Q In your affidavit you furthermore say that Dr, Joel received at least one hundred files per day. Is this statement based upon your knowledge of the total number of files from Joel's office, or, how did you arrive at that number. Perhaps you can state that briefly.
A I arrived at that figure exclusively by reports from the assistants of Joel who always complained to me that they were extraordinary overworked because enormously large numbers of cases were submitted to them every day.
Q. From general experiences that one has in life and in the civil service, can one say that the assistants usually like to exaggerate the number of files they receive?
A I cannot answer that in such a general way. It depends upon the person of the assistant, whether he would like to describe himself as heavily overworked. I would accuse the assistants of Dr. Joel in making such a statement of a behavior which perhaps is not pertinent.
Q But if you do hear and you are told that the cases that were received in Joel's department amounted to about fifteen hundred per year, would you have misgivings about this, or, could it be correct?
A The files word after all submitted repeatedly; and, as far as I remember, they did not receive new file numbers again and again; thus, it is easily possible that the number of files that were being worked on and the actual file numbers of cases did not correspond.
Q, Now, a few cases regarding tho activity of the referent. What did a referent have to do if he did not consider an intended application by the senior public prosecutor which was referred to him and which reported about tho extent of a penalty, it justified nor appropriate.
A The reports by the senior public prosecutor wont via the senior general public prosecutor and ho also reported his opinion to the general public prosecutor. The referents were authorized to make decisions themselves if the senior public prosecutor and the general public prosecutor wore of the same opinion; of there was a difference of opinion, there was a regulation that the sub-division chief had to have the files submitted to him. That is at least the way the matters wore handled in my department. How it was in the special sections I cannot know with certainty, because special departments under a referent were not subordinated to me.
Q Now, if a referent who received a case, in the way you just described, and if he was of the opinion that contrary to the opinion of the senior public prosecutor and general public prosecutor a death sentence should be pronounced, could he in that case, on his own, give this instruction to the lower office, or, what stops did ho have to take?
A In accordance with regulations, he would then have had to report the case to the sub-division chief, or, if the division was immediately subordinate to the Ministerial Director, he had to submit it to the Ministerial Director directly.
Q. In your affidavit you mentioned that a file which was supposed to have been examined -- in this file there is mention of thirty pigs and four cows, black slaughtering - there was a motion for the death penalty. I want to come back to this and ask you the law regarding the war economy, particularly asconcerns serious cases of of lenses against the provisions; especially serious cases violating the war economy, provided the death penalty. Now, if the question arises as to whether such an especially serious case exists, did not the number of black slaughterings or of the food that was taken -have to be taken into consideration?
A. The amount naturally had to be also taken into consideration, but in my opinion it was not the only reason which was decisive as to whether a case was especially serious or not. In my opinion the personal conditions, and other individual circumstances surrounding the offense had to be taken into consideration and in addition to the amount of the rationed goods that were removed.
Q. In examining these questions, was a referent bound by certain directives which generally developed from the jurisdiction of the courts and also from the instructions issued by the ministry. Did certain principles develop there; also regarding the amounts of the goods violated?
A. Regarding the war economy cases, I hardly ever had anything to do with them, but I have to assume that without doubt certain practices developed. As to what extent it was due to instructions of the Minister or of the under secretary, I cannot tell you, for these instructions must have gone directly to the special referat for war economy cases. I did not receive such instructions.
Q. If the referent now found out that a motion for a penalty which a senior public prosecutor wanted to make and which he reported about did not take into consideration that in this case it was an especially serious violation regarding the food stores protected by law, did the referent then not have to in accordance with his duty report this case to his division chief and to tell him all the facts?
A. Certainly he had to.
Q. In that case would it have been serving the purpose if the referent or his assistant would have made a few notes for such a report in which he would have put down in particular those characteristics of the offense which had been overlooked previously?
A. That is certainly correct, but in my opinion the amount of the goods were not the only decisive factors. Therefore, the circumstances of the individual case would also have to be put down in those notes.
Q. But in this note that you produced in your affidavit, is that not only an assumption that you give as an example, that for example, those thirty pigs and four cows mentioned here by you, from your memory arc not connected with any specific case. Could these figures have been different; could they have been higher?
A. That was supposed to beenly an example. It does not refer to an individual case. Certainly it impossible that the figures were higher; perhaps it is also conceivable that they were lower. I did not after all have anything to do with those cases, but occasionally afterwards as far as they were Austrian cases, I was informed about them. It is absolutely possible that I estimated the figure too low or too high; it was only supposed to be an example, how the notes looked.
Q. Put nevertheless, did you ever calculate what such a figure seems to be, so small, what it actually means, namely, thirty pigs and four cows are the monthly ration of meat and fat for about two thousand people. Do you suppose that such black slaughtering would endanger the monthly ration of two thousand people; if you assume that that does, does, that not appear as very important and could be termed as a very serious case?
THE PRESIDENT: Just a moment. May I suggest you are asking for inferences which any intelligent person could make. It is not necessary to encumber the record with such matters.
Q. In your affidavit you say that Dr. Joel added the following word to his note, and I quote: "Einlegen." (to be filed) This word we don't know; it is not familiar to us, and I have to confess as far as I am concerned that I don't understand it in that connection. What is the meaning of the word "einlegen." Is that an Austrian expression?
A. Yes, that is an Austrian expression. In the Reich one used to white "ad acta" means to be filed. The word "Einlegen" means that no decision will be issued. If the reports wore submitted for information) if then, one was in agreement, there was no cause to issue a final report, but if the report was to the effect that a definite decision was only suggested, an instruction was always issued by the Ministry of Justice. The word "Einlegen" thus refers to the first cases where information was given for example, the senior public prosecutor wanted the death sentence; the general public prosecutor agreed; if the referent then had no objection, he did not have to issue a special decision.
Q. Is your knowledge of the work of Dr. Joel in these individual cases, based upon your personal experiences as temporary superior?
A. I was never Dr. Joel's superior; I only occasionally saw those files, especially at the beginning of the war, that concerned Austria; I received them for information, but I was never Dr. Joel's superior; and, therefore, I never had to approve cases on which he worked either.
Q. Did Dr. Joel also have to deal with the clemency question in the cases which you discussed?
A. The clemency question was handled differently; it depended upon whether it was a death sentence or a prison sentence, or, a money fine. As far as the death sentences were concerned, special referents, the so called death sentence referents, dealt with the clemency question.
Q. Did Joel belong to these special referents during the time in question?
A. No, Joel never was a death sentence referent.
Q. You, yourself, as sub-divison chief, or deputy to the chief of the penal division, did you have to deal with such death sentence clemency questions?
A. With death sentences I had to deal only when they either concerned Austria or, during the last period, if they concerned juvenile offenders. In addition, I dealt with the death sentences only when the Ministerial Director, as well as the Ministerial Diregent, who was a deputy of the Ministerial Director, if both of them were simultaneously out of town for a short period; this lasted only a few days; then, these death sentence cases were submitted to me.
Q. In your activity in Berlin, did you make observations to the effect that in those clemency questions differentiations were made between the pure facts and the circumstances existing outside of the facts of the case, as, for example, the fact mentioned here that the criminal was an only son; did that prima facie rather belong to the clemency question than to the jurisdiction of the court which decided it in the first instance?
A: No, these questions should have been decided only in the clemency procedure. But now, under Thierack, the position was taken by the Minister that during a war individual reasons for granting clemency could not be taken into consideration. The deterrents, not only of the sentence, but also of its execution, were in the foreground. Therefore, as far as I had to deal with Austria, with criminal offenses which had to be sentenced by death, I always made efforts to consider such accompanying circumstances in the decision regarding the motion for penalty, in as far as the circumstances, of course, touched upon the guilt of the offender in any way. I could not have done so if, as you mention the fact that a defendant was an only son had no influence on the offense itself.
Q: As a section chief, you were opposed to the death sentence. Now, when you had to decide in cases where the death sentence was involved, did you always decide against the death sentence? Or, in spite of your basic opposition to the death sentence, did you, in your decisions, keep within the scope of the directives which your superior had given to you?
A: I am a basic opponent of the death sentence, but I have to admit without further ado that under special circumstances it is not possible at all to eliminate the death sentence. I was merely of the opinion that a too frequent application of the death sentence would dull the sword of justice. It was not possible for me -- even when I acted as deputy of the Ministerial director, when I was present in such capacity when reports were made about the death sentence, to be always against the execution. That was impossible. I only weighed the individual cases and made efforts, at least in those cases where important mitigating circumstances existed, to -
THE PRESIDENT (Interposing): I believe you have sufficiently answered that question. We care not greatly concerned with the position or attitude of this witness, in any event, not directly concerned.
BY DR. HAENSEL:
Q: As to the points of view which were considered by the authority deciding clemency matters, in the clemency decision did you also have to consider whether the sentence was in accordance with prevailing law?
A: Yes.
Q: In that connection, daring your activity in Berlin was the question discussed as to whether the valid law that was applied was in accordance with international law? For example, were those who worked at the clemency agency permitted to, or did they have to, examine the question as to whether German or Austrian law was in accordance with international law?
A: No, that was not reviewed because, as far as legislation was concerned, we received instructions for Austria either directly from Undersecretary Freisler or from Minister Guertner, or, later on, from Minister Thierack.
Q: And you always regarded these instructions as binding in your position as deputy division chief?
A: Of course, we had the right to make objections from a technical point of view, and we could make use of that privilege. However, regarding the question of international law, we did not review that.
Q: One final question. In that connection the word "votum" was repeatedly mentioned, and "votieren", the verb. The attitude of a Referent who makes a report in clemency questions was described as "votum". "Votum" means the vote.
Does "votum", in the meaning of the reporting Referent, mean that he had to cast a vote or a ballot, or does the word "votum" have quite a different meaning in that connection?
A: The word "votum" is used in Austria too; it does not mean a vote in the sense that a plebiscite or an election had to be undertaken, it only means a statement or a suggestion, because the event took place in the following way: The Minister, or the former Undersecretary, Dr. Freisler, heard reports. The Referent, the Subdivision Chief, the Ministerial Director, every one made some statement as to what way he considered the correct one in dealing with a case. The decision was made -
THE PRESIDENT (Interposing): Your answer is sufficient and clear. We didn't think there was a plebiscite.
DR. HAENSEL: Thank you. I have concluded my questions.
DR. DOETZER (for Dr. Schilf, Counsel for the defendants Klemm and Mettgenberg): May it please the Tribunal, may I continue the cross-examination?
BY DR. DOETZER:
Q: Mr. Section Chief, you deposed an affidavit which the prosecution has submitted as Exhibit 43, and which the Tribunal accepted. I would like to put some questions to you on behalf of the defendant Mettgenberg.
Do you know the defendant Mettgenberg?
A: Yes.
Q: For how long did you work together with him in the Ministry?
A: From March 1939, when I came to the Reich Ministry in Berlin by way of a transfer.
Q: That is to say, four years?
A: Yes, but I wish to state that as to working together, one can hardly call it a collaboration because my subdivision and that of Mettgenberg were, of course, absolutely different from the point of view of their contents. Mettgenberg was my superior only to the extent that he was deputy of the Ministerial Director. However, for the Austrian sphere, an exception was made because in case of the absence of the Ministerial Director I myself was his deputy and as far as Austria was concerned, Mettgenberg was not my superior.
Q: All right. Did you meet him frequently officially?
A: Yes. I am still grateful to him to this day. The official routine in the Reich Ministry of Justice was not familiar to me; it was quite different from the routine in Austria, and Mettgenberg introduced me into the secrets of this official routine.
Q: Thank you, witness. Did you ever have any reason to doubt the truthfulness of the defendant Mettgenberg?
A: Never.
Q: Witness, in your affidavit, which I have already mentioned here, you describe an occurrence which took place in 1943 or 1944, or which is alleged to have occurred then, and which is supposed to have consisted of Mettgenberg, together with Vollmer, having gone to Mauthausen and then subsequently discussing this trip to Mauthausen with you. Do you still know for what reason Vollmer and Mettgenberg were supposed to have taken that trip?
A: I suppose that Minister Thierack also went along at that time, tut I know nothing of the cause for the trip. I was surprised when I suddenly received the files as deputy of the Ministerial Director. At that time I made inquiries as to where the two gentlemen were, and I was then told that they had gone to Mauthausen.
However, I don't know the reason for the trip.
Q: Furthermore, you say in your affidavit that you should have gone along to Mauthausen.
A: Well, yes. I was subdivision chief for the Austrian legal sphere, and therefore I should have assumed that, if a trip was taken to Austria by the leading officials, I, as an Austrian, would be taken along.
Q: Thank you. The defendant Mettgenberg, in the witness stand under oath, testified here that he was never in Mauthausen, that he didn't know Mauthausen at all, and that, during his previous interrogation, he didn't even know where Mauthausen was situated, and that he did not discuss it with you either. My question to you now is whether in your recollection of this fact, you are not making some kind of a mistake and that possibly another Referent of the Ministry participated in this trip together with Vollmer, possibly Ministerial Counsellor Mietschke?
A: I have to say that I consider it impossible that I made an error.
A: Then you believe that the defendant Mettgenberg, about whom you first said that officially you considered him a truthful person, here testified an untruth under oath?
MR. WOOLEYHAN: I object, Your Honor.
THE PRESIDENT: That question is objectionable. The witness is entitled to state his belief and his best recollection concerning the facts. If he differs with the witness Mettgenberg, or any other witness, the question as to the accuracy of the respective witnesses is exclusively for the Tribunal.
DR. DOETZER: Then I have a few questions to ask on behalf of the defendant Klemm.
They refer to Exhibit 534.
BY DR. DOETZER:
Q: Witness, in this exhibit you describe the occurrence of a lightning execution. This was a case which occurred on the West Railroad Station of Vienna. Large numbers of postal thefts were supposed to have occurred, death sentences were supposed to have been pronounced, and two or three hours later the execution is supposed to have taken place. Do you still recall who ordered this lightning execution?
A: No.
Q. You furthermore mention in your affidavit how lightning executions were carried but in general, and then you state that if the Referent had called the Ministerial Director and had given his expert opinion, the Minister or the Undersecretary was called by telephone regarding the decision concerning the clemency question, and Dr. Rothenberger and later Klemm might have been the Undersecretary in question. Now I want to ask you, was there a provision as to when the Undersecretary had to be called and when the Minister had to be called? What is your description here based on?
A. In principle the Minister was called; the Undersecretary only had to be called when the Minister could not be reached.
Q. Did you ever experience a case of that nature?
A. I only experienced one case of such a lightning execution. In that case I called the Minister. This was a case in Berlin.
Q. Thank you, that is enough for me.
Furthermore, you mention in your affidavit that, because of the number of death sentences, you called upon Minister Thierack and pointed out to him that moderation in sentencing had been lost. You then continue and say that the Minister was of the opinion that during a war one should not become soft.
The next sentence starts, and I quote literally:
"Thus, during the last year more than eight thousand executions took place in cases before the Civil Administration of Justice alone." My question now is this. What do you mean by "last year"?
A. I meant the year 1944.
Q. My further question is this. Witness, where did you get that figure, "more than eight thousand executions"?
A. The figure was in a communication which, if I remember correctly, was in circulation among leading officials, that is, the Ministerial Directors, the Ministerial Dirigents. Such communications about especially important circumstances were circulated, I believe, during the last year, and they went out under the signature of the Minister.
Q. In this case too your memory is not mistaken?
A. No. I believe that at the time I was in Fuerstenhagen. in detention, where the files of the Ministry of Justice which had been found had been assembled in part, I even saw the statistics of the death sentences, and I held that statistical list of the death sentences in my hand.
Q. Thus, you do not wish to correct your memory here in any way at all?
A. I cannot do it.
DR. DOETZER: Thank you. I have no further questions.
DR. GRUBE (Counsel for the defendant Lautz): May it please the Tribunal, in my document book IV-B, as Lautz document 182, an affidavit of the witness, Dr. Schomel, appears on pages 66 to 68. When I introduced my documents I offered this document as Exhibit 189. At that time the Tribunal decided that this affidavit would merely be accepted with reservations, in case the witness Dr. Schomel should not appear. Therefore, I request permission to examine the witness Dr. Suchomel as my own witness.
DIRECT EXAMINATION DY DR. GRUBE:
Q. Dr. Suchomel, is it correct that on the 3rd of June, 1947, you deposed an affidavit on behalf of the former Senior Reich Prosecutor Dr. Lautz?
A. Yes.
Q. Did you also give me another affidavit for Lautz?
A. No.
Q. May I submit this document to you?
(Document submitted to the witness)
Will you please state whether this is a copy of the affidavit which you deposed on the 3rd of June for Chief Reich Prosecutor Lautz?
A. Yes, it is. I signed it in my own hand.
Q. You yourself signed it?
A. Yes.
Q. Do you recognize the contents of this affidavit as being correct?
A. Absolutely. If I give an affidavit, I only give it about those things that I know.
Q. Then you make this affidavit the contents of your testimony today?
A. Yes.
DR. GRUBE: Thank you.
I have no further questions.
THE PRESIDENT: Just a moment, please. What number was given to the affidavit tentatively?
DR. GRUBE: This affidavit bore the number Lautz document 182, and was supposed to get the Exhibit No. 189.
THE PRESIDENT: What is the last exhibit number of a Lautz exhibit, please?
DR. GRUBE: Just a moment, Your Honor. As far as I remember, it is number 216, either 215 or 216, but I don't know that for certain from memory.
THE PRESIDENT: Thank you very much; I have found it.
DR. ORTH (Counsel for the defendant Alstoetter): I had the intention of submitting in evidence, on behalf of the defendant Alstoetter, an affidavit by Dr. Suchomel. In consideration of his presence here, however, I request permission to ask the questions here.
THE PRESIDENT: You may do so.
BY DR. ORTH:
Q. Witness, the prosecution introduced, as Exhibit 45, the minutes of the discussions among the division chiefs which took place in the Reich Ministry of Justice. From the minutes of these meetings it is apparent that you participated in these discussions. How I want to ask you, when and why were these conferences between the division chiefs introduced?
A. Minister Thierack started these conferences of division chiefs for the purpose of informing the division chiefs about what the other divisions were already working on or were still planning to do. At that time I participated in these division chief conferences. Because of the illness of the Ministerial Director of the Legislative Division for Penal law and the illness of his deputy, I was put in charge of the Penal Legislative Division temporarily at that time. That was, if I remember correctly, from March until the end of 1943. At the end of 1943, Dr. Vollmer, then a division chief for the Penal Legislative Division, was appointed to that position. From that time on, at his request-and only when he requested me--I participated in the division chief conferences, only because, as is understandable, at the beginning of his activity Dr. Vollmer was not immediately familiar with all fields which were concerned in the discussions at the division chief conferences.
Q. In order to cite an example for the Court, form Exhibit 45 it is apparent that in such conferences you reported about the status of the work in Division III. Do you still remember what you reported about at the time?
A. No, I can hardly do that today.
Q. In connection with your affidavit, you told me at the time that as far as you remember you reported about ordinances regarding the assimilation of the Austrian and German penal laws and about price regulations.
A. Yes, that is possible, but I can't tell you anything more today about anything else that I reported on. I must have talked about the assimilation of German and Austrian laws; I must have talked about that because that was the main work that was being done at the time. I must also have talked about criminal legislation regarding prices, but I can't tell you any more today what else I talked about.
Q. That is enough, witness. I only wanted to have a few examples.
Were secret matters ever reported on in the division chief conferences?
A. Certainly not.
Q. Can you recall whether the defendant Alstoetter also reported in such conferences?
A. Yes.
Q. Did the reports given by Alstoetter give you, who were not a member of the Party or one of its formations--did his reports give you any cause for misgivings to the effect that their execution might be illegal or even criminal?
A. I repeatedly heard Alstoetter report. His reports were always kept on a purely technical basis. Also, from my point of view, as a non-Party member, I had no objections to them.
I still recall that Alstoetter, when it was the question of taking away some of the burden from the Ministry of Justice, took the position that the means for defense by a lawyer should not be cut down.
I cannot say with absolute certaintly whether in this news of the mitigation was discussed at a division chief conference, but as far as I remember I believe that it was at a division chief conference because that amend touched not only criminal law and civil law but also other fields.
Q. Witness, in this trial, the law against asocials was repeatedly discussed. Do you recall, and is it correct, that Minister Thierack had already approved the legislative draft which was set up ministerial Director Rietsch together with the RSHA?
A. Yes.
Q. Is it correct that the defendant Altstoetter then opposed to this draft decisively?
A. Yes, that is correct too.
Q. Thank you. I have not further questions.
THE PRESIDENT: Does counsel for any other defendant desire to examine the witness? Hearing of no such desire, you may cross examine. I take it that in part it is cross examination and in part redirect?
MR. LA FOLLETTE: Yes, Your Honor.
THE PRESIDENT: You may proceed.
EXAMINATION BY MR. LA FOLLETTE:
Q. Dr. Suchomel, at the time the defendant Altstoetter was in the Ministry of Justice, was the existence of the Nacht and Nebel Decree a secret matter in the Ministry of Justice.
A. Yes, it was.
Q. Did you know about the Nacht and Nebel decree in 1943 and '44?
A. About that decree, I heard only quite by chance when once for a few days I had to be deputy for the Ministerial Director. The designation "nacht und nabel" decree, I did hear, but what it was all about I did not know to that very day.
Q. But had it excited any curiosity -the term "Nacht and Nebel"-in you, you would have felt fee to ask any other member of the Ministry of Justice just what that meant, wouldn't you?