FACTUAL AND LEGAL DETAILS
JULY 28, 1993
The following pages present a review, outlining in broad strokes the chain of events of what eventually became the legal case of the State of Israel versus Ivan Demjanjuk.
The review presents the broader view of the history of the case and has no pretensions to giving an exhaustive account of or even encompassing the sea of factual and legal issues dealt with in the past 15 years in various courts of law in the United States and Israel.
CHAPTER ONE – THE DEMJANJUK CASE – U.S.A.
(1975 – 1986)
1. In October 1975, there came into the possession of certain members of the U.S. Senate a list of Nazi war criminals living so the document alleged in the U.S. The list gave the suspects’ names and personal particulars, in most cases also stating what they had done during World War II.
The information listed evidently emanated from material collated in the Soviet Union, consisting of authentic German documents captured by the Red Army when occupying territories under Nazi control in the summer of 1944.
One of the names appearing on the list was that of John Ivan Demjanjuk a U.S. resident since 1951 and a citizen of Cleveland, Ohio since 1958.
2. As listed, Demjanjuk (born April 3, 1920 in the Ukraine) was a soldier in the Red Army who, falling into German captivity, volunteered for service in the S.S, underwent training and preparation at the S.S. training camp in the township of Trawn iki, Poland, where he served from March 1943 as an S.S. Wachman at the Sobibor death camp, and later at the Floenbuerg concentration camp. (‘S.S. Wachman’ was the Nazi code name for the non-German S.S. hobnail-booted soldiers who aided the Germans in exterminating the Jews throughout the war years. The Wachmans actually fulfilled many functions in the process of realization of the ‘final solution’: commencing with the physical expulsion of Jews from their ghetto homes during ‘actions’, through packing them into cattle-trucks at the ‘umschlagplatz’, escorting and guarding them on the trains while shooting escapees, to mass executions, in which victims were forced into gas chambers at the death camps).
3. Nothing in U.S. statute provided for preferment of criminal charges for war crimes against suspects of Demjanjuk’s kind. The only way the State could take any legal action against him at all was by conducting a trial, starting with the filing of a complaint on grounds of obtaining citizenship on false pretenses, and ending with stripping the defendant of his citizenship. The fraud consisted of having concealed past actions that, had the authorities known of in real time, would not have granted him an entry visa to the United States, much less American citizenship.
Once he was denaturalized, the authorities had the option of initiating deportation proceedings against the defendant (if he did not preempt them by emigrating from the United States of his own volition) and/or proceedings for extraditing him to another country.
4. Once in possession of the list, some of the aforesaid senators hastened to forward it to the legal instance in charge at that time of filing lawsuits for the negation of citizenship (I.N.S.) a section in the U.S. Justice Department affiliated to the Department of Immigration and Naturalization. After a while, an analysis of the list was begun along with an initial research on the data it presented.
5. The preliminary I.N.S study of the Demjanjuk case focused on his immigration and naturalization dossier dating from the fifties. Among the papers in this file were forms he had filled out, applications he had submitted, and summations of interviews conducted with him by U.S immigration officers in Germany, during the years 1947-1951 when, as a displaced persons camp inmate, he expressed the wish to immigrate to the United States.
The said examination revealed that in one of the more important of these forms, dated March 4, 1948, where he was required to give particulars of members of his family and describe his own doings during the war, Demjanjuk himself warranted in writing that during and before the war he was a ‘farmer in Poland in a settlement called Sobibor’. (Demjanjuk signed his name to this form).
6. Cross-referencing between the information shown on the list (deriving, it will be recalled, from the U.S.S.R.), whereby Demjanjuk served with the S.S. as a Wachman at the Sobibor death camp and Demjanjuk’s own entries on the form he had himself signed in Germany, stating that he was in fact at a place called ‘Sobibor’ eventually assumed great significance.
7. A. The investigative activities of the I.N.S. at that time (1976), insofar as they related to nazi criminals, went on to target other suspects named by the same list in connection with incriminating information or indications of it. Thus for example, they researched the past of another criminal, Fyodor Federenko who, the list alleged, had been an S.S. Wachman at the Treblinka death camp in Poland, and later at the Stutthof concentration camp (Poland).
B. As regards both Demjanjuk and Federenko, the I.N.S. decided that apart from interrogating them and their families, an attempt would be made to locate witnesses in various parts of the world who might remember them and what they did during the war, in addition to any possible documentary evidence yielding proof of their crimes.
C. The I.N.S. investigative effort was directed, inter alia, towards Israel. Operating in Israel at that time was a police unit for the investigation of nazi crimes (INC), successor to the ’06 Bureau’ founded as part of the preparations for the trial of Adolf Eichmann.
D. Since the Eichmann trial, INC had undertaken numerous investigations most of them pursuant to official applications by investigatory authorities in various parts of the world. Evidence collected by the unit in Israel served as proof of nazi crimes in court cases conducted in various countries from time to time.
E. On February 20, 1976, I.N.S. sent INC a memorandum naming certain Ukrainians who were suspected of involvement in persecution and acts of cruelty towards people during the war, in the service of Nazi Germany. Ivan Demjanjuk and Fiodor Federenko were named in the memorandum as having operated in the Sobibor death camp (Demjanjuk) and Treblinka (Federenko). (This after undergoing training at the S.S. training camp in Trawniki).
INC was asked to make an effort to ascertain whether available witnes ses such as eye witnesses, able to supply information on any one of the suspects could be found in Israel.
F. Annexed to the memoranda were snapshots (of the passport photograph variety) of the suspects. These were to be shown to potential witnesses while being debriefed, and statements were to be taken from them on the subject. The photographs were mostly taken from immigration dossiers in the United States, proximity to real time being two years to eight years after the event.
8. A. In 1976 the INC called in for questioning a number of Israeli citizens listed as having been rescued from the inferno of Treblinka or Sobibor.
B. Most of these citizens, survivors of Treblinka, summoned for questioning due to the possibility of their having been acquainted with and able to recognize the nazi criminal Federenko – pointed in the course of their interrogation, when shown all of the photographs or part of them, to the photograph of Demjanjuk as of that of a Wachman they knew from Treblinka and remembered as ‘Ivan’ who operated the gas chambers there. (Some recalled that this individual was known as ‘Ivan the Terrible’ because of his notorious cruelty). Some on this occasion also identified the photograph of Federenko whom they knew as a ranking Wachman in Treblinka and of whom they also reported remembered details of his crimes there.
C. A female INC interrogator (a lawyer by profession) who was coordinating investigations concerning both Federenko and Demjanjuk, responded with surprise to the identification of Demjanjuk as a criminal from Treblinka. She did all she could to suggest to the interrogees the possibility that they might be mistaken, if only by reason of the fact that according to the information in the I.N.S. memorandum, Demjanjuk was an S.S. Wachman at the Sobibor camp; but to no avail. The interrogees stuck to their spontaneous identification, insistently repeating that this was a snapshot of ‘Ivan the Terrible’ of Treblinka.
D. All depositions taken from these interrogees, concerning both Federenko and Demjanjuk, were forwarded that same year (1976) to the I.N.S. for its consideration.
9. A. Denaturalization proceedings in the United States are inherently civil proceedings and accordingly subject to civil procedure laws and their derivative rules. In the course of these proceedings an exchange of correspondence took place in the Demjanjuk file, between them and the Court. Pleadings were written, interrogatories were exchanged, discovery of documents was instituted, depositions were taken in preliminary interrogations, and thus thousands more pages accumulated in the file before court hearings began.
B. In the summer of 1977, the I.N.S. instituted denaturalization proceedings against Federenko and Demjanjuk in respect of crimes committed during by them during World War II, as S.S. Wachmans. The action against Federenko was brought in Miami, Florida, and that against Demjanjuk in Cleveland, Ohio.
C. Demjanjuk was cited as having concealed acts of murder and abuse of thousands of persons at the Treblinka death camp (as operator of th chambers) and at Sobibor (after having trained for the job at the S.S. training camp at Trawniki); and consequently of having fraudulently obtained U.S. citizenship.
10. A. Federenko’s trial commenced as early as 1978, ended in 1979 with his denaturalization (Federenko admitted to having been a Wachman at Treblinka, thereby confirming the camp survivors’ identification of him. In his defense, however, he pleaded that he had not brought to the ground a single hair of the heads of the Jews at that camp, and that evidence against him was accordingly untrue. The District Court upheld the defense pleadings, dismissing the action against him; but on appeal, his defense was set aside and he was stripped of his U.S. citizenship.
The commencement of Demjanjuk’s trial, by contrast, was long delayed, and it was not until February 10, 1981 that the parties and the court were satisfied that the case was ripe for evidence to begin to be heard.
B. One of the reasons for the delay was that in 1979, after a series of congressional debates, (initiated by congresswoman Elizabeth Holtzman, a jurist) there was formed in the criminal division of the U.S. Department of Justice, a body given the title of ‘Office of Special Investigations’ (O.S.I.). The O.S.I. was mandated to do just one job to identify nazi criminals living in the United States, to investigate them, collect evidence against them, bring them to trial, strip them of their U.S. citizenship and deport or extradite them. To do this job, the O.S.I. assembled a team of jurists, attorneys-at-law, historians, researchers and service personnel; and was allocated an initial budget of U.S.$ 1.3 million.
C. With the creation of the O.S.I. (over the course of 1979) and upon completion of its initial formation stages, the I.N.S. transferred handling of the entire ‘nazi issue’ to the O.S.I.
D. The Demjanjuk investigation was then in full swing, and his file was examined by the newly created O.S.I. Thus it was not until February 1981 that the case crystallized and the Demjanjuk trial commenced in Cleveland, Ohio.
13. Demjanjuk was stripped of his U.S. citizenship by Federal Court Judge Frank Batisti of the northern district of Ohio, Cleveland, on June 25, 1981. In a lengthy, reasoned decision, the judge reviewed the historical background of relevant events, the evidence advanced by the prosecution and the defense’s counter pleadings, the evidence of the counsel for the defense and its pleadings and the weight they carried, and reached the conclusion that Demjanjuk had deceived the Court, that the version of the witnesses for the prosecution was the truth, and that Demjanjuk had obtained his citizenship under false pretenses, in as much as he had concealed the fact of his service with the S.S. in Treblinka and Trawniki. (The Court notes that since it had established findings regarding Treblinka and Trawniki, which sufficed for the defendant’s denaturalization, it had not gone into the details of Demjanjuk’s service with the S.S. at the Sobibor death camp).
14. A. Following Judge Batisti’s decision between the years 1981-1986 (when Demjanjuk was physically extradited to Israel), various legal proceedings took place in the United States concerning him.
B. Altogether, the various aspects of the subject were studied in the United States before ten legal instances which heard pleadings, reexamined evidence and studied factual and legal aspects of the case. Time and again the Courts reached the conclusion that Demjanjuk was a nazi war criminal against whom there existed evidence founded on crimes committed by him in the service of the S.S. in general and in the Treblinka camp in particular. It was accordingly decided that his denaturalization was just and his deportation and extradition to Israel based on solid evidence.
15. A. On February 26, 1986, Demjanjuk was brought to Israel accompanied by two U.S. government Marshals. This concluded a five-year chapter that had commenced with contacts between the U.S. government and Israel on the issue of the extradition of nazi criminals living in the United States and ended with Demjanjuk’s extradition.
CHAPTER TWO – THE TRIAL
(1986 – 1988)
1. Demjanjuk’s trial before the special tribunal (Supreme Court Judge Dov Levin, and Jerusalem District Court Judges Zvi Tal and Dahlia Dorner) was opened with the reading out session on November 26, 1986. For practical purposes, the hearings commenced only on February 16, 1987 and this primarily in response by the Court to applications for postponement filed by the defense, to enable it to prepare properly for the trial.
2. Demjanjuk was represented by Advocates Mark O’Connor and John Gil (U.S.A.) who were authorized by the Minister of Justice to represent him in Israel, and by the Israeli lawyer, Yoram Sheftel. At a later stage of the trial, the defense was joined by Adv. Paul Chumak (Canada). (Adv. O’Connor was dismissed toward the end of the hearing of the evidence for the prosecution and before the hearing of the evidence for the defense began).
3. A. The entire trial took place in the Binyanei Ha’uma, Jerusalem, where an appropriate infrastructure was set up, which would meet the complex needs of the conduct of this trial. In fact, everything involved in the conduct of the trial was assembled in one building: the courtroom, the judges’ chambers, Demjanjuk’s detention room where he also met with his attorneys, the offices of the prosecution and the defense, the interpreters’ offices and translation rooms. Offices in which the recorded minutes could be taken down and typed simultaneously in Hebrew and in English. Offices for the security and guard services, telephone and facsimile services, and communication services for the general public and the press and more.
B. One of the considerations that tipped the balance in favor of exposing the entire course of the trial to the public in Israel and the rest of the world was the loudly voiced complaints as to the inability of the judiciary system in Israel to conduct a trial properly against one suspected of nazi crimes, since this was the ‘victims’ state’. The accessibility of the judiciary hearings as stated enabled anyone who wished to follow the course of the trial.
C. Another important reason adduced as to why the trial should be held in the Binyanei Ha’uma, was the unprecedented interest of the media and the general public at home and abroad in this trial. This interest led the parties concerned to conclude that the ‘open court’ principle would be duly put into practice at this trial, only if everyone who so wished could be part of the public in attendance in the courtroom or could watch the proceedings through the media.
4. A. The general framework of the conduct of the case in Israel was dictated in practice long before Demjanjuk was brought to trial. This by the very fact that the State of Israel’s application for extradition was based on the testimony of the identification witnesses from Treblinka as given to INC as early as 1976 and 1979 and as confirmed either in evidence (in the United States) or in depositions (in Israel) in the years that followed. It thus appeared that the fulcrum of this case would stabilize around Demjanjuk’s crimes at Treblinka and the evidence proving those deeds of his would rest on the testimony of the identification witnesses, as described. In practise, the case proceeded along three channels of evidence, whose accumulation was intended to prove (the acts) imputed to Demjanjuk in the indictment: membership in the S.S., training at the camp at Trawniki, crimes at the Treblinka death camp as operator of the gas chambers there and at the Sobibor death camp.
B. The defense claimed all along that Demjanjuk had fallen into German captivity where he remained throughout the war, that he never volunteered to serve with the S.S. and that he was therefore not a member of the killing team at the camps of Treblinka and Sobibor or an operator of the gas chambers as alleged in the indictment.
5. A. The court sittings were held continuously morning and afternoon on Mondays, Tuesdays, Wednesdays and Thursdays.
B. The inaugural session, on February 16, 1987, was dedicated to the hearing of all questions relating to the competence of the State of Israel to judge Demjanjuk (general competence and specific competence in light of the laws of Israel and the United States and the inter- state treaty), written summations were presented (including pleadings, appendices and judgments) and oral pleadings were heard. After the Court had given its decision whereby the indictment and the offenses imputed to Demjanjuk were consistent with the wording of the extradition treaty and the intention of the U.S. authorities and that the Court was competent to judge him, the opening arguments of the prosecution were heard and the recital of the evidence for the prosecution began.
6. Its first twenty-one sessions (February 1 through March 20, 1987) were dedicated to the issue of Demjanjuk’s crimes at the Treblinka death camp. The prosecution also put on the witness stand those survivors of Treblinka who had pointed to the photograph of Demjanjuk as the man they remembered as operating the gas chambers at the camp. Likewise, written evidence was submitted and the testimony was heard of the police interrogators who had conducted the investigation in which the aforesaid identification was made back in 1976.
7. The months April to July 1987 were devoted to the hearing of testimony and the submission of evidence on the other two central issues:
A. Proof of Demjanjuk’s being an S.S. man who had volunteered to serve at Trawniki and Sobibor.
B. Refutation of the alibi alleged by Demjanjuk.
8. As to Demjanjuk’s enlisting in the S.S., his preparation and training at Trawninki and his service as a member of the killing team at the Sobibor camp the ‘Trawniki certificate’ constituted a central axis of evidence. The ‘Trawniki certificate’ is an original nazi certificate of Demjanjuk’s containing his portrait photograph, his personal particulars, his S.S. service number (1393) and a record of his being posted to two places where he served during the war period Okshov and the Sobibor death camp.
The certificate was sent to Israel from the U.S.S.R., having been located there in an archives in which were kept nazi documents captured by the Red Army in the summer of 1944 and thereafter.
Contrary to the approach which governed the proceedings in the United States, the certificate was perceived by the Prosecution in Israel as a most important piece of evidence in proving Demjanjuk’s guilt from both the factual and the legal point of view.
First, the prosecution was of the opinion that this was preponderant unambiguous evidence of Demjanjuk’s being an S.S. soldier, who underwent training and preparation at the S.S. camp at Trawninki, which is to say that it determines his general status. Not an innocent man as he pleaded but a nazi criminal of the worst kind.
Second, the certificate enables the determination to be made that Demjanjuk was one of a limited number of Wachmans chosen to serve as murderers at the death camps particularly Sobibor on March 27, 1943. Out of several million Russian prisoners of war, held at the POW camps of nazi Germany, only about 5,000 volunteered to serve the S.S. in various capacities. Of these, serving at camps whose sole purpose was nothing but killing (as distinct from concentration camps or forced labor camps) about 500 Wachmans only. This determination has a direct bearing on Demjanjuk’s crimes. And indirectly the Prosecution alleged, it also placed him nearer Treblinka. A not less important incidental result was the absolute refutation of the alibi plea based on the certificate, since it was not possible to be a POW in detention, and an S.S. man holding such a certificate at one and the same time.
This view of matters prompted the prosecution to invest great efforts, so that the proof of the veracity of the certificate, with all that that implied, would be completely unbreachable. What made the point even sharper was the fact that since the case began to be conducted in the United states and all along the way the main plea of the defense was that the certificate was a KGB forgery, that no such certificates were ever issued to Wachmans, and that this one had been created from scratch and sent to the United States in order to incriminate Demjanjuk in the eyes of the U.S. authorities.
Accordingly the need to prove the bona fides of the document from every possible aspect led the prosecution to present in court three sets of evidence on the subject.
– An historical set: which was analysed with the aid of experts from Germany having a perspective and historical expertise on the one hand and German witnesses having served with the S.S. at Trawniki in the relevant years on the other hand everything written on the certificate, including stamps, signtures, ranks etc., so as to prove that they were consistent with the facts as they had actually been in real time.
– A forensic set: proved with the aid of local and foreign experts the authenticity of each element found on the certificate and which was verifiable: either by analyzing the document and the signatures and examining them by way of document comparison, or by chemical and other analyses of the paper on which the certificate was written, fountain pen ink, typewriter ribbon ink, the ink of the stamps on the certificate, the printed lettering, the typed lettering, the photographic paper of Demjanjuk’s photograph on the certificate, glue and other stains on it, marks of attrition, grooves, creases, perforations etc.
– Attributing the certificate to Demjanjuk: an application to prove that writing and entries on the certificate correspond to his personal particulars, including a comparative anthropological analysis of his facial features, as appearing on the passport photograph thereon with other known passport photographs of Demjanjuk’s.
Also testifying was a Prison Service physician Dr. Zigelbaum, as regards two important medical details: the location of a scar on Demjanjuk’s back a detail appearing in the German entries on the Trawniki certificate as a special identifying mark of the bearer of the certificate and thereby imparting to the certificate yet another touch of authenticity. A scar was likewise found under Demjanjuk’s left armpit remaining from the S.S. tattoo that existed there in the past, and which was removed by Demjanjuk after the war, by reason of being so incriminating.
9. To the matter of the alibi: Apart from the need to prove that Demjanjuk lied in his contradictory versions regarding his alibi, expert witnesses were called to prove the implausibility of his version under the conditions and circumstances he described, in view of the knowhow existing from an historic point of view. Here numerous documents submitted in evidence were combined with the testimony of expert witnesses being military historians and researchers specializing in the matters under review.
10. During this period, two enquiries were held in Germany on behalf of the prosecution:
(A) On June 9, and June 11, 1987 the testimony was heard in Berlin of Otto Horn German S.S. man at Treblinka who in a photographs identification session identified, even during the O.S.I. investigations (1979), the photographs of Demjanjuk as Ivan, operator of the gas chambers at Treblinka. This enquiry took place before an examining magistrate in the presence of the Israeli court which travelled to Berlin for the purpose. The hearing was conducted in a manner similar to the Israeli hearing, i.e. Horn was subjected to a main examination and to reexamination, and the Israeli court judges were also enabled to ask a number of questions.
(B) On May 18, 1987 an enquiry was conducted in Cologne, Germany, of Helmut Leonardt, an ‘administration officer’ at Trawniki. Here too, the enquiry was held before an examining magistrate; the parties were enabled to question the witness in examination in chief, cross examination and reexamination. This witness cast additional light on the question of the authenticity of the Trawninki certificate in recognizing also the type of document and the signatures and particulars set forth therein.
11. On July 20, 1987, the case for the prosecution was concluded and the case for the defense began.
After the opening argument of the counsel for the defense, Demjanjuk was called to the witness stand as No. 1 witness for the defense. His interrogation lasted five days (between the end of July and the beginning of August) covering everything he had done during the pre-war period, during the war, after the war (when he spent several years in Europe) and during his life in the United States until his being extradited to Israel.
At the other sittings up to August 19, 1987 (7 sittings), the defense put on the witness stand two female expert witnesses from the United States who were to prove that the Trawniki certificate was a forgery.
Due to the illness of one of the panel judges, hearings in the trial were suspended until after September 19, 1987, and resumed only on October 26, 1987.
Between October 26, 1987 and January 11, 1988, (30 sessions) the defense called to the witness stand:
(A) Additional expert witnesses to prove its allegation regarding the forgery of the Trawniki certificate. These witnesses were primarily from the United States and Europe while two were from Israel.
(B) Expert witnesses historians to prove the plausibility of the Accused’s alibi plea and to contradict the testimony of the prosecution’s expert.
(C) An expert witness on issues of memory and identification parades: a Professor of psychology from the Netherlands.
(D) In January 1988 there took place in Germany an enquiry of the German S.S. officer, Rudolf Rais ‘administration officer from Trawniki’. This enquiry, this time on behalf of the defense, took place in a format identical to that of the prosecution’s enquiries. (The Court was not present at this enquiry). This enquiry too, related to the allegations of the certificate’s being a forgery.
12. The summings-up in the case were heard at two stages:
(A) First stage summings-up by the prosecution end of January beginning of February 1988 (8 sessions).
(B) In March 1988 the defense submitted additional written evidence.
(C) Second stage completion of the summings-up of the prosecution and the defense after the aforesaid additional evidence March 1988 (3 sessions).
13. A. The protocols of the Demjanjuk trial (not including the verdict) hold 10,684 pages (in Hebrew) and some 15,000 pages (in English).
B. To date of the verdict, there were submitted on behalf of the prosecution 290 exhibits; and on behalf of the defense 177 exhibits. The exhibits hold some 5,000 additional pages (usually in both the original language and translation).
14. On April 18, 1988 the verdict was given, occupying 144 pages. Demjanjuk was convicted on all counts imputed to him in the indictment.
The greater part of the judgment naturally relates to the question of the quality of the identification and its veracity, based on the entire body of evidence adduced. A not inconsiderable part of the judgment of course discusses all the other questions and aspects reviewed above, including the authenticity of the Trawniki certificate, Demjanjuk’s service at the Sobibor death camp and the refutation of his alibi.
The verdict ends with the conclusion that there was no doubt left in the mind of the Court as to Demjanjuk’s having been a Wachman in the service of the S.S., who was trained for the work of murder at Trawniki, operated the gas chambers at Treblinka and there earned the nickname of ‘Ivan the Terrible’, and also as having served later as a Wachman at the Sobibor death camp.
15. On April 25, 1988, after the pleadings of both sides regarding the penalty were heard, Demjanjuk was sentenced to death.
CHAPTER THREE – THE APPEAL – STAGE I
(1988 – 1990)
1. The notice of appeal filed by the defense occupied 101 pages and reopened the hearing on all matters and all bones of contention that had come up between it and the prosecution in the district court. A plea that constantly recurred in the entire notice of appeal, was that the court that had sat in judgment was biased against the defense counsel and against the appellant, and this fact had clouded its judgment and made it blind to the reality of the evidence. Accordingly, the defense counsel said, inasmuch as this defect touched on the root of the matter, the Court had issued a judgment that was entirely erroneous, and the Appellant ought rightfully be acquitted of all charges.
2. In the period from April 25, 1988 (date of sentence) to May 14, 1990 (date of commencement of the hearing of the appeal) there took place numerous sessions of the Supreme Court, in which various issues of the case were discussed, additional evidence was admitted in appeal, and an additional enquiry was conducted in Germany of a female defense witness, whose testimony was alleged vital to establishing the plausibility of Demjanjuk’s alibi plea.
3. A. On May 14, 1990, the Supreme Court convened in a panel of five judges to hear the appeal itself. Heading the panel was Justice Meir Shamgar, along with Deputy President Menahem Eilon and Justices Aharon Barak, Eliezer Goldberg and Yaakov Meltz, and the hearing of the appeal commenced.
B. The defense pleaded its case May 14-29, 1990 (ten sessions). The prosecution responded by pleading its case May 31-June 20, 1990 (twelve sessions). The defense counsel responded last June 26-28, 1990 (three sessions).
4. As stated, the appeal itself related to all the subjects reviewed before the lower court most of them factual matters, even though legal issues also featured prominently.
A. The defense again attacked the identification issue in detail, and again produced its version as to the Trawninki certificate being a forgery analyzing the testimony of the experts and attacking the findings of the lower court, even in matters of decision based on the confidence placed by the court in a certain expert, preferring him over an expert of conflicting opinion. The defense again advanced the Appellant’s sweeping alibi plea, n amely that throughout the period relevant to the indictment the Appellant was being held in a prison camp and never enlisted in the service of the S.S. and above all, the following plea was repeatedly advanced: ‘The Court had a deep-seated bias against the Accused and against the defense counsel from which it did not free itself throughout the trial period. This bias nourished itself from the press and found expression in overt hostility toward the defense counsel, in erroneous interim decisions and in a judgment which is fundamentally tainted’.
B. The prosecution, in its reply, answered the pleas put forward by the counsel for the defense, relying on the evidence before the court, including that which had been added, and with reference to the determination of the lower court on the subject.
5. Upon conclusion of the hearing of the parties’ pleas in the appeal, the court adjourned to study the material in evidence, in voluminous protocols and pleadings in order to give its decision on the case.
6. A. In the period from the passing of judgment in April 1988 to the end of the hearing of the parties’ pleadings in the appeal there occurred number of developments obliging the prosecution, in line with its concept of its role in the case in general and in this trial in particular, to endeavor to thoroughly investigate various aspects of the issues reviewed in the trial.
B. The prosecution assessed that evidence material found in the U.S.S.R. might shed light on these issues and that the thaw in international relations between the two states should be utilized for initiating measures that would perhaps afford it access to the aforesaid potential material.
C. The account of the prosecution’s contacts with the U.S.S.R., including the discovery of the evidence material there described in the next chapter.
CHAPTER FOUR – RELATIONS WITH THE SOVIET UNION TO THE SECOND STAGE OF THE APPEAL AND THE PLEADINGS THEMSELVES
1. A. Even before Demjanjuk was extradited to Israel by the U.S., the State of Israel made attempts to apply to the prosecution authorities in the Soviet Union, in any possible way. The prosecution sent the Prosecutor General of the U.S.S.R. lengthy and detailed applications, both written and oral, explaining its intention of bringing Demjanjuk to criminal trial, giving details of the offenses imputed to him, in the spirit of the indictment about to be brought against him, and in accordance with the facts already established in various courts in the United States.
B. In these applications an attempt was made to secure the assistance of the U.S.S.R. in all relevant evidence material found in its possession and which might adduce further information on Demjanjuk’s crimes in the era of nazi rule, about Treblinka in general, and specific additional aspects connected with the evidence material in the file, including an effort to resolve the problems therein.
C. Despite the aforesaid effort (which lasted also throughout the hearing of the case before the special tribunal in Jerusalem), no relevant evidence material was received from the U.S.S.R., except for the Trawniki certificate which arrived even before the trial commenced, and three other certificates of the same kind which arrived in Israel in the summer of 1987, and were likewise submitted in evidence in the trial (at the stage of the defense’s evidence).
2. A. Immediately after judgement was pronounced in the spring of 1988, the prosecution embarked on a new series of contacts, with the aim of arriving at direct dialogue with members of the Soviet Prosecution General.
B. In the then situation of absence of diplomatic or other relations between the two states, the prosection had perforce to act indirectly, through brokers, both in the west and in the East Bloc. Thus there were operating at the same time persons close to the ruling junta in the U.S.S.R. and office holders having regular working relations with the Prosecution General and other sources.
C. After several months, various sources contrived to mediate between the offices, and representatives of the Israeli Prosecution me representatives of the Chief Prosecutor’s Office of the Soviet Union.
D. Even if the meeting, by nature, could not yield immediate fruit, these qualified relations, once having been created, were cultivated by the Israeli prosecution for a period of two years, while awaiting an opportune moment in which it would be possible to widen the tiny aperture and even take some practical steps in the U.S.S.R.
3. The opportune moment arrived with the change in the political situation within the Soviet Union in 1990. Then too, relations between the two Prosecution offices thawed to the point where after a series of applications and mutual discussions, the General Prosecutors’s Office of the U.S.S.R consented to allow representatives of the Israeli prosecution to come to Moscow, as official visitors, to study there any protocol of the trial conducted against the criminal Fiodor Federenko in the summer of 1986, in the town of Semapropol in the Crimean Peninsula [Federenko, it will be recalled, was a Wachman at Treblinka, who was deported from the United States to the Soviet Union after being denaturalized]. The prosecution believed it ought to study these Soviet files if only by reason of the fact that they consisted of twenty two thick volumes of investigation and trial material and might yield evidence relevant to the present trial too. Thus, in December 1990, (about six months after the end of the pleadings in Demjanjuk’s appeal before the Supreme Court as stated), two representatives of the prosecution went to Moscow and there studied the Federenko file and all the material of the investigation and trial contained in it (all of it being in Russian) for several days.
From an examination of the material in the file and from talks with representatives of the Soviet prosecution who had conducted the trial in 1986 and with members of Office of the Prosecutor General in Moscow, it became apparent that as early as 1944 and thenceforth, the investigative and judiciary authorities in the Soviet Union had been spotting Wachmans, being citizens of the Soviet Union, who had operated at the death camps and concentration camps to all intents and purposes as S.S. officers. These criminals had been arrested, interrogated and tried, some had been executed and others had been sentenced to long prison terms. The investigations and trials were held in various states throughout the Soviet Union, but primarily in the Ukraine. Inter alia, it transpired that investigations and trials had been conducted against S.S. Wachmans who had committed crimes at the death camps of Treblinka and Sobibor.
Passages from these investigations as expressed in statements, testimony and documents were submitted in evidence at the trial of Federenko in 1986 insofar as they pertained to his crimes or to crimes of Wachmans in general, at the camps where Federenko had operated.
As to matters relating to the trial of Demjanjuk in Israel, the representatives of the prosecution found in Federenko’s file an abundance of relevant material, except that the trouble was that most of it, as presented there, was split up and copied in various parts from the originals meaning from the files of the investigations and trials of other Wachmans that had been conducted throughout the U.S.S.R. during 1944 and 1962.
From December 1990 to June 1992 the two representatives of the Israeli prosecution engaged, in the course of several visits to Moscow, and later also Kiev, in reading a great deal of evidence material collected for them, at their request and in accordance with their directives, from various K.G.B. archives throughout the U.S.S.R.
The subject material concerned crimes of Wachmans who had engaged in the killing of Jews at Treblinka, Sobibor and other camps. It emanated from the investigation and trial dossiers of those criminals.
Out of this whole sea of material, the prosecution brought to Israel the essentials of the evidence, directly impacting on key issues, under review in the Israeli court during the years the case was being conducted here. (This due to constraints of language, quantity and, of course, the Russians’ preparedness to cooperate).
It should be noted that the prosecution actually managed to persuade the Muscovite judiciary authorities to enable the defense itself to study all the evidence material in Moscow. Dates were set for this and the defense counsel was informed of them, but the defense did not appear to study the material throughout the entire week allotted to it.
4. Essentially, the evidence material found by the prosecution contained the following:
A. Statements and evidence by Wachmans from Treblinka (including photographic identification parades), which in addition to describing the horrors perpetrated by them there related to other Wachmans who took part together with them in these crimes. Inter alia, it emerged from their depositions, that the name of the operator of the gas chambers at Treblinka was Ivan Marchenko (some actually pointed to various photographs as bearing the picture of this same Marchenko) for example, the ‘passport’ photograph found on the official certificate from Trawniki Personalbogen No. 476 belonging to a Wachman named Ivan Marchenko, or a photograph of two Wachmans, of which one it was said that he was the aforesaid Marchenko).
Note: In view of the defense allegations based on this evidence, that it emerged unequivocally from the statements that the operator of the gas chambers at Treblinka was Ivan Marchenko and not Ivan Demjanjuk the prosecution analyzed the evidence in great detail and pointed to the significant difference existing between a superficial reading of it on the one hand and its true contents on the other. This of course has implications for the issue of the identity of the operator of the gas chambers at Treblinka.
B. Statements and testimony by Wachmans from Sobibor some of whom had previously served at Treblinka and who describe the horrors of their deeds there, emphasize the absolute identity between the two ‘death factories’ as they put it Treblinka and Sobibor.
C. In statements of the Wachman Ignat Danielczinko, the file of whose 1949 trial was located and brought in its entirety to be studied in Moscow, it it emerges that even in 1949 he attested in the course of his interrogations to the fact that together with him, in the spring of 1943, there served at the Sobibor death camp a Wachman named Ivan Demjanjuk. Danielczinko gives identifying details as to Demjanjuk and especially adds that after their acts at Sobibor, he and Demjanjuk transferred together to the Fluessenberg concentration camp, where they were tattooed with the S.S. inscription under their left armpits. (Demjanjuk had such a tattoo which he had removed after the war). In the file is also a certificate of service of Danielczinko, which is identical to the Trawniki certificate of Demjanjuk and many other important details).
D. Original German posting lists, from the era of the nazi rule, in which S.S. Wachmans are posted for service at various death camps and concentration camps.
One of the items found was a list of postings of Wachmans to the Sobibor death camp dated March 26, 1943, containing Demjanjuk’s name together with all his true personal particulars (date of birth, where born etc.). Also found was a list of Wachman postings from October 1943 to the Fluessenberg concentration camp, where Demjanjuk’s name also appears as one of the Wachmans sent to serve there, with all his personal particulars alongside his exact name.
E. In addition to the above mentioned lists, there was discovered in another archives in the (former) Soviet Union a disciplinary complaint sheet against Demjanjuk and three other Wachmans, for a breach of orders prohibiting them from leaving the area of the Maidanek concentration camp in January 1943.
F. The representatives of the prosecution also sorted out from these files authentic German documents, statements and depositions, directly impacting a wide diversity of topics that came up during the years of hearing the case.
5. This evidentiary material was naturally collected in stages, and between one stage and the next the prosecution in Israel would analyze it and form a view on where to look for additional material so as to complete the picture (the material, most of which is written in Russian handwriting, was of course translated into Hebrew, to enable both the defense and the Court to study it in depth).
From the first time the representatives of the prosecution returned from the Soviet Union and met for a hearing in court together with the defense, the prosecution kept the Supreme Court informed of each and every stage of the discovery of this material. The prosecution informed the court of the content of the material and eventually the material original and translation was submitted in evidence to the court. The defense counsel for his part, would apply to the court whenever the prosecution delivered to it material from the U.S.S.R. with vigorous applications to conclude Demjanjuk’s trial ‘at once and with a complete acquittal’ of all the offenses with which he was charged. His argument was that the material brought by the prosecution probably indicated that the operator of the gas chambers was another man named Ivan Marchenko, and not Ivan Demjanjuk the Appellant.
All these applications were reviewed at length by the Court. In the hearings the parties set forth their pleadings in great detail, citing quotations from the evidence already given, and the Supreme Court decided once more not to release Demjanjuk at once, and to enable the prosecution to go on investigating and to continue to bring all relevant evidence material that it could find from the K.G.B. archives.
6. Following the discovery and deciphering of the evidence material relating directly to the Appellant in various documents in the U.S.S.R. an effort was made to trace additional material in his case in the west (this time in the context of his service in the Fluessenberg concentration camp a concentration and death camp located on the border between west Germany and Czechoslovakia). This attempt resulted in the discovery of the end of a thread found in the National Archives of West Germany in the town of Koblenz, Germany.
Two representatives of the prosecution established contact with the directors of the archives and after ascertaining that a body of evidence did in fact exist, that concerned the Fluessenberg concentration camp, they made the trip, sought among tens of thousands of documents, and found three authentic German documents relating directly to Demjanjuk.
1. ‘Ascent of Guard’ Form – A list, dated October 1944, of Wachmans accompanying prisoners to forced labor at the Fluessenberg concentration camp, with Demjanjuk’s name appearing in the list together with his personal number from Trawniki 1393 (the same number appearing in the certificate!) (also the name of Danielczinko appears along with his personal number 1016 identical to what was already found in the U.S.S.R. in his trial dossier there dating from 1949).
2. Wachmans postings list – List of 117 Wachmans from Fluessenberg with Demjanjuk’s name appearing with personal number 1393.
3. Armory ledger – A ledger containing exact entries of all weapons distributed to Wachmans on their arrival to serve at the Fluessenberg camp with inter alia the names of Demjanjuk and Danielczinko as having received a rifle and a bayonet on October 8, 1943.
7. In June 1992, ‘supplementary pleadings’ were heard in the appeal in the course of which the parties summed up all the evidence in the case, with everything existing in it, especially in view of the great amount of material added to the file by the prosecution from the end of the pleadings in the appeal in the summer of 1990 to June 1992.
Altogether the prosecution adduced an additonal 100 exhibits on its behalf, all of them from the Soviet Union. These documents occupy about 1,800 pages in Russian handwriting and along with their Hebrew language translation. The defense added about 30 exhibits.
8. With the conclusion of the summing up of the parties as aforesaid, the Supreme Court turned to an examination of the case which had doubled its volume.
The decision of the Israeli Supreme Court will be presented on Thursday, July 29, 1993.
||DECISION OF ISRAEL SUPREME COURT ON PETITION CONCERNING JOHN (IVAN) DEMJANUK – 18-Aug-93|
||THE DEMJANJUK APPEAL: SUMMARY BY ASHER FELIX LANDAU – 29-Jul-93|