Q. And Vollmer, as your boss, had to approve that promotion, didn't he?
A. I assume that his opinion was heard, but the decision was naturally not made by him.
Q. If Vollmer disliked your policies and attempts to tone down the Nacht and Nebel program - if Vollmer disliked that enough and disapproved your promotion, you wouldn't have been promoted, would you?
A. I don't know at what time Vollmer made those statements. As far as I know, Vollmer became Ministerial Director only in January, 1943. As I said before, I became Ministerial Councilor with effect from 1st of March, 1943. During that short period, I believe it was hardly possible for Vollmer to be able to form an opinion on my work concerning NN cases.
Q. Regardless of that, would you or would you not have been promoted in 1943 if Vollmer had disapproved of it?
A. I cannot answer that question. I don't know to what extent Thierach would have attached importance to Vollmer's opinion.
Q. Tell me, was it .... No, I'll withdraw that.
You mentioned that the courts in enforcing the Nacht and Nebel program, by trying Nacht and Nebel defendants particularly the special courts, had been moderate in their sentences. Now, in view of that, I'm wondering if that is true for the reason that after the Nacht and Nebel program was terminated by these arrangements in 1944, you wrote a letter to the Prosecutor General in Munich and you told the Prosecutor General in Munich that, in view of the new arrangement concerning the treatment of Nacht and Nebel prisoners in the future, namely their transfer to the Gestapo "there no longer will be executions of Nacht and Nebel prisoners in any large numbers."
Now, tell me, Dr. von Ammon, if these courts were so lenient and gentle with these Nacht and Nebel defendants, why did you see fit to mention that death sentences weren't going to be in any large numbers in the future? That's the same as saying they were large in the past, isn't it?
A. I stressed above all that the sentences passed by the special courts were moderate. It is true that the special courts only passed a few death sentences. I did say, however, on the contrary that the People's Court did pass a large number of death sentences and even mentioned that 50% of the persons indicted by the People's Court were sentenced to death. Those sentences which were intended to be executed in Munich, those were sentences which had been passed by the People's Court.
Q. In any event, whether it was the People's Court or the special court, after that Nacht and Nebel program was dissolved, you were of the opinion then that large numbers of death sentences would not be passed in the future?
A. No, actually I was of the opinion that no further death sentences would be passed. The only thing that could still happen was that death sentences would be executed that had been passed prior to September, 1944.
Q. And from your letter, it appears that up until that time, they had been large in number, does it not?
A. Well, that is a relative concept - that word "large".
Q. Oh, of course.
A. I believe that in view of the long period of time which from 1942 until the end of 1944 the number of death sentences which were actually passed is relatively small.
Q. May it please the Court, the prosecution offers as Exhibit # 546 the letter written by the defendant von Ammon which we have just been discussing.
THE PRESIDENT: The exhibit is received.
BY MR. WOOLEYHAN:
Q. Thank you, Your Honor. Do you remember this anonymous gentleman that you and the defendant Klemm saved from being sent to the Army because he had been lingering around an air raid shelter in Berlin? Was that gentleman that you and Klemm saved from the draft the same Dr. Ehrhardt that testified here on behalf of you the defendant Klemm, and numerous others?
A. Yes.
Q. That's all.
THE PRESIDENT: Just a moment, Mr. Prosecutor. Did you offer NG 549 as Exhibit 545?
MR. WOOLEYHAN: Yes, Your Honor.
THE PRESIDENT: The Exhibit is received.
MR. WOOLEYHAN: May it please the court, if there will be redirect I will wait, but I have two or three documents that were previously offered for identification for which I now have the exhibits available. If now is the proper time to offer, I offer as Exhibit 540, prosecution's document NG 1066 which was previously marked for identification as 540.
THE PRESIDENT: It is received.
MR. WOOLEYHAN: With respect to the defendant Mettgenberg I have two documents which are rebuttal evidence which I wanted to offer last week but they weren't ready. That are ready now.
This first one, NG 1893, is a complete case file of the Special Court in Vienna, Austria. On 10 November 1943, the special court in Vienna sentenced the chauffeur Boes to death. Boes was charged with having tried to help a Jew to procure Ayran Court No. III, Case No. 3.documents in order to disguise his Jewish extraction.
Besides, the defendant allegedly pretended to be a member of the Gestapo. After the death sentence was passed, a letter from the Ministry of Justice, signed by the defendant Mettgenberg, directed the Attorney General in Vienna to execute the defendant. It appears from the document that the defendant was, in fact, executed in Vienna on 9 December 1943.
THE PRESIDENT: Did you have that marked for identification?
MR. WOOLEYHAN: No, your Honor, we did not. We offer it fully at this time as Prosecution Exhibit 547.
THE PRESIDENT: The exhibit is received. What about exhibits for identification 538 and 539?
MR. WOOLEYHAN: They are not yet in shape to put in, your Honor.
With respect to the document which was just received in evidence, the English translation on pages 13 and 16 is faulty. On page 13, the statement "illegible signature" clearly reads on the original "Dr. Thierack". On page 16, in the lower right hand corner, the handwritten initial "M" is the defendant Mettgenberg.
The next document likewise concerns the defendant Mettgenberg. It is NG 1895. There is a case record in this document of the Court of Appeals in Dresden which, on 27 November 1944, sentenced two Czechs, Czechoslovakian nationals, to death for alleged preparation for high treason. The Alleged crime was that the defendants had spread foreign news broadcasts in order to undermine the fighting morale of the German people. The clemency appeal was denied and the order to execute the two defendants is signed by the defendant Mettgenberg. The Prosecution offers as Exhibit 548 this document NG 1895.
THE PRESIDENT: The exhibit is received.
MR. WOOLEYHAN: Thank you. I have finished, your Honor.
BY JUDGE HARDING:
Q Dr. von Ammon, you have stated certain offenses for which persons were tried before the Special Court under Nacht und Nebel; you have mentioned espionage and sabotage; what other offenses were they tried for?
A I also mentioned guerrilla activities under Article 3 of the Extraordinary War-Time Penal Decree, of aiding and abetting the enemy and, under Article 91-B of the Penal Code.
Q Now under Exhibit 334 there is a list of offenses in Kattowice, which I think is submitted. The offenses are listed there or at least part of them. One of then is furthering Bolshevik efforts, then there is an offense of favoring the enemy, then there is an offense listed of distributing pamphlets, Communistic activities and for distributing writings contrary to Germany; do you consider them war crimes?
A Yes, the ordinance containing such cases which were issued by the competent military authorities did declare then offenses. Under Article IV of the Extraordinary War-Tine Penal Decree, it is provided that the military commanders could issue penal sentences for the maintenance of order in the occupied territories.
Q Do you take the view that any act prohibited by the military authorities in the occupied area constitutes a war crime?
A Well, whether one wants to define it as a war crime -- Well, it is at any rate a crime against the occupying power under international law and can be punished.
Q Would you take the view that any act prohibited by the military authorities in an occupied territory can legally be punished under international law?
A Insofar as the military commanders within the scope of their authorization and the Hague Land Warfare Convention deem it so.
Q Does that not depend on the question whether it was necessary from a military standpoint?
A That at any rate is a question which we were not able to answer, that was a matter for the military authorities, but at any rate I can well imagine that supporting of Bolshevik activities and the production and distribution of leaflets was fit to disturb order in the occupied territory on a limited scale.
Q You tried any one that was handed over to you by the military authorities; is that correct?
A Unless the proceedings were suspended at the beginning because not sufficient suspicion of a punishable act having been committed did exist.
Q That is on the basis that there was no evidence to support the act changed?
A Yes, if the evidence materially was not sufficient to make it appear likely that the defendant would be convicted no indictment was filed.
Q But you filed an indictment if the evidence was sufficient to convict any offense for which this person was handed over; is that not correct?
A In that case the competent senior public prosecutor or the Chief Reich Prosecutor at the People's Court did file an indictment.
BY THE PRESIDENT:
Q Dr. von Ammon, I am referring to Exhibit 303, the decree marked secret, entitled the Fuehrer and Supreme Commander of the Armed Forces, signed by Keitel on 7 December 1941. I am under the impression that there was some testimony that NN procedure applied only in the West; are you sure that is true under the original terms of this decree. The preamble refers to the opening of the Russian campaign and Communist elements and then it refers to the occupied territories; what is your view on that, I am asking merely for information?
A Your Honor, in number five of that decree it is laid down that the chief of the O.K.W. defined in what occupied territory that decree is to be applied and the chief of the O.K.W. did decide that the N-N decree was to be applied in France, Belgium, the Netherlands and in Norway, in other territories it was not applied.
Q Do you mean it was never applied in other territories?
A Yes, that is what I mean. It was never applied in other territories.
Q Can you give me your best estimate as to the number of persons who were brought into Germany under Nacht und Nebel procedure?
A Exhibits 325 and 333 give information on that. Exhibit 333 gives a survey of the state of affairs of the Nacht und Nebel procedure on 30 April 1944. It is stated that the armed forces authorities had transferred to the competent senior public prosecutor a total of 2,014 proceedings which refer to 6,639 defendants. That figure may have gone up slightly during the following months, but not very much because then the invasion happened and after that new arrangements were made for N-N proceedings. As I said before it is not likely that that figure rose a great deal.
Q We have examined those two exhibits. My question of you was for your own personal estimate as to the total number brought in under N-N procedure during the entire period of the effective force of the N-N decree, the entire period?
A My knowledge is merely based on these two exhibits. These surveys were compiled at the time at the competent office of the Ministry of Justice. They cannot claim complete correctnesss, but those figures must be approximately right. I cannot say anything over and beyond what it says in these exhibits. In particular, if I may add that I can not say what prisoners remained with the police. You have seen from the exhibits that the police did not transfer all prisoners to the Administration of Justice.
Q Can you tell me what department gathered the information in the West on the basis of which N-N prisoners were brought into Germany; I mean was it the army or the police?
A.- It was the army. It was the competent military commanders, and they were the military commander at Paris for the cases that occurred in France; the military commander in Brussels for Belgium; and some districts in northern France; the military commander in the Netherlands for the cases that occurred in Holland; and the military commander in Norway for the cases which occurred in Norway.
Q.- Were the military personnel who made the investigations brought into Germany for the purpose of testifying in the cases which they had investigated?
A.- It happened that such persons were examined as witnesses at the proceedings.
Q.- One or two other little matters. I understood you to say that you did not know of any innocent person who was brought to Germany under Nacht und Nebel procedure.
A.- I was referring to the assertion of the Prosecution. The Prosecution had maintained that evidently innocent persons had been treated in exactly the same manner as guilty NN prisoners, and it was in reply to that I stated that evidently innocent persons were never brought to Germany at all. That is to say as far as my knowledge goes. If, however, it did happen, that a person was evidently innocent and had been brought to Germany, then there was a possibility to release him back to the occupied territories.
Q.- I still understand you to say that you knew of no innocent person brought under Nacht und Nebel procedure.
A.- It may have happened, natureally, but -
Q.- I am referring to what you said. Did I correctly understand you to make that statement that you knew of no innocent person who was brought to Germany under Nacht und Nebel procedure?
A.- I would like to restrict that to evidently innocent persons, as opposed to a person whose innocence only later was made clear. That, naturally happened too, and such cases did occur and such cases were not brought to Germany.
Q.- That is a very material modification of your former statement, because you also said that considerable numbers were acquitted. I assume -
A.- Yes.
Q.- I assume that you do not consider that persons who were acquitted were necessarily guilty; you presume them innocent if they were acquitted don't you?
A.- Or that the evidence was not sufficient to prove them guilty.
Q.- I was interested in your conclusion that they were not innocent, not withstanding the fact that your tribunals had bound them not guilty. Now, would you tell me in what special courts the Nacht und Nebel cases were tried -- I think this is repetition, perhaps, but I should like to hear it.
A.- The circular decree of 6 February, 1942 which is contained as far as I know in Exhibit 308. In that decree the special court at Cologne is named as competent for French cases; the special court at Dortmund for the Dutch and Belgian cases; the special court at Kiel for the Norwegian cases; for the rest, the special court at Berlin. First of all one must point out that on a few days later the special court of Essen took the place of the special court at Dortmund. The competency of the special court at Berlin never took effect in practice, so that to begin with there were three special courts at Essen, Cologne and Kiel.
Q.- And that was all, wasn't it? Those were the only ones?
A.- No. They were not all because afterwards the transfer occurred in the course of time on account of the danger of invasion and air raids. The special court of Breslau replaced that of Cologne; and the special court of Essen was replaced by the special court Oppeln. Those are all.
THE PRESIDENT: That is all; thank you.
EXAMINATION BY JUDGE HARDING:
Q.- Dr. von Ammon, were there always witnesses present in the trial of Nacht und Nobel prisoners?
A.- I cannot give any detailed information on this subject. I never attended any proceedings of NN cases myself; I only received reports, but I believe that witnesses were not always present. For example, in cases where the evidence was quite clear; in cases, for example, where the defendant had confessed; for instance if it was a case of illegal possession of arms, and legal arms had been found on the defendant, and the defendant did confess, and in that case it was hardly necessary to hear any witnesses.
Q.- Weren't there, in fact, cases tried where he did not confess, on the basis of papers or investigations that were submitted from the occupied territory without the presence of witnesses?
A.- The proceedings were always conducted on the basis of results of the main trial. The investigations which had been supplied in the occupied territory by themselves were not enough for the conviction of a defendant.
Q.- You say there were not defendants ever convicted merely upon the basis of the investigations made in the occupied territories?
A.- As far as my knowledge goes, yes.
Q.- But the investigations made in the occupied territories were submitted as evidence in the case against these defendants; is that not correct?
A.- I believe that such evidence could be put to the defendants. I believe that the presiding judge, for example, put to the defendants you made such a testimony in such and such a place - are you adhering to that testimony now? But the conviction itself could only be based on the results of the trial, and could not be based upon the previous investigations which had been made in the occupied territories. Those investiga tions which had been made in the occupied territories were only made to make sure of the evidence.
Q.- You were the expert in this case, were you not, of NN prisoners?
A.- Yes, I was the expert at the Reich Ministry of Justice for NN matters. The Ministry of Justice exercised the supervision over the proceedings in these NN matters, but naturally I did not have to make any decisions on the individual cases or to play any part in the decision of individual cases.
Q.- What do you know whether or not these prisoners were convicted upon the basis of the testimony that was submitted from the occupied territory without the presents of witnesses to support the case against them?
A.- If an application for relevant evidence had been made, then it would be necessary to hear the witnesses themselves in the occupied territories.
Q.- But they were heard in the occupied territories and not were the case was tried; is that not correct?
A.- In principle not. As a rule they were examined by so-called investigating judges; he was a military judge and he did that in the occupied territory; or, they were examined by a judge of the competent court who had been especially commissioned to go to the occupied territory and to examine the witness there.
Q.- And then that evidence obtained there was submitted to the main proceedings; that was the way it was done; is that not correct?
A.- No.
Q.- And the defendant was not present when that testimony was taken in the occupied territories; is that not correct?
A.- No, the defendant was not present.
Q.- How many other duties did you have with the Ministry of Justice during the time when you were engaged in NN matters?
A.- During the whole time I was also referent for the interstate legal relations in penal matters.
Furthermore, occasionally I also acted as a so-called district referent; and, as I stated under direct examination, as from August 1944, that is to say at the very end of the time when the general administration of justice dealt with NN prisoners, as from that day I also worked partly in the personnel department. It was always a case of my not spending all my time on my time on NN cases. That happened is what the defendant Mettgenberg said when he was under direct examination, that I always spent about fifty per cent of my time on NN cases.
JUDGE HARDING: That is all as far as I am concerned.
REDIRECT EXAMINATION BY DR. KUBUSCHOK:Q.- In reply to a question by the Prosecutor, you spoke of your membership with the Oberland-Bund, and you stated that the Overland Bund on the 8th of November, 1923 took part in the so-called Hitler Putsch.
You stated that the Overland-Bund was an association -- a so-called Nationalistic Association of which many members were students. Did that Oberand-Bund, that association, at a later time ever become incorporated in the NSDAP; did that Nationalistic Association ever become a National Socialist Association by way of incorporation?
A.- No. After the Oberland-Bund on the 9th of November had participated in the Hitler Putsch, it was dissolved. I believe that at tome time later on it came back to life, but I personally no longer took any part in it. As far as I know, it never in any way was incorporated in the National Socialist movement.
Q.- How far did you participate in the events of the night of 9th November, 1923?
A.- The company of the Oberland-Bund to which I had been assigned was alerted, on the evening of the 8th of November, 1923. I was not alerted because my name was not on the alert list. I had joined the Oberland-Bund only a little time before that time.
Therefore, I was only told about it in the morning of the 9th. I then joined my company which was stationed in an inn by the Isar, at Bogenhausen, in Munich. There I spent a few hours with the company; then we marched off to the east. There we disbanded and returned to Munich one by one. That was my participation in the event of 8th of November.
THE PRESIDENT: May I ask you -- were you armed? Were you armed at that time?
A.- Yes, I had a gun.
Court No. III, Case No. III.
BY MR. KUBUSCHOK:
Q. Exhibit 545 has been submitted by the Prosecution. That contains a file note which is signed by you and it concerns the discussion of 12 October, 1943, at which criminal proceedings against the foreign workers were discussed. That file note says that your chief Dy. Vollmer was the Chairman at that time. Furthermore, it shows that you took down the minutes. In order to describe that matter particularly, I would ask you to tell us what attitude according to that transcript Dr. Vallmer took in regard to the question as to whether foreign workers were to be punished or could be punished more severely than Germans?
A. May I point out this is not correct, as the Prosecutor put it, that Vollmer took the view that foreign workers on principle were to be punished more severely than German nationals. The passage concerned rather says that the question as to whether foreign workers might be punished more harshly than German nationals can be answered in the affirmative in so far as the foreign workers, according to their personality, their origin and their attitude are more dangerous than German nationals, and a political danger. I can remember that at the time the representative of the foreign office desired that Herr Vollmer should give a general statement to the effect that foreign workers would never be punished more severely than German nationals but Vollmer could not be persuaded to make such a declaration. He then made a declaration in the way it is couched here. As far as I remember, although I cannot say for certain, this wording does not originate from me but Dr. Vollmer corrected it himself into the note which I wrote.
Q. In reply to a question which Judge Harding put to you, you stated that a NN proceedings the police records, as all records of all investigations could not be used by the Court -- only to the extent that the contents of these records were put to the defendant for him to give his opinion on them. Furthermore, you stated that occasionally witnesses were heard in the occupied territories by a so-called requested or commissioned judge. Were these two methods with regard to the results of the investigations and the usage made of examinations instituted by a Judge, were those methods ever used in a different way in NN cases than they were used in all penal cases which were tried before German Courts in accordance with the penal code of procedure which had been in existence for more than fifty years?
A. As far as I know there was no essential difference here.
Q. Thank you.
I have no witness on behalf of the defendant von Ammon. I now want to submit three affidavits. I am submitting as Ammon Exhibit No. 4, an affidavit by the Bishop of the Protestant Church in Bavaria, who is at present in office. The affidavit was given on the 21 July 1947. The Bishop's name is Dr. Meiser. The factual contents of the affidavit are as follows: "The former Ministerial Councilor Wilhelm von Ammon has been known to me for a number of years. I and his father were at the same period of time members of the leadership of the Protestant Church of Bavaria and I had an opportunity to get acquainted with the spirit of the family von Ammon through familiar and social intercourse. I can say that the basic attitude of his parents' home was in accordance with the best Protestant tradition and was passed on to Herr Wilhelm von Ammon. I can testify that in the ecclesiastical struggle and afterwards he openly demonstrated his loyalty to his church. Thur, for example, when I was arrested by the Gestapo, he, together with other members of the Parish, demonstrated openly for me. Like the whole of his family, he remained loyal to the confessing Church, which had formed the ecclesiastical resistance movement against the party. In his position at the Reich Ministry of Justice he served the Confessional Church by many valuable pieces of advice, for which we asked. One must bear in mind that his work for the church was not without danger for a high official in those days. On account of my knowledge of his personality, I can testify that Herr von Ammon is a man of purest legal mindedness, who alone by his religious and humane and ethical attitude would be incapable of committing inhumane or brutal acts." I offer this affidavit as Exhibit Ammon No. 4.
THE PRESIDENT: The exhibit is received.
DR. KUBORSCHOK: Exhibit 6 is an affidavit by the present Bavarian State Councillor, Staatsrat, Dr. Hans Mainzold. It was given on the 21 July 1947, I will read the factual contents of the affidavit:
"Herr Wilhelm von Ammon has been known to me since 1923. I have come to know him as a man of true Christian convictions and of the truest intention and exemplary behavior and animated by the desire to do the good and to help the right to pervail. In my capacity as a leading legal official of the Evangelic-Entherianhand Church Council in Munich, I during the time of the ecclesiastical struggle, repeatedly had occasion to contact personally Herr von Ammon as Ministerialat in the Department of Justice in cases of criminal presecution of clergymen of the confessing Church. Herr von Ammon was always accommodating and showed me means and ways by which I could make attempts to help the clergymen concerned. Thus repeatedly he gave names to me of authorities on whom I was to call, and occasionally he gave me a personal recommendation to these authorities, although for him as a member of the Reich Ministry of Justice, that meant a certain risk. I was and am of the conviction that Dr. von Ammon, according to the whole of his personality, absolutely repudiated the ideology and methods of violence of the National Socialism and in particular I do not consider him capable of any brutal actions."
I am offering this as Exhibit No.
THE PRESIDENT: The exhibit is received.
DR. KUBOSCHOK: As the next exhibit, No. 6, I offer an affidavit of Baptist Lenz. Baptist Lenz is now head of the Department with the German administration of Justice in Berlin. I shall read the factual contents of the affidavit: "I have known Dr. Wilhelm von Ammon when we both belonged for several years to the former Reich Ministry of Justice in Berlin.
Herr von Ammon was a particularly efficient judge and administrative official. He was always reserved and modest and I was convinced that he would never deliberately lend a hand for an incorrect act or for a measure which was not compatible with the laws of ethics. I always had full confidence in Herr von Ammon and I know that the other colleagues did the same. From my discussions with him I gained the conviction that Herr von Ammon inwardly opposed the aim of the Nazi party and that his ideology and his legal feeling corresponded to the old school of thought and had nothing in common with the tendencies of National Socialism. I did not know at that time on what subject Herr von Ammon was working during the war at the Reich Ministry of Justice."
I am offering this affidavit as Exhibit No. 6.
THE PRESIDENT: The Exhibit is received.
DR. KUBOSCHOK: I have now concluded my submission of evidence for the defendant von Ammon. Perhaps I shall have the possibility at a later date to submit another two or three affidavits which by reason of special difficulties I have not been able to do before.
THE PRESIDENT: Certainly. The witness may be excused from the witness stand.
DR. SCHILF: Schilf for the defendant Dr. Mettgenberg. May it please the Court, Mr. Wooleyhan, after the examination of Dr. von Ammon, submitted two further documents, Exhibits 547 and 548 against Dr. Mettgenberg. I don't know why these documents were introduced at this time. According to their contents, it seems to me that they were not introduced for rebuttal of Dr. Mettgenberg's testimony as a witness. I would like to reserve the right of stating my views concerning these two documents and I wish to reserve that right now before the Tribunal.
DR. HAENSEL: May it please the Court, do you wish me to begin with the case of Guenter Joel today or do you think the time is too brief?
THE PRESIDENT: You may commence with the preliminary matters at this time.
DR. HAENSEL: To begin with, I should like to ask Guenter Joel to go into the witness stand. During the examination I shall introduce a number of documents and I shall ask Herr Joel to give his views on them. I reserve the right to call one or two witnesses afterwards.
GUENTER JOEL, a witness, took the stand and testified as follows:
BY JUDGE HARDING:
Q: You will 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 withhold and add nothing.
(The witness repeated the oath).
JUDGE HARDING: You may be seated.
DIRECT EXAMINATION.
BY DR. HAENSEL:
Q: Your name is Guenter Joel, and in Exhibit 56, NG-905, submitted on 10 March you gave an affidavit to which you can refer as regards your personal data.