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?
A. To interfere with secret matters, avoided mist carefully. I have already emphasized once that in every office, in mine too, there were posters to the effect that secret matters should be told only to those officials who had to deal with those matters, and it also pointed out expressly that violations would be tried under the regulations regarding treason and would be punished accordingly, Therefore, it was understandable that I avoided interfering in any matters that did not concern me.
Q. Yes, but isn't this right, if you didn't know about the Nacht and Nebel decree then how would you know that it was a secret matter that you shouldn't ask about?
A. I did not at all. I heard the designation "Nacht and Nebel Decree" and from the designation alone I concluded that something was being hidden here because the designation it itself doesn't say anything at all, and therefore I immediately supposed that there is something secret behind it.
Q. And are you prepared to say to the Court positively that a man in as important a position as the defendant Atlstqetter--a man who is a close personal friend of Himmler's and a man who was highly regarded by Thierack would not have known of the existence of the Nacht and Nebel Decree and its meaning, even though you never heard it brought up at meetings of the staff of the Ministry of Justice?
A. Well, I have to say that about a special friendship of Altstqetter with Minister Thierack, I did not know anything. That Altstqetter was also supposed to have been a friend of Himmler, I hear that for the first time today. I beg you to forgive me that about such matters I have no knowledge. I can only repeat again and again that because I was not a Party member, with all matters that did not concern me I did not interfere in any way and carefully avoided in to make any inquiries about them.
Q. I understand. But I just want to ask you once more, because of the fact that you were not a Party member, in itself, you don't care to say positively in the Court that the defendant Altstqetter could not have known of the Nacht and Nebel decree and of its significance?
A. If he had obtained information about it, this could have been only by violating Hitler's decree, and whether anybody violated this decree--I as an outsider cannot judge. It's impossible for me to judge.
BY THE PRESIDENT:
Q. Do you know that authorities in the Ministry of Justice were expected to know of the decree? Surely it wasn't a violation for some of them to know about it?
A. No, certainly not. The Referent who dealt with Night and Fog cases had to know about it, also his sub-division chief and the Ministerial Director. The Ministerial Director was Volmer. And prior to his time I really don't know whether the Nacht and Bebel decree was supposed to have been before Thierack's time--then it would have been Ministerial Director Crohne-but I really don't know whether it was before Thierack's time or not.
BY MR. LA FOLLETTE:
A. But if matters having to do with the non-recording or secret recording of deaths and of matters concerning estates of guardianships of death records were handled by the defendant Altstaetter's Division VI, then you wouldn't be prepared to say to the Court that knowledge of this decree did not reach the defendant Altstaetter?
A. If they dealt with the estates or with matters of wills, then he must have had knowledge about it, bit I don't know whether they were dealt with in Division VI.
Q. That is all. Thank you very much.
DR. ORTH: I should like to ask some questions in redirect examination regarding the last question asked by the prosecutor.
THE PRESIDENT: You have three minutes.
REDIRECT EXAMINATION BY DR. ORTH:
Q. Witness, if, for example, because of the wills made by NN prisoners, Division VI is requested to make a regulation as to the form of will, was it then necessary and admissible to inform Division VI about the contents and the nature of the NN decree?
A. I could answer that question only with an assumption, and I must say it is difficult for me when I am testifying here under oath to utter mere assumptions for which I have not real basis; for I, myself, as I have stated before, heard about it, read the Nacht and Bebel Decree once superficially, and read about NN prisoners being transferred somewhere else from the Rhime or from somewhere. I read this NN decree only briefly. I don't recall it full contents any more, and therefore I must say I can also not answers whether the contents of this decree and the knowledge of the contents of the decree was necessary in order to make any regulations about matters of wills. I don't know that.
Q. Thank you. I have no further questions.
THE PRESIDENT: The witness may be excused. The Tribunal will recess until one thirty this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 27 August 1947) THE MARSHALL:
The Tribunal is again in session.
PAUL BARNICKEL - Resumed DIRECT EXAMINATION - Continued BY DR. TIPP:
Q. This morning we were interrupted when we discussed the practice in transferring matters. You already described two cases, and in this connection may I ask you whether you can mention some other typical cases where in your opinion you may have saved the defendant's life or at least spared him a more severe sentence?
A. By coincidence among the documents submitted by the Prosecution I discovered two more cases which should be mentioned in this case. One case is in Document NG 591, Exhibit 542. As I can see from the document, as inkepper of Hamburg was sentenced to one year in prison by the District Court of Appeals in Hamburg for undermining of military morale.
Q. May I interrupt you, Witness? Can you tell the name of the inkeeper from the document?
A. Yes, his name was Alt.
Q. May I ask you to continue.
A. He had served his term when the General Public Prosecutor and the President of the District Court of Appeals Hamburg were asked by the Ministry of Justice to give an opinion. Subsequently the Chief Reich Prosecutor received the assignment to examine the question of an extraordinary objection. The background and the further course of these proceedings cannot be seen from the document by for my own knowledge I can sy the following: I have already mentioned that cases from the District of Hamburg were dealt with in my department. That was the case here also, and I had transferred the case to Hamburg. When in 1944 the Minister gave the assignment to examine the question of the extraordinary objection, my department was concerned with it. As such dur ing that year I no longer had anything to do with cases of undermining of military moral, but such assignments were dealt with by the department which originally had handled the case.
The statements made by the defendant were, as far as the People's court were concerned, to be considered rather serious and if indicted before the People's Court he would have had to expect at least a considerable penitentiary term uner Freisler, even the death sentence. According to the circumstances of the defendant and the circumstances under which the statements had been made, I, however, considered the transfer of the case justified. Since a principal decision could not be made when dealing with the assignment to reexamine the case. I assumed the game moderate attitude, lenient attitude, as before, and suggested that one should refrain from making the extraordinary objection. I can no longer tell with absolute certainty what the outcome was, but I believe that one did refrain from making an extraordinary objection.
THE PRESIDENT: May I ask, you said the case would have resulted in a death sentence if transferred to Freisler's court. Is that where you would have transferred it if you had not disposed of it otherwise?
THE WITNESS: Mr. President, as I have explained, according to the distribution of work Freisler could take certain cases into his senate. We, that is our department, as I have already mentioned in dealing with the statistical list, always filed our indictments with the Fourth Senate, but Freisler had the possibility to pick out individual cases.
THE PRESIDENT: Then the choice, so far as you were concerned, was between sending it to the Fourth Senate or to dispose of it as you did. You would not have sent it to Freisler in the first instance?
THE WITNESS: No. We never did send---if I may say, "address it to Freisler.
BY DR. TIPP:
Q. Witness, you mentioned another case which can be seen from the documents of the Prosecution. Would you care to comment on that?
A. In the same Exhibit 542, Document 593, another case of that nature in mentioned, which was also transferred from my department to Hamburg. As the Ministry stated in this case, one considered a prison term, a penitentiary term, appropriate. The District Court of Appeals, however, had pronounced a prison sentence. Since the Ministry, however, in this case had refrained from making an extraordinary objection, I no longer had to handle that case. Therefore I am not in a position to comment any further on it.
Q. I believe, witness, that selection well suffice.
DR. TIPP: In this connection may I also point out that concerning the practice of transferring cases, the practice of Dr. Barnickel's particularly as far as cases from Hamburg are concerned, I expect to submit an affidavit from Document Book 2. It is the affidavit by Dr. Stegemann of 21 July 1947. It is found in Document Book No. 2 on Page 104. Dr. Stegemann describes in detail the practice of Dr. Barnickel with regard to transfers and also the practice of the penal senate of the District Court of Appeals of Hamburg.
Q. For further clarification I should like to ask you, Witness, was Dr. Stegemann in any relation of subordination to you?
A. No. He was the Senior Referent with the General Public Prosecutor in Hamburg for political penal cases. His superior was the Public Prosecutor at Hamburg.
Q. Witness, now I should like to refer to another chapter. You mentioned already that you had something to do with the execution of sentences in addition to the cases you already mentioned. May I ask you now to comment briefly on that, that is to say, how in a different way you became active in connection with the execution of sentences.
A. Apart from some individual dispositions which I have mentioned yesterday, in connection with the execution of sentences there were cer tain decisions similar to clemency decisions which could be made by the chief of the department.
But such decisions the sentence was not changed anything in that. However, they could offer certain advantages to the convicted person.
Q. Perhaps you can give us a few further explanations in that connection.
A. If I am permitted to give a few examples, it was essentially a question of the temporary interruption of the execution of sentence, for instance for reasons of sickness, of afraid consequences, casualties in the same way, and other things of that kind. The department chief could do a lot in that direction and I made use of that possibility to a great extent.
DR. TIPP: May it please the Court, concerning these activities of Dr. Barnickel's I would like to offer from Book 1 Page 59 Burnickek document 17. That is an affidavit by Dr. Freiherr von Kress, chief surgeon of the Lazarus Hospital of Berlin of 20 February 1947. Since that affidavit for various reasons is of essential importance, may I be permitted to quote briefly from it?
"In the year 1942 in my ward in the hospital there was a patient, Herr Umrath, from Berlin-Dahlem, who was a half Jew and who for reassons of his activity against the National Socialist regime had to serve a penitentiary term. Since during his stay in the penitentiary the beginnings of a serious disease became apparent, his fater achieved that by the decision of the Reich Prosecutor Dr. Barnickel the term was interrupted and the patient, in order to investigate his disease, could be received in my ward at the hospital. When the time for which approval for the interruption of his term came to an end, but the patient was still in a very bad condition, I approached Dr. Barnickel and asked him, explaining the circumstances, to decide to dispose that a further extension be granted and that beyond that he permit the patient to stay in the Bavarian mountains, a fact which would be beneficiary for his recuperation.
With great human interest for the case and the particulars of the case, Dr. Barnickel immediately granted my request. This action on the part of Dr. Barnickel certainly guaranteed an extension of the life of the patient."
May I ask that his document, which seems highly relevant to me, first for the attitude of Dr. Barnickel in the racial question, and secondly for his handling of matters concerning execution of sentences, be accepted as Exhibit 18.
THE PRESIDENT: The exhibit is received.
BY DR. TIPP:
Q. Witness, maybe you can briefly explain the case Umrath.
A. The sentence against Umrath happens to be among the documents submitted. It has the exhibit number 145. First, the father had repeatedly come to see me, and then the doctor also came, and for that reason I could make investigations about the case. Cases of that nature frequently occurred with me, particularly by foreigners. I have nothing to add, counsel.
Q. Witness, did you have absolute freedom of decision in that field, or was the chief of your office or the ministry entitled to say something about it?
A. If one wanted to report on the case, of course, one was free to do so. I used to handle this always within the limits of my freedom of decision, and of course in doing so I assumed the full responsibility. If, for instance, during such an interruption of term as in this case the defendant had disappeared I would have incurred the most severe consequences. I assumed the risk for that, and I do have to state that I was never disappointed by any one of the individuals convicted. They all came back.
Q. In Exhibit 159, the case Beck, witness, a case which we have discussed already, the Prosecution expressed the suspicion that the fact that Beck was of mixed descent played a part. May I ask you to comment briefly on this?
A. I have said already yesterday that was out of the question, and I believe that is shown by the case Umrath. In that class of people to which I belonged I often met people of mixed descent without considering them as anything foreign. I could quote convincing examples from my private life, but I should like to restrict myself to the purely official cases. Although the case Umrath seems to suffice to explain my position I should like to mention the case of a Dr. Lapp, a case which occurred in 1942 which should be convincing enough.
Dr. Lapp also was a half Jew.
Q. Witness, would you please first tell the Tribunal in what connection you got in touch with Dr. Lapp?
A. In addition to my work as Reich Prosecutor I also held the office of a president of the senate of the German Medical Court in Munich. The physicians, such as the lawyers, the attorneys, for instance, had their own professional jurisdiction which dealt with ethical questions of their profession. There were lower courts and there was a higher court that was the German Physicians' Court at Munich. These courts were not, to be sure, Party courts. The Presidents of the Senate of that highest court had been appointed by the Minister of Justice and they were not even all of them Party members. In the case of an appeal concerning Dr. Lapp, who was from Ebenrode in East Prussia I was concerned with him. I would have completely forgotten about the case, had it not been for an entry in my diary which reminded me of it.
Q. Witness, I give you a file now and ask you to tell the Tribunal what file this is.
A. These are the original files of the German Physicians' Court concerning the proceedings for the professional court against Dr. Lapp.
Q. Will you please quite briefly on behalf of the files explain the circumstances to the Court as far as they seem to be important concerning the question we are now discussing?
A. It will suffice if I state that by the first sentence by the lower court that was presided over by a president of the District Court of Appeals Dr. Lapp was sentenced to be barred from his profession.