Newsgroups: alt.revisionism
Subject: Demjanjuk Case - Appeal Summary
Summary: 
Followup-To: alt.revisionism
Organization: The Nizkor Project, Vancouver Island, CANADA
Keywords: Sobibor,Treblinka,Demjanjuk

Archive/File: holocaust/poland/reinhard/demjanjuk demjanjuk.s4
Last-Modified: 1994/01/07
Subject: Unofficial Summary of Supreme Court Decision: Demjanjuk

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            DECISION OF ISRAEL SUPREME COURT ON PETITION CONCERNING
                    JOHN (IVAN) DEMJANUK ON AUGUST 18, 1993

                         UNOFFICIAL SUMMARY OF DECISION


    On August 18, 1993 the Supreme Court of Israel sitting as the High Court
    of Justice gave its decision on 10 petitions brought by survivors of the
    Holocaust  and  others demanding  that John  (Ivan) Demjanjuk should  be
    brought  to  trial  on  charges  of  war-crimes  at  Sobibor  and  other
    concentration camps.  These petitions follow the decision of the Supreme
    Court to acquit Demjanjuk,  by reaason of doubt,  of the brutal offenses
    attributed to Ivan the Terrible of Treblinka.

    The court of three judges dismissed the petitions.


    JUSTICE SHLOMO  LEVIN considered  in detail  the reasons  set out in the
    opinion of  the Attorney-General which argued against bringing Demjanjuk
    to trial. This opinion was based on four arguments:

    1) That a  further trial would infringe the rule of 'double jeopardy' in
    that Demjanjuk  would be standing trial for offenses in respect of which
    he had already been tried and acquitted.

    2) That the Supreme Court, in acquitting Demjanjuk of charges attributed
    to Ivan  the Terrible of Treblinka,  had stated that it did not think it
    reasonable  to  commence new  proceedings against  him,  in view  of the
    seriousness of  the offenses  with which  he had originally been charged
    and the nature and circumstances of the alternative charges.

    3) That on  the basis  of the  evidence available,  it was unlikely that
    Demjanjuk  would  be  convicted  of the  alternative charges,  and  that
    risking a further acquittal was not in the public interest.

    4) That Demjanjuk  was extradited  form the United States specifically to
    stand trial  for offenses  attributed to Ivan the Terrible of Treblinka,
    and not for other alternative charges.

    Justice Levin  noted that  under Israeli  law,  it was  established that
    authority in  criminal matters is vested with the Attorney-General,  who
    is authorized  to bring  charges in  any case  where there is sufficient
    evidence, unless he believes that there is no public interest in bringing
    the  case.  He  further  noted  that  the  Attorney-General  has  a wide
    discretion in  making such  a decision  and that  the Court  should only
    intervene  when   the  decision   is  so  untenable  as  to  be  totally
    unreasonable.

    Justice  Levin  went on  to consider  the arguments  put forward  by the
    Attorney-General. He found that it was not unreasonable to consider that
    bringing charges  against Demjanjuk might infringe the 'double jeopardy'
    rule.  Similarly,  it was  not unreasonable  to estimate that chances of
    convicting Demjanjuk  were small,  particularly  in view of the fact that
    none of  the survivors  of the Sobibor camp had identified him.  Justice
    Levin also  held that,  although  the opinion  of the  Supreme Court  as
    regards further  proceedings only  related to  the case  before it,  the
    Attorney-General  could  not  be  criticized  for  giving weight  to the
    Court's comments in this regard.

    Justice  Levin  considred  a  number of  other arguments  raised by  the
    petitioners, among them that a failure to bring Demjanjuk to trial would
    effectvely broadcast  a message  that the  time when  Nazi war criminals
    could be brought to trial has passed.  This,  he said,  was not so.  The
    obligation to  bring Nazis and collaborators to trial remains binding on
    every state, when there is evidence to substantiate the charges.


    JUSTICE  GAVRIEL  BACH noted  the difficulties  involved in  releasing a
    defendant  who  may  be  guilty  of  the barbaric  and bestial  offenses
    committed by the Nazis.

    Justice Bach  stated that he differed from his colleagues in that he did
    not attach  any significant  weight to some of the arguments put forward
    by the Attorney-General.  Among these was the argument that the decision
    of the  Supreme Court  acquitting Demjanjuk  of the crimes attributed to
    Ivan the  Terrible contained  a direction,  express  or implied,  not to
    institute further  proceedings against him.  The relevant portion of the
    court's decision,  stated  Justice Bach,  related  only to  the specific
    question whether the case should be referred back to the District Court.
    A case  should be referred back to a lower court when new evidence which
    may cast light on the charge in question is presented to the court. This
    was not  the situation before  the Supreme  Court; the question  was
    whether the  defendant should  be convicted  of offenses  at Sobibor and
    Trawniki,  charges substantially  different from those in the indictment
    before the Court.  For this reason,  stated Justice Bach,  the court was
    unable to refer the case back to the lower court. It was not the Court's
    intention ,  however,  to instruct the prosecutorial system on the issue
    of whether to bring additional charges.

    As regards  the argument that Demjanjuk had been extradited specifically
    to  stand  trial  for  offenses  attributed  to  Ivan  the  Terrible  of
    Treblinka, Justice Bach found that this also was not persuasive. Even if
    the consent  of the  United States  authorities was required in order to
    bring further charges,  such consent could be requested.  If the request
    was  refused,  no  charges  need  be filed  and the  defendant could  be
    deported.

    Accordingly,  if the  decision of the Attorney-General had been based on
    these considerations  alone,  Justice Bach  stated that there would have
    been grounds to intervene in the decision.

    However,  a  number  of  other  arguments put  forward in  favor of  the
    decision were not unreasonable. Among these was the possibility that the
    'double  jeopardy' rule  would  be  infringed.   The  Attorney-General's
    concern  in  this  regard  was supported  by the  fact that  Demjanjuk's
    presence in the Sobibor camp had been mentioned in the indictment and in
    other documents  submitted as  evidence in the original trial and in the
    appeal.  Moreover,  the prosecution  had argued  in the  appeal that the
    Court could  convict Demjanjuk  of offenses  committed at  Sobibor since
    these had  been proved  before the  Court,  and the defendant had had an
    opportunity to  defend himself  against these  charges.  Similarly,  the
    presence of Demjanjuk at Trawniki had also been considered by the Court.

    Justice Bach  also considered the argument that bringing further charges
    would  not  serve the  public interest,  since  evidentiary difficulties
    raised the likelihood of a further acquittal.  He did not feel that this
    consideration was unreasonable.

    Accordingly,  Justice Bach  concurred in  dismissing the  petitions.  He
    emphasized,  however,  that this should in no way be taken to imply that
    war criminals can no longer be brought to trial.  The Israeli legislator
    placed no  statute of  limitations on  offenses committed  by Nazis  and
    their collaborators,  and  in many  cases no evidentiary difficulties in
    proving the  identity and  activiites of the defendant arise.  Nazis and
    collaborators should continue to be found and brought to trial,  as long
    as they live.


    JUSTICE MISHAEL CHESHIN noted the grave responsibility that rests on the
    Court when  deciding whether to intervene in an administrative decision.
    He also  noted the inadequacy of the legal system,  which is designed to
    deal  with  behavioral  norms,  when  confronted with  the scale  of the
    atrocities committed by the Nazis.

    Justice Cheshin then considered the decision of the Supreme Court not to
    convict Demjanjuk  of the  charges other than those relating to offenses
    committed at  Treblinka.  In this  decision he  saw more  than a hint to
    conclude the  proceedings against  Demjanjuk.  He concerred with Justice
    Levin  in  finding  that  the  Attorney-General  was  entitlted  to take
    guidance  from  the comments  of the  court,  even though  strictly they
    related only to the proceedings actually before the Court.

    Justice Chesin  stated that  he saw no room to intervene in the decision
    of  the  Attorney-General,  and  that  he  concurred  with the  view and
    reasoning of Justice Levin.

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