These “gaps” in the evidence were shown by [NG-261 and NG-264] Prosecution Exhibits 334 and 335 in which the public prosecutor at Katowice complained of the difficulty of securing sufficient proof due to the utter secrecy of the proceedings. The Gestapo alone presented the evidence by “rather dubious police transcripts” and “such police records occasionally had been obtained by inadmissible means.” Mettgenberg testified that defendant von Ammon made an official trip to Upper Silesia to discuss these matters with the chief judge in Belgium and northern France “to remedy that state of affairs.” This action did not take place until 30 June 1944, which was only a few months before the Night and Fog matters were taken out of the hands of the Ministry of Justice, and all prisoners then held by the Ministry of Justice were transferred to the Gestapo to be placed in concentration camps.
Mettgenberg also testified to the difficulties experienced with the Gestapo arising out of the fact that the Gestapo transferred many of these prisoners directly to concentration camps and thereby retained control over them. Nothing was done about the fact that the police took the NN prisoners into police custody and retained them in police custody.
We find defendant Mettgenberg to be guilty under counts two and three of the indictment. The evidence shows beyond a reasonable doubt that he acted as a principal, aided, abetted, and was connected with the execution and carrying out of the Hitler Night and Fog decree in violation of numerous principles of international law, as has been heretofore pointed out in this judgment.
THE DEFENDANT VON AMMON
From his own sworn statements we gain the following information concerning the defendant von Ammon. He joined the SA in December 1933, in which organization he held the rank of Scharfuehrer. He joined the NSDAP in May 1937. He was called to the Reich Ministry of Justice as of 1 January 1935, became a Landgerichtsrat on 1 February 1935, and Landgerichtsdirektor on 1 July 1937. His main activity in the Ministry during that period concerned “questions of international legal usage in penal matters”
After the Austrian Anschluss he was employed as liaison officer of Department III (penal matters) in connection with Department VIII (Austria), in the Reich Ministry of Justice. He was consultant in the department for the administration of penal law under Ministerialdirektor Crohne. He was transferred to the Munich Court of Appeals as Oberlandesgerichtsrat where he served until June 1940, at which time he was recalled to the Reich Ministry of Justice. As of 1 March 1943 he was appointed Ministerial Counsellor in the Ministry of Justice. He states (NG-852, Pros. Ex. 55):
“From 1942 onward I dealt mainly with Nacht und Nebel cases in the occupied territories. In my capacity as consultant for Nacht und Nebel cases I made several duty trips to the occupied territories and took part in discussions in Paris and Holland which dealt with questions of Nacht und Nebel proceedings.”
The broad scope and the variety of the official activities of von Ammon may be illustrated by reference to reports which he made to officials of the Ministry of Justice during the year 1944. On 14 January 1944 he reported at the Ministry upon “jurisdiction of Denmark”. On 10 February he reported to the minister on “Competence for Prosecution of NN Cases.” On 31 May, under the heading “Submissions to the State Secretary” (Klemm), he reported on “Action Against Stateless Jews, Admission of Legal Procedure.” Under the heading “Reports to the State Secretary” for 21 June 1944, he reported on “Pastoral Service for NN Prisoners”, after which in handwriting appears the word “rejection”. Under the heading “Submissions to the Minister” for 26 July, he reported on “Proceedings of State Police in Lower Styria.” Under the heading “Reports to the Ministers” of 5 October, he reported on “Taking Over of Criminal Proceedings from the Eastern Districts.” Under the heading “Formal Verbal Reports to the Minister” of 3 November 1944, he reported on “Liquidation of Offenses from the Eastern Territories.” On 10 January 1945 it appears that he made a verbal report on the “Taking Over Administration of Penal Justice of the Minister for the East.”
The prosecution introduced in evidence a captured document of 142 pages in length, containing lists of many hundreds of death sentences which were submitted to the Minister of Justice and at times to State Secretary Klemm for final disposition. The cases were classified as “clear” or as “doubtful.” The former, “clear,” outnumbered the latter. An examination of the document discloses that between 14 January 1944 and 16 November of the same year the defendant von Ammon made twenty-four reports on cases in which persons from the occupied territories had been sentenced to death under the Nacht und Nebel procedure. The death sentences averaged more than one for every 3 days of the entire period.
In a notice addressed to Under Secretary Rothenberger, and to Minister Thierack, von Ammon reported that on 1 September 1942, in Kiel, Essen, and Cologne cases were pending against 1,456 persons charged under the Night and Fog decree.