State of Israel v. Ivan (John) Demjanjuk

Court	Supreme Court of Israel, Israel
Decision title	Decision on Petitions Concerning Ivan (John) Demjanjuk
Decision date	18 August 1993
Categories	Crimes against humanity, War crimes
Keywords	extermination, Murder, torture
Links	Decision on Petitions Concerning Ivan (John) Demjanjuk

Summary

The Nazis' widespread extermination of the Jewish population during World War II resulted in the loss of millions of lives. It was carried out primarily in concentration camps where hundreds of thousands of individuals were lead to the “showers” - gas chambers where they would be suffocated through breathing in gas.

John Demjanjuk, a Ukrainian national and a retired auto-worker residing in the United States, was extradited to Israel to stand trial for war crimes and crimes against humanity allegedly committed by him during his time as a guard at the concentration camp Treblinka, Poland. He was convicted by the District Court of Jerusalem and then acquitted by the Supreme Court of Israel on the grounds of mistaken identity. The Court found that although the evidence established that Demjanjuk was a Wachtman – an individual trained at a Russian camp to assist the Germans - there was a reasonable doubt that he was Ivan the Terrible, the notorious guard at Treblinka responsible for a number of crimes.

The present decision is a petition by 10 civil parties for new trial proceedings to be brought against Demjanjuk on the basis of his involvement not with the Treblinka camp, but with the camp at Sobibor. The Supreme Court dismissed the petition finding that new proceedings might violate the rule on double jeopardy, which prohibits individuals being judged twice for the same conduct.

Procedural history

Demjanjuk was a former car-worker from Ukraine who immigrated to the United States in 1952, becoming a US citizen in 1958.

On 23 June 1981, the District Court for the Northern District of Ohio revoked Demjanjuk’s citizenship on the grounds that he was found to have lied in his immigration application, in particular that he had misrepresented his place of residence from 1937 until 1948 and did not reveal that he had worked for the SS at the Treblinka concentration camp in Poland from 1942.

On 6 December 1982, deportation proceedings were commenced against Demjanjuk.

On 18 October 1983, the State of Israel issued an arrest warrant for Demjanjuk for crimes of murdering Jews, punishable under the Nazis and Nazi Collaborators (Punishment) Law. To this end, on 31 October 1983, Israel filed with the United States Department of State a request for the extradition of Demjanjuk pursuant to the 1963 Convention on Extradition between the Government of Israel and the Government of the United States (Extradition Treaty).

On 15 April 1985, the District Court for the Northern District of Ohio confirmed that the charges against Demjanjuk are extraditable offenses within the meaning of the Extradition Treaty. On 31 October 1985, this decision was upheld on appeal by the United States Court of Appeals (Sixth Circuit).

Demjanjuk was extradited to Israel in 1986 to stand trial. On 18 April 1988, the District Court of Jerusalem convicted Demjanjuk of crimes against the Jewish people, crimes against humanity, war crimes and crimes against persecuted people. He was sentenced to death.

On 29 July 1993, the Supreme Court of Israel overturned his conviction on the basis of new evidence which cast a reasonable doubt that Demjanjuk was not Ivan the Terrible.

Related developments

Demjanjuk returned to Ohio in September 1993.

On 17 November 1993, the United States Court of Appeals (Sixth Circuit) ruled that prosecutors had suppressed exculpatory evidence concerning his identity and rescinded the previous extradition order. On 20 February 1998, Federal District Court Judge Matia ruled that Demjanjuk’s US citizenship could be restored.

On 19 May 1999, the United States Department of Justice filed a new civil complaint against Demjanjuk alleging that he had served as a guard at the Sobibor and Majdanek concentration camps in Poland and the Flossenburg camp in Germany. He was additionally accused of being a member of an SS unit that captured nearly 2 million Jews in Poland.

On 30 April 2004, the Court of Appeals (Sixth Circuit) revoked Demjanjuk’s citizenship once again on the grounds that the Justice Department had presented clear, unequivocal evidence that Demjanjuk served in the Nazi death camps. Demjanjuk’s appeal to the Supreme Court was rejected on X November 2004.

On 28 December 2005, the Immigration Judge ordered that Demjanjuk should be deported to Germany, Poland or the Ukraine. Demjanjuk exhausted all his appeals and the deportation order was rendered final by the Supreme Court’s denial of review in May 2007.

On 9 December 2008, the German Federal Court of Justice ruled that the Munich court may try Demjanjuk if charges are brought by the State’s Prosecutor’s Office (see also ‘Court: Ivan the Terrible Can be Tried in Germany’, 11 December 2008)

On 2 April 2009, the German Foreign Ministry announced that Demjanjuk is to be transferred to Germany to start trial proceedings on 30 November 2009 (‘John Demjanjuk’s Trial in Germany to Start Nov. 30’, 6 October 2009).

On 14 April 2009, immigration agents removed Demjanjuk from his home in preparation for deportation. That same day, the Court of Appeals (Sixth Circuit) stayed Demjanjuk’s deportation order. This order was lifted on 1 May 2009. On 11 May 2009, Demjanjuk was deported to Germany.

On 30 November 2009, the trial against Demjanjuk commenced in Munich. Demjanjuk was convicted as an accessory to the murder of 27 900 Jews on 12 May 2011 and sentenced to five years’ imprisonment. Pending appeal, he was released from custody (see also ‘Court Finds Nazi Guard Guilty of Holocaust Deaths’, 12 May 2011).

Demjanjuk died 17 March 2012. His conviction was invalidated upon his death because the German Appellate Court had not yet heard the appeal. According to German law, no conviction stands until all appeal rights have been exhausted (‘Former Nazi Guard Demjanjuk Dies in Germany Aged 91’, 17 March 2012).

Legally relevant facts

In furtherance of the Nazi policy of exterminating Jewish persons, concentration camps were set up in a number of locations throughout Germany and Poland. Individuals were put to hard labour whilst others were exterminated in their thousands through extensive use of gas chambers.

The petitioners are Holocaust survivors demanding that John (Ivan) Demjenjuk, an SS Wachman (that is, an individual who had received training for Russian prisoners of war to act as guards for the Germans) stand trial for crimes committed by him during his time at Sobibor and other concetration camps.

Core legal questions

Did the Supreme Court’s ruling of 29 July 1993 declining to enter new charges against Demjanjuk on the basis of Section 216 amount to a direction not to institute further proceedings against him?
Can new proceedings be barred owing to the fact that Demjanjuk was extradited on the basis of the charges contained in the indictment and not the ones currently being proposed?
Would new proceedings breach the rule on double jeopardy?

Specific legal rules and provisions

Section 216 of the Criminal Procedure Law.

Court's holding and analysis

Section 216 of the Criminal Procedure Law provides that the Court may convict the defendant of an offence of which is shown to be guilty by the facts proved before it even though those facts are not alleged in the indictment, provided that the defendant has been given a reasonable opportunity to defend himself. The Supreme Court in its 29 July 1993 ruling chose not to apply the provision as providing Demjanjuk with a reasonable opportunity to defend himself would extent the hearings beyond an acceptable limit. The Attorney General advanced the argument that his amounted to a direction not to commence new proceedings. Justice Levin considered that the opinion of the Supreme Court only related to the case before it whilst Justice Bach held that the decision related only to whether the case should be referred back to the District Court, and was not an instruction on the issue of whether to bring additional charges.

The Court did not consider that the charges for which Demjanjuk had been extradited to Israel precluded proceedings against him on the basis of new charges. Justice Bach held that even if the consent of the United States was required to proceed further, such consent could be requested.

Regarding double jeopardy, the Court held that it was not unreasonable to consider that new charges might infringe the double jeopardy rule. Although Demjanjuk was not charged with crimes committed in camps other than Treblinka, his presence at Sobibor had been mentioned in the indictment and in other documents submitted as evidence in the original trial and on appeal, and the Prosecution’s arguments at appeal included the possibility of convicting Demjanjuk for crimes at Sobibor.

The Supreme Court thereby dismissed the petitions.