of a Scharfuehrer. That I did not gain a higher rank was due to the fact that I, as far as possible, abstained from service in the SA.
Q On the basis of membership in the SA and your later membership in the Party were you promoted with any favoritism in your official position?
A No. Already before 1933 -- that is, since 1928 I belonged to the Bavarian Ministry of Justice and there, on the basis of the results of my examination and my technical professional qualifications, was promoted according to the principles of the so-called Ministerail career. I passed the Referendar examination in 1925 as well as the Assessor examination in 1928 as the best student of my year. In Bavaria I passed the Referendar examination with "Excellent" and the Assessor examination as "very good." After 1933 I even was put in an unfavorable position to the extent that colleagues who had been in service less long than I but who had party connections were promoted over me, were favored in promotions. I assume that under any other government I could have become Ministiriat Counsellor in 1943, if not before also.
Q Herr von Ammon, how did it come about that you were called to the Reich Ministry of Justice from 1935 to 1944?
A I mentioned that in 1927 I passed my assessor examination. Immediately after passing that examination, I was called to the Reich Ministry of Justice. Already in the Bavarian Ministry of Justice I had since 1934 been in charge of the department for inter-state legal relations, especially for the extradition cases. Therefore, in that special field I gained specialized knowledge and experience and also did some writing in this field.
On the first of January, 1935, the Ministries of Justice of the German Laender were eliminated, dissolved and the questions of inter-state legal relations were from then on uniformly administered in the Reich Ministry of Justice in Berlin. For that reason, I too was transferred to the Reich Ministry of Justice in Berlin in order to work there especially in the field of international legal relations in penal cases.
THE PRESIDENT: The Tribunal will recess until Monday morning at the usual hour.
(A recess was taken until 0930 o'clock, Monday, 4 August 1947.)
specialized experiences in the field of international law, legal traffic and international law in penal cases was the important factor. Due to drafting into the Wehrmacht at that time in the Reich Ministry of Justice, in the division for administration of criminal law, only the gentlemen were left who were used to working in the field of international law. They were Mettgenberg and Reissner. These two gentlemen, in June, 1940, were away from Berlin for several weeks. They were in Budapest for negotiations about a German-Hungarian extradiction pact or treaty, so that there was nobody left in Berlin who could carry on current business. The defendant Mettgenberg last week testified that he saw to it that I would again be called to the Reich Ministry of Justice.
DR. KUBUSCHOK: May I suggest a question about the translation. In German, the defendant von Ammon used the word "Zwischenstaatlicherrechtverkehr." Those word is in no way the same as international law. The word means that official interchange in the legal field between two states is dealt with -- it is interstate legal relations. I believe that is what it means. The defendant von Ammon just mentioned that he was in Munich as Oberlandsgerichtsrat, and was working at that time under senate president Dr. Erhardt, who is now Bavarian Minister President Dr. Erhardt gave me an affidavit for the defendant von Ammon. I have made up the document book for von Ammon which is very modest in its extent, because it contains only six affidavits and comprises altogether eleven pages. The affidavit by Minister President Erhardt is also very brief. If the Tribunal will permit me, I would like to read this affidavit now and submit it as an exhibit. The Prosecution has already received my document book in German, and as far as I know, it has no objection to this procedure.
THE PRESIDENT: It's all right.
DR. KUBUSCHOK: The affidavit by the Bavarian Minister President Erhardt is of 21 July, 1947 and reads as follows, with the usual introductory formula. "Former Ministerial Councillor Dr. von Ammon, from about the beginning of 1939 until the beginning of 1940 belonged, as a judge, Oberlandsgerichtsrat, judge of the district court of appeal, to the district Court of Appeal, Munich, and during that period he was assigned to the Fifth Civil Senate, of which I was the presiding judge. None of the then judges of the Fifth Civil Senate were in anyway active in National Socialist ways. Most of them did not even belong to the Party. Herr von Ammon, too, as a judge, did not participate in a National Socialists activity in any way. In the Fifth Civil Senate cases were also dealt with that had a political coloration. Be it that some leaders of the NSDAP or Jews were affected by the decision, Herr von Ammon shared the opinion with all the judges of the senate that political or racial elements should be left out of the consideration entirely in the activity of a judge, and he voted in that sense in absolute agreement with the rest of the judges. During the period when he belonged to the senate, I frequently discussed with him the general political situation under the regime of the nazis, and at that time I clearly and unequivocally expressed my negative attitude. Herr von Ammon during the conversation with me absolutely agreed with my opinion. I knew Herr von Ammon from years before, and from the confidential nature of our conversation I harbored no doubt that the statements he made at that time and the attitude he had toward me was absolutely in accordance with his inner convictions. I considered and I learned to value von Ammon as a very capable judge, who had a great deal of character; his actions and his ideas in his activity as a judge were based upon the principle of justice and humaneness. Personally I could find out that human kindness was especially characteristics of von Ammon, and this can in no way be brought into connection with the idea of brutality."
I submit this affidavit and ask the Tribunal to receive it as Exhibit -- von Ammon No, 1
THE PRESIDENT: May I inquire. The exhibit is received but the copies will be in your document book, will they not?
DR. KUBUSCHOK: All right when the document books are received they will be marked von Ammon Exhibit No. 1, and you can mark the original in the same manner.
BY DR. KUBUSCHOK:
Q Witness, you were speaking about the fact that in the Reich Ministry of Justice you worked as Referent for Interstate Legal Relations in penal cases. Were you also a specialist for international law?
AAs referent for Interstate Legal Relations in penal cases I had to deal with only a very limited field, especially with extradition law; whereas I had nothing to do with general international law, especially, with the International question of law, as for instance, the Hague Convention concerning land warfare, etc. For this field in the Reich Ministry of Justice the General Referat for International Law was competent and this was in quite a different division, and the gentlemen Kriege, Pierre De La Croix, worked in that field. This can be seen from the documents submitted by the Prosecution which showed the division of work in the Reich Ministry of Justice. This is exhibit 510. The assertion made by the Prosecution in it's opening statement, that I was the referent for the Ministry of Justice for international law, is in no way correct.
Q You have stated that you were not a confirmed National Socialist. In view of your attitude, did you not have conflict of conscience sometimes your activity in the ministry of justice?
A To a certain extent I have to answer "yes" to that question. In my official activity I occasionally had to apply laws of other legal regulations or had to follow instructions issued by my superiors with which I was not quite in agreement in my own mind. In such cases I considered it my duty to follow such regulations and provisions which in my opinion though unpleasant were after all effective. Likewise, I considered it my duty to follow the instructions issued by my superiors. However, I would not have consider myself obligated to follow instructions issued by my superiors which were contrary to law.
Such illegal orders, however, were not given to me. In such cases, however, a certain amount was left up to my own discretion and that happened in many cases. When I applied that discretion I tried as far as possible to make my own opinion apply. Of course, the possibility in those directions were not overly large since as a referent I had to obtain the agreement of my superiors, the more important decisions. Because of my lenient attitude I was frequently objected especially by my superior Vollmer and the Minister of Justice Thierack.
Q Did your attitude change when the war broke out?
A Due to the outbreak of the war nothing changed in my basic attitude. I was of the opinion that since the war had broken out, independent of it's consequences for National Socialism, it would bring about the decision "To be or to be" for Germany. Therefore, I believed that every German had to fulfill it's duty in it's official position
Q I now come to the main charge which the Prosecution has raised against you in regard to your dealing with the socalled NN cases. Under what circumstances were you entrusted with this new field of work?
A The Distribution of the Referates (sections) was as a rule made by order of the department chief without asking the referent about it in advance. Thus I too in February, 1942, was assigned by my department chief, Ministerial Director Krohne to work with NN cases, without my knowing for the time being what these NN cases were all about.
Q What tasks and authorization did you have as Referent of Department 4 of the Ministry of Justice for NN cases?
A In order to answer that question I first have to describe the competency of departments 3, 4, and 5, and have to limit briefly.
Department 3 was the department for criminal legislation, department 4 was for the administration of criminal law, department 5 was the department for the administration of penalties. It belonged to the competency, of department 3, the preparations of the laws and regulations similar to laws, the housing of prisoners belonged to the competence of department 5 and the treatment of these prisoners while they were in prison. Department 4, that is my department, dealt in the main with the cases against the defendants until they were sentenced by a court, including the clemency procedure. Furthermore, the issuance of general provisions regarding legal procedure in as far as department 3 was concerned was not competent for this.
Q As far as department 4 was competent, what authorization did you as referent have with regulation to your superiors?
A Kramm and Mettgenberg have already testified to this here on the witness stand. I only have to add some supplementary remarks. As Referent I had to a certain extent the right to give my signature, that is to say, to a certain extent, I could give written or oral statements by order. This right for signature, however, was limited, since due to my being subordinate to the department chief, and for the most part of my activities I was subordinate also to a sub-department chief. During the first month of my activity in the NN cases my section was directly under the department chief, a few months later, however, between me and the department chief Mettgenberg was put in charge as a sub-department chief. My authority in relation to my sub-department chief and department chief were limited through general regulations rather carefully. In the regulations applied which were contained in Exhibit 510 submitted by the Prosecution. May I refer to these regulations? Regarding the letters by the Ministry of Justice that were sent outside the Ministry of Justice which were submitted by the Prosecution, in accordance with the provisions I mentioned I did not sign a single one finally, but all the letters after I had also co-signed them, I submitted to my sub-department chief for signature.
He then for the most referred them to the sub-department chief or even to the Under-Secretary or to the Ministre. If the Prosecution, contrary to this, in this submission of several documents, stated that the letters of the Ministry of Justice were signed by me, that is an error. These are throughout letters for which I did give a co-signature, that is in the right hand lower corner, that they bear my initials, but one of my superiors gave the final signature.
Q In that connection exhibit 327 is of interest. When the document was submitted the Prosecution stated that this was a letter which you had addressed to Reich Leiter Bormann. That is obviously incorrect. Please explain the document and explain now the whole course of the events went.
THE PRESIDENT: What exhibit number is that?
DR. KUBUSCHOK: No. 327.
WITNESS.
A In order to explain the actual content of the document I would just like to make the following preliminary remarks, as it is also evident from another document, that is Exhibit 282, that Hitler had reserved the right to himself to make decisions of clemency in the case of death sentences which had been pronounced against women in the occupied western territory. In these cases Hitler always at the beginning with out exception did not want execution. Later on, however, he changed this practice due to some exceptions. Hitler did not pardon these women expressly. To that extent I have to correct the explanations made by the defendant Lautz somewhat. He merely suspended the execution and ordered that the condemned person should be kept in a penitentiary and treated like penitentiary.
After the end of the war a final decision was to be made. The decision about the carrying out of the death sentence, was, according to Hitler's instructions, to be made known to the condemned women. This was a very severe measure that the women who had been condemned might for years remain in uncertainty as to whether the death sentence should be executed. Or the suggestion of the Chief Reich Public Prosecutor at the People's Court, that is defendant Lautz, which was referred to me by Reich Public Prosecutor, Parrisius I tried to achieve it that the condemned women could be informed at least until further notice that they would not be executed.
Of course, since the decision by Hitler was necessary, the matter had to be reported to Minister Thierack. I could not report the matter directly to Minister Thierack but first had to tell it to my sub-department chief, then to the department chief and then finally I could report it to Minister Thierack. This report, according to the note on the top of the document, took place on the 8 June 1944. Thierack, in the course of this report, agreed with having a letter written to Reichsleiter Bormann in that direction to the effect that he should bring about a decision by Hitler as to whether misgivings existed against the suggested information be given to the condemned women.
However, it was quited impossible that I, as a mere referent, should address a letter to such an important man as Reichsleiter Bormann. If the prosecution assumed so, then they overestimated my importance quite considerably. The letter to Bormann could be signed only by the Minister. I could only draft the letter and that is what I did and the draft I then sent via my subdepartment chief and the Under Secretary. All of them put their agreeing signature on it and I submitted it to the Minister.
Minister Thierack, however, did not sign the letter. He objected to the somewhat clumsy first sentence. He wrote in the margin: "I do not like such long worms." And then he returned the draft to me. But this cannot be seen from the document. I can still remember it very clearly. I drafted a new letter in which I divided the first sentence that was objected to into several and I submitted the new draft to Thierack. Thierack then, however, got misgivings against sending the entire letter. He did not dare to ask Hitler whether he wanted to change his former decision and thus nothing happened in this whole affair.
However, from my description it should be apparent with what difficulties I was confronted as a referent and I had to fight against and to what extent I had any possibility of influencing anybody at all.
Q. As referent for NN cases did you have a large staff of assistants?
A. No. I never had more than one assistant and he worked only part of the time in NN cases, and that also only at the beginning of my activity with NN cases. From the beginning of 1943 on I worked entirely without any assistance. From that time on, due to the hightened drafting for the Wermacht, younger gentlemen who could be assistants, were available only to a very limited extent in the Ministry of Justice. From that time on I had only a socalled "Mittlerer Beamter", a civil servant in a medium position for registration and filing.
There was a special provision only for preparation of clemency pleas in death sentence cases. For that work I had assistance from time to time.
Q. I refer to that extent to Exhibit 501, the plan of distribution of work which shows further facts. Witness, please give us a survey over the periods when the general Administration of Justice participated in the NN cases.
A. We can distinguish between two periods during which the General Administration of Justice was concerned with NN cases. The first period extends from February 1942 until October 1942; the second from October 1942 until September 1944, and to some extent until the end of the war. During the first period the executive regulations of the Reich Ministry of Justice of 6 February 1942 were decisive in their original form as they had been issued by Schlegelberger and Freisler. Two factors characterized this period. First, the police were involved in the NN cases only to the extent that the transportation of the NN prisoners from the occupied territories was carried out by the police; and, secondly, for the sentencing of NN cases only some special courts were competent. The competency of the People's Court did not exist at that time, for those cases.
The second period begins with the changes which were introduced soon after Thierack assumed office. The police now also became competent to the extent that the NN prisoners, for the detention of whom no legal reason existed any more, were transferred to the police for protective custody for the duration of the war.
And in the sentencing of NN cases, in addition to the individual special courts, the People's Court now is involved too. This second period ends with the order that the NN prisoners should generally be returned to the police. This order was issued in September 1944. The return, however, was carried out until the end of the war only partly so that at the end of the war numerous NN prisoners were still in the detention of the Administration of Justice.
Q. We shall now turn to the first period for which the executive regulations of 6 February 1942 were decisive. Witness, were you involved in the drafting of these regulations and the discussions with the OKW which preceded this decree and which the witness Lehmann reported about?
A. No. I neither participated in the formulation of the regulations not in the preceding negotiations. The regulations worked out in the departments for Penal Legislation, first Department 2 and later 3, and at that time I did not belong to one of them. About the regulations and the preceding negotiations, I heard only on the day when the regulations were issued. On that day -- that was the 6 February 1942, the presidents of the District Courts of Appeal and the General Public Prosecutors of those districts in which the NN cases would in the future be sentenced, had ordered for discussion to a meeting with the Ministry of Justice.
Immediately preceding the beginning of the meeting my then department chief, Ministerial Director Krohne, had the message sent to me that I should come to the meeting because in future I would have to work with the penal cases which would result from the newly issued regulations.
I then attended that meeting and for the first time out of the mouth of Undersecretary Freisler, who was in charge of the meeting, I heard about the Night and Fog Decree and the executive regulations issued pursuant to it.
Q. In the executive regulations of 6 February 1942 there are provisions about the limitation of foreign evidence. Item 5 of the executive regulations, Exhibit 306, which, however, are here only in draft form gives this regulation:
The use of foreign evidence material requires the prior agreement of the public prosecutor. Furthermore, Item 4 of the same regulation provides that the senior public prosecutor has to obtain the decision of the Reich Minister of Justice before he can use foreign evidence material or can agree to the use of foreign evidence material by the court. This latter regulation is contained in Exhibit 308. In consideration of these regulations the indictment asserts that it was one of the purposes of the NN procedure to prevent that the defendants should have access to witness or any other evidence. What do you have to say about this?
A. First, I would like to correct you, counsel. You quoted No.4 of the circular decree of the 6 February 1942 and by mistake you said that this was the same provision as No. 5 which you mentioned before. These are two different regulations. First is No. 5 of the executive order of 6 February 1942. That is Exhibit 306, and the second regulation is No. 4 of the circular decree of the same day, and that is Exhibit 308.
In answer to the question what I have to say about the allegation in the indictment, that it was one of the purposes of the NN procedure to make it impossible for the defendants to have access to witnesses or any other evidence, I have to say that assumption is entirely wrong. The limitations on foreign evidence material was not one of the purposes of the NN procedure but the absolutely undesired result which resulted from the necessity of keeping the matter secret.
It could never result in a disadvantage of the defendant but would, of necessity, result in favor of the defendants. The German criminal procedure is based on the assumption that the defendant has no duty or no authority to prove anything. Therefore, any doubt had to work in favor of the defendant. In the same way, doubts which arose out of the limitation of foreign evidence. Moreover, foreign evidence material was in no way excluded altogether but it should only be procured and used in such a way that the secrecy of the proceeding and the keeping incommunicado of the defendant would not be endangered.
Q: What was the effect of the regulations about the limitation of foreign evidence material - in practice?
A: According to my observation, in the majority of cases these regulations did not lead to any difficulties. In many cases the clarification of the facts was accomplished by the statements of the defendants or co-defendants or on the basis of German evidence material. This was the case, especially in the numerous cases in which simple facts were the basis. Thus, for instance, in most of the cases, because of illegal possession of weapons, where a weapon was found in the possession of the defendant. Beyond this, the use of foreign evidence material was admissible to the extent that his maintaining of secrecy of the proceeding was not endangered by this. Thus, the Ministry of Justice in any case permitted it that a foreign witness, not before the court trying the case, but in the occupied territories, could be examined by an investigating judge. If this, however, did not bring about the desired result, if there still existed some doubt as to the guilt, the defendant had to be acquitted and was acquitted. According to my observation, probably in all courts which had to deal with NN cases, a large number of acquittals were pronounced, because of the limitation of foreign evidence, sentencing of the defendants was not possible.