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Subj: Demanjuk Trial Summary 7-29-93
THE DEMJANJUK APPEAL
SUMMARY BY ASHER FELIX LANDAU
July 29, 1993
In the Supreme Court, sitting as a Court of Criminal Appeals, before the
President, Justice Meir Shamgar; the Deputy-President, Justice Menahem
Elon; and Justices Aharon Barak, Eliezer Goldberg, and Ya'acov Maltz, in
the matter of Ivan (John) Demjanjuk, appellant, versus the State of Israel,
respondent (Cr.A. 347/88).
The appellant, who was extradited to Israel from the United States in
February 1986, was convicted on April 18, 1988, in the District Court of
Jerusalem, of crimes against the Jewish People under section 1(a)(1) of the
Nazi and Nazi Collaborators (Punishment) Law of 1950; crimes against
humanity under Section l(a)(2) of the said Law; war crimes under section
l(a)(3) of that Law; and crimes against persecuted people under section
2(1) of that Law, together with section 300 of the Penal law of 1977. He
was sentenced to death and he appealed, both against the conviction and
sentence, to the Supreme Court.
The indictment against the appellant recited in some detail the origin and
development of the "Final Solution of the Jewish Problem", including what
is known as "Operation Reinhardt", devised by the Nazi regime in Germany,
and the acts of the appellant in the course of that operation.
"Operation Reinhardt" followed the organized massacres by bands of
murderers (Einsatzgruppen) which roamed through the East, concentrated
groups of Jews, and shot them. It was aimed at expediting and improving the
extermination process by rounding up Jews and conveying them to death camps
to be killed in gas chambers. It included guarding the victims on their way
to, and in, the camps, and their removal from the railway trucks. It also
covered mobilization of forced Jewish slave-laborers driven by threats,
violence, and murder, who collected their clothes and valuables, cut their
hair, and also tore out teeth from the corpses which they conveyed for
burial and later for cremation
More specifically, the appellant was alleged to have served as an S.S.
"Wachman", and to have perpetrated unspeakable acts of cruelty in
conducting victims in the Treblinka concentration camp on the way to their
death and to have operated, with his own hands, the engines which pumped
the poisonous exhaust fumes into the gas chambers, thus causing the death
of hundreds of thousands of people killed in this manner.
It was also alleged that the appellant, because of his cruelty, was called
by the prisoners in Treblinka "Ivan Grozny" ("Ivan the Terrible"), and that
he was widely known and recognized by that name.
The appellant did not deny that the cruel acts alleged in the indictment
had been committed, but he did deny that he had ever been at Treblinka, or
that he was "Ivan the Terrible" who had served there. The District Court,
however, found that his identity had been established, and that he had
indeed committed the acts attributed to him.
The Supreme Court, in its judgment, first related the background to the
extermination of the Jews in Poland, and then described in detail the
Treblinka death camp and the atrocities committed there, the part played by
"Ivan the Terrible" in those atrocities, and his criminal responsibility
for his actions under the sections of the Law cited in the indictment.
The Court then referred to the postponements of the hearing of the appeal
following the death of the late Advocate Dov Eitan, who was to have
appeared with Advocate Sheftel in the appeal, and following an injury to
Advocate Sheftel as a result of acid being thrown in his face.
Moreover, prior to the beginning of counsels' arguments on May 14, 1989.
and subsequent thereto, numerous applications were submitted - mostly by
defense counsel - for the admission of new evidence, and also for the
hearing of evidence on commission. Pointing out that section 15 of the Nazi
Punishment Law permitted the court "to deviate from the rules of evidence
if it is satisfied that this will promote the ascertainment of the truth
and the just handling of the case", and recalling the warning of the
Supreme Court in the Eichmann case that that power should be exercised only
where the new evidence would be of importance and could not have reasonably
been brought before the trial court, the Court had admitted further
evidence relevant, inter alia, to the identification of the appellant as
"Ivan the Terrible". After all the delays the hearing of the appeal,
including counsels' further arguments, eventually concluded on June 9,
1992.
Counsel had submitted, the Court continued, that the appellant could not be
tried for crimes under the Nazi Punishment Law since he had been extradited
to stand trial on charges of murder while the indictment referred to the
Nazi and Nazi Collaborators (Punishment) Law. Counsel had relied, in this
regard, on "the principle of specialty", embodied in sections 17 and 24 of
the Extradition Law of 1954 under which, in short, an extradited person may
not be tried in the country requesting the extradition for offenses other
than those for which the extradition was requested and granted, save with
the consent of the extraditing country or of the wanted person himself.
After citing numerous precedents and legal texts, and a far-ranging
analysis of the comparison between the crimes imputed to the appellant and
the crime of murder, the Court upheld the District Court's decision that
the principle of specialty had not been infringed in the present case.
A central feature relied upon by the court in this context was the
awareness of the American courts which dealt with the appellant's
extradition of the crimes for which he would be tried in Israel, and the
relevant sections of the Israeli statute which would be invoked. Judge
Battisti, in the court of first instance, said that "Respondent's argument
that one who kills an individual is extraditable but one who kills many is
not extraditable ... leads to an absurdity". Moreover, the American court
said, on appeal, that "...the particular acts of murder for which he (the
appellant) may be tried depend upon Israeli law. Israel may try him under
the provisions of the Nazi and Nazi Collaborators (Punishment) Law for
'crimes against the Jewish People' ('Killing Jews', a species of murder),
'crimes against humanity ('murder ... of civilian population') and 'war
crimes' ('murder of civilian population of or in occupied territory'). The
principle of specialty does not impose any limitation on the particulars of
the charge so long as it encompasses only the offence for which extradition
was granted".
Turning to the evidence of the appellant's identification as having served
in Treblinka and having personally operated the gas machines there, the
Court then dealt with the "Trawniki Certificate", which occupied a central
place in the trial.
Trawniki was the site of a training camp for Russian prisoners of war who
had volunteered to act as guards - Wachmaner - in assisting the Germans in
"Operation Reinhardt". The appellant, as a member of the Trawniki Unit, was
issued with a service certificate (Dienstausweis) as an "S.S. Wachman",
which included his photograph and stated his personal particulars
(including the place and date of his birth). The defense contended that no
such certificates had been issued, and that the certificate relied upon by
the prosecution was a forgery of the K.G.B. However, it was established by
experts that the certificate was authentic, and the production of similar
certificates disproved the contention that the "Trawniki Certificate" was
an isolated forgery.
Moreover, the additional evidence received in the appeal (which is dealt
with later in this summary), includes a "posting order" and "orders of the
day" in which the appellant's personal number, as stated in the "Trawniki
Certificate", is mentioned, and in one of which his date and place of birth
are recorded.
After considering, inter alia, the admissibility and weight of the
certificate as a "public document" or an "old document" under sections 29
and 43 of the Evidence Ordinance (New Version) of 1971, the evidence of the
experts, the appellant's own references to the certificate, and the right
of the court to rely on its own examination of the document, the Court
accepted the finding that the certificate was authentic, and proved the
appellant's participation in the extermination program - a finding
supported also by other evidence. However, it also agreed with the District
Court that the mention in the document of camps other than Treblinka in
which the appellant had served while Treblinka was not mentioned at all,
did not prove the appellant's denial that he had served there, but was to
be taken into account on this vital point.
The appellant, the Court continued, had pleaded an alibi both in regard to
the period during which he was alleged to have been in Treblinka, and also
after the extermination camps at Treblinka, Sobibor, and Belz had ceased to
function. After dealing with the legal aspects of the defence of an alibi,
and a close examination of the evidence relating to both these periods, the
Court agreed with the District Court that the alibi relating to the
relevant period (1942-1943) had had been completely rebutted while - in
view of evidence received after the trial - the rebuttal in regard to the
period after 1944 was not complete.
The Court then turned to the question of the identification of the
appellant as having served in Treblinka, and his activities there. Citing
numerous authorities, it dealt first with the general principles applicable
relating, inter alia, to the identification of a suspect on the basis of
photographs. It then examined, in great detail, the evidence of the
eye-witnesses who had testified before the District Court, or whose
statements had been admitted as evidence. In regard to the statements, it
also reviewed the procedures which had been followed to meet the demands of
section 15 of the Nazi Punishments Law which, as stated above, empowers the
court to deviate from the rules of evidence "if it is satisfied that this
will promote the ascertainment of the truth, and the just handling of the
case".
After a searching analysis of the evidence of all the witnesses relating to
the appellant's identity, and of defense counsels' arguments, the court
found no basis for interfering with the District Court's findings based on
that testimony. The Court dealt extensively, inter alia, with the
professional literature relating to evidence of identification after many
years, including the opinion that lapse of time does not, in itself,
preclude identification.
The Court also pointed out that the District Court, in admitting
depositions under section 15 above, had only deviated from the rules of
evidence in admitting the depositions of witnesses who had died in the
period between their examination and the trial, and only after those who
had taken the depositions had given evidence and were available for
cross-examination by the defense.
Before considering the additional evidence adduced after the appeal had
been lodged, the Court rejected the criticisms of appellant's counsel of
the manner in which the District Court had discharged its task.
The Court then turned to consider the additional evidence admitted at the
stage of appeal. This evidence consisted of written depositions, relating
to different periods, given in the U.S.S.R. by "Wachmaner" who were
examined in regard to their own crimes, and some of whom were sentenced to
death. Their testimony related to Treblinka, where they served, and not a
few of them mentioned a Ukrainian "Wachman" called Ivan Marchenko as the
person who operated the machines of the gas chambers in that camp.
In weighing the additional evidence, the court first dealt with the
necessity of proof of the defendant's guilt "beyond a reasonable doubt".
The authorities made it clear that the prosecution was not required to
provide proof "beyond all doubt". Some lingering or fanciful doubt was not
sufficient to justify an acquittal of the defendant. On the other hand, it
had been said that the degree of proof "need not reach certainty, but it
must carry a high degree of probability".
The Court explained that the expression "reasonable doubt" was to be
interpreted rationally. The evidence should be consistent, but if there
were contradictions, the Court was entitled to decide what evidence it was
prepared to accept. However, there had to be a reasonable basis for
rejecting evidence as untrustworthy.
The Court then analyzed in detail the additional evidence, citing also the
opinions of experts on identification. It was true that the direct
additional evidence consisted only of depositions taken in the U.S.S.R.,
without the testimony of those who had taken them. The number of these
depositions, however, created a reasonable doubt which could not be
dispelled by speculation and surmise.
After the most careful consideration the Court had reached the conclusion
that the evidence now before it created a reasonable possibility that the
appellant was not the person called "Ivan the Terrible" who operated the
gas chambers at Treblinka. That was the crime with which he was charged in
the indictment, and on that charge he was entitled to be acquitted.
On the other hand, the evidence before the District Court and the
additional evidence showed that the appellant had served as an S.S.
"Wachman" in the Trawniki Unit, and one deposition (of a "Wachman" called
Danilchenko) described in detail the appellant's service in Sobibor. This
deponent had also identified the appellant in three photographic
"identification parades", containing three different photographs of the
appellant. Danilchenko died before the appellant's trial had begun.
Under section 216 of the Criminal Procedure Law (Consolidated Version) of
1982, the Court continued, the court may convict the defendant of an
offence of which he is shown to be guilty by the facts proved before it
even though those facts are not alleged in the indictment, provided the
defendant has been given a reasonable opportunity to defend himself.
The facts proved the appellant's participation in the extermination
process, the Court noted, and could perhaps sustain his conviction of other
offenses under the Nazi Punishment Law. The application of section 216,
moreover, could also require a reconsideration of the "principle of
specialty" in regard to such offenses.
In view, however, of the circumstances now existing, the Court had decided
not to apply section 216 in the present case. Affording the appellant "a
reasonable opportunity" to defend himself now meant an additional extension
of the hearings beyond an acceptable limit. Even taking into account the
nature and extreme gravity of any charge or charges which could now be
preferred against the appellant, a change in the basis of the extradition,
more than seven years after the proceedings against the appellant were
opened, would be unreasonable. The right of defense in a criminal trial was
of the greatest importance, and was not to be sacrificed whatever were the
reasons for the delays in the proceedings against the appellant.
The final result, therefore, was the acquittal of the appellant, on the
basis of a reasonable doubt, Of the offence attributed to him in the
indictment.
The question of the "principle of specialty", within the framework of
extradition proceedings, therefore fell away.
In conclusion, the Court reiterated that, more than seven years ago, Ivan
Demjanjuk had been lawfully extradited from the United States to Israel.
The extradition was based on prima facie evidence. There was testimony
before both the District and the Supreme Courts that the appellant was a
member of the "S.S. Wachman Unit" of Trawniki, which was established for
the sole purpose of learning and teaching its members to destroy, kill, and
exterminate, in implementing the "final solution" of the "Jewish problem".
There was also evidence that after the appellant received his "Trawniki
Certificate", he was posted to Sobibor, one of three extermination camps
established by the German authorities of the Third Reich within the
framework of the "Reinhardt Operation". It was also shown that he served
with the S.S. in the Flossenberg and Regensburg concentration camps. The
appellant was therefore a member of a group of "S.S. Wachmaner" whose
purpose was murder and whose objective was genocide, and whose like is
unknown in the history of humanity.
The thrust of the indictment against the appellant was his identity as
"Ivan the Terrible", who operated the gas chambers in the Treblinka
extermination camp. A number of survivors of the hell of Treblinka
identified the appellant as "Ivan the Terrible", one of the main murderers
and persecutors Of the Jews who were brought to Treblinka on their way to
suffocation in the gas chambers, and for this he was convicted in the
District Court.
After the hearing of argument in the appeal, the Court admitted the
statements of a number of in which some person other than the appellant was
referred to as Ivan the Terrible of Treblinka. The court did not know the
origin or authorship of these statements, but admitted them as evidence
without formal proof of their authenticity. These statements raised
reasonable doubts as to the identity of the appellant as Ivan the Terrible
of Treblinka, and deterred the Court from convicting him on this charge.
In the result, the "Wachman" Ivan Demjanjuk is acquitted, by reason of
doubt, of the outrageous crimes attributed to Ivan the Terrible of
Treblinka. Judges, who are only human, cannot reach perfection, and it is
only right that they judge on the basis of what is placed before them, and
on that basis alone.
Jerusalem. July 29, 1993.
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